Invasion of Privacy

by Perri O'shaughnessy

  Deputy Kimura stood just inside the main doors to the courtroom, his heavy key ring jingling as he hung it back on his belt next to the holster. He smiled at Nina as she walked inside. He had been the bailiff on duty in the main courtroom on that day three months before when Nina was shot. "Don’t worry," he said to her as she walked past, patting the holster. His words, meant to be reassuring, brought it all back. He went to the front of the court, and Nina tagged along after him, carrying her heavy briefcase up the aisle.

  Sweet v. London was the only case on the eleven o’clock docket, but the room seemed jammed.

  Along with the strangers in the back row, Nina recognized a news reporter for the Tahoe Mirror. She would bet some of the spectators came merely to luxuriate in the warmth of the overheated court. She wondered if they realized they probably paid more for this comfort through their taxes than they paid on monthly furnace fees.

  Jessica and Jonathan Sweet, two of Riesner’s clients, sat near the middle. They turned and watched her approach. "Hello," she said pleasantly. She would not blame them for Jeffrey Riesner.

  Today Jonathan Sweet wore a black sweater and baggy khakis, which with his boyish face made him look about thirty instead of fifty-two. He was a real estate investor, with several precious, undeveloped lots on the Nevada side of Lake Tahoe. He sat in his wheelchair, partially blocking the aisle, next to his wife. Mrs. Sweet, whose gray hair was cropped short, looked much older than her husband, but tanned and healthy from her work at a local ski resort. She fidgeted in her seat. They nodded at Nina’s greeting.

  Next to them, Riesner’s other clients in the case, Doreen and Michael Ordway, ignored her greeting. These two looked to be in their middle thirties. Ordway wore a windbreaker and cowboy boots, as if he had just ridden in from the range. His wife wore her long, gold-streaked hair down her back, and a purple leather miniskirt that cried, hey, look at me!

  Nina stopped at the gate that separated the audience’s seats from the lawyers’ area, taking it all in again. A large room lit to brutal brightness, its center formed by the counsel tables and the high judge’s bench, a little circus maximus where the gladiators fought each day. The empty jury box on the right, where a couple of lawyers lounged. The scribes toiling at their tiny desks below the judge’s bench. The bailiff at his desk on the side, behind a new transparent bulletproof shield, answering the phone. And behind her, Romans in the rows of seats, bloodthirsty, spoiling for the fight.

  Really, the adversarial system was one hell of a primitive way to settle a dispute.

  The clock on the wall said eleven-fifteen. Judge Milne was late. Nina had thought everything was ready, but she began feeling unsteady as she sat down at the defendant’s counsel table next to Terry and took out her files, too aware of the attentive eyes behind her.

  The scene in the hall with Riesner had been business as usual, and she’d stayed cool—well, as cool as she could. As for Terry, all clients had their drawbacks. She preferred an intelligent client, and Terry was certainly intelligent, though she was also on the hostile side.

  She was perfectly fine, she told herself, perfectly safe. And ...

  This was the chair she had been sitting in right before ... She had been standing in front of that witness box. ... She had turned and seen the gun suddenly swing toward her, watched the finger pull the trigger from less than twenty feet away.... She should be dead....

  She squared her shoulders, fighting off the emotional overload, dragging her eyes away from the spot a few feet away where she had fallen. That case was over.

  Terry sat at her left at the counsel table, quietly wary. On her right, Jeffrey Riesner set his briefcase down on the plaintiff’s table and began pulling out his files.

  Deputy Kimura said, "All rise. The Superior Court of the County of El Dorado is now in session, the Honorable Curtis E. Milne presiding." You could almost hear the trumpets. Judge Milne appeared on the bench, flipping open his own file. Nina couldn’t help a quick nod to the emperor who would do a thumbs-up or a thumbs-down in his ceremonial robes.

  The court reporter flexed her hands and crouched over her machine, and Edith Dillon, the henna-haired clerk at the desk under the judge’s dais, began to wield her pen over a fresh pink form.

