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

Nikki Catsouras: Elevating the Dead's Right to Privacy Over the Living's Right to Free Speech

Nikki Catsouras was the product of an indulgent Orange County, California lifestyle.  When she was 18, she took her father's car without his permission (he called 9-1-1 to report her) and took it on a joy ride.  She got the Porsche up to 100 miles-per-hour and clipped another car, before crashing to her own death.

The California Highway Patrol recovered her body and the car.  They took a bunch of pictures of the death scene.  A couple of CHP officers forwarded these pictures to civilians.  Eventually, the pictures made their way around the Internet: They went viral.

Some sociopaths forwarded the pictures to the Catsouras family.  Some people even created an e-mail account in Nikki Catsouras' name, and sent e-mails saying things like, "Look at me!" 

Cruel stuff, though the legal issue presented in Catsouras v. State of California Highway Patrol should have been easy to resolve.  Download Catsouras Opinion [Disclosure: Counsel for the individual CHP officers is a close personal friend, and I consulted with him the Section 1983 issues - which the defendants prevailed upon, and which are not discussed in this post.]

The Catsouras family sued the CHP officers for invasion of privacy and intrusion into seculsion.  They claimed that a dead person had a right to privacy.  Shockingly, they won.  Catsouras is a disastrous opinion for the First Amendment.

Legally, the opinion goes through all of the right law - and then ignores it.  The Court of Appeal recognizes that under California case law, only the living may sue for an invasion of privacy.  The Court of Appeal also recognizes that in analogous situations, the dead have no rights.  For example, the living cannot defame the dead.

One cannot, then, question the intellectual integrity of the Court of Appeal.  They are unafraid of saying, "Here is the path of law.  We're going to take the law on a different path."  The Court of Appeal opinion is honest, but incorrect.

Now, some will say that I've mischaracterized the Opinion.  "Mike," you might say, "the Court of Appeal did not hold that the dead have a right to privacy.  Instead, the Court of Appeal held that the surviving family members have a right to privacy on behalf of the dead." 

Yet your characterization fails, because a third party cannot have a right greater than that of the first party.  Think of it as a principal-agent issue.  

If I sue on behalf of a corporation, I cannot claim to have greater rights on the corporation's behalf than the corporation has on its wod.  Yes, that's an awkwardly-worded sentence, because it's an obvious concept.  Water is wet.  There are other examples.

Imagine you get into a car accident.  Your insurance company refuses to settle the case, because they are jerks.  You may have a bad-faith insurance cause of action claim against my insurance company.  You may assign this cause of action to the person who initially sued you.  Indeed, plaintiffs will often say, "We will dismiss our lawsuit against you in exchange for your lawsuit against the insurance company."

In making the assignment, however, the third party can only sue to obtain the relief you could have obtained had you kept the cause of action for yourself.  The party you've assigned the cause of action to, in other words, has no more nor no less rights than you have.  They stand in your place - no higher, and no lower.

In Catsouras, the family ued for invasion of privacy.  Yet Nikki Catsouras had no privacy rights.  She's died.  

The dead have no rights.  In Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, a newspaper published an obituary that revealed the decedent's criminal history.  The decedent's family sued, alleging invasion of their privacy and intentional infliction of emotional distress.  The family lost.  The Hendrickson court noted:

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. (Coverstone v. Davies (1952) 38 Cal.2d 315, 322-324, 239 P.2d 876; Werner v. Times-Mirror Co. (1961) 193 Cal.App.2d 111, 116, 14 Cal.Rptr. 208; James v. Screen Gems, Inc. (1959) 174 Cal.App.2d 650, 653, 344 P.2d 799; Kelly v. Johnson Publishing Co. (1958) 160 Cal.App.2d 718, 722, 325 P.2d 659; Metter v. Los Angeles Examiner (1939) 35 Cal.App.2d 304, 310, 95 P.2d 491; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, s 342, p. 2605.) Further, the right does not survive but dies with the person.

In Catsouras, the Court have reached the same result.  Namely, the living may not sue to vindicate rights that do not exist.

Now, perhaps the family has its own privacy right in the dead?  If so, what is the precedent?  If someone installs a spy camera into my shower, my privacy rights have actually been violated.  I can sue.  

Yet if my family attempted to sue, claiming, "We have a privacy right in Mike's private parts," they'd get sanctioned.  My privacy rights belong to me alone.  And, once I'm dead, I will have no privacy rights.

Thus, from a common law legal perspective, Catsouras is flawed.  It's also flawed from a First Amendment perspective.

The CHP officers did not lie, cheat, or steal.  They revealed true facts about a dead person.  A living person has a First Amendment right to speak truthfully - about the living and the dead.  

Now, courts will often apply some balancing test between the right to privacy and the First Amendment. Even so, how can the balance be tiled towards the favor of a dead person.  Again, Nikki Catsouras is dead.  The CHP officers are the living.  Catsouras elevates the dead over the living.