1. Introduction
In September 1999, Sports Illustrated and an HBO television program, Real Sports, used the 1997 team photograph of a Little League team to illustrate stories about adult coaches who sexually molest youths playing team sports. Plaintiffs, all of whom appear in the photograph, were formerly players or coaches on the Little League team. The team’s manager, Norman Watson, pleaded guilty to molesting five children he had coached in Little League. Plaintiffs have
Time Warner brought a motion to strike plaintiffs’ complaint pursuant to Code of Civil Procedure section 425.16, the so-called anti-SLAPP statute. SLAPP is the acronym for “strategic lawsuits against public participation.”
1
The trial court denied the SLAPP motion, ruling that plaintiffs had a reasonable probability of succeeding
Time Warner now appeals. We affirm, holding that plaintiffs have demonstrated a prima facie case for invasion of privacy.
2. Facts
The 10 plaintiffs were eight players and two coaches for a Little League team in Highland, California. Norman Watson was the team’s manager in 1996 and 1997, until it was discovered in September 1997 that he had a long history of sexually abusing children, beginning with a molestation conviction in 1971. Watson pleaded guilty in April 1998.
In September 1999, Sports Illustrated published a cover story, Every Parent’s Nightmare, on incidents of child molestation in youth sports. Using Watson as one example, thе article reported Watson had “pleaded guilty to 39 counts of lewd acts with children, four boys and a girl, that had occurred between 1990 and ‘96, when Watson was a San Bernardino Little League coach and umpire and the five kids were all playing in the league.” Watson was further described as having “spent most of his 54 years sexually preying on children . . . [m]ost of. . . whom he first met through his work in Little League.”
Accompanying the article was a team photograph of 18 people, including the 10 plaintiffs in this case. The photograph featured a sign bоard reading: “East Baseline S_P_1997.” (We use only the team’s initials to preserve its members from further notoriety.) The photograph also bore a caption: “A fixture Watson (center, in black) coached for years not far from a hospital where he’d been incarcerated as a molester.”
Also in September 1999, HBO broadcast a similar report on child molesters in youth sports. The story discussed Watson and his involvement with plaintiffs’ team. The story employed a fleeting shot of the team photograph.
The Sports Illustrated article аnd the HBO program did not name any of the people shown in the team photograph except Watson. The article did not identify any of Watson’s victims by his or her real name. Two victims were identified by pseudonyms. One player, who is not a plaintiff, was interviewed on the HBO program, apparently using his real name. According to their declarations opposing the motion to strike, four of the eight player-plaintiffs had been molested by Watson and four had not.
3. Discussion
Plaintiffs filed suit against Time Warner for invasion of privacy, stated in four separаte causes of action, and two additional causes of action for intentional and negligent infliction of emotional distress. Two issues are presented on appeal: first, does the anti-SLAPP statute apply here and, if so, have plaintiffs demonstrated a probability of success sufficient to withstand the motion to strike?
Throughout our analysis we are mindful of the following distinctions and considerations. First, plaintiffs themselves are of three different types: the four players who were Watson’s victims, four players who escaped being molested, and two adult assistant coaches who also appeared in the team photograph. Second, two different publications are involved, the Sports Illustrated article and the television program. Depending on which category of plaintiff and which publication are involved, a different theory of liability may apply. Furthermore, while the anti-SLAPP statute is meant to be
a. Code of Civil Procedure Section 425.16 Applies
Our first determination is that Code of Civil Procedure section 425.16 applies in this case. As relevant to this case, section 425.16 providеs:
“(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
“(b)(1) A cause of action аgainst a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim, [ft . . . [ft
“(e) As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in conneсtion with a public issue’ includes: ... (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” 5
Both legislative mandate and judicial interpretation have expanded the application of the anti-SLAPP statute beyond its paradigmatic origins. At first, it was envisioned that the anti-SLAPP statute would be limited to situations involving “powerful and wealthy plaintiffs, such as developers,
against impecunious protesters . . . .”
6
The state Legislature, however, has directed that Code of Civil Procedure section 425.16 be interpreted broadly.
7
Furthermore, a number of courts have approved the use of the anti-SLAPP statute by media defendants like those here.
