CalAware Today

Surprise, Dude! You're Now a Gay Pinup

The Orange County Register recently disclosed that poolside swimsuit photos of high school water polo athletes—all male, and mostly minors—have been posted without their knowledge on a number of gay porn sites—that is the phrasing used by the Register, although its failure to identify the sites leaves readers to take its word for the report that they contain graphic sexual language and images otherwise. 

The principal reaction to this disclosure is reportedly outrage from the players, their parents, and youth water polo fans generally.  Law enforcement officials are investigating whether a crime has occurred; interestingly, a dispatcher with the UC Irvine campus police department suspected of involvement has been placed on paid leave pending a probe of his role, if any.  A state legislator says the question of First Amendment protection for such activity is being researched by staff of the Assembly Public Safety Committee.  Meanwhile coaches involved are talking about closing team practices and meets to all but students, parents and credentialed sports photographers.

A prediction: Since taking photos of people in public without their knowledge or consent—even minors in swimsuits—is not normally criminal conduct (“upskirt” shots are outlawed by California Penal Code §647(k)(2))—it will be hard to criminalize such photography or the posting of its images, except to the extent the posted images are cropped to focus on the genitalia, which concentration can be an element of prosecutable child pornography. 

But there is a tort cause of action called false light in the public eye that might be used in a civil lawsuit for damages by a person whose photo was posted in a context implying his (or her) knowing and willing appearance in a highly eroticized context—especially when leading to the plaintiff’s personal humiliation, embarrassment and shock.  A case summarized by the Florida State Bar makes the point.

In Braun v. Flynt, 726 F.2d 245 (5th Cir.), cert. denied, 469 U.S. 883 (1984), plaintiff sued Chic, a hard-core men's pornographic magazine, for false light invasion of privacy. Plaintiff was an amusement park employee who performed a novelty act with Ralph, the Diving Pig. The amusement park sold a postcard depicting Ralph diving toward the plaintiff, who was shown in the pool extending a bottle to the pig. Chic had obtained the consent of the amusement park's management to use of the photograph by misrepresenting the true nature of the magazine. Plaintiff successfully contended that the ordinary reader automatically would form an unfavorable opinion about the character of a woman whose picture appeared in Chic. Even if, as Chic contended, no reader would assume the plaintiff to be unchaste or promiscuous on the basis of her picture's publication, the court noted that the jury could have found that the publication of the picture implied the plaintiff's consent to the publication or her approval of the opinions expressed in Chic. In affirming the liability verdict against the magazine, the court noted that either finding would support the verdict that the publication placed the plaintiff in a false light highly offensive to a reasonable person. Further, the appellate court found the trial court correct in admitting the entire magazine into evidence rather than just the photograph so that the jury could be placed in the position of the ordinary reader in evaluating whether the publication placed the plaintiff in "false light."

In other words, while I have to accept the risk of being photographed wearing (or not) a particular garment in public, I also have the right to object if, without my knowledge and consent, that photo is published in a context that implies something so false and demeaning about my character that I, like most people, would suffer deep humiliation as a consequence.

Smacking the Hornets’ Nest

Thirty-one years ago Don Bolles, an investigative reporter for the Arizona Republic, was fatally injured when a bomb exploded under his car outside a Phoenix hotel where he had been lured to meet a nonexistent source.  Before dying in the hospital 11 days later, minus both legs and an arm, he said the word “mafia” and named the man who later pleaded guilty to planting the remote control explosive.

Two other relatively small-time figures served long prison terms for their roles in the killing, but the powerful figure unofficially suspected as the one who ordered the hit was at the time Arizona’s wealthiest man. Possessed of a name right out of James Ellroy—Kemper Marley——this billionaire rancher, real estate tycoon and wholesale liquor distributor had rumored ties to organized crime as well as many of the public officials for sale or rent in the state through the latter half of the 20th century. Bolles’ stories about Marley led to his resignation from his recently appointed seat on the state racing commission, a fact which police and prosecutors saw as a plausible motive for revenge. But he was not charged in the case.

