*1 HUFSTEDLER, Before CARTER Judges, DER and VON Circuit HEYDT,* Judge. District Judge: HUFSTEDLER, Circuit judgment appeal from a This plaintiff for invasion in an action grounded in privacy. was Jurisdiction agreed diversity. parties that Cali- The governed. trial a court fornia After general awarded was $1000 damages. appeal we are asked On involving significant questions consider priva- personal relationship between press. cy and the freedom the report- The district court’s decision Inc., Time, 284 F. ed in Dietemann v. facts, Supp. (1968). narrat- court, ed are these: district “Plaintiff, lit- with a disabled veteran engaged prac- education, tle minerals, healing clay, tice of simple quackery. practiced, herbs —as Incorporated, “Defendant, corporation, publishes Life York New Magazine. edition November Its entitled carried an article ‘Crackdown plain- Quackery.’ depicted article pic- quack and included two tiff picture was taken tures of One him. September plaintiff’s home on Judge Iieytlt, District District A. von tier United States Honorable James sitting Alaska, designation. *2 correspondent was Bride charge that Life previous a of to his arrest on license, making was re- what notes of practicing a medicine without transmitter, and radio the time his ceived via taken at of and the other referred was at least such information arrest. to in article. Magazine ar- entered into an “Life photo- foregoing Attorney’s events were rangement “The the District with arrange- by graphed an Angeles whereby and recorded County of Los Office among At- of the District plaintiff ment Miner employees Life’s would visit torney’s De- concerning Office, Leake of State pictures and obtain facts and Health, Bride, partment and a of Life, Pubic employees of his activities. Two representative It had been of Life. and William Mrs. Jackie Metcalf Mr. agreed pictures Ray, Sep- that Life obtain plaintiff’s went home on evidence, and and information for use as they at arrived tember 1963. When by publica- later could be used Life for gate, rang they plain- a locked and a bell tion. tiff came told out of his house was
by Ray had Metcalf and Mrs. Septem- of “Prior the occurrences friend, sent there a a been Mr. John- 20, 1963, ber on two occasions the offi- son. The use a of name was Johnson’s recordings obtained of conver- cials had gain ruse to entrance. Plaintiff admit- home; however, sations in no ted them all three went pictures had em- Life been secured. house and into den. ployees obtaining participated had not recordings plaintiff equipment had on these occasions. some which could at best be described plaintiff “On October was gadgets, equipment any- which had charge arrested a his home on thing practice to do with the of medi- practicing a license in medicine without Plaintiff, examining cine. while Mrs. violation of California Section Metcalf, photographed by Ray was Safety Health and At time Code. a hidden camera without the consent of arrest, pictures many his were made plaintiff. pictures One of the taken plaintiff Life of at his home. Plaintiff appeared Magazine him showing in Life agree pose testified he did not plaintiff upper with his hand pictures pictures but allowed portion of Mrs. Metcalf's breast while he thought cause he re- officers could looking gadgets holding was at some quire present newspaper it. Also appeared what to be wand in his men who had also been invited Mrs. plaintiff hand. Metcalf had told present officials to be ar- at the time of lump she had a in her breast. rest. Plaintiff concluded that she had eaten years, some rancid months, butter 11 plaintiff “Defendant contends days prior and 7 posed pictures to that time. Other at the time of his ar- persons during were seated in permission given room rest and thus was this time. pictures. take those As hereinafter pointed out, unnecessary it to decide “The conversation between Met- Mrs. permission given whether or not plaintiff calf and was transmitted ra- pictures take at the time arrest. dio transmitter hidden in Metcalf’s Mrs. purse tape “Plaintiff, although parked journeyman recorder occupied by Joseph Bride, automobile plumber, claims to be a Plain- scientist. employee, Life listings John Miner tiff had no of the Dis- no his home had Attorney’s trict Office, sign any advertise, Grant kind. He did not Leake, investigator nor telephone. De- did he State made He partment of charges diag- Public Health. no attempted While the when he recorded quoted prescribe conversation was not nose or to herbs and minerals. Life, the article accept it was mentioned He did contributions. concerning plaintiff distress? he suffered emotional which