8
Therefore, although
Under the anti-SLAPP statute, a defendant has the initial burden of establishing a prima facie case that the subject act arose in furtherance of defendant’s right of petition or free speech in connection with a public issue. This point is nearly conceded by plaintiffs. Freedom of the press and free speech rights are unquestionably implicated here. Although plaintiffs try to characterize the “public issue” involved as being limited to the narrow question of the identity of the molеstation victims, that definition is too restrictive. The broad topic of the article and the program was not whether a particular child was molested but rather the general topic of child molestation in youth sports, an issue which, like domestic violence, is significant and of public interest. 9
The Time Warner defendants, in publishing and broadcasting on the serious topic of child molestation, exercised orally and in writing their right of free speech concerning an issue of public interest in a public forum. Consonant with the mandate to give а broad interpretation to the anti-SLAPP statute, we agree with the trial court that Code of Civil Procedure section 425.16 applies.
b. Plaintiffs Have Shown a Reasonable Probability of Success
We next decide whether plaintiffs have demonstrated a reasonable probability of success. Plaintiffs carry the burden of proof. On appeal, we conduct a de novo review to analyze whether plaintiffs have demonstrated sufficient facts to establish a prima facie case. 10 The standard used is like that for determining a motion for nonsuit, directed verdict, or summary judgment. 11 In the present case, we concur with the conclusion of the trial court that plaintiffs have shown a reasonable probability of success on their invasion of privacy claim on some grounds.
Plaintiffs’ first four causes of action are all for invasion of privacy based on various theories of liability: misappropriation of identity, public disclosure of private facts, intrusion, and false light. Although plaintiffs have pleaded these various theories as separate causes of action, they are all based on identical facts, sеek the same damages, and generally constitute an invasion of privacy claim. Furthermore, although each of the theories is treated separately by the parties in the motion to strike and the appellate briefs, we believe it is proper to treat them as one cause of action, expressing four different theories. If one theory is adequate, we will uphold denying the motion to strike as to plaintiffs’ claims for invasion of privacy. 12
In cases where essentially onе harm has been alleged, the courts have interpreted the single-publication rule to mean that a plaintiff may have only one cause of action for one publication rather than multiple causes of action for torts such as defamation, invasion of privacy, personal injury, civil rights violations, or fraud and deceit. 13 In the present case, applying the statute means that each of the plaintiffs has a single cause of action for invasion of privacy based on each of the two publications. The tort of invasion of privacy may then be proved by four different theories.
Fundamentally, the right of privacy means the right to be left alone. 14 In Gill v. Curtis Publishing Co., another case involving the unauthorized use of a photograph, the California Supreme Court upheld a claim for invasion of privacy. The famous French photographer Henri Cartier-Bresson had snapped a photograph of the plaintiffs, a husband and wife, without their consent as they “spooned” on counter stools in an ice cream shop. The magazine Ladies Home Journal then published the photograph to illustrate an article about love at first sight, described as the “wrong kind” of love based solely on sexual attraction. In their complaint, the plaintiffs alleged that the article portrayed them as immoral and dissolute persons. The court agreed, holding that “the public interest did not require the use of any particular person’s likeness nor that of plaintiffs without their consent.” 15
The discussion in Gill v. Curtis Publishing Co. of the general common law right of privacy demonstrates that invasion of privacy may be actionable if materials such as an article about “bad” love or sexual molestation are juxtaposed with an illustrative photograph that makes a negative association between the subject matter and the subjects of the photograph. 16 That is precisely what occurred here.
In Gill v. Hearst Publishing Co., 17 a subsequent case, the court held that Harper’s Bazaar’s reprint of the same photograph, published independently of the offending article, was not actionable. But the second Gill case does not apply here because that case concerned the phоtograph published without an offensive text accompanying it.
Therefore, we conclude that, in general, plaintiffs have a viable invasion of
The parties seem to agree that disclosure of information connecting a person with sexual molestation potentially may offend a reasonable person. But Time Warner argues, that the photograph of plaintiffs was not private and its publication met the test of newsworthiness. Plaintiffs, of course, assert the photograph was private and was not newsworthy.
As to what constitutes a private fact, Time Warner asserts the information was not private because plaintiffs had played a public sport and the team photograph had been taken on a public baseball field. Furthermore, during the two years after Watson was found out, it had been widely reported that Watson had coached a Little League team, occasionally identified as the S_P_, and that Watson had admitted molesting Little League players. Time Warner maintains that defendants’ use оf the team photographs disclosed only information that was already publicly known: “. . . Norman Watson, a convicted child molester, had coached the East Baseline S_P__”
Plaintiffs counter that their identities, as coaches or players on Watson’s team, were not revealed in any of the coverage of the Watson case until the publication of the team photograph, an event which publicly linked plaintiffs with child molestation as either victims, perpetrators, or collaborators. In opposition to thе motion to strike, all the player-plaintiffs submitted declarations in which they stated that, immediately after the article and the program appeared, they were teased and harassed at school and called “gay,” “faggot,” “queer,” and one of “Norm’s boys.” As a consequence, the players’ academic performances suffered. Some of them were forced to quit school, to transfer, or to be home-schooled. The two coach-plaintiffs have stated they were “ridiculed, questioned, and harassed” and received crank phone calls accusing them of being molesters or of condoning molestation.
