The Right to Know vs. the Right to Privacy

Ruth Shulman lay pinned inside her family’s overturned car, her legs sticking out, in a ditch alongside a freeway. She moaned in pain, begging to know if her children had survived and at one point urging a paramedic to let her die.

Little did she know that the crash that left her a paraplegic would be weekend fare for millions of TV viewers across the nation. The paramedic had worn a mini-microphone. A cameraman on the helicopter ambulance had taped the frantic trip to the hospital.

“They took one of the most tragic moments of my life and made it entertainment for the nation,” said Shulman, 53, who sat stunned in her hospital room three months later, watching herself on a syndicated show about real-life rescues.

The Palos Verdes mother of three filed a lawsuit against the show’s production company claiming invasion of privacy. The suit is before the California Supreme Court, one of dozens of similar cases across the nation against broadcasters who put ordinary people on television without their permission or knowledge.

Shulman’s case is at the cutting edge of an evolving body of law pitting the rights of individuals to keep their most harrowing moments private against reality TV’s seemingly insatiable appetite.

At issue are the practices not only of tabloid television, but also investigative journalism reports that deploy hidden cameras.

The cases have raised myriad questions: When do television programs cross the line from news to entertainment? In which situations do people have a legally protected right to privacy from increasingly sophisticated high-tech snooping? Can reporters use deception in their search for the truth?

“The law is literally unfolding and developing before our eyes,” said Washington lawyer and author Lee Levine, who represents several media companies. “There are no legal rules yet, at least not definitive ones.”

Although television can be intrusive, it is a visual medium whose power lies in what the camera can capture, broadcasters say.

Shulman’s episode on the now-defunct “On Scene: Emergency Response” involved a matter of public concern--rescues by a helicopter ambulance licensed by a county government--all sides agreed. Media lawyers say they are concerned that a broad ruling in Shulman’s favor could restrict freedom of the press beyond television.

But critics say the explosion of reality-based shows such as “Cops” and “Rescue 911” has led to excesses as camera crews ride along with police officers and emergency workers, capturing people in their darkest moments.

Accident Victim’s Case Draws Wide Attention

People who have been caught on camera complain that the law has yet to catch up with technology. A camera can be made small enough to fit into a button. A whisper on a public street too soft to be heard by passersby can be recorded, amplified and broadcast to millions, a brief before the state Supreme Court noted.

Some shows, including “Cops,” obscure faces if subjects’ written permission cannot be obtained. “On Scene” never sought Shulman’s consent. It showed her face only when it was partially covered with an oxygen mask and used only her first name. A newspaper previously published an account of the accident with her full name.

“The media did not cause her damage,” said Frederick Mumm, assistant general counsel for CBS, who represents Group W Productions and 4MN Productions, the media companies responsible for the show. “The damage was from the automobile accident. She is looking in the wrong direction for recompense.”

Similar suits against broadcasters have been settled out of court: An Oakland woman dialed 911 alleging that her husband was beating her, only to find a camera crew at her door. A Sacramento warehouseman said he was humiliated when a network broadcast showed him in his backyard as his car was being repossessed. A Los Angeles widow saw her husband’s dying moments on TV.

For the first time, the California Supreme Court will be weighing in on the subject as it takes on Shulman’s complaint, which is being closely watched by media lawyers nationwide.

After agreeing to review her case, the court broadened its inquiry and accepted another privacy lawsuit over ABC’s use of hidden cameras in a 1993 expose about a telephone psychic service. Both cases involve broadcasts of people without their knowledge, although the circumstances differed sharply.

The court is expected to decide the Shulman case within a year, deferring action on the ABC dispute in the meantime.

Shulman’s accident occurred in June 1990, when she was returning from Palm Springs with her husband, 19-year-old daughter and 16-year-old son. Her daughter lost control while driving, and the car spun off the freeway. The rest of the family was not seriously injured.

After watching the program, Shulman said, she feared that her daughter or her mother, an avid TV watcher, would some day see a rerun and hear her begging to die.

For Shulman, the broadcast created a mental picture of a scene that her mind had mercifully blocked out. Before watching the program, her first memory after the accident had been of waking up in intensive care.

Although her face had been partially obscured, Shulman said, acquaintances recognized her voice. After her episode aired a second time, Shulman decided to sue.

“It was gruesome and upsetting,” she said during a recent interview, seated in her wheelchair in a Santa Monica restaurant. “The real thing I hope this lawsuit will do is stop the whole process of vulture videos. . . . Who gives anyone the right to take my private life and put it on national TV if it isn’t a news story?”

An appeals court in Los Angeles ruled that Shulman had a potential privacy right in the helicopter but not in the ditch, which the court considered a public place.

