Supreme Court of California Justia
Docket No. S115008
Gates v. Discovery Communications


Filed 12/6/04

IN THE SUPREME COURT OF CALIFORNIA

STEVE GATES,
Plaintiff and Respondent,
S115008
v.
) Ct.App.
4/1
D039399
DISCOVERY COMMUNICATIONS,
INC., et al.,
San Diego County
Super. Ct. No. GIC769395
Defendants and Appellants.

We must decide whether the producers and presenters of a television
documentary program may be held liable in tort for publishing therein information
they gathered from public official court records concerning a person who many
years previously served a prison term for a felony conviction but who has since
lived an obscure, lawful life and become a respected member of the community.
The Court of Appeal concluded defendants may not be held liable under such
circumstances. We affirm the judgment of the Court of Appeal.
Background
Plaintiff served a prison sentence of three years (with time off for good
behavior) that was imposed after he was convicted upon pleading guilty in 1992 to
being an accessory after the fact to a murder for hire that occurred in 1988. The
victim was an automobile salesman who was shot and killed by hired “hitmen” at
the door of his Southern California home. A prominent automobile dealer was
convicted of masterminding the murder in order to deter a class action lawsuit the
1



victim had filed against an automobile dealership owned by the dealer’s parents.
Plaintiff, who was employed as the automobile dealer’s assistant manager at the
time of the murder, originally was charged as a coconspirator, but the charges
were later reduced. Defendants are television production and transmission
companies that aired an account of the crime in 2001—more than a dozen years
after the crime occurred.
After defendants’ documentary was broadcast, plaintiff filed this action,
pleading causes of action for defamation and invasion of privacy. With respect to
his defamation claim, plaintiff alleged that since he was released from prison he
has a led an obscure, productive, lawful life.1 He further alleged that defendants’
program falsely portrayed him as being involved in a conspiracy to murder, falsely
depicted him as participating in a telephone wiretap to develop evidence, and
falsely suggested he was a self-confessed murderer. With respect to his invasion
of privacy cause of action, plaintiff alleged he was damaged by “the revelation that
Plaintiff pleaded guilty to being an accessory after the fact to a murder for hire
plot and the airing by Defendants of Plaintiff’s photograph.”
Defendants demurred to both causes of action, contending plaintiff was a
limited-purpose public figure and could not demonstrate that defendants had made
any defamatory statements with malice. Defendants also filed a special motion to
strike the invasion of privacy claim under Code of Civil Procedure section 425.16
(section 425.16), the anti-SLAPP2 statute.

1
Plaintiff’s request that we judicially notice a certificate of rehabilitation he
obtained from the San Bernardino Superior Court is granted. (Evid. Code, §§ 459,
subd. (a), 452, subd. (d); Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325;
Mangini v. R. J. Reynolds Tobacco Co. (1944) 7 Cal.4th 1057, 1063.)
2
Strategic lawsuit against public participation.
2



Stating that “the gist or sting of [defendants’] report was accurate,” the trial
court sustained without leave to amend defendants’ demurrer to the defamation
cause of action. On the ground that “there is no authority which precludes civil
liability for truthful publication of private facts regardless of whether the
information is newsworthy,” however, the court overruled the demurrer to the
invasion of privacy cause of action. The court also denied defendants’ anti-
SLAPP motion as to the invasion of privacy cause of action, concluding that
plaintiff had demonstrated a likelihood of prevailing thereon. (See § 425.16,
subd. (b)(1).)
Defendants appealed from the order denying the anti-SLAPP motion.
(§ 425.16, subd. (j).) The Court of Appeal reversed, relying primarily on Cox
Broadcasting Corporation v. Cohn (1975) 420 U.S. 469, wherein the United
States Supreme Court held that the State of Georgia could not constitutionally
sanction a television station for publishing the identity of a deceased 17-year-old
rape victim whose name the station’s reporter had obtained by examining public
court records. (Id. at pp. 494-495.) The Court of Appeal held that, as a matter of
law, plaintiff could not prevail on his invasion of privacy cause of action because
defendants’ disclosures were of truthful information contained in the public
official records of a judicial proceeding and were, accordingly, protected under the
First Amendment to the United States Constitution, as construed by the high court
in Cox. We granted review.3