In fact the most conspicuous public allegation of Marley’s connection to Bolles’ death came from journalists rallied by the recently formed Investigative Reporters & Editors (IRE) to swarm into the state from all over and start digging into the deep background of the case.  Marley sued them for libel in 1981; a jury awarded damages of $15,000 for emotional distress.

But the extraordinary fact was the Arizona Project itself, as the IRE team called it, and its unprecedented and intensive immigration and collaboration among reporters, editors and others bent on seeing to it that Bolles’ death was not the end but the beginning of a wide-ranging expose of Arizona’s network of corruption. Swat one of us down, went the message, and stand by to deal with the hive.

The legacy of the Arizona Project is at this date mixed.  The full story from IRE’s perspective is here  (disappointingly, the archived reports on the power relationships of the “Phoenix 40” have broken links) but its work was attacked immediately by locals (like Senator Barry Goldwater) as “pack” or “vigilante” journalism; the New York Times and Washington Post declined to lend people to the effort; and Bolles’ own employer, the Arizona Republic, declined to print the reports.  A 2006 retrospective concludes that the project did not have the long-term reform effect its authors had hoped.

But meanwhile, just as there had been nothing like the Arizona Project before, there has been nothing like it since.  But that’s because, with the exception of the 1984 murder of a Chinese American writer ordered by a Taiwanese intelligence official, no one has put a hit on an American journalist on American soil since then. 

Until three months ago, that is, when Chauncey Bailey, Jr., 48, was shotgun-assassinated one morning on an Oakland sidewalk on his way to work. The 37-year veteran of print and broadcast journalism was the editor-in-chief of the five-city San Francisco Bay Area Post, northern California’s largest African-American weekly. His 19-year-old confessed killer, who calmly walked away to a waiting van that day, was an employee of Your Black Muslim Bakery, which Bailey had been investigating for a major story, and which police targeted with a massive raid several days later.   

The local bakery chain, founded in 1968 and developed as a hopeful example of Black entrepreneurship and community self-help, had come on hard times since the death of its founder, Yusuf Bey, in 2003. The police raid was prompted by an official investigation into suspicions that the bakery company had become a front for a fraudulent and increasingly violent criminal enterprise, and that investigation continues.

But Bailey’s colleagues are not leaving it to the police to trace and expose the criminal forces that at least indirectly were responsible for his death.  The Northern California chapter of the Society of Professional Journalists has announced formation of a Chauncey Bailey Project to unite a team of more than two dozen reporters, editors, and photographers drawn from Bay Area print, broadcast and online media to continue and expand Bailey’s inquiry into what the announcement called “the past and current activities surrounding the Bey family empire, which operates the Bakery, and their activities over the past two decades.” 

The project will also draw on the resources of IRE, the Bay Area Black Journalists Association; Bay Area News Group; the San Francisco-based Center for Investigative Reporting, the Oakland-based Maynard Institute for Journalism Education, the National Association of Black Journalists, New America Media, New Voices in Independent Journalism, the journalism departments at San Francisco State and San Jose State Universities, and the Graduate School of Journalism of UC Berkeley.

The project is supported by a $20,000 grant from the Sigma Delta Chi Foundation of the national Society of Professional Journalists, to pay for records and travel expenses and stipends for student interns as well as development of a website to report the findings.  Unlike the Arizona Project this enterprise will be run by local journalists, and has the advantage of vindicating the work of a well-known media personality (Don Bolles was a relatively minor figure at the time of his death) and, above all, of focusing on an organization whose most menacing leaders are already in custody.  Before the police raid on the bakery and the arrests, Bailey’s publisher was so nervous about his planned disclosures that he held them back.

