SUING THE MEDIA, SUPPORTING THE FIRST AMENDMENT: THE PARADOX OF NEVILLE JOHNSON AND THE BATTLE FOR PRIVACY

2004

67 Alb. L. Rev. 1097 *

Authors: Robert D. Richards* and Clay Calvert**

* Professor of Journalism & Law and Founding Co-Director of the Pennsylvania Center for the First Amendment at The Pennsylvania State University. B.A., 1983, M.A. 1984, Communications, The Pennsylvania State University; J.D., 1987, The American University. Member, State Bar of Pennsylvania.

** Associate Professor of Communications & Law and Co-Director of the Pennsylvania Center for the First Amendment at The Pennsylvania State University. B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University. Member, State Bar of California. The authors thank Rachel Frankel, Lee Langston, and Sean Misko of the Schreyer Honors College at The Pennsylvania State University for their research and editing assistance, and Kathleen W. Collins for her generous financial support.

I. Introduction

 In early August 2003, a brief, one-sentence letter arrived in the mailbox at the home of Carolyn Condit in sweltering Ceres, California.  ¹ While short in length and terse in tone - its words were carefully measured, the letter reflecting the art of legal negotiation and compromise - the missive nonetheless represented a sweet victory for the wife of scandal-plagued former Congressman Gary Condit:

American Media, Inc., National Enquirer, Inc. and Star Editorial Inc. sincerely apologize to you for the information in the articles that were published concerning you in the August 7, 2001 and September 4, 2001 editions of The National Enquirer, as well as the September 11, 2001 edition of The Star, and regret the personal ramifications that followed. ²

 The letter, along with an undisclosed monetary sum, marked the end of Carolyn Condit's ten million dollar libel suit against the tabloids.  ³ The National Enquirer had published an article suggesting that she had attacked Chandra Levy,  ⁴ the twenty-four-year-old former U.S. Bureau of Prisons intern who allegedly had an affair with Gary Condit and then went missing before her lifeless body was found in a Washington, D.C. park.  ⁵ Carolyn Condit filed the complaint against the National Enquirer in February 2002  ⁶ and then filed another complaint against its sister publication the Star in August 2002.  ⁷

On her way out of the federal courthouse in Fresno, California, after a day-long settlement session in July 2003 - a session that would give rise to the above-quoted letter - Carolyn Condit smiled and hugged the attorney who had just negotiated on her behalf.  ⁹

Johnson is the man to whom many plaintiffs now turn when it comes to suing the media. Perhaps only Atlanta-based attorney L. Lin Wood - who represents Carolyn Condit's husband Gary in his defamation suit against writer Dominick Dunne  ¹⁰ - can rival Johnson as the go-to attorney for plaintiffs seeking redress for disparaged reputations and privacy invasions.  ¹¹ Johnson, recently described by the Los Angeles Times as "an aggressive privacy litigator"  ¹² who calls the choice to use hidden cameras "a million-dollar decision every time you do it,"  ¹³ has filed lawsuits against everyone from television networks ABC (Johnson has sued the network on multiple occasions  ¹⁵ and CBS,  ¹⁷ and Master P.  ¹⁸

Johnson's work has not gone unnoticed among journalists, who frequently find themselves on the receiving end of Johnson-filed lawsuits. Describing Johnson's litigation style as "a mix of Hollywood flamboyance and street-fighting passion,"  ¹⁹ a leading journalism trade publication in November 2000 anointed him one of "The Three Kings of Privacy."  ²⁰ That royal reputation was cemented the previous year when the Supreme Court of California handed down its ground-breaking decision in Sanders v. American Broadcasting Companies, Inc.  ²¹ holding that in workplace settings "to which the general public does not have unfettered access, employees may enjoy a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters, even though those conversations may not have been completely private from the participants' coworkers."  ²² ABC eventually ended up writing Neville Johnson's client, plaintiff Mark Sanders, a check in the amount of $ 933,992 to end the matter.  ²³ The network was fortunate it was not the "more than $ 1,000,000 in actual and punitive damages"  ²⁴ that the jury initially awarded in the case.

But it is not all about the money for Johnson. The outspoken litigator views himself as a public servant, ready to hold the line on journalists who violate generally applicable laws. As he wrote in a guest commentary for the prestigious Columbia Journalism Review: "If journalists cannot create and live up to a serious code of ethics, but want to test the law, I'll be there to meet them when they err. I consider it an important public service: to proclaim that journalists must not break the law to gather the news."  ²⁵ Although he's often suing media entities that stand behind the First Amendment's protection of a free press,  ²⁶ Johnson makes it clear that it is actually he who is defending the First Amendment. As he told a reporter for the ABA Journal shortly after the Sanders decision: ""If we live in a society where there is no right to privacy, the ultimate victim will be the First Amendment because people will be more circumspect and closed in discussions… . That will deter what the First Amendment seeks to promote: the free and robust exchange of ideas.'"  ²⁷

