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-Long’s recording, without the plaintiff’s 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 father’s body in a highly emotional state. Suzanne Rogers was discovered inside the family’s 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, California’s 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 California’s common law intrusion tort . . . it focuses on intrusions committed by the press.” In response to Devlin-Brown’s argument that the statute’s “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 Wood’s 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. “Isn’t 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 people’s privacy?” In response, Dixton offered another recurring line of argument: “With increasing invasiveness of technology, there’s 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 Court’s time, place, and manner jurisprudence. In response to questioning regarding the apparent content-based nature of the statute’s exception, Kobersy explained that the “exception is based not on the content of the information that is being recorded. Rather, it’s 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 criminal’s victims, Judge Wood pointed out that “criminal activity is a topic . . . it is something that can be the basis of [an impermissible] content distinction.”
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 Archibald Cox Honorary Team
for the petitioners Ride-A-Long Productions, Inc. and Ames Broadcasting Co., Inc.
Alvin L. Bragg, Jr.
Daniel S. Gordon
Sarah E. Harrington
Erin E. Murphy
Adam J. Szubin
The Telford Taylor Memorial Team
for the respondents Suzanne Rogers and Michelle Rogers
Grant M. Dixton
Maya R. Kobersy
Cametra A. Thompson