“Involuntary public figures, such as accident victims, lose their right to privacy not only in regard to the accident itself but, to some extent, to other information as well,” the court said. But the court ruled that a jury should decide whether the segment inside the helicopter was offensive and whether that intrusion was outweighed by the incident’s newsworthiness. The court declined to hold the ambulance company liable.

Both sides were disappointed. Shulman thought the court should have recognized her right to privacy at the accident scene. It had been closed off to everyone but emergency personnel, said Antony Stuart, her lawyer.

Media lawyers also were perturbed. Because the broadcast was truthful and about a matter of public concern, they contend that it was protected by the 1st Amendment and no balancing of newsworthiness versus offensiveness was required. Freedom of the press is “a basic constitutional guarantee, and it has to be protected zealously, and it has to be protected even when it is unpopular,” said Terry M. Gordon, who represented the companies responsible for the rescue show.

In the past, people who filed privacy lawsuits rarely won. A study by a University of Arkansas law professor found that state and federal courts dismissed more than 70% of invasion of privacy lawsuits filed in 1992.

But some legal experts believe that broadcasters may face more restraints because of today’s more intrusive technology. Media lawyers fret that any more restrictions could stifle aggressive reporting and impinge on freedom of speech for print and broadcast journalists.

“The law right now does not look good for privacy plaintiffs,” said University of Arkansas law professor Andrew McClurg, author of the 1992 privacy study, “but Supreme Court justices are like the rest of us. The more they watch the shocking excesses of tabloid television and reality television, the more they are going to be influenced and think this is going too far.

“The problem is, where do you strike the balance? There is always the fear of going down the slippery slope of the 1st Amendment. How do we say this is private and this isn’t?”

Private Grief, Public Images

One of the most-cited rulings from “ride-along” cases stemmed from a 911 call to Los Angeles paramedics in 1979. A camera crew trailed paramedics into the bedroom of a heart attack victim and taped the futile efforts to revive him.

Weeks later, the man’s widow saw all of this on a TV news documentary about paramedics. She screamed and snapped off the set. She had been so distraught the night of her husband’s heart attack that she hadn’t noticed the camera.

An appellate court ruled that she could sue the broadcaster, but she settled out of court in 1986 for $400,000.

In 1992, after Yolanda Baugh called 911 to report that her husband was beating her, a CBS camera crew arrived at her home with a district attorney’s office counselor. An Oakland police officer told Baugh the camera was with the district attorney’s office, Baugh said.

She discovered two months later that her call to police would be included on a “Street Stories” show about domestic violence and called to insist that she be removed from the report. She said the network told her it was too late to cut her segment, but that her face could be obscured.

The broadcast included a police dispatcher saying, “Husband beat up wife. Broke windows in house. And she’s waiting there.”

Baugh was shown, her face obscured in the feed to the Bay Area, weeping and telling police her husband had kicked and hit her. “I was scared of him,” viewers heard her cry.

CBS never told Baugh that her face was left visible in broadcasts to the rest of the nation, said Robert E. Kroll, her Oakland lawyer. Her young daughter, her face also visible, was shown cowering behind a door. Kroll said Baugh’s husband was not prosecuted.

Baugh filed suit. CBS disputed her claims, contending that the broadcast was newsworthy and did not degrade her. But a federal judge said some of her allegations could proceed to trial. She settled for an undisclosed amount. CBS attorneys declined to comment.

“While the court finds the issue of domestic violence . . . to be newsworthy,” U.S. District Judge Fern M. Smith wrote, “the court is not yet convinced that plaintiffs’ personal involvement in an incident of domestic violence is newsworthy as a matter of law.”

Lawsuits over the deliberate concealment of cameras also have proliferated, discouraging small affiliates from using them, according to media lawyers. Their fears grew with the recent $5.5-million jury award against ABC for an expose about food safety.

Two ABC producers obtained jobs at grocery stores owned by the Food Lion chain after giving phony resumes. Once inside, the producers secretly taped footage that allegedly showed unsanitary food practices. The jury decided that ABC had committed fraud and trespass, verdicts that are on appeal.

Hidden Cameras Focus of Disputes

Now the California Supreme Court is stepping into the debate by reviewing the tele-psychic suit against ABC. Mark Sanders and Paul Highland, who filed the complaint, worked in West Hollywood dispensing advice to callers who were charged for the time they talked with purported psychics.

ABC’s “PrimeTime Live” assigned a recent college graduate to apply for a job as a tele-psychic. Although she had no psychic experience, the hotline hired her and trained her to read Tarot cards. She entered work with a camera in her hat and a hidden microphone.

Other workers remembered her as friendly with one strange habit. She sometimes stood on her chair and slowly looked around the room. Later, they realized that she had been trying to get a shot of the entire office.

Both Sanders and Highland chatted with her, and ABC broadcast portions of their conversations that indicated the men didn’t take their psychic jobs seriously.