While law journals are clogged with articles written by professors and law students about the use of hidden cameras and other privacy-intrusive newsgathering techniques,  ²⁸ this article turns, instead, to the attorney whose work and litigation is directly shaping the law of newsgathering today and, concomitantly, the privacy rights of individuals who are the targets of the media. In this article, centered around an exclusive interview conducted by the authors, Neville Johnson articulates his views on a wide range of issues, including:

. The purpose of a free press under the First Amendment and his own role in protecting that constitutional freedom;

. The current state of judicial and legislative protection for the press;

. The quality of journalism in the United States as it is practiced today, including the use of newsgathering practices that affect privacy;

. The difficulties facing plaintiffs' attorneys when suing the media;

. The privacy tort of intrusion into seclusion;

. The case of Sanders v. American Broadcasting Companies, Inc.;

. The relationship between media ethics and media law; and

. The legal issues raised by reality television programs.

The remainder of this article is divided into three parts: First, Part II describes the setting for the interview, as well as the methodology used in both the interview process and in the writing of the article. Next, Part III sets forth the interview, including six separate sections, each on a different topic or theme and each prefaced with introductory material before providing a question-and-response format for Johnson's remarks.  ²⁹ Finally, Part IV analyzes Johnson's comments and provides the authors' conclusions.

II. The Setting

 The interview took place on Friday, January 16, 2004, in the law offices of Johnson & Rishwain LLP, on the corner of Wilshire Boulevard and Bundy Drive in west Los Angeles. The twelfth floor conference room where the interview occurred provides a panoramic view that sweeps up wealthy Brentwood and the neighboring California hills. Before the interview, Johnson looks down from the window and points out the approximate location of the townhouse, located at 875 South Bundy Drive, where Nicole Brown Simpson and Ron Goldman were killed nearly a decade before.  ³⁰ The legal spectacle resulting from those deaths that was the Orenthal James Simpson trial fueled the same kind of media circus and intrusive newsgathering techniques that Neville Johnson so abhors and that drives his law practice today.  ³¹

Another key player in that practice is Johnson's younger partner, Brian Rishwain.  ³² Rishwain is actively involved in many media-based cases, including the firm's recent representation of Carolyn Condit. For instance, he wrote a letter in March 2002 to executives at NBC Television demanding retraction of an episode from the ripped-from-the-headlines crime series, Law & Order, called Missing, about a twenty-four-year-old former political aide that Rishwain claimed was defamatory toward his client.  ³³ He also took verbal heat from attorneys for the National Enquirer after sending a press release trumpeting the settlement in the Carolyn Condit case with the tabloid.  ³⁴

But taking heat and criticism from media defense lawyers is nothing new for either Rishwain or Johnson. For instance, the same article that named Neville Johnson one of the three kings of privacy also reported:

First Amendment attorneys who have scrapped with Johnson liken him to Jekyll and Hyde. "He's nice and pleasant one minute, and all of a sudden he turns on you and becomes very loud, screaming at people,' says one counsel who asked to remain anonymous. Defense attorneys are often left wondering whether Johnson is aiming to uncover actual evidence, make a stump speech, or just get under the skin of his opponent. ³⁵

 In the case of this article, it was neither Jekyll nor Hyde who showed up for the interview, but Neville Johnson. The interview lasted approximately ninety minutes. It was recorded on two different audio cassette tapes. The tapes were later transcribed by a professional secretary and then reviewed by the authors. The authors made minor changes in syntax, but did not alter the substantive content or meaning of the comments of Johnson. Some of the questions and responses were reordered to reflect the themes and sections in Part III of this article, and other portions of the interview were deleted as extraneous or redundant. A copy of the revised transcript was then forwarded to Johnson in early February 2004. He returned to the authors, in mid-February 2004, the transcript with both minor revisions - the authors inputted all of these changes - and a signed statement dated February 9, 2004 verifying that the transcript, with those changes, accurately reflected his remarks.

Johnson, however, exercised no editorial control over either the conduct of the interview or the content of this article. He did not, in fact, review the article itself before it was submitted to this publication. Johnson only reviewed the raw transcript. Furthermore, for purposes of full disclosure and the preservation of objectivity, it should be noted that neither of the authors of this article has ever worked for or on behalf of Neville Johnson or his law firm. The interview was arranged by telephonic and e-mail correspondence.

III. The Interview

 This part of the article is divided into six sections, each of which includes a brief introduction to the section's theme, followed by a question-and-response format. The authors have added footnotes, where relevant, to both the questions and responses to enhance details, define concepts, and provide citations to cases mentioned.

A. The First Amendment, a Free Press, and the Practice of Journalism

 The First Amendment provides, in relevant part, that "Congress shall make no law … abridging the freedom of … the press… ."  ³⁶ Despite the lawsuits that he frequently files against television newsmagazines, Neville Johnson is clearly not against the constitutional concept of a free press, nor for that matter, the current work being done by many journalists. What he is against, however, are some of the intrusive and deceitful techniques used today to gather news. As Johnson said during a spirited debate with media defense attorneys, among others, at a law school symposium in 2002:

What I want to promote is good, hard-core, serious shoe-leather journalism, and if you look at the one hundred greatest stories of the last century, as prepared by, I think, the New York Times, none of them - not one - involved impersonation or hidden cameras. That's not what it was about. ³⁷

 In this section, Johnson articulates his vision of a free press, comments on the work currently being done by the press in performing that mission and makes it clear that he views his own work as actually protecting the First Amendment rather than harming the protection it affords journalists.

