Several California Supreme Court justices suggested Tuesday that an investigator who lies to obtain information about another person might be liable for invasion of privacy.
During arguments in Los Angeles, members of the state high court expressed consternation over allegations that Elizabeth Loftus, a prominent psychologist, misidentified herself to obtain information she used to dispute conclusions of a case study about repressed memory.
The Loftus case, which the court will decide within 90 days, could affect the news media and researchers who investigate published reports by others. Some justices indicated that using a ruse to obtain private information about an individual might be considered an illegal intrusion.
Loftus has denied misrepresenting herself. A UC Irvine professor, Loftus is a major critic of the psychological theory of repressed memory, which posits that the mind avoids intense pain by sealing off recollection of traumatic events. Under the theory, the victim may recover the memory accurately years later, usually in therapy.
Loftus has spent many years trying to debunk the notion of repressed memory and championing people she believes have been falsely accused because of such memories. She has testified in trials around the nation and written extensively on the subject.
In the current case, Loftus decided to challenge a psychiatrist who presented a study of a subject, identified only as Jane Doe, who he said demonstrated that she had recovered a repressed memory of her mother molesting her as a child.
Working with a colleague and private investigators, Loftus used public records to track down Jane Doe and her family and later published a report casting doubt on the woman's recollection of abuse. Loftus did not identify the subject by name in the article or in later speeches.
Nevertheless, the woman sued Loftus and her associates for defamation and invasion of privacy. In the lawsuit, she identified herself as Nicole Taus, now an aviator in the U.S. Navy.
During Tuesday's hearing, the court seemed mainly interested in Taus' allegation that Loftus had misrepresented herself to obtain an interview with Taus' former foster mother. The foster mother claimed that Loftus told her she was the supervisor of the psychiatrist with whom Taus reportedly remembered the molestation.
Justice Joyce L. Kennard called such alleged intentional misrepresentation "highly offensive."
"The court has a problem with the [alleged] means by which the information was obtained by your client," Kennard told Loftus' attorney, Thomas R. Burke. "Wasn't it highly offensive for your client to blatantly misrepresent herself?"
Burke argued that Taus had no expectation of privacy because she had given her consent to the psychiatrist to publish her account and to show videotapes of the session in which she purportedly remembered the abuse.
If Loftus misrepresented herself, the only party with a complaint would be the foster mother, not Taus, he said.
Justice Ming Chin asked Burke how he would describe the charge that Loftus mischaracterized her position during the interview with the foster mother.
"I would call it a misrepresentation," Burke said.
"Isn't it a lie?" Chin shot back.
"The rub here," said Justice Carol Corrigan, "is the allegation of deception and the revelation of previously unpublished information."
Loftus disclosed in a speech that Taus served in the Navy and in her published expose said Taus engaged in "self-destructive" behavior after allegedly recovering her memory.
Julian Hubbard, Taus' lawyer, insisted that Loftus had engaged in "trickery and deception."
The case has attracted wide interest, with a variety of groups weighing in before the court. The Times joined other members of the media in arguing in favor of Loftus in written arguments, saying that a ruling for Taus could expose journalists to lawsuits for "engaging in the most routine journalistic activities."
Although journalists generally identify themselves truthfully, ruling for Taus would "create a motive" for news sources unhappy about their portrayals "to belatedly contend that the reporter obtained the information by misrepresentation," lawyers for the media argued.
Burke said after the hearing that he was optimistic because the court seemed to have narrowed the issues to only one claim, intrusion. Loftus, who attended the arguments, said she found it painful to hear the court describe her as lying.
"I did not lie," she said. "I did not misrepresent myself."
Hubbard said he was heartened by the justices' questions.