Beverly Deteresa v. American Broadcasting Companies, Inc. Anthony Radziwill, AKA Anthony Radziwell
121 F.3d 460, 25 Media L. Rep. (BNA) 2038, 97 Daily Journal DAR 9625 (1997)
Rule of Law:
Under California's eavesdropping statute, a communication is only confidential if the party has an objectively reasonable expectation that the conversation will not be divulged to anyone else; additionally, videotaping a person in public view from a public place does not constitute an intrusion into seclusion.
Facts:
- Beverly Deteresa was a flight attendant on the flight O.J. Simpson took to Chicago immediately following the murders of Nicole Brown Simpson and Ronald Goldman.
- Anthony Radziwill, a producer for ABC, went to Deteresa's condominium in Irvine, California, to request an interview for a television show.
- Radziwill identified himself as an ABC employee and showed his credentials, but Deteresa initially declined to appear on camera.
- Despite refusing the formal interview, Deteresa stood at her open door and voluntarily revealed specific details to Radziwill regarding Simpson's behavior and seating on the flight.
- Unknown to Deteresa, Radziwill was surreptitiously audio-taping their entire conversation.
- Radziwill had also directed a cameraperson to videotape the interaction from a van parked on a public street nearby.
- The following day, Radziwill told Deteresa he had taped her; she was upset, and her husband subsequently called ABC to demand they not broadcast the tape.
- ABC broadcast a five-second video clip of Deteresa (without audio) and a summary of her statements on the program 'Day One.'
Procedural Posture:
- Deteresa filed a complaint in federal district court against ABC and Radziwill, alleging five causes of action including eavesdropping, invasion of privacy, and fraud.
- The district court granted summary judgment in favor of ABC and Radziwill on all five causes of action.
- Deteresa appealed the summary judgment ruling to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does a plaintiff have a reasonable expectation of confidentiality or privacy sufficient to support eavesdropping and intrusion claims when she voluntarily speaks to a known television producer on her front doorstep who surreptitiously records the conversation?
Opinions:
Majority - Judge O’Scannlain
No, a person speaking voluntarily to a known reporter on their doorstep does not have a reasonable expectation of confidentiality required to sustain these claims. The court reasoned that for a violation of the California eavesdropping statute (Penal Code § 632) to occur, there must be a 'confidential communication.' Predicting how the California Supreme Court would rule, the majority adopted the standard from O'Laskey v. Sortino, which holds that a communication is confidential only if a party reasonably expects that the conversation will not be divulged to anyone else. Since Deteresa knew Radziwill was a reporter seeking information for TV, she could not reasonably expect him to keep her statements secret. Regarding the intrusion into seclusion claim, the court found the conduct was not 'highly offensive' because Deteresa was videotaped in plain view from a public street and spoke voluntarily without deception or trespass involved.
Concurring-in-part-and-dissenting-in-part - Judge Whaley
Yes, as to the state eavesdropping claim, a jury could find that the conversation was intended to be confidential. While concurring with the dismissal of the federal eavesdropping, fraud, and privacy claims, Judge Whaley dissented regarding the California Penal Code § 632 claim. He argued that the majority applied the wrong standard for 'confidential communication.' He believed the court should have considered whether the circumstances indicated that a party 'desired' confidentiality, rather than whether they expected the other party to actually keep the secret. He argued that allowing reporters to surreptitiously record conversations on a person's doorstep simply because they are reporters effectively removes the speaker's right to control the recording of their own words.
Analysis:
This decision significantly protects newsgathering activities by establishing a high bar for privacy and confidentiality in reporter-source interactions. By adopting the O'Laskey standard, the Ninth Circuit ruled that if a person knows they are speaking to media, they generally cannot claim the conversation is 'confidential' under California eavesdropping laws, effectively permitting surreptitious recording in these contexts. It also clarifies that there is no intrusion into seclusion when a journalist records interactions visible from public spaces, provided there is no trespass or active deception used to gain entry into a private home.