A jury awarded the men more than $1 million in damages after concluding that the video invaded their privacy. But Highland, who was battling an alcohol problem, died before the trial ended.

A divided Court of Appeal in Los Angeles overturned the award, ruling that the men should not have expected their conversations to be kept private. Sanders’ lawyers have asked Supreme Court justices how they would feel if an undercover reporter posing as a law clerk secretly videotaped their private deliberations.

Sanders said he has drifted from one job to another since the broadcast, feeling branded with a “scarlet letter.” Mundane remarks such as “You look familiar” send him into a panic. “You think maybe they did see me,” he said.

Neville L. Johnson, the Los Angeles lawyer representing Sanders, said ABC investigated Sanders and Highland exhaustively once the litigation began.

“If you think your privacy has been invaded on TV,” Johnson said, “just wait until the litigation.”

But Richard C. Wald, an ABC News senior vice president, defended the program for exposing a business that he said made money by keeping gullible callers on the telephone.

“There are a lot of stories you can show and prove with hidden cameras that you can’t get any other way,” Wald said.

Few dispute that hidden cameras have been overused, however. Beverly DeTeresa, a flight attendant aboard the plane that O.J. Simpson took to Chicago on the night of the Brentwood slayings in 1994, said she felt exploited after being secretly videotaped by an ABC journalist as he tried to talk her into an interview.

DeTeresa, 29, briefly discussed the Simpson case with the reporter but said she was reluctant to go on the air. She promised to call the next day with a decision.

It was a week after the deaths of Nicole Brown Simpson and Ronald Lyle Goldman, and she said she thought she might be a witness if Simpson were tried. She had told authorities that Simpson spent a lot of time in the lavatory, but she did not see him nursing a cut hand.

When she called the reporter to decline an interview, he told her their meeting on her Orange County porch had been recorded. A video camera had been in a van outside, and the reporter had worn a hidden microphone.

For the next several weeks, DeTeresa said, she became fearful of leaving her blinds open and feared that her conversations with friends might be bugged. Only a small portion of the footage was broadcast, showing her on her porch. She filed a lawsuit, which a federal appeals court rejected Tuesday. The divided court held that DeTeresa should not have expected a conversation with a journalist to be kept confidential.

But if secret videotaping is OK, DeTeresa asked, “Then why is it so sneaky?”

“These are not easy questions, and they are not easy calls,” said Jane Kirtley, executive director and a lawyer for the Reporters Committee for Freedom of the Press, a Virginia-based group that provides legal defense for journalists. Whatever the answers, the courtroom is not the place to debate journalistic ethics, she said.

Footage Is a Shock for Bereaved Parents

Journalistic ethicists disagree over the use of hidden cameras and reality-based television, but most believe that the media should use secret cameras only sparingly and when necessary to expose a public wrong. Most also advocate obscuring the faces of people in reality-based shows.

But sometimes the footage can be so upsetting that obscuring a face will not prevent an emotional and legal backlash. Marietta and Robert Marich said they were so devastated when they saw their son’s corpse on the show “LAPD: Life on the Beat” that they sought help from Stuart, who is representing Shulman.

Three months after their son’s 1996 death from an accidental drug overdose, Marietta Marich, a teacher, was home in Houston doing schoolwork while the television ran mute in front her. She looked up and saw a familiar scene.

It was her son’s Los Angeles apartment, the window curtain that she had nagged him to fix still askew, the toy dinosaur he had been given as a gag gift on the floor. The camera lingered on her dead son, sitting cross-legged without a shirt, his head bent over, his face digitally blocked out.

“His poor body was discolored,” Marietta Marich said, her voice breaking.

She screamed and screamed. Her husband, who had been sleeping, said he rushed out and found her crumpled on the floor. She pointed toward the television. The corpse was still on the air.

“The bastards,” he growled and shut off the set.

The program had followed the officers into the apartment of Michael Marich, 27, after a neighbor called 911. It taped them discussing his overdose. The police call to notify the Mariches of their only son’s death also was broadcast. Viewers could hear his parents’ shrieks of anguish.

After learning that a camera had been inside the apartment, a family friend contacted the program and begged its legal consultant not to show Michael’s body. The consultant, citing possible litigation, declined to comment about the case to The Times.

The Mariches have filed a claim against the city of Los Angeles, asking it to develop a policy to protect citizens’ privacy when the media rides along with emergency personnel. Los Angeles police allow ride-alongs--as do many public agencies with varying ground rules--but Deputy Chief David Gascon said the department does not have the authority to allow the media into private homes. He declined to discuss the Marich case.

The Mariches both wept recently as they talked with pride about their son, who was succeeding as an actor, and their mortification at the broadcast. As the camera circled her son’s body, Marietta Marich said, she thought of vultures hovering.

“Oh God, my son would have hated it,” she said. “He would have run them out of there. He was so private.”