Nikki Catsouras: Elevating the Dead's Right to Privacy Over the Living's Right to Free Speech
Corrupt Cops and Prosecutors Lose Lawsuit Against John Grisham

California Court of Appeal Carves Out "Low Value" Exception to First Amendment (Catsouras v. State of California Highway Patrol)

Catsouras v. State of California Highway Patrol (opinion here; case discussion here), a newly-issued California Court of Appeal Opinion, raises important First Amendment issues.  In Catsouras, two California Highway Patrol officers forwarded crime-scene photos of an 18-year old who died after crashing her father's stolen Porsche into a guide rail.  The surviving family members sued the CHP officers, alleging invasion of privacy.  

Siding with the family, the Court of Appeals departed from decades of California caselaw.  Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59 ("It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded, that is, plaintiff must plead and prove that his privacy has been invaded.  [cites] Further, the right does not survive but dies with the person.") 

Worse still and relevant to bloggers and media outlets alike, the Court reached its conclusion on dubious First Amendment grounds.

The CHP officers argued, as anyone of us might, that they had a First Amendment right to disseminate the crime-scene photographs.  Perhaps their judgment could be questioned.  Perhaps their superiors should sanction them for forwarding crime-scene photographs.  Indeed, no one is claiming that the CHP officers did not make an error in judgment.  None of that should matter, given that the First Amendment guarantees us the right to speak truthfully about whatever we like.  We may not lie, and we may not like fire in a crowded theater.  Otherwise, though, we are free to say what we will.

Recognizing that the CHP officers forwarded unaltered photographs, the Court of Appeal still ignores their First Amendment defense.  The Court acted as a super-censor: "Here, the picture painted by the second amended complaint is one of pure morbidity and sensationalism without legitimate public interst or law enforcement purpose."  Slip op. at 17.

Where is the "sensationalism" exception to the First Amendment?  The First Amendment provides that "Congress [and the States, vis-a-vis the Fourteenth Amendment] shall make no law ... abridging the freedom of speech []."  Even morbid and sensational speech is protected.

By allowing the lawsuit against the CHP officers to proceed, the Court of Appeal has made all of us unfree.  Is your blogging morbid and sensationalistic?  Some of mine is certainly hysteric.  May the Court of Appeal, post hoc, extinguish my First Amendment rights because they don't like one of my posts?  Under Catsouras's reasoning, what is stopping them?