  "Be seated," the bailiff said. Everyone sat down except the two lawyers. Nina stood up straight, as tall as five feet three inches plus Italian pumps allowed.

  "Sweet v. London," Milne said, opening a thick file. "A hearing on a preliminary injunction, is that right, Mr. Riesner? All parties and counsel of record are present?"

  "Yes, Your Honor," Riesner said.

  "Welcome back, Ms. Reilly. We’ve missed you," the judge said, giving her a small smile.

  "Thank you, Your Honor. I’m glad to be back," Nina said.

  She watched Milne carefully, but his face was a model of judicial decorum. He gave no clue about his mood, the effects of his breakfast, or his reaction to the briefs he had read. He pooched out his lower lip and tapped it thoughtfully with a finger. "Proceed," he said.

  Riesner threw his papers down on the table, leaned on it, and said, "The court has on file our complaint for invasion of privacy, declaratory relief, and breach of contract. The relief sought in the complaint is an injunction providing that the defendant, Theresa London, be permanently prohibited from showing, publishing in any manner, distributing for sale, licensing, promoting or otherwise publicizing the existence of, copying, or otherwise disseminating in any manner a film of approximately one hour in length known as Where Is Tamara Sweet?

  "I will summarize the basic facts briefly.

  "Tamara Sweet disappeared in 1984 at the age of eighteen from South Lake Tahoe. Because she had talked about leaving for some time, and had some problems at home, and because there was no evidence of foul play, the authorities chose not to consider her disappearance a criminal matter.

  "Over the years, Mr. and Mrs. Sweet have worked with missing persons organizations and hired private investigators in an attempt to locate their daughter. To no avail—"

  "Counsel," the judge interrupted, "you’ve covered all this in your Points and Authorities. Let’s move along to the film."

  "Certainly, Judge." Riesner picked up his brief, flipped a few pages, and said, "Twelve years have gone by, distressing, sorrowful years for her parents. Then, on January tenth last year, the defendant, Terry London, contacted the parents and asked them if they would be interested in having a film made about their daughter’s disappearance, a film that might help them find out what happened to her. Naturally, they agreed.

  "The defendant has filmed and produced several video documentaries and appeared well qualified to undertake the project. The Sweets opened their records and their hearts to Ms. London. They authorized Ms. London to review Tamara’s school records, talk to her old friends, do whatever was possible to help make the film.

  "And make the film she did. But rather than a wellintentioned film that might prove helpful in ascertaining the facts about a lost young woman, Terry London exploited access to private materials to make a film that depicts Jonathan Sweet as a self-absorbed and selfish father, Jessica Sweet as an alcoholic mother, and Tamara Sweet as a promiscuous, drug-abusing woman of questionable morality." Riesner paused for effect.

  "The other two plaintiffs in this lawsuit, Michael and Doreen Ordway, who were close friends of Tamara Sweet and who saw her on the night of her disappearance, have similarly been depicted as immoral, semi-alcoholic, selfish, and uncaring.

  "In creating each of these depictions, the defendant has very carefully chosen only those facts that support the depiction. In other words, technically she hasn’t libeled the plaintiffs, because the facts chosen were true. But she has emphasized private facts in a way that has caused them great emotional distress.

  "And there is one instance in which she has ventured into an area of wild speculation. She has attempted to link Tamara Sweet’s disappearance to several other disappearances of young women in this area over the last t
welve years. Her ’theory’ that Tamara Sweet was murdered along with these other women is completely without foundation, and you can imagine how it makes the parents feel, Judge.

  "They met with the defendant after she invited them to preview the film, and tried to explain their feelings about the distortions of truth they perceived, but she has repeatedly refused to discuss any kind of compromise. The defendant has already negotiated an agreement to have the film shown on a major television network. The declarations of the defendants, Your Honor, can only give the slightest indication of the mental anguish viewing the film and anticipating its national exhibition is causing the plaintiffs—"

  "You have five minutes, counsel."