Public Forum Law Week in Review: 11/2/07

(CalAware Weekly comprises this plus the previous three posts)

Free Press
    Gag denied   A judge has again denied a public employee union’s bid to stop the Daily News in Los Angeles from publishing members’ names, positions and salaries in a lookup database on its website.
    Police clashes   Law enforcement officers blocked news media coverage in several incidents in the San Diego wildfires, according to a report by the local ACLU; a San Diego Police Department spokesman responded that the police have the authority to protect evacuees from unwanted press interviews.
    Offending column   The Benicia Herald, a daily newspaper, has fired its editor for a political column he wrote that upset two heavily advertising candidates in next week’s city election.
    Shield veto threat   The White House is threatening to veto the federal shield law bill, H.R. 2102, if Congress passes it, which USA Today predicts is likely.

Free Speech
    Flame retardant   Statements posted to a website on homeowner association issues attacking an attorney’s professional integrity were merely “a private campaign of vilification” and not a matter of public concern meriting anti-SLAPP protection, ruled the Court of Appeal in an unpublished decision.

Open/Secret Government
    Paper trace   Senator Jim Bunning (R-KY) has put a hold on a bipartisan bill to reverse President Bush’s 2001 executive order giving presidents and former presidents more power to halt indefinitely the release of their White House records. The House-originating measure is authored by California’s Henry Waxman.  Meanwhile candidate Hillary Clinton, asked about releasing her husband’s papers, stayed true to message and said they’ll be available after being processed.
    Pumping irony   Contra Costa Times columnist Tom Peele’s reaction to Governor Schwarzenegger’s boast, in vetoing AB 1393, that “My administration's commitment to the public records act is unwavering"—“Really? Does the governor actually believe the things his staff writes in his name?” Meanwhile Schwarzenegger’s office has told the Daily Journal in Los Angeles (sorry for the link lack—its website is subscription only) that it will not identify those whom it consults for recommendations on the appointment of judges, although it has said it would release the names to the Assembly—by January.
    Land deal secrets   The Legislative Analyst’s Office has concluded after two years of research that the Department of Fish and Game and other California state agencies “keep too many documents secret when they buy land and do not have consistent standards to ensure the public is paying reasonable prices,” reports the San Jose Mercury News.

Public Information
    Day labor employers   The California Newspaper Publishers Association, the Los Angeles Times and the San Diego Union-Tribune have appealed a judge’s ruling barring the City of Vista from disclosing a list of those who have registered as an employer of day laborers.  The ACLU obtained a temporary restraining order in September against release of the names to protect the employers’ privacy.

Records Released Reveal . . .
A city official denied pension credit for time she never worked; an admired police chief’s retirement marred by an issue of possible pension-spiking; a legal aide to the Insurance Commissioner secretly helped regulated companies in their lawsuit against his boss; Long Beach subsidies for a summer Sea Festival run by a private association were wasted, according to an online news site.

Open Meetings
    A Fate Worse Than Indictment?  The Orange County DA won’t prosecute four members of the Capistrano Unified School Board who accepted his report that over a six-month period they discussed business unlawfully in closed session and otherwise violated the open meeting law dozens of times. But wait—OC Weekly reports that the county Republican Central Committee “did something unprecedented by unanimously voting to call for the resignations of four of its own elected officials who sit on the Capistrano Unified School District Board.”

Whistleblowers
    Dummy up!   The Bush administration isn’t the first to punish insiders who go public  with inconvenient facts.  But, James Sandler tells Salon, it’s the most ferocious in resisting Congressional efforts to protect them.