3
Defendants’ “Motion to Strike Petitioner’s Opening Brief” is denied. (Cal.
Rules of Court, rule 29.1(a)(1), (4).)
3



Discussion
The question presented is whether the trial court erred in concluding that
plaintiff is likely to prevail on his cause of action for invasion of privacy. Plaintiff
bases the cause of action on Briscoe v. Reader’s Digest Association, Inc. (1971) 4
Cal.3d 529 (Briscoe), wherein we held that actionable invasion of privacy may
occur through the reckless, offensive, injurious publication of true, but not
newsworthy, information concerning the criminal past of a rehabilitated convict.
(Id. at p. 543.) Defendants argue that Briscoe has been overruled by subsequent
high court decisions, at least with respect to information a publisher obtains from
public (i.e., not sealed) official records of judicial proceedings. For the following
reasons, we agree with defendants.
Briscoe involved an action for invasion of privacy brought against a
magazine publisher. The dispute arose when the defendant published an article
disclosing that the plaintiff had committed a truck hijacking 11 years previously.
The plaintiff alleged that his friends and his 11-year-old daughter, after learning
for the first time from the defendant’s article these true but embarrassing facts
about his past life, had scorned and abandoned him. Conceding the truth of the
disclosures, the plaintiff nevertheless contended that because the offense had
occurred many years earlier and he had subsequently led a lawful, obscure life and
achieved a place in respectable society, the use of his name in the defendant’s
article was not “newsworthy” and constituted therefore a tortious invasion of his
privacy. (Briscoe, supra, 4 Cal.3d at p. 533.)
In a unanimous opinion authored by Justice Peters, we held the plaintiff had
stated a cause of action. (Briscoe, supra, 4 Cal.3d at p. 543.) In reaching that
conclusion, we traced the concept of the legal right to privacy from the seminal
law review article by Warren and Brandeis, The Right to Privacy (1890) 4 Harv.
L.Rev. 193. We noted that acceptance of the privacy right “has grown with the
4

increasing capacity of the mass media and electronic devices with their capacity to
destroy an individual’s anonymity, intrude upon his most intimate activities, and
expose his most personal characteristics to public gaze.” (Briscoe, supra, at
p. 533.) Recognizing “the potential conflict between freedom of the press and the
right of privacy” (id. at p. 534), we distinguished between reports of “ ‘hot news,’
items of possible immediate public concern or interest” (id. at p. 535) that are
“[p]articularly deserving of First Amendment protection” (ibid.), and “reports of
the facts of past crimes and the identification of past offenders” with respect to
which “reports of the facts . . . are newsworthy” but “identification of the actor . . .
usually serves little independent public purpose” (id. at p. 537). Noting the state’s
interest in the integrity of the rehabilitative process (id. at p. 538), we observed
that even “the great general interest in an unfettered press may be outweighed at
times” by the interest in affording an “opportunity for all but the most infamous
[former criminals] to begin a new life” (id. at p. 540). Accordingly, we reasoned,
a truthful publication is protected only if it is newsworthy and does not reveal facts
so offensive as to shock the community’s notion of decency. (Id. at p. 541.) We
also discussed factors for determining whether an incident is newsworthy:
“ ‘[1] the social value of the facts published, [2] the depth of the article’s intrusion
into ostensibly private affairs, and [3] the extent to which the party voluntarily
acceded to a position of public notoriety.’ ” (Ibid.)
Applying the foregoing, we concluded in Briscoe that “a jury could
reasonably find that plaintiff’s identity as a former hijacker was not newsworthy”
(Briscoe, supra, 4 Cal.3d at p. 541), that “revealing one’s criminal past for all to
see is grossly offensive to most people in America” (id. at p. 542), and that the
plaintiff had not voluntarily consented to the publicity accorded him. Therefore,
we held, the plaintiff had stated a valid cause of action. (Ibid.)
5

Pursuant to Briscoe, supra, 4 Cal.3d 529, plaintiff contends a jury could
reasonably find that the fact he long ago pled guilty to being an accessory after the
fact to murder is not newsworthy because he is rehabilitated and has lived for over
10 years as an obscure and law-abiding citizen, that revealing the criminal past of
someone in his circumstances is offensive to most Americans, and that he did not
voluntarily consent to the injurious publicity accorded him. In denying
defendants’ anti-SLAPP motion, the trial court expressly agreed with plaintiff.
As noted, we granted review in order to determine to what extent, if at all,
theories of tort liability paralleling the one we validated in Briscoe remain viable.4
Since Briscoe was decided, the United States Supreme Court has issued a number
of relevant decisions. The Court of Appeal below accurately described this
intervening jurisprudence:
“After Briscoe the United States Supreme Court decided a series of cases
dealing with the same broad issue of the tension between the right to privacy and
the rights of free speech and free press.
“In Cox Broadcasting Corp. v. Cohn[, supra,] 420 U.S. 469 [95 S.Ct. 1029,
43 L.Ed.2d 328] (Cox), a 17-year-old woman was killed during a rape in Georgia.
The crime received wide press coverage but the name of the victim was not
disclosed because of a Georgia law making it a crime to publish or broadcast such
information. A reporter became aware of the name of the victim when shown an
indictment in the case made available to him in the courtroom. It was undisputed

4
Since, as will appear, we conclude that such theories do not remain viable
(and therefore that plaintiff as a matter of law may not prevail), we have no
occasion to address whether such causes of action are, as plaintiff disputes, subject
in the first instance to a special motion to strike under the anti-SLAPP statute
(§ 425.16, subd. (b)) or whether, as defendants assert, plaintiff failed to preserve
that issue.
6