Question: The first question is a big picture one: What, in your mind, is the purpose of a free press under the First Amendment?

Johnson: One of my favorite mottos is in the masthead of the San Francisco Bay Guardian, which is a weekly alternative newspaper. They've been running it for some 20 years - "It is a Newspaper's Duty to Print the News and Raise Hell."  ³⁸ It's a quotation by Wilbur Storey, a publisher from Chicago, back in 1861. I view the functions of a free press to include reporting the truth, performing investigative journalism, serving as the Fourth Estate  ³⁹ by keeping government sober and inspiring, and leading.

Question: Do you think the press is doing that job today?

Johnson: Elements of it.

Question: Do those elements include the mainstream press or is it more of the San Francisco Bay Guardian kind of papers - the alternative weeklies - that are doing it?

Johnson: I have read the New York Times every day for the last twenty-five years, along with the Wall Street Journal and the Los Angeles Times. I think they are all first-class, reputable, and excellent organs.

Television news, however, is terrible on a local level and on a national level. There's approximately twenty minutes of news coverage a night. It's very difficult, given the time constraint, for them to give much more than the big picture and, then, only on a select number of issues. Shows on PBS like Frontline and Nova and others of that ilk are as good as it can possibly get.

The demise of documentaries on a national television news level has been lamented for years by journalists as a whole. It comes down to economics. The holders of the licenses owe the public and should be doing more, but competitive markets being what they are, the bottom line ultimately is economics.  ⁴⁰ With these kinds of decisions, it's safe to say that the quality of television news has eroded dramatically over the last four decades.

Question: Do you see any possibility of that changing or are the economic pressures and realities such that it's just going to keep eroding?

Johnson: Documentaries are going to continue to be produced, but there will be alternative methods of distribution. For example, with one of the bar groups that I'm involved in, an issue has been about doing a documentary that we distribute via the internet.

There's an incredibly compelling documentary that was done a couple of years ago called Unprecedented: The 2000 Presidential Election about the election in Florida with President Bush and Al Gore.  ⁴¹ That documentary got only limited theatrical distribution, but it was shown at film festivals around the country  ⁴³ and is now available on DVD.  ⁴⁴ It is a very, very valuable documentary and one of a very few that really covered that issue in depth.  ⁴⁵ I don't think serious documentaries will ever return to the networks and it doesn't look like FOX News and CNN anytime soon are going to get into the serious documentary business, but all is not lost.

Question: Back to the First Amendment, many of the defendants you face rely upon the First Amendment as protection for their activities and, in a sense, that forces you to launch a counterattack against the First Amendment. Do you believe that your work is weakening First Amendment protections or do you see it strengthening it in some way?

Johnson: I completely disagree with the tenor of your question. I am in no way opposed to the First Amendment. I consider myself a First Amendment lawyer and what I do is protect and preserve the First Amendment, including the freedom of association, which is part of the First Amendment.  ⁴⁶ I don't see the First Amendment as being weakened at all. What we're doing is examining, filling in, understanding, and graphing the contours of the First Amendment, which is in flux at all times, given the needs of society, technological advances, and new waves of journalists who commit illegal deeds.

Question: But the journalists who you are suing are going to raise First Amendment issues, so do you see yourself as sometimes having to work around that or to educate a judge that maybe the First Amendment doesn't stand for what they say it stands for?

Johnson: Of course. In every single case the defendant wants to cloak him or herself or a giant corporate entity, like Christo,  ⁴⁷ in the flag of the First Amendment and that is fallacious reasoning. It's one thing to talk about the First Amendment generally, but I'm talking specifics: what are the facts of the case when it is raised? I'll go toe to toe with anybody on a case I believe in as to what they can or cannot do.

I want to make it clear, I am more in favor of investigative journalism than probably the majority of investigative journalists in this country. I completely support it, endorse it, love it, read it, and feel it's necessary.

Our firm is all about prohibiting unlawful news gathering practices which violate laws of general applicability. And in cases of defamation, when a journalist goes over a line, I'm there to rectify the situation.

Question: Would you say, then, if we flip it around a little bit, that when the media wrap themselves in that cloak of the First Amendment that they run the danger of weakening the First Amendment?

Johnson: The First Amendment isn't going anywhere. The First Amendment is not being weakened and has not been weakened. If anything, it's stronger than ever before. What they run a risk of is tarnishing their own reputations, becoming a laughing stock, and ultimately losing the credibility which they feel is so important for the business that they are in.

