The Case About TV News That TV News Missed

By Neville L. Johnson, Johnson & Johnson LLP, Beverly Hills, CA

Privacy Journal June 2002 www.privacyjournal.net

privacy_journal3Beverly Deteresa was the flight attendant who served O.J. Simpson on his flight to Chicago the night that his wife was murdered in 1994. After the flight, Deteresa informed American Airlines that she wished all information about her being on the flight to Chicago deleted so that  she would not be harassed by others. Thereafter, Deteresa began receiving phone calls from vari­ ous persons, including other flight attendants querying her about the flight. One flight atten­dant asked her if she might reveal Deteresa’s name and phone number to a reporter  for “20\20,” a news magazine show produced by ABC  She was told not to, that Deteresa wished to keep private.

ABC at that time produced  a television program entitled “Day One,” which utilized  a news style and purported to broadcast investigative reports. ABC is the most notorious abuser of the right of privacy, has been sued many times successfully for doing so.   See for instance, Sanders v. American Broadcasting Companies, Inc.,   20 Cal. 4th 907 (1999) (secret taping at a workplace of  telephone  psychics);  Food  Lion  v.  Capital Cities/ABC, Inc.;  194 F.3d  505 (4th  Cir.  1999) (secret  taping   at   a  supermarket);   Benford v. ABC,  554 F.  Supp.  145 (D.  Md.,  1982) (ABC surreptitiously filmed an insurance salesman making his standard cancer insurance presentation in a home where individuals falsely repre­sented that they were interested in purchasing insurance from him).

Anthony Radziwill, now deceased, then a producer for ABC, came to the door of Deteresa’s condominium  after  the  Simpson  murder.  This surprised her, as her address was unlisted. Radziwill was wired, wearing a hidden microphone. A high-powered camera from across the street, secreted in a van at least 30 yards away, taped the encounter. Deteresa’s doorway was set back from the street and could be viewed only from a very narrow vantage point from the Street,  or from the trees. No one could overhear her con­versation.

Deteresa asked Radziwill how he obtained her address, and he replied that an address can be obtained for anyone who has a credit card  or owns property. Deteresa stated that while she would like to talk for television, she  did  not want to do so because of American Airlines policy; Radziwill agreed that everyone deserves their privacy. Deteresa  commented  that  the ABC producer’s mother,  Lee  Radziwill  (sister of Jacqueline Kennedy Onassis), must know  all about invasions of privacy by the media. Rad­ziwill asked Deteresa, who did provide him with some information off the record, if she would come in front of her condominium so that he could get some video shots of her. She declined.

The following day, Radziwill called  Deteresa and told her that she  had been surreptitiously taped, that he did not think they could utilize the sound portion of the tape, but  could  probably use the video, and they were going to use it unless she agreed to appear on “Day One.” Deteresa declined, stunned to have learned that her privacy had been so invaded.

Thereafter, Deteresa’s husband called Radziwill and begged him not to use the tape. Radziwili stated that it was a  “terrible thing he had done,” or equivalent words, and that they would not use the audio part, but might put  up “subtitles”  to say what she had said. On June 20, 1994, ABC broadcast portions of videotape made at her residence, without the sound that had been recorded.

In 1995, Deteresa filed a complaint in federal district court in Southern California for invasion of privacy and violation of California’s eaves­ dropping statute, contending in part that the se­cret audio taping, even though not broadcast, was nonetheless a violation of law.

The trial court dismissed the case, and a divided court of appeal affirmed the  decision,  finding the statute should be interpreted according to whether the person taped had  an  expectation that the contents of her conversation would not be repeated. This decision, Deteresa v. American Broadcasting companies, Inc.,  121 F.  3d 460 (1997), was a major blow against privacy.

But the California Supreme Court in a unanimous decision on Mar. 14, 2002, Flanagan v. Flanagan, 117 Cal, Rep. 2d  574, ruled that the proper analysis of the California statute is, as Deteresa had argued, whether there was an expectation that someone was secretly recording. The state supreme court disapproved of the ruling in the Deteresa case, establishing that De. teresa had been wrongly decided. Thus, Beverly Deteresa should have won her case against ABC and its vicious hidden cameras.

ABC, CBS, NBC and CNN filed a friends-of-the-court brief to the state supreme court in the Flanagan case. It was never reported that these media giants had fought to limit privacy rights, nor that their position had been defeated.

When Neville L. Johnson, attorney for Deteresa, learned of the decision in Flanagan, he wrote ABC, demanding an apology and that the case be reported by the network. ABC never responded.

This is news. On Mar. 29, 2002, Johnson  advised the news media by press release of the foregoing facts. No one, until now in Privacy Journal, has bothered to report this information. The news media for the most part do not cover news about themselves when they oppose the right of privacy.

Neville L. Johnson, an attorney in the Los Angeles-based privacy rights law firm Johnson & Rishwain LLP, prevailed  in Sanders. The firm is currently awaiting a decision from the Ninth Circuit U.S. Court of Appeals in another hidden camera invasion of privacy and defamation cases against ABC.

Privacy Journal June 2002 www.privacyjournal.net