87th Ames Explores How Far Media Can Go
U.S. Supreme Court Justice Stephen G. Breyer 64, Laurence H. Silberman 61 of the U.S. Court of Appeals for the District of Columbia Circuit, and Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit presided over the 87th Annual Ames Moot Court Competition in the case of Ride-A-Long Productions, Inc. and Ames Broadcasting Co., Inc. v. Suzanne Rogers and Michelle Rogers. The Archibald Cox Honorary Team won for best team, with team member Arlo Devlin-Brown 99 winning the prize for best oralist. The Telford Taylor Memorial Team won for best brief.
Murder, the media, and a First Amendment challenge to California Civil Code Section 1708.8 were at the heart of the case, written by Ames Fellow Martina Stewart 97. The Rogerses suit arose from Ride-A-Longs recording, without the plaintiffs knowledge or consent, of events that transpired at the Rogerses home after plaintiff Michelle Rogers called 911 to report that her parents were involved in a domestic altercation. The LAPD arrived to find William Rogers, the husband of plaintiff Suzanne Rogers and the father of Michelle Rogers, lying dead in the driveway of the Rogerses home, with Michelle Rogers kneeling beside her fathers body in a highly emotional state. Suzanne Rogers was discovered inside the familys home sitting near what appeared to be the murder weapon, her hands covered with blood.
On the night in question, Ride-A-Long had outfitted the LAPD officers with body microphones and had used a unidirectional shotgun microphone and a videocamera with a high-powered lens to record the events occurring inside and outside the Rogerses home. However, no personnel of Ride-A-Long trespassed on the Rogerses property or any nearby private property. Pursuant to a pre-existing contract with Ames Broadcasting Co., Ride-A-Long sold the recordings of the Rogers to the broadcast network, which showed footage of them on its weekly news magazine show Night Time Live in a story on domestic violence in upper-class and upper-middle-class families.
In response to the Rogers suit, the media defendants mounted a First Amendment challenge to California Civil Code Section 1708.8, Californias recently enacted invasion of privacy statute. The statute creates a cause of action for constructive invasion of privacy when a defendant attempts through use of a visual and auditory enhancing device to capture any type of visual image or sound recording of a plaintiff engaged in personal or familial activity. Notwithstanding its broad sweep, the statute exempts from liability recordings made during certain investigations of illegal activity or suspected illegal activity, if those investigations are supported by articulable suspicion and without regard for whether the investigation is undertaken by a public or private actor.
Representing the media defendants and arguing that the statute singled out the press for unfavorable treatment in violation of the First Amendment, best oralist Arlo Devlin-Brown explained to the bench that in every way that Section 1708.8 differs from Californias common law intrusion tort . . . it focuses on intrusions committed by the press. In response to Devlin-Browns argument that the statutes capture requirement cannot really be justified in terms of any sort of protection of privacy, Judge Silberman struck a theme that would be echoed throughout the evening: [T]he recording . . . makes it a much greater invasion of privacy because [of] the possibility . . . that it can be distributed to hundreds of people.
Also representing the media defendants, Erin Murphy 99 argued that newsgathering was the necessary precursor to speech. In response to Judge Woods question [Do] you want the pillow talk . . . to be on TV every night?, Murphy argued that the modern media has so dominated the sphere of communication that [technologically advanced newsgathering techniques are] the only way to really effectively communicate your message.
Grant Dixton 99, who represented the Rogerses, explained to the bench that the statute regulates . . . the use of technology that obviates the need for a trespass, by enhancing sensory perceptions in such a manner as to violate individual privacy. Justice Breyer challenged Dixton on the First Amendment implications of the statute: Is the First Amendment . . . consistent with a view that freezes technology? he asked. Isnt there some interest on the part of the press in being able to advance [its newsgathering abilities by] using new technologies even though those technologies may be capable of interfering with peoples privacy? In response, Dixton offered another recurring line of argument: With increasing invasiveness of technology, theres also an increasing interest on the other side of the equation. The invasion of privacy becomes greater and greater.
Representing the Rogerses, Maya Kobersy 99 argued
that Section 1708.8 was consistent with the Supreme Courts time, place, and manner
jurisprudence. In response to questioning regarding the apparent content-based nature of
the statutes exception, Kobersy explained that the exception is based not on
the content of the information that is being recorded. Rather, its based on the
motive of the person doing the recording. Citing Simon & Schuster, Inc. v.
New York State Crime Victims Board, in which the Supreme Court invalidated a statute
requiring that income from books or other works describing criminal activity be turned
over to New York for distribution to the criminals victims, Judge Wood pointed out
that criminal activity is a topic
While Section 1708.8 led to lively debate in the fictional world of Ames, its effect in California remains to be seen. As of this writing, no suits have been brought under the statute.
Ames Fellow Martina Stewart assisted in the preparation of this report.
Telford Taylor Memorial team, best brief
Arlo Devlin-Brown, best oralist
Archibald Cox Honorary Team, best team
The Telford Taylor Memorial Team