Court Denies Speech Defense of Grisly Photo Leak

The California Court of Appeal has held that a former Highway Patrol dispatch supervisor cannot argue a First Amendment defense in a lawsuit brought by the family of a teenager gruesomely mangled in a fatal auto crash, vivid photos of which he circulated by e-mail and which ended up on the Internet and were sent to the family with mocking messages. Defendant Aaron Reich, one of two dispatchers responsible for the leaked images, said he forwarded them as cautionary examples of the risks of drunken driving, reports Greg Hardesty in the Orange County Register.

The controversial case was at first dismissed by a trial court judge who concluded that the defendants, including the CHP itself, owed no duty to the family to protect their privacy or prevent their anguish from the dispatchers' conduct,  But in February of last year the Court of Appeal decided to the contrary—that the parents had the right to sue for damages due to the defendants' negligence, invasion of privacy and intentional infliction of severe emotional distress. 

Yesterday's unpublished ruling was on a different issue:  whether the defendant Reich could use an anti-SLAPP motion to avoid liability on the theory that the photos' dissemination was an act of contritutionally protected speech.  Reich said he sent the photos to his family and friends as a warning of the consequences of drunk driving, but the court rejected that contention for two reasons. 

First, it could not see how the photos of the wreckage alone would communicate anything about drunk driving—that kind of point would have had to be made by accompanying text. Second, there was no evidence of such a message because Reich had destroyed all his e-mails and had not asked the recipients to produce them.  This lack of evidence conclusively precluded a First Amendment defense, the court said.

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