B. Suing the Media: Overcoming Courts, Defense Attorneys, and the Lack of a Plaintiffs' Bar

 At the twenty-fifth anniversary of the Practising Law Institute's Communications Law conference in November 1997, some 340 media lawyers gathered at the Crown Plaza Hotel in New York City to take stock in the great strides the group made in just a quarter of a century.  ⁴⁸ Developing from a small seminar its first year to a massive meeting a couple of decades later, the conference's growth mirrors the transformation of the media industries the participants represent.  ⁴⁹ The conference left no doubt that "media defense is a big business, undertaken by well-paid lawyers representing corporations dwarfing their antecedents in size."  ⁵⁰

The picture of the attorneys who do battle with those PLI attendees - the media plaintiffs' bar - is a stark contrast. There are no heavily attended conferences at glitzy Manhattan hotels, no battery of colleagues to swap ideas with during the refreshment breaks, and no hefty three-volume sets of legal outlines  ⁵¹ written by the top practitioners in the field to digest on the flight home.

Media plaintiffs' attorneys often fly solo or work with a very few close colleagues. They are forced to stare down a well-financed defense team that, in most instances, has the guarantees of the First Amendment on its side and a platoon of junior associates ready to draft and serve pleading after pleading at regular intervals. Yet, the plaintiffs' attorneys persevere. Their practice must be an exacting - picking the right client who can withstand the pressure of a powerful, well-financed corporation - and instructing - educating judges and juries that the First Amendment is not a license to destroy an individual's privacy - process.

In this section, Neville Johnson describes some of the hurdles he has faced when taking on media corporations and their well-seasoned legal staffs. The hurdles include courts as well as defense attorneys. He also discusses the stress his clients endure as their lives are dissected in front of judges - some of whom are quite sympathetic to the media establishment - as his answer to the first series of questions below reveals.

Question: Have courts gone too far in protecting the press from liability in lawsuits based on libel or invasion of privacy claims? And, if so, can you describe some of the ways in which you believe this has happened?

Johnson: It depends on the jurisdiction. We're fortunate in California. We have a highly intelligent appellate judiciary that is mindful of the competing interests between the need for, and the right of, a free press and the rights of individuals to have clean and clear reputations and to be free from unwarranted intrusions.

If you take a state like New York, it is one of the worst for individual rights. It has a very media-friendly body of law because, in part, the media are concentrated there. There is virtually no right of privacy whatsoever and that is tragic.

The most difficult area for courts to address is the issue of publication damages.  ⁵² That's where the battlefield is today: to what extent those kind of damages can or should be curtailed.

There's a bias overall for the media. Some of that is due to judges who do not want to be perceived as anti-media because it may have significant repercussions particularly at re-election time.

Question: Whether they get endorsed or not?

Johnson: Yes, right, and generally criticized for other matters they may be involved in overall. One of the major problems is ignorance and confusion. I don't mean that in a derogatory sense of judicial officers, but the area is fraught with technical aspects and sometimes complicated rubrics and concepts that require substantial weighing and analysis and which can, in certain cases, mean an entire education. And, finally, there is a tendency of some courts, when they see a hot topic that is highly controversial, to say: "Well it's easier for me to just get rid of the case right now and the black robes upstairs will tell me what to do."

Question: Rather than having to learn all of the issues? Rather than having to go through all of the learning process?

Johnson: Right, and they know it's going to go to the court of appeals anyway, so they say, "Why not send it now?"

Question: What would you say is the single biggest legal hurdle or challenge you face when you're suing the media for intrusion?

Johnson: Economics. It's expensive. And they don't kid around when they defend; they have first-class, highly skilled lawyers to defend and to try to find a hole in whatever the plaintiff's case may be and then drive a truck through it.

Question: That actually ties in with the next question: What are some of the common tactics of media defense attorneys that are designed to harass plaintiffs' attorneys such as yourself and how do you overcome them?

Johnson: I don't think "harass" is a fair word.

Question: Okay.

Johnson: A common defense tactic, and it's inevitable in cases involving invasion of privacy, is trying to go into all of the nuances and aspects of the private lives of the individuals who are plaintiffs in those cases.

That is a wrenching experience to have to view as a counsel and, obviously, is much worse for my clients. I can't tell you how many times I've seen tears shed by my clients as they recount their injuries which are inevitable in these kinds of cases and are so unnecessary to see. I've had ABC put private eyes on my clients. I find it highly offensive to follow them.

Question: Which particular cases are those?

Johnson: Sanders. One of the things that really bothered me in Sanders was the defense lawyers' attempt to say that one of the plaintiffs was such a loser in life that he didn't deserve any damages. That client, Naras Kersis, committed suicide during the trial. I will never forget that and I will never forgive ABC for that.

Question: Did they put somebody on him to follow him around?

Johnson: So I understand. I know they had private eyes calling well over 100 people to try to get information.

Question: Are there other plaintiff media lawyers today whom you particularly admire?

Johnson: I admire anybody who's got the guts to take on a corporate behemoth, anybody who's got the courage to fight for a righteous cause, whether it's in journalism or not.

The plaintiffs' media bar is sparsely populated. There are not a lot of lawyers who have the financial wherewithal and who are willing to make the investment in time to educate themselves in the degree necessary to take on such fights.

