Privacy Suit Could Empower Juries as ‘Super Editors’

An invasion-of-privacy lawsuit in a San Diego murder case has news organizations throughout the United States worried that the courts may soon begin turning juries into panels of “super editors” empowered to judge which details in routine stories of public events should be published.

The lawsuit has its origins in the brutal rape and murder of a San Diego woman in the summer of 1981. The victim’s roommate discovered the body on the living room floor and an intruder still in the apartment, standing just 5 feet away. As she stood in horror, he fled.

The next day, the woman was identified by name in the San Diego County edition of the Los Angeles Times as the person who had found the victim’s body. A year later, charging invasion of privacy and negligence in revealing her identity, she filed a $3-million suit against The Times.

Publication of Name

Court documents in the case, Jane Doe vs. Times Mirror Inc., charge that publication of the woman’s name made her a “walking target” for the killer, who has never been apprehended. She also charges that she subsequently lost her job as a bartender, moved from San Diego in fear for her life and developed psychiatric troubles and a heavy drug-abuse problem.

Lawyers representing Doe contend that basic freedoms of the press must be balanced against the individual’s right to privacy, and that in this particular case, there is no valid journalistic reason for having identified the woman by name. They also question whether newspapers should ever publish the names of witnesses to murders.

Although it has argued that the courts have given newspapers an absolute right to publish accurate information about public events, The Times has failed in a series of attempts to have the case dismissed.

The most serious setback to the newspaper came in February when California’s 4th District Court of Appeal ruled in a 2-1 decision that a jury should decide whether publication of Doe’s real name was newsworthy and necessary to the story.

“Truthful reports of recent crimes are of public interest and generally protected by the First Amendment,” wrote Justice Howard Weiner in the majority opinion. “However, while the general subject matter of a publication may be newsworthy, it does not necessarily follow that all information given in the account is newsworthy.

“Whether a publication is newsworthy depends upon community mores,” Weiner continued. “If there is room for differing views whether a publication would be newsworthy, the question is one to be determined by the jury and not the court.”

In its ruling, the court also strongly endorsed Doe’s argument that society’s interests in catching a murderer can outweigh press freedoms.

“We conclude that where an individual observes and can identify a suspected murderer who is still at large, the First Amendment provides no absolute protection from liability for printing the witness’ name,” the court ruled. “The individual’s safety and the state’s interest in conducting a criminal investigation may take precedence over the public’s right to know the name of the individual.

“Although names may appear in public records and normally be public information, this does not mean the press can print names in connection with sensitive information with impunity.”

‘Matter of Law’

The decision, which created new legal precedent in California giving decision-making power to juries in First Amendment cases previously reserved for judges, triggered strong criticism from media law experts, as well as the dissenting judge in the case, Justice Edward T. Butler. He wrote that Doe “walked upon a public stage” when she found the murder victim.

“As a matter of law, the publication of Doe’s name was newsworthy,” Butler wrote. “Should the majority view prevail, I forecast the weather in newsrooms across the state as continued freezing temperatures, with chilling effects on First Amendment guarantees of freedom of the press. . . . The reporter and the editor are now hostage to the paranoiac, the psychotic, the schizophrenic, whose reactions to publication now determine the scope of First Amendment media immunity.”

Seeking to overturn the 4th District court decision, The Times asked the California Supreme Court to review the case, but the request was rejected on May 19. An appeal to the U.S. Supreme Court is planned, Times’ lawyers said. On June 3, in response to a Times request, Justice Sandra Day O’Connor granted a temporary stay barring the San Diego courts from setting a trial date. She lifted the stay Monday, however, and a trial could be set as early as January.

“Right now, the 4th District decision is the law, at least the law in California,” said Rex S. Heinke, who represents The Times. “To me, that’s rank censorship. I think this creates a whole new area of potential liability for newspapers by holding that publication of the name of anyone involved in a criminal incident may be the basis for a lawsuit.”

Joining The Times in seeking a higher-court review of the 4th District opinion are dozens of news organizations throughout California and the nation, including the New York Times, the Washington Post, CBS Inc., McClatchey Newspapers, the Los Angeles Herald Examiner and the San Francisco Chronicle.

‘Newsworthy Events’

“Most troubling is the suggestion that names cannot routinely be published in connection with reports of newsworthy events,” wrote George Freeman, attorney for the New York Times. “This runs directly counter to the basic tenet that a newspaper’s credibility and a reader’s belief in the press’ veracity is enhanced by the use of real names. . . .

“Equally troubling is the suggestion that a jury should sit as a sort of ‘super editor’ to decide in retrospect whether or not an event was newsworthy and whether any given item of information presented in a news report about such an event was newsworthy and should have, in fact, been included.”

As they continue their legal arguments during the pretrial stage, both sides in the case have cited legal precedent supporting their positions.

Doe’s lawyers, Brian D. Monaghan and David A. Niddrie of San Diego, have relied heavily on a 1982 Missouri case, Hyde vs. City of Columbia, which was decided in favor of a woman whose name and address were published after she was abducted by a man who subsequently terrorized her. In that decision, the Missouri court observed:

“The name and address of an abduction witness who can identify an assailant still at large before arrest is a matter of such trivial public concern that a news medium owes a duty in such circumstances to use reasonable care not to give likely occasion for a third party to do injury to the plaintiff by the publications. . . . Common decency considers such information of insignificant public importance compared to the injury likely to be done by the exposure.”

One issue in the Doe case is whether the woman’s name was obtained from official records of the San Diego coroner’s office. Former Times reporter Amy Rinard Chance, now a reporter for the Sacramento Bee, says she was given the name by the coroner’s office over the telephone, but Doe’s lawyers have argued that she might have learned it from unofficial sources.

Legal Significance

The legal significance of that dispute is that the leading U.S. Supreme Court case favoring the press in privacy conflicts is narrowly framed in terms of information gleaned from public records. In that 1975 case, Cox Broadcasting Corp. vs. Cohn, the Supreme Court deliberately avoided addressing the question of whether the news media have an absolute right to print accurate information, whether derived from private or public sources.

Legal experts assessing the potential impact of the Doe case say it ultimately could force the U.S. Supreme Court to consider whether to extend the Cox decision one step further.

“The Supreme Court, in its outstanding opinion (Cox) has left open the idea that it is always constitutional for the media to tell the truth,” said Gary T. Schwartz, an expert on tort law at the UCLA Law School. “It has left open the idea that the entire tort of invasion of privacy is unconstitutional. That is an issue which at some later point might be raised.”