Following the Fire beyond Fences

A confrontation between a journalist and a Blackwater official wasn’t prompted by weapons fire in Iraq, but by a wildfire near San Diego. Veteran freelance journalist Miriam Raftery, who accompanied a photographer shooting extensive fire coverage in San Diego County’s back country last week, got this Blackberry note early Saturday afternoon from Brian Bonfiglio, a vice president of Blackwater USA:

Miriam,
    Its been brought to my attention that in your own words you knowingly entered the Kreutzkamp Ranch (referred to as Blackwater property) and did so without the property owners permission.
    If the information I received is inaccurate please let me know as soon as possible.
    As I am sure you are aware, even with press credentials and covering the Harris Fire, unless a property owner provides his authorization private citizens cannot, by law, enter property, especially posted "no trespassing" property.
    Please clear this up for me when time permits - I am certain there is more to this than what I was informed.
Thank you,
        Brian

Raftery responded that evening:

Brian –
    In covering disasters within evacuation zones it is common practice for law enforcement or fire authorities to grant permission to media to takephotos. TV reports are filled with images this week of reporters standing on lawns, backyards, and even on charred rubble of homes in evacuated areas, clearly without owners' permission.  There is no standard I've ever been advised of in 20+ years of newspaper reporting that requires such permission in a disaster situation, and clearly a wildfire is within that definition.
    As a former writer for the Union Tribune, which has legions of attorneys vetsuch matters, I can assure you that the UT has run many photos taken onprivate property without owner's permission in evacuated areas during previous wildfires. 
    There was a fire truck stopped at the gate and a lot of charred debris as firefighters were dousing a hot spot close by the gate.  No "no trespassing" sign was visible but even if there had been, such would not pertain in a disaster where officials gave permission for media to visit, particularly since fire officials acknowledged our press passes and granted an interview on progress fighting the fire.
    Moreover the photographer and I did not enter any buildings or intrude beyond obtaining a vantage point to photograph the fire and burned areas with a telephoto lens to document the fire for newspapers, news websites and local list serves, keeping area residents informed of the fire's path.

Bonfiglio then answered:

Miriam,
   The owners representative and attorney contacted me today. I will defer and send your POC information to them. To my understanding there was some looting that took place on the ranch and in the end it was clearly stated to me that under no circumstances is anyone allowed to enter onto anothers property unless permission is granted.
    I spoke with CALFIRE today about this and they said they would look into it but as an SOP they do not allow civilians to accompany them onto any property.
    At the request of the owners Rep I will be reaching out to the SO and Highway Patrol further, as well Chief Nissens office to determine what, if any, suppport / permission was provided by fire fighters for you to access property, but that permission was not granted by the owner.
    In speaking with the owners attorney it was disturbing to them that you found it appropriate to publish pictures that showed that you were clearly on private land that you were not authorized to be on.
    At the end of the day I will do whatever is requested of me by the property owner and his attorney. I have turned over emails from you stating that that you were on (blackwater property) when not authorized to be on.
    I am not at the front of this, but have made it clear to the SO and Highway Patrol that I have never granted permission to you to access the property.
R / Brian

He shortly thereafter added:

Miriam,
I received your initial email.
    As I am certain you can understand this is not a case of rubble or youstanding in someones yard.         You accessed a private onwers property at least a mile into his land based on your pictures and statement. As you can imagine you would not appreciate someone entering your property if you owned land similar to the current property owner.
    Again, I will do no more - no less than asked of me, but I was asked by the property owners attorney to provide any POC info I have for the new editor of the East County Californian since you write for them.
    Its certainly your choice, but based on what I know I think it very appropriate for you to draft a letter of appology to the property owner and to be cautious concerning what you publish.
    Its totally your call - not mine. I am just trying to be helpful.
R / Brian

She responded:

Brian -
    I never left the road and was clearly within view of firefighters at all times.  I showed a press pass and was waved in. Had anyone denied entry I would have honored that request. If you are suggesting I had anything to do with looting, I can assure you that won't hold water either.  I brought relief supplies up with me and had witnesses who unloaded those few items in my car shortly after I left your site.  They could attest that I had nothing else, and I find your suggestion that a journalist would engage in looting to be extremely offensive. 
    This appears to be a blatant attempt at intimidation of the press and an effort to infringe 1st amendment rights to cover a breaking news story with pubic safety implications.  I would suggest that you not engage in legal harassment or threaten frivolous litigation.  The last time a major company attempted to intimidate me, National Writers Union provided legal support and obtained a settlement in my favor for a very large sum.  I have no wish for any legal entanglement, but will vigorously defend the rights of journalists to cover breaking news if pressed. 
    No judge in his or her right mind would rule that reporters or photographers may only cover wildfires in an evacuation zone with property owners' permission.   