However, there are many fine advocates. I particularly admire L. Lin Wood of Atlanta, who is an extremely intelligent, innovative, tough, righteous, well-spoken, fearless lawyer and who has a big heart.  ⁵³

There are some lawyers out here on the West Coast for whom I have a high regard who have been representing celebrities who are quite good. Bertram Fields is a terrific lawyer, Barry Langberg is excellent, and so is Deborah Drooz of his firm.  ⁵⁴ Martin Singer and Jay Lavely of Lavely & Singer are tough and skilled in this area.  ⁵⁵ On the East Coast there's the lawyer in New York who was the first lawyer in Food Lion. John Walsh is a very, very fine and ethical attorney and I've seen his work and it was first class.

But other than Lin Wood and his firm, I can't think of any other lawyers on a contingency basis that come to mind, although I'm sure there are many lawyers around the United States who do it and have done it just fine.

Question: There is, as you know, a powerful media defense bar that meets regularly at Practicing Law Institute and American Bar Association events. There is, however, no similar plaintiffs' media bar coalition. How much does the absence of a united group of plaintiffs' attorneys hinder your efforts, to the extent that they've got this massive lobby?

Johnson: Well, you're talking about two different factors and aspects. Aspect number one is, of course, the lobby in Washington, D.C., and in state governments for laws. That is extremely daunting and very problematic for a free society because one does not see the necessary give-and-take, adequate discourse, and colloquy that should occur when legislation is being considered. The past, future, and potential victims are not empowered to a degree where they have an opportunity to lay out the contrary positions. As a result, we now have this amalgam of anti-SLAPP statutes around the United States that has been abused by the media.  ⁵⁶

As to the defense bar, the PLI, ABA, and Media Law Resource Center do an excellent job of attempting to hinder our efforts by sharing strategies and defenses with each other. We are underrated but rather resolute in light of such combined opposition.

Question: California's anti-SLAPP statute?  ⁵⁷ It seems to have been stretched so far.

Johnson: Right. California is off the map and there should be a concerted effort to have an anti-SLAPP law that is in conformity with the rest of the states that have them.

But who's going to organize it? At some point, perhaps, enough people in the legislature will come to their senses such that it will be sufficiently modified.

We're fortunate because we work with two of the top scholars in the United States on privacy and defamation. Rod Smolla is of counsel to our firm - he's the author of the Law of Defamation - and we work closely with him on a number of cases.  ⁵⁸ And Professor David Elder at the University of Northern Kentucky is the author of Privacy Torts and many other articles about torts and defamation.  ⁵⁹ We work very closely with him on a number of cases as well. So we're on the cutting edge at all times as to what is the state of the law. We network, to the extent that we have to, when we need to. If it's calling our colleagues who are on the plaintiffs' side to ask about certain jurisdictional questions, experiences, strategies,  [*1113]  procedural issues, what they know about certain or actual potential defendants; we're collegial in that regard. But I'm afraid that if they had a convention of the plaintiffs' lawyers, it probably wouldn't fill out much more than a poker table.

C. Invasion of Privacy and Intrusive Newsgathering Techniques: From Food Lion to Sanders

 Neville Johnson seems to enjoy his reputation as a hard-driving champion of ordinary citizens who fall victim to overly aggressive and out-of-control news organizations.  ⁶⁰ The one case - perhaps more than any other - that contributed to this status involved two employees of a Los Angeles telephone psychic company whose conversations were secretly recorded by a producer for ABC News who posed as a co-worker.  ⁶¹ Those conversations were later broadcast in a report on PrimeTime Live, which claimed "that the psychics did not take their jobs seriously and were cheating gullible callers paying $ 3.95 a minute to get advice."  ⁶²

The two employees, Mark Sanders and Naras Kersis, with Johnson as their attorney, sued ABC for its surreptitious news gathering practices. In 1996, a jury awarded the pair a staggering $ 1.2 million verdict, but the following year the California Court of Appeals threw out the judgment, forcing Johnson to appeal.  ⁶⁴ but his coworker pursued the case to the California Supreme Court, which ruled in his favor, resulting in an eventual judgment of $ 933,922.  ⁶⁵

The lawsuit was based on the claim that ABC had violated the men's privacy through the tort of intrusion into seclusion.  ⁶⁶ For California's highest court, the issue boiled down to determining if "a person who lacks a reasonable expectation of complete privacy in a conversation because it could be seen and overheard by coworkers (but not the general public) nevertheless [has] a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation."  ⁶⁷ The network argued that because co-workers were privy to the conversation, Sanders lost his expectation of privacy.  ⁶⁸ The court disagreed, finding that even though Sanders may have lacked an expectation of complete privacy, he nonetheless retained a cause of action for invasion of privacy by intrusion.  ⁶⁹

ABC News was no stranger to litigation over its news gathering practices. At the time of Sanders, the network was embroiled in another case - Food Lion, Inc. v. Capital Cities/ABC, Inc.  ⁷⁰ - in which television producers, posing as grocery-store workers, surreptitiously videotaped the supermarket chain's employees in an unfavorable light. Once again, the television program airing the footage was PrimeTime Live.  ⁷¹