that the indictment was a public record available for inspection. The reporter’s
employer broadcast the name of the victim. The victim’s father brought a privacy
action. Cox argued its broadcast was privileged under the First and Fourteenth
Amendments [to the United States Constitution]. The Georgia trial court rejected
the argument, stating the Georgia statute gave a civil remedy to those injured by
its violation. (Cox, supra, 420 U.S. at pp. 471-474 [95 S.Ct. at pp. 1034-1036].)
“The Supreme Court stated the issue was whether consistent with the First
and Fourteenth Amendments ‘a State may extend a cause of action for damages
for invasion of privacy caused by the publication of the name of a deceased rape
victim which was publicly revealed in connection with the prosecution of the
crime.’ (Cox, supra, 420 U.S. at p. 471 [95 S.Ct. at p. 1034].)
“The court first acknowledged a growing body of law recognizing a right to
privacy. Cox argued the press could not be held criminally or civilly liable for
publishing information that was neither false nor misleading. The court noted that
in defamation actions truth was generally viewed as a defense. The court stated,
however, it had ‘carefully’ left open the question of whether the Constitution
required that truth be recognized as a defense in a defamation action brought by a
private person rather than a public figure. The court stated the same degree of
caution should exist in dealing with the issue of the effect of truth on the tort of
invasion of privacy. (Cox, supra, 420 U.S. at pp. 489-491 [95 S.Ct. at pp. 1043-
1044].)
“In this regard, the court stated: ‘Rather than address the broader question
whether truthful publications may ever be subjected to civil or criminal liability
consistently with the First and Fourteenth Amendments, or to put it another way,
whether the State may ever define and protect an area of privacy free from
unwanted publicity in the press, it is appropriate to focus on the narrower interface
between the press and privacy that this case presents, namely, whether the State
7

may impose sanctions on the accurate publication of the name of a rape victim
obtained from the public records—more specifically, from judicial records which
are maintained in connection with a public prosecution and which themselves are
open to public inspection. We are convinced that the State may not do so.’ (Cox,
supra, 420 U.S. at p. 491.)
“The court explained that the reporting of information concerning the
operation of every part of government, including the judiciary, was of great
importance and entitled to strong protection. The court noted that the law of
privacy recognized that the interest in privacy fades when the information
involved was already in the public record. (Cox, supra, 420 U.S. at pp. 494-495
[95 S.Ct. at p. 1046].)
“The court emphasized that by putting information in an official court
record, the state must presume that the public interest was being served. It stated
that public records by their very nature are of interest to the public and an
important benefit is performed when they are published. The court stated such
reporting was important to our form of government and then concluded: ‘In
preserving that form of government the First and Fourteenth Amendments
command nothing less than that the States may not impose sanctions on the
publication of truthful information contained in official court records open to
public inspection.’ (Cox, supra, 420 U.S. at p. 495 [95 S.Ct. at p. 1046].)
“The court stated it was reluctant to embark on a course that would make
public records available to the press but forbid their publication if offensive to the
sensibilities of some supposed reasonable man. The court stated this would make
it difficult for the press to report public business and also stay within the law.
Such a rule would invite timidity and self-censorship and would lead to the
suppression of matters that would otherwise be published. (Cox, supra, 420 U.S.
at p. 496 [95 S.Ct. at pp. 1046-1047].)
8

“In Okla. Publishing Co. v. District Court (1975) 430 U.S. 308 [97 S.Ct.
1045, 51 L.Ed.2d 355] (Oklahoma Publishing), delinquency charges arising from
a murder were brought against an 11-year-old boy. Members of the media were
present in the courtroom during the detention hearing and learned the boy’s name.
The name appeared in newspaper stories and in radio and television broadcasts.
At a later closed hearing the trial court entered an order enjoining the press from
revealing the boy’s name. Oklahoma Publishing’s petition for a writ to quash the
order was denied by the Oklahoma Supreme Court on the basis that Oklahoma law
required juvenile proceedings be held in private unless ordered open by the trial
court. (Id. at pp. 308-309 [97 S.Ct. at p. 1045].)
“The United States Supreme Court reversed. Citing Cox and other cases, it
held that the existence of a state statute requiring closed juvenile hearings was
irrelevant since members of the press had lawfully been present at a hearing where
the boy’s name was revealed. The court noted the name was revealed in
connection with ‘ “the prosecution of the crime,” [citation], much as the name of
the rape victim in [Cox] was placed in the public domain.’ (Oklahoma Publishing,
supra, 430 U.S. at p. 311 [97 S.Ct. at p. 1047], fn. omitted.) The Supreme Court
found the trial court’s order unconstitutional. (Id. at pp. 311-312 [97 S.Ct. at
p. 1047].)
“In Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97 [99 S.Ct. 2667,
61 L.Ed.2d 399] (Daily Mail), a 15-year-old student was shot and killed by a 14-
year-old classmate in West Virginia. Newspaper reporters learned the classmate’s
name from eyewitnesses to the crime. The assailant’s name was published in the
newspaper. Indictments were returned, alleging that the publication of the
assailant’s name violated a West Virginia statute making it a crime to publish the
name of any child connected with a juvenile proceeding without court permission.
9

