449 F.2d 245 (9th Cir. 1971)
Dietemann, a disabled veteran with little education, was engaged in the practice of healing with clay, minerals, and herbs—as practiced, simple quackery.1 Defendant Time, Incorporated, publishes Life Magazine, and its November 1, 1963 edition carried an article entitled “Crackdown on Quackery” depicting plaintiff as a quack and including two pictures of him.2
Life Magazine entered into an arrangement with the District Attorney’s Office of Los Angeles County whereby Life’s employees would visit plaintiff and obtain facts and pictures concerning his activities.3 On September 20, 1963, Life employees Mrs. Jackie Metcalf and Mr. William Ray went to plaintiff’s home using a ruse to gain entrance by claiming they had been sent by a friend, a Mr. Johnson, and once admitted they went into plaintiff’s den where Ray photographed plaintiff with a hidden camera without consent while transmitting the conversation via a hidden radio transmitter in Metcalf’s purse to a tape recorder in a parked automobile.4
Prior to September 20, 1963, on two occasions the officials had obtained recordings of conversations in plaintiff’s home without Life employees participating, and on October 15, 1963, plaintiff was arrested at his home on a charge of practicing medicine without a license during which Life made many pictures.5 The district court awarded plaintiff $1000 general damages after a court trial in an action for invasion of privacy with jurisdiction grounded in diversity and the parties agreeing that California law governed, from which Time appealed.6
Whether, under California law, a cause of action for invasion of privacy is established upon proof that defendant’s employees, by subterfuge, gained entrance to the office portion of plaintiff’s home wherein they photographed him and electronically recorded and transmitted to third persons his conversation without his consent as a result of which he suffered emotional distress?7
Under California law, a cause of action for invasion of privacy by intrusion is established when the defendant, by subterfuge, enters a sphere from which the plaintiff could reasonably expect to exclude eavesdroppers and uses hidden devices to photograph and record the plaintiff's conversation without consent, causing emotional distress; publication is not required and technical trespass is immaterial.8
Yes. Dietemann's den was a sphere from which he could reasonably expect to exclude eavesdropping newsmen. The Life employees used a ruse involving Mr. Johnson's name to gain entrance to Dietemann's home and den on September 20, 1963. Ray photographed Dietemann with a hidden camera without consent while Metcalf's hidden transmitter sent the conversation to a tape recorder in a parked car occupied by Bride, Miner, and Leake, causing Dietemann emotional distress and establishing the cause of action under California law.9
A cause of action for invasion of privacy is established under California law.10
Whether the First Amendment insulates defendant from liability for invasion of privacy because defendant’s employees did those acts for the purpose of gathering material for a magazine story and a story was thereafter published utilizing some of the material thus gathered?11
The First Amendment does not insulate the press from liability for torts committed during newsgathering, such as intrusion by hidden camera and electronic devices into a private home, even when the purpose is to gather material for a published magazine article; the Amendment is not a license to trespass or intrude electronically.12
No. Although the employees acted to gather material for the Life Magazine article 'Crackdown on Quackery' published November 1, 1963, and the article utilized some of the material, the First Amendment is not a license to intrude by electronic means into another's home. The use of hidden contrivances is not an indispensable tool of newsgathering, and the antecedent tort of intrusion is not shielded by subsequent publication.13
The First Amendment does not insulate defendant from liability.14
Whether the defendant’s employees were acting as special agents of the police and, if so, did their acts violate the First, Fourth, and Fourteenth Amendments of the Federal Constitution, thereby subjecting defendant to liability under the Civil Rights Act (42 U.S.C. § 1983)?15
If defendant's employees were acting as special agents of the police, their acts might violate constitutional amendments and subject defendant to liability under 42 U.S.C. § 1983, but the court need not reach the issue if other grounds support the judgment and the defendant disclaims agency.16
No. The court accepts the defendant’s disclaimer that its employees were acting for or on behalf of the police. Because the judgment is supported by the California privacy claim and the First Amendment does not provide a defense, the court does not reach the third issue regarding special agents and Civil Rights Act liability.17
The court does not reach the issue of whether the defendant’s employees were acting as special agents of the police.18