article “Life’s insulate Amendment Does the First published after until was not invasion of plea on June before his was arrested but violations because defendant’s contendere 1964 of nolo gather purpose of Busi- did those acts for Section *3 ing magazine story and a a material for Code and Section and Professions ness utilizing story published thereafter was Health Safe- of the gathered? material (misdemeanors). some of the thus ty Code tained house was ments phone. He did was not a medical man of To did not ring a “Defendant’s «-X- obtain entrance it was building administering (cid:127)* bell. advertise. people open the evidence. He conducted his which was claim to the who visited him. his so-called He that lock did not have a any type. He The necessary on his home. is not sus- plaintiff’s activities treat- gate. The He the Federal jecting Fourth, and if cause of Because we Civil sulate the defendant do (3) not so, Were the defendant’s as Rights reach the third issue. did special defendant action under California First Amendment does not their hold Fourteenth Amendments Constitution, Act acts violate the (42 liability of the plaintiff proved a U.S.C. §(cid:127) employees thereby liability, police under law and 1983) First, and, sub act we in of ?1 employees gained entrance of necessary itWere to reach the Civil subterfuge.” Rights questions, Act we would be court district concluded: obliged explore relationship Magazine in Life on Novem- tween the and the defendant’s plaintiff’s picture ber taken 1963 of police ascertaining purpose of Sep- his consent his home on of the law” ele- existence “color of tember was an invasion of his ment of the Act. do not Because we privacy under California law for which issue, accept reach the we can and do damages. he is entitled to The acts of the defendant’s disclaimer its em- defendant also constituted an invasion of acting ployees for or on behalf right guaranteed privacy police. by the Constitution of the United States jurisdictions In than Cali other which would entitle him relief under fornia in which common tort for Section Title United States recognized, invasion of it is has $1,000 gen- Code.” The court awarded consistently surreptitious been held that damages eral injury “for to [Diete- recording electronic of a con feelings peace mann’s] of mind. causing versation him emotional distress appeals from that decision. Despite is actionable. some variations appeal presents three ulti description applied and the labels (1) mate law, issues: Under California tort, agreement pub to the is there is a cause pri of action for invasion of necessary lication is not a of the element vacy upon proof established tort, that defend the existence of a technical employees, ant’s by subterfuge, gained trespass proof immaterial, and that portion entrance plain to the office special damages required. (E.g., is not tiff’s home photographed wherein Corp. (1970) Nader v. General Motors him electronically recorded and N.Y.2d N.Y.S.2d persons transmitted to third his conver (applying N.E.2d 765 District of Colum sation without his consent law); Hamberger result of bia Eastman v. Although complaint 1. initially appeal plaintiff pressed did not der the Act. On Rights cite the Civil Act as a foundation under the Act as an alternative liability, supporting district judgment. court concluded basis for proved that a claim for relief had been un- (1964) 239; rage underlying right 106 N.H. 206 A.2d the asserted Harper (1958) privacy is exposure Roach v. 143 W.Va. a reaction to 564; persons only through McDaniel Atlanta S.E.2d known business Bottling secondary relationships. Coca-Cola other Co. Ga. App. 92, 2 claim Pearson v. S.E.2d not so much one of total se- cf. Dodd, crecy U.S.App.D.C. F.2d it is of the to define intimacy one’s circle cert denied choose —to 465). who shall quotidian L.Ed.2d see beneath mask. Loss of control over which Although the issue has been puts may ‘face’ one result in literal squarely California, we have decided self-identity loss (Westin, supra, at difficulty concluding little that clan p. Science, [Westin, Privacy, photography plaintiff in destine Proposals Freedom: Issues and his den and recordation and trans *4 (1966) the 1970’s 66 Colum.L.Rev. mission of his his conversation without 1003]; Fried, Privacy (1968) 77 cf. resulting in consent his emotional dis 475), humiliating Yale L.J. and is be- recovery tress of warrants invasion gaze neath the ty of those whose curiosi-
privacy
began
in California.1a California
object.”
treats
human
as an
developing
privacy
a common law
tort in
Reid,
Publishing
In Gill
1931 with
Melvin v.
v. Hearst
the decision of
Co.