  As Riesner sped up, his deep voice stepped up slightly in volume, giving his final words added power. "Distraught, the plaintiffs turned to me, Your Honor. Today we ask the court for a preliminary injunction that will last until such time as the court’s calendar permits a full hearing on the issue of a permanent injunction. Since that could be a year or two down the line, Your Honor, and the temporary restraining order expires today, we need this interim order to prevent the irreparable harm to these good people that would come of finishing and distributing this film."

  Milne’s pen scratched over a pad. Nina turned to gauge the reactions of Riesner’s clients to his statement. He turned his head to the side. For an instant their eyes met.

  Terry elbowed Nina. "How’s he doing?" she whispered, indicating Riesner.

  "Fair to middling. We’re up soon," Nina muttered back as Riesner began again, his tone now soft, intimate.

  "To rush on to the applicable law, Your Honor. It is the plaintiffs’ burden to show that there is a substantial likelihood they will prevail at the time of the hearing on the permanent injunction. The other legal requirements are briefed in our points and authorities. At this time I would like to discuss the tort of invasion of privacy.

  "The law provides that the plaintiffs may prevent the public disclosure of private facts which are offensive and objectionable to a reasonable person. The court has declarations affirming that the plaintiffs in this case are deeply offended. They object strongly enough to have entered into this lawsuit and to have retained the best possible counsel." He cleared his throat so that the words had time to register with the judge. "It is not necessary to show these matters are false, Your Honor, only that they are private.

  "Second, plaintiffs’ privacy rights are violated by publicity that places a person in a false light in the public eye. It is easy in editing hours and hours of raw film footage to twist true facts into a false picture, Your Honor, and that is what the defendant has done.

  "As Justice Stanley Mosk stated in his concurring opinion in the Lugosi case, cited in our brief, quoting Prosser, ’The gist of the cause of action in a privacy case is ... a direct wrong of a personal character resulting in injury to the feelings.... The injury is mental and subjective. It impairs the mental peace and comfort of the person and may cause suffering much more acute than that caused by bodily injury.’ "

  Milne heaved a restive sigh to let Riesner know his patience had worn away.

  "The film in question, Where Is Tamara Sweet?, is going to have just such an effect on the plaintiffs, Your Honor. Private facts are cavalierly and callously disclosed. A false, indeed, a coarse light is cast over their lives. The facts have been twisted and will be passed on to the public so the defendant can profit from my clients’ misery....’’

  Riesner’s gestures had become wide and expansive, his voice louder and louder as he upped the drama. Listeners anticipated the grand finale, and sat up straight to see better. Nina waited for him to go over the top, as he always did, usually to the delight of juries.

  "The defendant’s perverted take on the story of Tamara Sweet is designed to play down to a similarly voyeuristic and prurient audience. She’s a sick opportunist with a crude goal: to make big bucks at other people’s expense.

  "Do the right thing, Your Honor. Tell Peeping Terry she’s looked through the wrong window.

  "Tell her it’s curtains for her and her sick little film."

  Silence in the court. The only smiles came from the middle of the room where the Sweets sat, holding hands. Milne wiped his glasses on his robe, rubbing his eyes before putting them back on. Nina knew he had a criminal trial resuming at eleven-thirty. He had no time for wordplay. She felt the weight of the crushing time pressure caused by too many cases and too few judges, which made attorneys forget their best points and judges miss the ones they remembered to say.

  "Ms. Reilly? Would you care to respond?" Milne was saying. She picked up her notes, gulping the dry air, as the courtroom waited for the first words to issue forth from her empty mind. Up you go....

  "Just a few brief points, Your Honor. Let me first introduce my client, Theresa London." The judge gravely inclined his head. Terry also nodded, as Nina had coached her to do, and sat back down gracefully.

  "Opposing counsel’s bombast aside, Your Honor, Terry London has been working on this film for over a year. She has put countless hours and a lot of her own money into it. It’s a work of art, based on truth. The world will be able to judge its merit. The plaintiffs, Tamara Sweet’s parents and friends, encouraged Ms. London to make this film because they thought it might help them to locate her. And now they want to destroy it. Why?"

  Nina caught Milne’s eye, held it, and made him listen.