The broadcast showed Food Lion's workers repackaging fish and chicken with new expiration dates and blending old and new beef in the chain's stores in North Carolina and South Carolina.  ⁷² After the show aired, Food Lion sued the network on four counts: fraud,  ⁷⁴ trespass,  ⁷⁶

On appeal, the United States Court of Appeals made an even split, ruling in favor of ABC on the fraud  ⁷⁸ and for the supermarket chain on the grounds of trespass and breach of loyalty.  ⁷⁹ Food Lion's partial victory, however, was more moral than financial. In the end, the court viewed the supermarket's claim for publication damages for lost profits based on the broadcast as an attempt to make an "end-run around First Amendment strictures"  ⁸⁰ of defamation law and thus awarded only nominal damages in the amount of two dollars.  ⁸¹

Johnson loathes the use of hidden cameras by media organizations where individuals have an expectation of privacy and, in this section, he talks about the impact of the Sanders and Food Lion decisions on that news gathering technique. He also discusses some of the problems associated with the tort of intrusion.

Question: If you could reform one aspect of the invasion of privacy tort of intrusion into seclusion, what would it be and why?

Johnson: Well, I would eliminate the concept that there is no remedy for publication damages in certain jurisdictions. The reason is that, unless that is done, it renders nugatory the tort. The tort performs no prophylactic or prescriptive deterrent to those who engage in such tactics if publication damages are not allowed because they will just figure: "Well, it's not ever going to be a cost of doing business because we're not going to have litigation. No plaintiff's lawyer is going to be willing to take on the case if there are no meaningful damages."

Question: Does the concept of newsworthiness, as it is used in tort law, bother you?

Johnson: It depends on what the context is and when it's used. Newsworthiness is a factor in the balancing test for the concept of publication of private facts. I don't have a problem with that. I do have a big problem with newsworthiness used in the concept of the tort of intrusion. My position is that it's strict liability: you commit a crime or tort to gather the news, there's no excuse.

Question: Can you think of any instances where the news media's use of impersonation, hidden cameras, or hidden microphones would ever be justified? Are there any situations where you'd say, "Yeah, impersonation is okay here or hidden cameras and microphones are okay there?"

Johnson: Hidden cameras are permissible in certain situations if there's not an expectation of privacy. That's what the conflict is always about.

Am I going say that I don't think anybody should ever break the law or that it's no excuse if you commit a violation of law; that the ends do not justify the means? Am I going to take on a case where impersonation was used and prevented something on the order of the World Trade Center September 11 atrocity? No, nor would any other person do that. But those kinds of situations just don't come along. Instead, what you get are little dramas - these little 12-minute "reality" dramas prepared by so-called journalists to be broadcast during sweeps period  ⁸³

I was talking to a producer of one of the major news magazines the other day. When I suggested a potential story, this individual's response was, "yeah, but where's the images? It's just going to be talking heads."

I said, "yes, but those heads have got a lot to say." But that is not what is going to sell for the ratings. So, in answer to your question, I'm not going to say that there is no conceivable situation where a hidden camera could not be used, but I haven't heard of one yet.

Let's put it this way: If a journalist sees something being done or believes something is being done that is criminal, then he or she has an obligation to report it to the proper authorities in order to rectify it so that the community is not endangered. It is disgusting to hear, as I have in so many situations, that a story was held for months or even six months. One notable situation was Food Lion where the story was held so it could run in the sweeps period. If the story was so important affecting the health and welfare of the community, it should have immediately been broadcast.

Question: Let me go to the publication damages issue and Food Lion. Was the Fourth Circuit Court of Appeals' decision in Food Lion, stripping the damages down to two dollars and saying you couldn't get publication damages, one of the ones in your mind that is the most harmful decisions on the publication damage issue?

Johnson: Yes, but I don't think it is by any means a leading opinion and it's confined to those facts. There was another way to have perhaps achieved the same sort of the substantial financial success in the end had other theories been pled.

Remember that Sanders was really the first case, but Food Lion was the first one to receive notoriety or public attention. The law is somewhat unusual with respect to how certain kinds of damages are obtained in North Carolina with respect to some of the claims being pled. So it's going to depend on the particular jurisdiction. It doesn't appear to have any effect in California.

Question: In a nutshell, why is the Supreme Court of California's opinion in Sanders important?

Johnson: It was important enough to be on page nine of the New York Times  ⁸⁵ It was because it was the first case in the United States where substantial compensatory damages were awarded against a news gathering entity for the tort of intrusion. Further, it was the first case in history to have upheld punitive damages. Up until that decision, it was a free for all in which the television magazines were using hidden cameras with impunity and this was a choker on those who were utilizing impersonation and hidden cameras willy-nilly.

It goes even beyond the utilization of hidden cameras because there is an implicit element of misrepresentation and fraud to what was happening.

It still happens to some degree - sophisticated spy missions with multiple players and as if it were James Bond going out and taping people at will. It blows me away that ABC had an individual on contract who spent half of his working days secretly taping other Americans.

Question: Is this Jeff Cooke?