The West Virginia Supreme Court found the statute unconstitutional as a prior
restraint on the freedom of the press. (Id. at p. 98 [99 S.Ct. at p. 2668].)
“The United States Supreme Court stated the issue of whether the West
Virginia law was a prior restraint was not determinative. It stated that whether the
statute was a prior restraint or a penal sanction for the publication of lawfully
obtained truthful information, any justification required a showing that the state’s
action furthers a state interest of the ‘highest order.’ The state argued its interest
was maintaining the juvenile’s anonymity as a means of promoting rehabilitation.
The court concluded this was not an interest of the highest order. (Daily Mail,
supra, 443 U.S. at pp. 101-106 [99 S.Ct. at pp. 2670-2672].)
“In The Florida Star v. B.J.F. (1989) 491 U.S. 524 [109 S.Ct. 2603, 105
L.Ed.2d 443]) (The Florida Star), the court again visited the issue of the
criminalization of the disclosure of the name of sex crime victims. A Florida
statute made it unlawful to publish the name of the victim of a sexual offense. A
report of a rape including the name of the victim was inadvertently released to the
press by the police department and The Florida Star newspaper printed it. The
rape victim sued the newspaper for printing her name in violation of the
nondisclosure statute. The trial court found the newspaper negligent per se and a
jury awarded the plaintiff $100,000 in damages. (Id. at pp. 526-529 [109 S.Ct. at
pp. 2605-2607].)
“The Supreme Court noted the case again raised the issue of the tension
between the freedom of the press and the right of individuals to maintain the
privacy of even truthful information. The court noted that while it had addressed
this tension in Cox, Oklahoma Publishing and Daily Mail, its approach had been
to deal with the discrete factual context of each case and therefore it had not
exhaustively considered the issue. (The Florida Star, supra, 491 U.S. at pp. 530-
531 [109 S.Ct. at pp. 2607-2608].)
10

“The Florida Star argued that the trilogy of prior cases produced the rule
that the press may never be punished civilly or criminally for publishing the truth.
The plaintiff countered that in each of the trilogy cases the information published
was already in the public record and the privacy interest in those earlier cases was
far less profound than in hers. The court concluded that imposing damages on The
Florida Star for publishing the plaintiff’s name violated the First Amendment.
(The Florida Star, supra, 491 U.S. at pp. 531-532 [109 S.Ct. at pp. 2607-2608].)
“The court first noted that Cox, while superficially similar, was not directly
controlling. Cox dealt with the publication of the name of a sex crime victim that
was already contained in the public record of a judicial proceeding. The court
noted Cox emphasized the ‘ “special protected nature of accurate reports of
judicial proceedings.” ’ (The Florida Star, supra, 491 U.S. at p. 532 [109 S.Ct. at
p. 2608].) The court observed this status existed because of the special role the
press plays in subjecting trials to public scrutiny and thus helping to maintain their
fairness. The plaintiff’s name published by The Florida Star did not come from
the public record of a judicial proceeding since there was no such proceeding at
the time of publication. (Ibid.)
“The court also rejected any rule that truthful publications may never be
punished. It noted the court had carefully avoided such a pronouncement,
concluding that given the issues involved, it was better to treat situations as they
arose and not declare categorical directives. Instead, the court crystallized a
flexible rule first suggested in Daily Mail, ‘ “[I]f a newspaper lawfully obtains
truthful information about a matter of public significance then state officials may
not constitutionally punish publication of the information, absent a need to further
a state interest of the highest order.” [Citation.]’ (The Florida Star, supra, 491
U.S. at pp. 532-534 [109 S.Ct. at pp. 2608-2609].)
11

“The court stated such a rule giving great protection to the publication of
lawfully obtained truthful information was justified by at least three
considerations. First, the government has sufficient means in most cases to
sufficiently protect confidential information without punishing its publication.
(The Florida Star, supra, 491 U.S. at p. 534 [109 S.Ct. at pp. 2609-2610].) Next,
it does little to protect the right of privacy to punish the publication of information
already available to the public. In this regard, the court stated: ‘It is not, of
course, always the case that information lawfully acquired by the press is known,
or accessible, to others. But where the government has made certain information
publicly available, it is highly anomalous to sanction persons other than the source
of its release.’ (Id. at p. 535 [109 S.Ct. at p. 2610].) The court continued: ‘[I]t is
a limited set of cases indeed where, despite the accessibility of the public to
certain information, a meaningful public interest is served by restricting its further
release by other entities, like the press. As Daily Mail observed in its summary of
Oklahoma Publishing, “once the truthful information was ‘publicly revealed’ or
‘in the public domain’ the court could not constitutionally restrain its
dissemination.” [Citation.]’ (Ibid.) Finally, the court noted that punishing
truthful information lawfully obtained could result in a harmful ‘ “timidity and
self-censorship” ’ on the part of the press. (Ibid.)
“In finding that allowing damages against The Florida Star for publishing
the sex crimes victim’s name was unconstitutional, the court addressed the issue of
what is a ‘public interest of the highest order.’ It noted that the plaintiff claimed
three interests advanced by Florida’s nondisclosure law, the privacy of victims, the
physical safety of victims and the encouragement of victims to report offenses.
The court found these interests highly significant but, under the facts of the case
before it, not of the highest order. The court noted the information was provided
to the newspaper by the government, under Florida law the publication amounted
12