  "Our expert, Monty Glasser, producer of the television series Real-Life Riddles, says this film has considerable artistic merit. As a documentary, it takes a point of view. The plaintiffs are offended by the filmmaker’s point of view, because the film portrays them without masks, as they are, no more and no less.

  "That’s what this lawsuit is all about.

  "But the film doesn’t belong to the plaintiffs. They did not finance it; they did not labor over it; it is not their artistic effort.

  "The United State Supreme Court doesn’t look kindly on muzzling artistic expression in this country. Plaintiffs don’t know what the reaction of the public to this film is going to be, Your Honor, so there has been no harm to them. There may be no harm. To prevent a book or film from even being made public is prior restraint. It’s the kind of First Amendment censorship our courts are least likely to order."

  Milne looked at the clock. Even the United States Constitution didn’t sing for him today. Nina decided to finish quickly, with her best ammo.

  "And, of course, the plaintiffs can’t win this case on the merits," Nina said. "One of our affirmative defenses makes it a lost cause. Consent, Your Honor."

  Milne stopped writing and gave her his full attention.

  "This is really just a simple contract matter. Let’s assume for the sake of argument that the film does invade the privacy of the plaintiffs under the usual definitions," Nina said. That woke everybody up.

  "The contracts my client made with the plaintiffs said that she was going to make a documentary about the circumstances surrounding the disappearance of Tamara Sweet based on film footage she gathered, and that she reserved the sole right to edit the footage. It’s all here in the exhibits, signed, dated, and notarized. Consent was given in the broadest possible terms.

  "There’s no invasion of privacy if there was consent. It’s as simple as that. The plaintiffs had the right to say no, I don’t think I want to participate. But no one ever said that, Your Honor. These people gave their consent to be filmed, so there’s no case, and we should all go home."

  Nina turned and looked at Jonathan and Jessica Sweet, as if challenging them to rise meekly and file out the door, but they just sat there, looking shaken. She quelled a stray pang of compassion. They were suing her client. They were the enemy.

  "In short, Your Honor, this case meets none of the requirements for issuance of a preliminary injunction. There’s no proof the plaintiffs will be harmed by this film. There’s no tort, because there was consent to the filming and no agreement the plaintiffs could take part in e
diting the film. The equities are in favor of the defendant. And there’s a strong constitutional reason for not issuing the injunction—namely, that this film is protected free speech."

  Milne nodded. Riesner scowled. Nina allowed herself a slight smile.

  "Last of all, Mr. Riesner has called my client a voyeur, and a sick opportunist, and asks this court to tell her, quote, she’s looked through the wrong window...."

  Nobody was breathing. Nina smiled.

  "She only recorded what was already there, the dirt, cobwebs, and cockroaches. I suggest to the court that she was invited in, and it’s bad law to try to make her pretend the house was clean."

  Nina sat down. Terry gave her a thumbs-up under the counsel table.

  "Thank you," Milne said. "The Court will take this matter under submission." He went through his private door, chuckling.

  A few minutes later, Nina and her client stood just outside the courtroom doors, alone. The first snowflakes swirled past them at a forty-five-degree angle from a steely sky. Terry’s fur coat brushed sensuously against Nina’s hand just as she was pulling on her glove.

  "Lynx," Terry said. "Just the thing to wear on a freezing day like today. Women want to bury their faces in it. Men want to bury their pricks in it. So, did we win?"

  "It went fine. We’ll know in a few days, when the Minute Order comes out. I’ll call you right away." Nina said. Unwritten rule of legal practice number 678: Never promise a client she’ll win, particularly Terry, who had now buried her own hard nose in her fur.

  "You never know, though," Nina went on, tucking her long brown hair under her upturned coat collar. "Sometimes judges make the wrong decisions, and then you have to appeal. I still don’t understand why you won’t make a few changes to the film, Terry, delete the part about Jessica Sweet being a regular barfly, and the bit about Jonathan Sweet being unemployed for two years around then. And your theory that she was murdered by some psycho lurking around Tahoe. Even if we win today, the trial itself could be lengthy and costly."