Johnson: Yes, and these people are not journalists. They're just mercenaries, journalistic soldiers of fortune. I'd love to know how many innocent people who never did anything wrong in their life whatsoever have been secretly taped in the hopes that they would somehow incriminate themselves in some way so that they could then be tortured on national public television. So it was important because it was a major stop sign or, at least, a very big warning sign, to those who engage in deception.

Question: Do you think the state of affairs in journalism today would've been different had the Supreme Court of California ruled against your client?

Johnson: It would be much more disgusting now had that decision not come down.

D. Media Ethics v. Media Law

 Textbooks have been written on the subject  ⁸⁷ Ethical codes have been promulgated  ⁸⁸ and academics and professionals alike have debated the issues captured in those tenets for decades.  ⁸⁹ Yet, for some people, it is difficult to dispel the notion that "journalism ethics" is an oxymoron.  ⁹⁰ Given that Neville Johnson's clients have been subjected to unscrupulous reporting tactics and scurrilous stories, it would be easy to imagine that this Los Angeles-based litigator would fall into the camp that finds journalistic practice and ethical behavior to be opposing forces.

Oddly enough, he does not subscribe to that view. In fact, Johnson believes that ninety-eight or ninety-nine percent  ⁹¹ of the journalists working today are careful purveyors of the news, but those relatively few reporters and news organizations that do not subscribe to principled news gathering tactics and accurately published accounts keep him working hard to protect his clients' rights and keep that part of his law practice in business.

Although journalism organizations have long adopted ethical canons, part of the problem is that they lack any powers of enforcement. The main reason for this is simple: journalism is not a legally defined profession.  ⁹² Moreover, licensing the press - or its practitioners - clearly would run afoul of the First Amendment,  ⁹³ but the absence of a legally organized group gives journalists the freedom of choice to follow the codes' provisions - or not.

In this section, Johnson talks about what he believes should be in journalistic codes of ethics and how journalists should police themselves. He acknowledges, however, that such codes can be a double-edged sword for journalists in that plaintiffs' attorneys can sometimes turn their industry's words against them.

Question: You've been quite critical of the talk about journalism ethics by members of that profession. Specifically, you said that it lacks teeth or substance.  ⁹⁴ What recommendations would you offer a news organization that wants to create a meaningful ethical code?

Johnson: I'd start with the New York Times' ethics code, which is pretty strong.  ⁹⁵ I'd work from there.

Question: What are some of the things you think should be in it?

Johnson: I would have a town-hall meeting to discuss it with the readership and those who are interested in the topic, including academics. I would perform an analysis of the major decisions involving privacy, libel, false light, publication of private facts and any other related torts. Eavesdropping, wiretapping torts and related crimes: I would use them as a guiding light as to what can and cannot be done.

And I would be mindful that, just because it hasn't happened in the particular jurisdiction or where the news operation is located, doesn't mean that it isn't going to happen at some point. But for the most part, it's unrealistic to expect that much can or is going to happen because newspapers and other journalistic outlets don't like to codify their rules because they feel that those rules can be used against them should litigation ensue.

A related issue is the concept of news councils. ⁹⁷ There are only two in the United States right now: one in Minnesota  ⁹⁹ It is shocking that news organizations in the remaining forty-eight states don't want to participate because there is no monetary loss. I note that the San Francisco Bay Guardian allows its readers to dispute the accuracy of its reporting via the Minnesota News Council, which goes to show it's a workable model. There could only be a loss of reputation. But it could rectify a wrong, and we have to remember, as was stated in Keeton v. Hustler Magazine, Inc.  ¹⁰⁰ by the Supreme Court of the United States, there's a third party when deciding to hold jurisdiction in the state of New Hampshire. That third party is the public, which has a right to expect fair, accurate, and full news.  ¹⁰¹

Getting to your question of what would I like to see in there, the biggest problems are in the areas of impersonation and sourcing. Impersonation obviously is a major bugaboo. It is fraught with problems that are large enough, in certain cases, to prove ruinous and even mean the demise of the publication involved if they are not careful. Take a look at the case of Rice v. Paladin Enterprises, Inc.  ¹⁰² That company was bankrupted.

Impersonation, as I have written, is by its very nature antithetical to the notion of what journalism is all about because when you are lying to get a story it stains the credibility of the entire piece.  ¹⁰³ Particularly in television news magazines, the problem is that the technique of the hidden camera becomes the driving motivation for the story. It's more about the images and capturing people unaware than it is about trying to present a fair and balanced story overall.  ¹⁰⁴

In the fact checking and sourcing area, I can tell you that I have seen cases where information has been literally fabricated.  ¹⁰⁵ That obviously is indefensible and is what punitive damages are designed to stop.

There also is an overall slovenliness and sloppiness of journalists who don't do the necessary digging that needs to be done. Just because somebody says something bad about somebody else who may happen to be a limited-purpose public figure  ¹⁰⁶ doesn't mean that it's true and that it can be printed in any event. More often than not, in fact, probably most of the time, the person who is saying such derogatory facts has some serious bias or axe to grind with the person who is the subject of the particular piece. It just means that investigative journalists or journalists in general need to be very, very careful to ensure that both sides of a story are printed and not go with the stuff that is a "maybe" in terms of its validity and integrity.