to per se negligence and the nondisclosure was underinclusive in that it applied
only to ‘ “instruments of mass communication.” ’ (The Florida Star, supra, 491
U.S. at pp. 536-541 [109 S.Ct. at pp. 2611-2613].)
“In Bartnicki v. Vopper (2001) 532 U.S. 514 [121 S.Ct. 1753, 149 L.Ed.2d
787], the court dealt with the protection, if any, given by the First Amendment to
the disclosure of the contents of an illegally intercepted communication. In that
case the media was provided and published the contents of illegally intercepted
cellular telephone conversations between a teacher’s union president and the
union’s labor negotiator concerning collective bargaining matters. The officials
sued various members of the media who published the intercepted
communications, noting that such interceptions were illegal under state and federal
law and that it was illegal for anyone to disclose the content of such
communication who knew or has reason to know it was illegally intercepted. (Id.
at pp. 518-519 [121 S.Ct. at p. 1757].)
“In addressing the issue the court began by assuming that the media
defendants were aware the recordings were of illegally intercepted
communications and that disclosing their content was illegal. The court also noted
that the media defendants lawfully obtained tapes of the conversation even though
they knew the information was itself illegally intercepted. The court further found
that the content of the tapes was of public concern. (Bartnicki v. Vopper, supra,
532 U.S. at pp. 524-525 [121 S.Ct. at p. 1760].)
“The court noted the rule that absent a need of the highest order a state may
not punish the publication by a newspaper of truthful information lawfully
obtained. It was argued that the state had two such interests, removing the
incentive to intercept conversations and the interest in minimizing harm to persons
whose conversations were intercepted. The court stated these interests met the
constitutional test with regard to the person who illegally intercepted the
13

conversation. It quickly rejected, however, the argument that an interest in
removing the incentive to intercept applied to one who later lawfully obtained and
disclosed . . . the information. (Bartnicki v. Vopper, supra, 532 U.S. at pp. 529-
532 [121 S.Ct. at pp. 1762-1763].)
“The court stated that the issue of whether the states had a sufficiently high
interest in protecting the privacy of those whose conversation was intercepted was
a more difficult question. The court noted that allowing the disclosure of such
intercepted conversations might have a chilling effect on private speech. The
court concluded, however, under the facts before it, criminalizing disclosure of the
conversations implicated the core purpose of the First Amendment because it
punished the publication of truthful information of public concern. (Bartnicki v.
Vopper, supra, 532 U.S. at pp. 532-533 [121 S.Ct. at p. 1764] [(Bartnicki)].)”
We conclude that the high court’s decision in Cox and its subsequent
pronouncements in Oklahoma Publishing, Daily Mail, The Florida Star, and
Bartnicki have fatally undermined Briscoe’s holding that a media defendant may
be held liable in tort for recklessly publishing true but not newsworthy facts
concerning a rehabilitated former criminal (see Briscoe, supra, 4 Cal.3d at p. 543),
insofar as that holding applies to facts obtained from public official court records.
As explained, the high court in Cox flatly stated that “the States may not impose
sanctions on the publication of truthful information contained in official court
records open to public inspection” (Cox, supra, 420 U.S. at p. 495) and
specifically reaffirmed that rule in Oklahoma Publishing, supra, 430 U.S. at page
311 (“the press may not be prohibited from ‘truthfully publishing information
released to the public in official court records’ ”).5 On matters of federal

5
While in Cox the high court did not expressly overrule Briscoe, it reversed
the judgment of the Georgia Supreme Court immediately after noting that that

(footnote continued on next page)
14



constitutional law, of course, we are bound by the decisions of the United States
Supreme Court. (People v. Bradley (1969) 1 Cal.3d 80, 86.)
It is true that in subsequently articulating the more general principle of
which Cox’s rule is an instance—viz., that “state officials may not constitutionally
punish publication of [truthful] information” that “a newspaper lawfully obtains
. . . about a matter of public significance” (Daily Mail, supra, 443 U.S. at
p. 103)—the high court excepted circumstances involving “a need to further a
state interest of the highest order” (ibid.; see also The Florida Star, supra, 491
U.S. at p. 533; Bartnicki, supra, 532 U.S. at pp. 527-528). But in light of the
needs and interests the high court, as previously noted, has determined not to be
“of the highest order” for these purposes,6 we conclude, contrary to plaintiff’s
suggestion, that any state interest in protecting for rehabilitative purposes the long-
term anonymity of former convicts falls similarly short.
Plaintiff requests that we distinguish Cox and its progeny on their facts,
principally the fact that “all of these cases involve situations in which the events
reported on occurred within a few days, weeks or months of the offending
publication, not years after the fact as in Briscoe . . . .” But as the Court of Appeal