(1953)
Cal.App. 285,
then,
230,
40 Cal.2d
112
91.
P.2d
P.
Since
recovery
Supreme
which
denied
Court has decid
for invasion
privacy
plaintiffs
of
to
privacy
ed a
picture
number
eases
some of
of
whose
pra,
vacy with
in Briscoe v. Reader’s
which there are indications that Califor
closing plaintiff’s
nia
upon
growing acceptance
ties,
electronic devices with their
“the
to
intrude
The most
characteristics
those closest to
years
“Men fear
P.2d
4 Cal.3d
destroy
#
increasing capability
-X-
earlier.
upon
recognize
recent
expose
at-,
an individual’s
his most intimate activi- Cal.Rptr. 88,
exposure
them;
The court
conviction of
privacy
to
expression
of the
his most
of an article dis-
Digest Ass’n,
Cal.Rptr.
much
right
action based public
equated
anonymity,
of the
is
personal
capacity
* * *
only
at
felony
claim.
found
gaze.
out-
pri-
su-
to
published
was taken in a
been
tiffs in a
grounds,
mental
privacy law, California had decided a se-
ries
of intentional
court stressed
from unreasonable
bish Collectors Ass’n v. Siliznoff
distress.
neering,
Western
though
38 Cal.2d
Cal.App.3d 376,
Concurrently
of cases
“surreptitiously
market
these eases are not direct author-
tranquility
but rather was taken of
Nat’l Life Ins. Co.
Inc.
pose
(E.g.,
468 P.2d
according
place.”
240 P.2d
(1970)
that the
voluntarily assumed in a
with the
inflection of emotional
public
Alcorn v. Anbro
penetrations
based
their
Cal.Rptr.
snapped
2 Cal.3d
market and later
216;
282;
picture
plaintiffs
development
upon
consent,
State Rub-
Fletcher v.
(1970)
78.)
the tort
had not
of their
(1952)
plain-
Engi-
relief
Al-
of
unnecessary
1a.
It
Bloustein,
“Privacy,
to
Law,
us
decide wheth
Tort
and the
adopt
er California will
Dean Prosser’s
Constitution:
Is Warren
Brandéis’
analysis
privacy,
including
Petty
classifi
Tort
Unconstitutional
separate
cation of
(1968)
611),
intrusion
as a
tort
Well?”
36 Tex.L.Rev.
(Prosser,
“Privacy”
(1960)
expose
48 Calif.L.
cause the facts of this case would
Prosser,
(3d
Rev.
Torts
W.
832-33
the defendant
either
under
1964)),
(See
ed.
or Prosser Bloustein’s more
view.
also Briscoe
Di-
v. Reader’s
expansive concept
privacy
gest Ass’n,
Inc.
n.
Cal.3d
(Bloustein,
“Privacy
Aspect
Cal.Rptr. 866,
an
n.
483 P.2d
Dignity:
4.)
Human
An Answer
to Dean
n.
Prosser”
39 N.Y.U.L.Rev.
newsgather
agree
area,
reporting.”
indica-
We
ity
privacy
are
integral part
dissemi
is an
of news
trend of California
tive of the
however,
strongly
analogous
disagree,
nation.
those as-
We
protect
interests
the hidden mechanical contrivances
this
case.
serted
newsgather
“indispensable
are
tools” of
will
convinced that California
areWe
ing.
Investigative
reporting
an
of in-
“approve
of the tort
the extension
long
art;
practice
cient
its successful
of intru-
instances
vasion
antecedes
the invention
of miniature
trespass
by physical
sion,
or
whether
cameras
electronic
devices.
spheres
not,
which an ordi-
into
from
First
has
been con
Amendment
never
nary
position
could
man
immunity
strued
to accord newsmen
particular
reasonably expect
de-
during
from torts or crimes committed
(Pearson
excluded.”
fendant
should be
newsgathering.