After reviewing the record, we do not perceive support for Time Warner’s assertion that plaintiffs’ membership on Watson’s Little League team had been publicly known for two years. Time Warner apparently equates “private” with “secret” and urges any information not concealed has been made public. But the claim of a right of privacy is not “ ‘so much one of total secrecy as it is of the right to define one’s circle of intimacy—to choose who shall see beneath the quotidian mask.’ ” 20 Information disclosed to a few people may remain private. 21
The cases relied upon by Time Warner are distinguishable. Sipple v. Chronicle Publishing Co., 22 for example, was a summary judgment case in which the court held there was no triable issue about whether it was a private fact that a well-known and politically active man was homosexuаl. Unlike in Sipple v. Chronicle, the record here is not sufficiently developed to establish whether plaintiffs’ membership on Watson’s Little League team was a public fact as a matter of law. This case also differs from the recent United States Supreme Court case, Bartnicki v. Vopper 23 in which the court reiterated the First Amendment affords protection for the publication of communications involving an issue of public concern. The other cases are distinguishable because they involve public records of criminal proceedings, other kinds of public litigation, and material obtained in the course of news-gathering activity. 24
Additionally, relying on Shulman v. Group W Productions, Inc., Time Warner argues plaintiffs cannot establish the use of the photograph was not newsworthy because the court is precluded from making editorial judgments about news content: “The courts do not, and constitutionally could not, sit as superior editors of the press.” 25 But Time Warner selects only those parts of Shulman that serve its argument.
In
Shulman,
two plaintiffs, a mother and son, had sued the defendants for videotaping and broadcasting a documentary program showing the plaintiffs’
rescue from an automobile accident and their transportation to the hospital in a medical helicopter. The California Supreme Court reviewed a summary judgment motion brought by the media defendants. Regarding the concept of newsworthiness, the
Shulman
court said the courts must accord great deference to editorial decisionmaking in matters involving legitimate
“An analysis measuring newsworthiness of facts about an otherwise private person involuntarily involved in an event of public interest by their relevance to a newsworthy subject matter incorporates considerable deference to reporters and editors, avoiding the likelihood of unconstitutional interference with the freedom of the press to report truthfully on matters of legitimate public interest. [Fn. omitted.] In general, it is not for a court or jury to say how a particular story is best covered. The constitutional privilege to publish truthful material ‘ceases to operate only when an editor abuses his broad discretion to publish matters that are of legitimate public interest.’ [Citation.] By confining our interference to extreme cases, the courts ‘avoid[] unduly limiting ... the exercise of effective editorial judgment.’ [Citation.]” 26
“On the other hand, no mode of analyzing newsworthiness can be applied mechanically or without consideration of its proper boundaries. To observe that the newsworthiness of private facts about a person involuntarily thrust into the public eye depends, in the ordinary case, on the existence of a logical nexus between the newsworthy event or activity and the faсts revealed is not to deny that the balance of free press and privacy interests may require a different conclusion when the intrusiveness of the revelation is greatly disproportionate to its relevance. Intensely personal or intimate revelations might not, in a given case, be considered newsworthy, especially where they bear only slight relevance to a topic of legitimate public concern.” 27
Despite its caution against after-the-fact blue-penciling, the Shulman court went on to evaluate whether the material used in the program was editorially significant. The court determined that the subject matter of automobile accidents was of “legitimate public concern.” It also concluded that the victim’s “appearance and words as she was extricated from the overturned car, placed in the helicopter, and transported to the hospital were of legitimate public concern.” 28 Furthermore, “[i]t is difficult to see how the subject broadcast could have been edited to avoid completеly any possible identification without severely undercutting its legitimate descriptive and narrative impact.” 29 The court further observed, although the mother’s identity was possibly revealed by other details of the broadcast, it used neither her “full name nor direct display of her face.” 30 The court held that summary judgment in favor of defendants was proper as to the cause of action for publication of private facts: “Lack of newsworthiness was held to be an essential element of a cause of action based on a сlaim that publication has given unwanted publicity to allegedly private aspects of a person’s life.” 31
State law contains many statutes prohibiting the disclosure of the identity of both minors and victims of sex crimes. 34 Public policy favors such protection—as does the journalism profession. Plaintiffs supplied declarations from two journalism experts in which they confirm that use of the faces of the team members was not consonant with journalistic standards and practices. Plaintiffs also submitted examрles of how the faces in the team photograph could have been obscured.