(footnote continued from previous page)
state high court had in its opinion “concurred with” certain statements in Briscoe
to the effect that the First Amendment to the United States Constitution did not bar
the invasion of privacy claim at issue. (Cox, supra, 420 U.S. at pp. 475-476,
quoting Briscoe, supra, 4 Cal.3d at p. 541.)
6
See Daily Mail, supra, 442 U.S at page 104 (rehabilitative interest in
protecting anonymity of juvenile offenders); The Florida Star, supra, 491 U.S. at
pages 536-541 (interests in crime victim privacy, victim safety and encouraging
victims to report offenses); Bartnicki, supra, 532 U.S. at pages 529-533 (interests
in removing incentive to illegally intercept conversations and in minimizing harm
to persons whose conversations are intercepted); Cox, supra, 420 U.S. at page 496
(interest in protecting anonymity of deceased rape victim).
15



below recognized, the high court has never suggested, in Cox or in any subsequent
case, that the fact the public record of a criminal proceeding may have come into
existence years previously affects the absolute right of the press to report its
contents.7 Cox’s holding was unqualified: “Once true information is disclosed in
public court documents open to public inspection, the press cannot be sanctioned
for publishing it.” (Cox, supra, 420 U.S. at p. 496.) Cox’s rationale, moreover,
related to the “very nature” (id. at p. 495) of court records per se, not the age of the
particular records at issue in that case. As the high court explained, “[p]ublic
records by their very nature are of interest to those concerned with the
administration of government, and a public benefit is performed by the reporting
of the true contents of the records by the media.” (Ibid.; see also Daily Mail,
supra, 443 U.S. at pp. 103-104; Rest.2d Torts, § 652D, com. d, p. 388 [Cox’s
language “indicates that this position applies to public records in general”].)
We recently had occasion to address invasion of privacy by publication of
private facts and, in the course of doing so, made several observations tending to
buttress the conclusion that courts are not freed, by the mere passage of time, to
impose sanctions on the publication of truthful information that is obtained from

7
As plaintiff points out, the high court, in Wolston v. Reader’s Digest
Association, Inc. (1979) 443 U.S. 157, expressly declined to decide “whether or
when an individual who was once a public figure may lose that status by the
passage of time” (id. at p. 167, fn. 7). Wolston is inapposite as the defamation
alleged there, an accusation published in a book, was not drawn from public court
records. Moreover, the high court’s categorical holding in Cox, supra, 420 U.S.
469, respecting media freedom to publish the contents of public court records, was
not limited to documents concerning public figures. (See id. at p. 491.) In
following the high court’s guidance in Cox and its progeny, we have no occasion
to address whether plaintiff would be considered a public figure for purposes of an
action that is not barred by the rationale of those cases.
16



public official court records. (See generally Shulman v. Group W Productions,
Inc. (1998) 18 Cal.4th 200.) As the Court of Appeal below accurately reported:
“Between the decisions in The Florida Star and Bartnicki, the California
Supreme Court addressed the tension between First Amendment speech and press
rights and the right to privacy in a context different than that addressed by Briscoe
or the cited United States Supreme Court cases.
Shulman v. Group W Productions, Inc., supra, 18 Cal.4th 200, involved
privacy actions by two automobile accident victims. The rescue of the two and the
emergency medical attention given them was videotaped by a production company
and was broadcast as part of a television documentary series involving such
incidents. The victims sued, raising two causes of action for invasion of privacy:
one based on unlawful intrusion and the other based on the public disclosure of
private facts during the broadcast. The production company moved for summary
judgment, arguing their conduct was protected by the First Amendment since the
incident was newsworthy. (Id. at pp. 210-212.)
“In dealing with the disclosure of private facts cause of action, the court
noted that an element of the tort is that the fact disclosed not be of legitimate
public interest, i.e., not newsworthy. The court conducted a detailed review of
case authority on the issue. The court noted that the issue of newsworthiness had
not been given extensive attention by the United States Supreme Court. The court
reviewed Cox and The Florida Star but noted they did not provide broad guidance
on the issue of privacy and in particular not on the issue of newsworthiness. The
court emphasized those cases dealt with public records made available to the
press. (Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at pp. 214-218.)
“The court conducted a detailed analysis of the jurisprudential issues
involved and California case authority on the matter. As part of that review the
court summarized its decision in Briscoe and noted its conclusion that while the
17

facts of Briscoe’s 11-year-old crime remained newsworthy, identification of him
as the criminal did not. The court reviewed the factors that led to its conclusion
and the balancing of interests approach that led to that conclusion. (Shulman v.
Group W Productions, Inc., supra, 18 Cal.4th at pp. 221-222.)
“The court [in Shulman v. Group W Productions, Inc. (Shulman)]
concluded that the subject matter of the broadcast as a whole was of legitimate
public concern. The court stated the more difficult question was the
newsworthiness of images of the victims being rescued and treated. The court
found such images newsworthy as a matter of law.”
While our narrow holding in Shulman about the publication of private facts
tort—viz., that the plaintiffs there were required, but failed, to demonstrate that the
facts published about them were not newsworthy (Shulman, supra, 18 Cal.4th at
pp. 215, 229-230)—has no direct application here, certain observations we made
in the course of reaching that conclusion bear on the question presented. Most
specifically, we noted in Shulman that the high court’s decisions since Briscoe
“establish that truthful reporting on current judicial proceedings, using material
drawn from public records, is generally within the scope of constitutional
protection.” (Shulman, supra, at p. 218.) And while we had no occasion in
Shulman to consider whether truthful reporting on past judicial proceedings might
also be protected, we identified as central to the high court’s relevant
jurisprudence several considerations that neither logically nor practically lend
themselves to temporal limitation.
Thus, we noted in Shulman that the high court’s core concern in Cox was
“the ‘responsibility of the press to report the operations of government’ . . .
including judicial proceedings regarding crimes” (Shulman, supra, 18 Cal.4th at
p. 217). We also noted Cox’s “premise that ‘[b]y placing the information in the
public domain on official court records, the State must be presumed to have
18