The First
the course of
704.)
Dodd, supra, 410 F.2d at
trespass,
Amendment
is not a license to
sphere
Plaintiff’s
den was
steal,
by electronic
to intrude
expect
reasonably
ex
he could
which
precincts
another’s
means
eavesdropping
in
newsmen. He
clude
not become
home or office.
It does
of defendant’s
vited two
simply
person
such a license
because
invites another
to his
den. One who
subjected
reasonably
to the intrusion is
*5
that
home or office takes
risk
the visi
suspected
committing
a crime.3
may
seems,
tor
he
and that
not be what
upon
relies
the line of cas-
Defendant
repeat
may
the
and
visitor
all he hears
commencing
es
York Times
with New
observes when he
But he does
leaves.
(1964) 376
Co. v. Sullivan
U.S.
required
not and should not be
to take
extending
S.Ct.
251
publica-
order to obtain information for
States,
(1963);
385 U.
v. United
Lewis
gathering purposes
for
424,
can-
206,
L.Ed.2d 312
news
tion’]
17
87 S.Ct.
S.
States,
denied, Mapp Ohio,
not
385 U.
be
cf.
v.
367
(1966);
U.S.
v. United
Hoffa
643,
1684,
1081,
408,
293,
L.Ed.2d 374
81 S.Ct.
6 L.Ed.2d
S.
87 S.Ct.
* *
States,
404,
p. 550],
[p.
(1966);
v. United
S.Ct.
Osborn
429,
323,
17 L.Ed.2d
S.Ct.
U.S.
dissenting
Time,
Fortas,
in
Justice
States,
(1966);
389 U.S.
Katz v. United
Hill,
supra,
stated,
“Privacy,
Inc. v.
L.Ed.2d 576
88 S.Ct.
right.
may,
then,
is a
The
basic
States
White, 401 U.S.
v.
and United States
by appropriate
legislation
and within
28 L.Ed.2d
91 S.Ct.
proper bounds, enact
laws to vindicate
Supreme
(1971).
held
Court
right.
Cooper,
Kovacs v.
Cf.
cases,
in the situations
involved
U.S.
93 L.Ed.
S.Ct.
of the Fourth
there
violation
was no
(1949), sustaining
reg-
a local ordinance
Amendment, except
White sus-
in Katz.
ulating
trucks;
the use
sound
Lee,
validity
continuing
of On
tained the
Alexandria,
Breard v.
Lopez,
did
cite
It
Lewis
Hoffa.
(1951),
S.Ct.
L.Ed. 1233
sustain-
distinguished Katz.
Osborn
restricting
a state
solicitation in
all concerned restric-
cases
magazine
above
subscrip-
homes of
under the Fourth
tions on federal action
[p. 415,
p.
tions.”
87 S.Ct.
556].
Ohio,
Amendment,
Mapp
367 U.S.
but
writing
Brennan,
Justice
643, 81
6 L.Ed.2d
Hill, supra,
in
Court
Inc. v.
took
that all evi-
held in substance
9, p.
care to state in footnote
87 S.
and seizures
dence
searches
obtained
any
Ct., p.
intimate
“Nor do we
Con-
violation of the United States
limits
view whether
the Constitution
stitution
is inadmissible
criminal
power
state
to sanction
court,
incorpo-
thus
trial
the State
matter
an intrusion
obtained
scope
Fourth Amend-
rated
through
protected area,
example,
use
ment within the Fourteenth.
listening
of electronic
devices.”
that,
if
It does not follow
the intru-
A
State
free to reassess
inter-
agents,
police
sion
the case at bar
ests involved and reach results
re-
Amendment,
did not violate the Fourth
police
strict
the activities
state
Fourteenth,
incorporated
into the
greater
the decisions of
extent
than do
can
no civil
there
be
Supreme
Fourth
Court.
*7
the intrusion.
