Tragedy and the First Amendment

My client was a California Highway Patrol dispatcher. One night, a young woman got high on cocaine and took her step-dad’s Porsche. Her mother called 9-1-1 and said that she was driving drunk. Then her step-dad called 9-1-1 and said that she had been drinking and had stolen his Porsche.

My client, as a dispatcher, heard these calls. He also heard the call of a Porsche on the 241 toll road roaring past cars at 100 miles per hour and smashing into a tollbooth. The driver was decapitated. My client put the calls together and knew what had happened.

The Highway Patrol took photos of the decapitated corpse. My client asked for copies of the photos. The CHP officer who took the photos sent them to him electronically, and my client e-mailed the photos to his own private e-mail account. Then he e-mailed the photos to friends and family, to warn about the dangers of drunk driving. The photos quickly spread on the worldwide web.

The family sued my client.

1. I argue that the right of privacy ends in death.In Superior Court, I filed a demurrer. A demurrer admits the truth of all the allegations in the complaint, but it says that those allegations don’t add up a legal basis for a lawsuit. In other words, it says, "OK, I accept your facts; so what?"

My argument was old law: the right of privacy ends at death. The family had no right to sue for invasion of privacy (publishing the gory pictures) because the dead woman’s right of privacy ended when she smashed into that tollbooth.

The Superior Court judge agreed. He dismissed the case. The family appealed, and the Court of Appeal, making new law, reversed the decision of the Superior Court judge.

2. I argue that my client had a First Amendment right to publish the photos.So the case went back to Superior Court. In Superior Court, I filed an anti-SLAPP motion. That’s a motion that basically says that this lawsuit is about my client’s First Amendment freedom of speech; and because he had a First Amendment right to publish these photos, the case should be dismissed. The Superior Court judge disagreed. This time, I was the one who appealed.

                        3. Threats.

 Now, before I appealed, the other side sent me a threatening letter. They said that if I appealed, my appeal would be "frivolous" – that is, so baseless that no reasonable lawyer would think it had merit. They said that if I appealed, they would seek monetary sanctions against me – a penalty for bringing a frivolous appeal. Lawyers can do that. If the justices determined that my appeal truly was frivolous, then I would have to pay the other side’s attorney’s fees.

But the opposing side’s letter to me was full of threats but empty of analysis. They showed me no law that made it clear that any reasonable lawyer would know that my appeal had no merit.

Their letter reminded me of a National Geographic episode that I saw as a child. There’s a tribe of chimpanzees in Africa. These chimpanzees have learned to charge other chimpanzees while banging together discarded, empty, metal gas canisters. In that way, the chimpanzees get their adversaries to retreat without combat. The threat letter reminded me of these chimpanzees. In my reply letter, I told the opposing lawyers the story of those chimpanzees. I have the impression that they resented the story.

4. The other side files a motion to sanction me for a frivolous appeal.Sure enough, after I file my opening brief, they filed not only an opposition brief, but also a motion for sanctions. After I was over the lingering shock, I considered it a stunt, to make an impression on the justices. It’s like they’re saying, "This appeal is so meritless that just denying it isn’t enough; the Court should impose sanctions, too!" It’s a way for them to vouch the supreme merit of their legal position.

                       5. Evidence of overconfidence.

Two weeks before the oral argument in front of the three-judge panel, the other side sends a case they’ve found to the Court of Appeal and to me. (Lawyers and judges look at previously-decided cases to decide what the outcome of a new case should be.) In that case, the Court of Appeal imposed sanctions against a lawyer for bringing a frivolous anti-SLAPP appeal. But the most remarkable thing about the case that the opposition sent just before oral argument was how dissimilar it was to the circumstances of my case. It was valueless.

But it gave me valuable information. It told me that the other side was so sure that they were going to win the appeal that they were thinking only of whether I would have to pay their attorney’s fees. I smelled overconfidence.

                    6. I get ready to scrap.

As for me, I knew that this would be a tough case to win. The law is on my side, but it’s an emotional case, and the emotions run against my client. So I prepared carefully for argument. I got ready to scrap. Meanwhile, I suppose that the other side spent the week leading up to argument deciding what kind of cake they would order for their victory party.

And it showed. Their attorney’s argument was weak. He cited law that hasn’t been the law in decades. He seemed flustered when the justices challenged his assumptions, as if he were expecting to coast to victory, and didn’t expect any push-back from the justices.

That can only help my side.

7. Time to wait.For all that, I don’t know how the case will come out. The senior judge was candid: at the end of the argument, he bluntly said he didn’t know how he would rule. The justice to his right is clearly on the side of my opponents. She seems to have a visceral reaction to the case, but obviously it also engages her intellect. I couldn’t read the mood of the other justice.

So now, after the lengthy briefs and almost an hour of argument, it’s time for the lawyers to be silent, step back, and wait for the decision of the Court of Appeal.