concluded that the public interest was being served’ ” (Shulman, supra, at p. 217,
quoting Cox, supra, 420 U.S. at pp. 1045-1046). Finally, we noted that the high
court’s decision in The Florida Star “rested in large part on the fact that the
government had, by making the information available to the press, impliedly
determined its dissemination was in the public interest, and could not then [fairly]
punish a newspaper for” relying on that determination. (Shulman, supra, at p. 218,
citing The Florida Star, supra, 491 U.S. at p. 536.)
Neither that defendants’ documentary was of an historical nature nor that it
involved “reenactments,” rather than firsthand coverage, of the events reported,
diminishes any constitutional protection it enjoys. “[T]he constitutional
guarantees of freedom of expression apply with equal force to the publication
whether it be a news report or an entertainment feature.” (Gill v. Hearst
Publishing Co. (1953) 40 Cal.2d 224, 229.) And, as the high court of a sister state
recently observed in deciding a similar privacy case, “[t]here is no indication that
the First Amendment provides less protection to historians than to those reporting
current events.” (Uranga v. Federated Publs., Inc. (2003) 138 Idaho 550, 556 [67
P.3d 29, 35]; see also id. at pp. 556-557 [citing Cox in holding that the First and
Fourteenth Amendments to the United States Constitution “do not permit” a
newspaper “to be held liable in damages for accurately publishing a document
contained in a court record open to the public” for over 40 years].)
For the foregoing reasons, we decline to distinguish Cox in the manner
plaintiff advocates. We, like the high court, are “reluctant to embark on a course
that would make public records generally available to the media but forbid their
publication if offensive to the sensibilities of the supposed reasonable man. Such
a rule would make it very difficult for the media to inform citizens about the
public business and yet stay within the law. The rule would invite timidity and
self-censorship and very likely lead to the suppression of many items that would
19

otherwise be published and that should be made available to the public.” (Cox,
supra, 420 U.S. at p. 496.)
Accordingly, following Cox and its progeny, we conclude that an invasion
of privacy claim based on allegations of harm caused by a media defendant’s
publication of facts obtained from public official records of a criminal proceeding
is barred by the First Amendment to the United States Constitution. (Cox, supra,
420 U.S. at p. 495; Oklahoma Publishing, supra, 430 U.S. at p. 311; see also Daily
Mail, supra, 443 U.S. at p. 103; The Florida Star, supra, 491 U.S. at p. 533;
Bartnicki, supra, 532 U.S. at pp. 527-528.) The complaint states: “The basis for
Plaintiff’s invasion of privacy claim is the revelation that Plaintiff pleaded guilty
to being an accessory after the fact to a murder for hire plot and the airing by
Defendants of Plaintiff’s photograph.” Both that fact and the photograph appear
in the public official records relating to plaintiff’s 1992 arrest and conviction.8
Therefore, plaintiff’s invasion of privacy claim based thereon is barred.
It follows that defendants’ anti-SLAPP motion should have been granted,
because, as a matter of law, plaintiff cannot prevail on his invasion of privacy
claim. The trial court erred insofar as it concluded to the contrary.

8
Accordingly, we have no occasion to consider the extent to which invasion
of privacy claims based on publication of nonrecord facts linking the plaintiff to a
past crime, or on facts obtained from nonpublic records, remain viable. (See Cox,
supra, 420 U.S. at p. 496 [if “there are privacy interests to be protected in judicial
proceedings, the States must respond by means which avoid public
documentation”]; Rest.2d Torts, § 652D, com. k, p. 393 [“Although lapse of time
may not impair the authority to give publicity to a public record, the pointing out
of the present location and identity of the individual raises quite a different
problem”].)
20



Disposition
The judgment of the Court of Appeal is affirmed.9
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.

9
Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529 is
overruled to the extent it conflicts with the views set forth herein.
21



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Gates v. Discovery Communications, Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 106 Cal App. 4th 677
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S115008
Date Filed: December 6, 2004
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Kevin A. Enright

__________________________________________________________________________________

Attorneys for Appellant:


Leopold, Petrich & Smith, Louis P. Petrich and Robert S. Gutierrez for Defendants and Appellants.

McDermott Will & Emery, Robert H. Rotstein and Nicholas F. Oettinger for The Motion Picture
Association of America, Inc., as Amicus Curiae on behalf of Defendants and Appellants.

Davis Wright Tremaine, Gary L. Bostwick, Kelli L. Sager and Marc A. Fuller for CBS Broadcasting, Inc.,
The Copley Press, Inc., The McClatchy Company, Los Angeles Times Communications LLC, Bloomberg
L.P., The First Amendment Project, The California Newspaper Publishers Association, The Northern
Chapter of the Society of Professional Journalists and The California First Amendment Coalition as Amici
Curiae on behalf of Defendants and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Niles R. Sharif for Plaintiff and Respondent.