Amendment,
incorporated
Four-
constitutionally
A
power
Mapp, says only
has
to
by
State
teenth Amendment
provide
right
protection
pri-
engage
police
for the
to
in
certain
cannot
vacy.
States,
In Katz v. United
389
U.S.
not dictate
It does
activities.
88
L.Ed.2d
police
given
privilege
S.Ct.
19
576
be
protection
stated,
the Court
“But
engage
prohibit.
in activities
it does not
right
person’s general
privacy
a
—his
the federal
A state must enforce
ex-
right
by
people
is,
to be let alone
other
— clusionary
prosecu-
rules in a criminal
protection
property
like the
Ohio, supra.
Mapp
tion
v.
because of
very life,
largely
of his
left
to the law of
But a State court can also enforce the
[pp. 350-351,
the individual States.”
impose
additional
restrictions
it would
p.
[Emphasis
S.Ct.
in
510]
text].
by recognizing
private
a
police,
on the
concurring
Justice Harlan in a
right
intrusion
the vic-
of action for
dissenting opinion
Hill,
in
activity
police activity
Inc. v.
if the
tim of
even
385 U.S.
S.Ct.
17 L.Ed.2d
Amendment.
does not violate the Fourth
stated,
power
recognize
fact,
might
a
State
civil
In
State
remedy
control
[‘upon
such intrusion
would not
action
intrusion
it
when
* * *
private
prosecu-
solitude or
in
affairs
exclude
in a criminal
evidence
privacy
ra-
tion because of the
tion for an invasion
an in
intrusion.
persons
po
private
tionale would be that an unsuccessful
prosecution
trusion
either
high
agents.
price
required
too
social
lice
are
We
therefore
place
police.
pay
position
to deter the
ourselves in the
highest
considering
California court
conflicting
Various
interests would be
initially.
Hayes
matter
United States v.
weighed
arriving
by a
court in
State
(9 Cir.1966)
369 F.2d
Edwards v.
a decision as to whether it would allow
(9
Company
American Home Assurance
the cause of action involved in this case.
Cir.1966)
P.
361 F.2d
Gates v.
See
Certain interests that cut
re-
toward
Cir.1967)
(9
Collier,
F.
Inc.
F.2d
stricting police activities, include the in-
cert. denied 389
terest
privacy,
in
citizens
the inter-
(1968);
19 L.Ed.2d
1 Barron
&
preventing
police
ests of
violat-
Procedure,
Holtzoff, Fed. Practice and
§
ing the societal norms of what consti-
(1960).
p. 40
play
fair
pre-
tutes
and the interest
in
venting
police
behavior
which
Supreme
cases in the
Court
tyranny.
could
mary
pri-
cumulate in
general
suggested
privacy realm
way,
interest that
cuts
other
sensitivity
protecting
right
“the
to be
society
discovering
in
and suc-
Publishing Co.,
let alone.” Gill v. Curtis
cessfully prosecuting criminal activities.
273, 275,
38 Cal.2d
239 P.2d
(1952).
denying recovery
There is
believing
a basis however
In
spite
agreement
photo
of Life’s
of a
taken
in the Los
officers,
Angeles
law
Market,
enforcement
law
Farmer’s
the court not-
enforce-
ment
might
interest
ed that
was not
a different
furthered
result
have oc-
picture
intrusion.
[appellant’s
“surrepti-
curred
admits
if the
had been
re-
ply
p.
tiously snapped
grounds.”
brief
private
16]
the intrusion was
on
conducted primarily
Publishing Company,
v.
its
Gill Hearst
benefit.
224, 230,
(1953).
enforcement
already
officers had
Cal.2d
253 P.2d
two
recordings
occasions obtained
which
Recently
right
the court authored a
should have been
prose-
sufficient for a
invalidating
privacy
financial
a finan-
cution. When
police
allied with the
public
cial disclosure statute for
offi-
making intrusions,
press
can serve
Carmel-By-The-Sea Young,
cials.
purpose
public
Cal.Rptr. 1,
Cal.3d