Bonfiglio’s final message, sent shortly after 9 that evening, said:

Miriam,
    For the record - I'm positive that taking photos is not the issue. Its trespassing on property that was still an active business and residence. (Jhat was confirmed in writing by CDF in writing. 
    Also, for the record, its my opinion that you were not looting (my opinion) but that you knew that you did not have permission to access the chicken ranch.
    To be honest - there is nothing to see, no secrets to find, but trespassing is trespassing and against the law.
    Let's also be honest with each other that as a whole the east county californian editors (certainly your new boss) is tired of the Blackwater stories and I suspect will not stand behind trespassing on property that should clearly not be entered (so says CALFIRE). Your trespassing had nothing to do with journalism and everthing to do with providing pictures and text to anti- Blackwater opposition. But again, I could personally care less about pictures.   
    Do what you think is best, but I'm certain that there will be little support for trespassing to include from the east county californian senior staff - Although I maybe wrong.
    Miriam, I am always available to talk with you and as I expressed to you the very first time you called, from what I was first told you can write balanced articles, so if there is any issue you want to discuss I am always open to your calls.
R / brian

Raftery’s comment to me in forwarding these messages for reaction was:

In this one they attempt to intimidate me by suggesting they will complain to my editor of bias, which is absurd. I posted the photos on more than one listserve that were all keeping the public informed about the progress of the fires, and actually the first to post them was a conservative-owned land use forum site; the photos also went to an East County progressive site that has been tracking the Blackwater issue and has many readers in the immediate vicinity of the fire, so clearly a compelling public safety reason to disseminate that news quickly.  Photos and a more detailed story were submitted to two East County newspapers.

The backstory to all this tension is that some local residents have recently been vocally resisting Blackwater USA’s attempt to get planning officials’ permission for a rural training center on its undeveloped property near the small East San Diego County community of Potrero,  just a few miles from the Mexican border.

So Who's Right?

Who’s right on the trespass question?  Both—but the journalist is closer to the more practical answer. California law makes trespass either a criminal offense or the basis for a civil damages lawsuit or—depending on the facts—possibly both.  There are several varieties of the crime of trespass in the Penal Code, but the one most relevant here, Section 602.8, makes it an infraction with a first offense fine of $75 for “any person who without the written permission of the landowner, the owner's agent, or the person in lawful possession of the land, willfully enters any lands . . . belonging to . . . another . . .”   But subdivision (c) of this section states that no such trespass is committed by “any person on the premises who is engaging in activities protected by the California or United States Constitution.” It’s not hard to see why journalists have not been prosecuted for trespass in California.

As for the civil action for damages, there must be actual injury of some kind—either to the land or in the form of physical or mental suffering of the owner or tenant—to make a trespass to real property a matter for litigation.  The only example I can find in the case law to date of a journalist’s civil liability for trespass was triggered by the broadcast of video shot in the sickroom of a dying man’s house; a TV crew, present in the home without the residents’ permission, had taped an unsuccessful resuscitation attempt by paramedics.  It was the later broadcast that caused the mental distress to the man’s widow (who had no idea until then that the TV crew had been in the home), but the court considered her suffering proximately caused by the trespass. This and a few other cases have created the clearest hard-and-fast rule for journalists concerning trespass and intrusion: never enter a home without the residents’ express permission, and always leave if and when they tell you to. 

But when it comes to undeveloped rural land, the question is not so much whether this or that entry amounts to a trespass (it may) but whether the result is the degree and kind of injury to the owner/tenant that makes going to court worthwhile.