22

Counsel who argued in Supreme Court (not intended for publication with opinion):

Louis P. Petrich
Leopold, Petrich & Smith
2049 Century Park East, Suite 3110
Los Angeles, CA 90067-3274
(310) 277-3333

Niles R. Sharif
Grossmont Professional Building
9001 Grossmont Blvd.
La Mesa, CA 91941
(619) 463-9111

23


Opinion Information
Date:Docket Number:
Mon, 12/06/2004S115008

Parties
1Gates, Steve (Plaintiff and Respondent)
Represented by Niles Rice Sharif
Attorney at Law
9001 Grossmont Blvd
La Mesa, CA

2Discovery Communications Inc. (Defendant and Appellant)
Represented by Louis P. Petrich
Leopold Petrich & Smith
2049 Century Park E #3110
Los Angeles, CA

3New Dominion Pictures (Defendant and Appellant)
Represented by Louis P. Petrich
Leopold Petrich & Smith
2049 Century Park E #3110
Los Angeles, CA

4Motion Picture Association Of America (Amicus curiae)
Represented by Robert Henry Rotstein
McDermott Will & Emery
2049 Century Park East, 34th Fl.
Los Angeles, CA

5Cbs Broadcasting, Inc. (Amicus curiae)
Represented by Marc Aaron Fuller
Davis Wright Tremaine
865 S Figueroa St
Los Angeles, CA

6Cbs Broadcasting, Inc. (Amicus curiae)
Represented by Gary L. Bostwick
Davis Wright Tremaine LLP
865 Figueroa St #2400
Los Angeles, CA

7Cbs Broadcasting, Inc. (Amicus curiae)
Represented by Kelli L. Sager
Davis Wright Tremaine LLP
865 S Figueroa St #2400
Los Angeles, CA


Disposition
Dec 6 2004Opinion: Affirmed

Dockets
Apr 8 2003Petition for review filed
  by counsel for resp
Apr 11 2003Received Court of Appeal record
  one volume
Apr 28 2003Answer to petition for review filed
  appellants Discovery Communications, Inc. and New Dominion Picture, LLC
May 16 2003Time extended to grant or deny review
  to 7-7-03
Jun 18 2003Petition for Review Granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jul 3 2003Certification of interested entities or persons filed
  appellants Discovery Communications, etal
Jul 17 2003Notice of intent to rely on CA brief (as opening brief)
  by Resp Gates
Jul 17 2003Request for judicial notice filed (in non-AA proceeding)
  by resp Gates
Jul 28 2003Motion filed (in non-AA proceeding)
  Motion to strike respondent's opening brief on the meritsm by appellants Discovery Communications, Inc & New Dominion Pictures, LLC
Jul 29 2003Opposition filed
  to resp's reqt for judicial notice>>appellants Discovery Communications, Inc. & New Dominion Pictures, LLC
Aug 18 2003Answer brief on the merits filed
  appellants Discovery Communications, Inc. and New Dominion Pictures, LLC
Sep 8 2003Request for extension of time filed
  counsel for resp. requests 30-day extension of time to October 8, 2003 to file the reply brief on the merits.
Sep 12 2003Extension of time granted
  to 10-8-03 for resp to file the reply brief on the merits.
Oct 8 2003Request for extension of time filed
  by resp to file the reply brief on the merits, to 11/10.
Oct 17 2003Extension of time granted
  to 11-10-03 for resp to file the reply brief on the merits.
Nov 10 2003Request for extension of time filed
  for pltf-resp Gates to file the reply brief on the merits, 30 days (to 12-10)
Nov 20 2003Extension of time granted
  to 12-10-03 for resp to file the reply brief on the merits. No further extensions of time will be granted.
Jan 7 2004Received application to file amicus curiae brief; with brief
  by the Motion Picture Association of America in support of aplts.
Jan 9 2004Received application to file amicus curiae brief; with brief
  by counsel for CBS Broadcasting Inc., et al. supporting resps' Discovery Communications, Inc., et al.
Jan 12 2004Permission to file amicus curiae brief granted
  The Motion Picture Assoc. of America
Jan 12 2004Amicus curiae brief filed
  by The Motion Picture Assoc. of America in support of appellants. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 16 2004Permission to file amicus curiae brief granted
  CBS Broadcasting Incorporated in support of respondents. (non-party)
Jan 16 2004Amicus curiae brief filed
  CBS Broadcasting Incorporated in support of respondents. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
May 12 2004Letter sent to:
  Counsel Louis Petrich (aplts) requesting a copy of a trial court exhibit. (requested by phone on 5/11)
May 12 2004Received:
  received exhibit from atty Petrich: one video tape.
Sep 1 2004Case ordered on calendar
  10/5/04 @ 9am - Los Angeles
Oct 5 2004Cause argued and submitted
 
Dec 6 2004Opinion filed: Judgment affirmed in full
  Majority opinion by Werdegar, J. ----------------------------joined by George, C.J., Kennard, Baxter, Chin, Brown, Moreno, JJ.
Jan 7 2005Remittitur issued (civil case)
 
Oct 11 2005Received:
  Notice of denial of certiorari in USSC

Briefs
Jul 17 2003Notice of intent to rely on CA brief (as opening brief)
 
Aug 18 2003Answer brief on the merits filed
 
Jan 12 2004Amicus curiae brief filed
 
Jan 16 2004Amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website