Furthermore, the article and the program in themselves demonstrate the team members’ faces should have been concealed. Although the program showed footage of boys playing baseball, it did not show their faces but photographed them without their faces showing. In the program and the article, the victims were given pseudonyms unless they consented to using their real names. Nor is this case analogous to one in which a news documentary used the first name of a rape victim and a picture of her house. 35 The intrusion here, in which the children’s faces were revealed, is far greater and outweighs the values of journalistic impact and credibility. 36
At this preliminary stage in the proceedings, plaintiffs have presented a prima facie claim that the private fact of their membership on Watson’s team was not newsworthy. Based on the theory of invasion of privacy for public disclosure of private facts, plaintiffs’ cause of action is sufficient to overcome defendants’ SLAPP motion.
On an additional theory, we also conclude that some of the plaintiffs may be able to prove a “false light” claim. The “false light” tort applies, if at all, to the players who were not molested and, secondarily, to the two assistant coaches. Plaintiffs contend the article and program falsely portrayed those players as molestation victims and the coaches as participating in or condoning the molestations. Time Warner protests that no reasonable рerson would have interpreted the article or the program in that way.
A “false light” claim, like libel, exposes a person to hatred, contempt, ridicule, or obloquy and assumes the audience will recognize it as such.
37
In the article
Having decided that plaintiffs’ claim for invasion of privacy is viable on at least two grounds, we do not analyze the additional theories involving invasion of privacy. For similar reasons, we decline to cоnsider the validity of the emotional distress claims. We agree with Time Warner that these claims are probably cumulative and pleading them as separate torts may add nothing to plaintiffs’ claim for invasion of privacy. 40 But a SLAPP motion is not the proper procedural vehicle to address these individual causes of action. Plaintiffs have shown the propriety of their invasion of privacy claim. Therefore, it cannot be said their lawsuit is meritless and “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” 41 Plaintiffs’ emotional distress claims should survive the SLAPP motion.
4. Disposition
We affirm the lower court’s denial of defendants’ motion to strike plaintiffs’ complaint. Plaintiffs shall recover their costs on appeal.
Ramirez, P. J., and Ward, J., concurred.
Appellants’ petition for review by the Supreme Court was denied September 12, 2001. George, C. J., and Brown, J., did not participate therein.
Notes
Wilcox
v.
Superior Court
(1994)
Code of Civil Procedure section 425.16, subdivision (a).
Wilcox v. Superior Court, supra, 27 Cal.App.4th at pages 816-817.
Code of Civil Procedure section 425.16, subdivision (b).
Code of Civil Procedure section 425.16.
Sipple v. Foundation for Nat. Progress
(1999)
Code of Civil Procedure section 425.16, subdivision (a);
Sipple v. Foundation for Nat. Progress, supra,
Sipple
v.
Foundation for Nat. Progress, supra,
Sipple v. Foundation for Nat. Progress, supra,
Wilcox v. Superior Court, supra,
Wilcox
v.
Superior Court, supra,
But see
Shekhter v. Financial Indemnity Co.
(2001)
Strick v. Superior Court
(1983)
Gill v.
Curtis Publishing Co.
(1952)
Gill v. Curtis Publishing Co., supra,
O’Hilderbrandt v. Columbia Broadcasting System, Inc.
(1974)
Gill
v.
Hearst Publishing Co.
(1953)
Shulman v. Group W Productions, Inc.
(1998)
Diaz
v.
Oakland Tribune, Inc., supra,
Hill v. National Collegiate Athletic Assn.
(1994)
Times-Mirror Co.
v.
Superior Court
(1988)
Sipple v. Chronicle Publishing Co.
(1984)
Bartnicki
v.
Vopper
(2001)
Kapellas v. Kofman
(1969)
Shulman
v.
Group W Productions, Inc., supra,
Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at pages 224-225.
Shulman
v.
Group W Productions, Inc., supra,
Anti-Defamation League of B’nai B’rith v. Superior Court
(1998)
Shulman
v.
Group W Productions, Inc., supra,
Shulman v. Group W Productions, Inc., supra,
Anti-Defamation League of B’nai B’rith v. Superior Court, supra,
Diaz v. Oakland Tribune, Inc., supra,
Times-Mirror Co. v. Superior Court, supra, 198 Cal.App.3d at pages 1428-1429.
Government Code sections 11131.5 and 54961; Penal Code sections 293, 293.5, and 868.7.
Ross v. Midwest Communications, Inc.
(5th Cir. 1989)
Ross v. Midwest Communications, Inc., supra,
Aisenson v. American Broadcasting Co.
(1990)
Kapellas v. Kofman, supra,
Blatty v. New York Times Co.
(1986)
Civil Code section 3425.3;
Grimes v. Carter
(1966)
Code of Civil Procedure section 425.16, subdivision (a).