Finally, related to this issue is the pathetic state of the quality of education for both students of journalism and practicing journalists as to what standards they could and should adhere. The bottom line, at a minimum, is that if you're going to have any sort of education, then you need to print the laws of the state relating to privacy, defamation and related torts and to educate the staff on that.

Question: Can I just follow up on one point that you made in your answer with respect to the codification of ethics codes? That is the argument you always hear from news organizations - that they are afraid to codify a code of ethics for fear that the plaintiff's attorney will be waving that in front of a jury.  ¹⁰⁸ or RTNDA  ¹⁰⁹ code of ethics in front of a jury? Could you see yourself waving a code of ethics in front of a jury or using it in a cross examination should a code of ethics with teeth ever be implemented by a news organization?

Johnson: I never wave anything in front of a jury; I present it in a very formal manner.

Question: But of course. Would you ever present it in, let's say then, a very formal manner to a jury?

Johnson: Sure, but I've got to tell you that it cuts both ways. If you don't have a code of ethics, that's fine by me. It's worse, I think, if you don't have a code of ethics.

So I think it's better to have something than nothing, even if it is the watered-down SPJ version.  ¹¹⁰ But, you know, there's a conflict among journalists; they can't agree as to what is permissible behavior. Bob Steele at the Poynter Institute for Media Studies - he's fairly gung ho on the utilization of impersonation. He's giving bad information to his tutees. I wonder if he is advising them that he was on the losing end of a defamation suit several years ago that ended up with his book on reporting  ¹¹²

E. Reality Television and the Next Wave of Litigation

 There is no doubt that reality television has proved to be a successful genre over the past five years.  ¹¹³ It attracts a large audience and is relatively inexpensive to produce.  ¹¹⁴ But, increasingly, it has also been attracting a number of lawsuits,  ¹¹⁵ something that, in turn, is driving up its costs, including insurance.  ¹¹⁶ To date, there have been "dozens of multimillion-dollar legal claims over contestants humiliated, outcomes manipulated, reputations besmirched, ideas stolen, right ankles broken and egos egregiously bruised."  ¹¹⁷ Lawsuits are filed for a veritable laundry list of causes of action, including invasion of privacy,  ¹¹⁹ copyright violation,  ¹²¹ negligence,  ¹²³ false imprisonment,  ¹²⁵

Not surprisingly, Neville Johnson has been active in some of the cases. For instance, Johnson filed a complaint on behalf of a plumber named Jack Keating who was set up for a practical joke and humiliation by a television show produced by World of Wonder Productions.  ¹²⁷

In this section, Johnson comments on the legal issues raised by reality television shows and, more specifically, on the types of conduct and manufactured situations that are likely to lead to litigation. He also reveals, in response to the first question asked, that he's currently involved in a contractual review on behalf of a reality show participant. It is the enforceability of contractual waivers for harm caused by certain types of conduct that, as Johnson suggests, is particularly troublesome.

Question: Reality television shows have spawned a number of lawsuits recently.  ¹²⁸ Can you talk a little bit, please, about some of the typical legal theories upon which such lawsuits are based and some of the biggest legal problems facing these shows today?

Johnson: It's funny because I have to negotiate with one as soon as this conversation ends. I'm very troubled when I see a contract that says, "You will waive all damages. You understand we're putting you in a potential life threatening situation."

Question: Are those enforceable?

Johnson: I don't think so. I don't think that's going to fly.

The reality shows that go too far are a major problem. When you want to put a human being into a death-defying situation - say, jumping out of an airplane - and they shoot the videotape, I don't think you can waive liability. There's a case which, I understand, recently settled of an individual who was induced, as part of Candid Camera, to get on a baggage scanner at an airport.  ¹²⁹ That was just bone-headed thinking on the part of Candid Camera and the producer of that show.  ¹³⁰ They shouldn't be doing that.

A big problem is when they shoot first and then try to get the release signed later. If the individual doesn't want to sign the release, it can backfire and it has. We've been involved in situations where somebody was approached in a public place and this individual's image was later used on television and we didn't think that that was the proper thing to do in that particular situation.

A show like the Jamie Kennedy Experiment, which has been running for some time now, and the show that was formerly called Spy TV, I find troubling and problematic, particularly to the extent that there is a nastiness involved in the some of the setups. In other words, when people are asked to do things that might test their moral fiber, I don't think that that is the kind of entertainment that we ought to be putting out to people who are unaware that they are participating in an event or in an exercise the purpose of which is to ultimately humiliate them in some way. That's a bad thing for society to do. Why do we want to do that?

The more innocuous, as in the traditional Candid Camera shows, then obviously the less there is to complain about. But it's when the vectors of humiliation cross with the need for increasingly more outrageous stunts that reality shows are going to get into trouble. Look at what happened with the debacle of the first Who Wants to Marry a Millionaire? That was, ultimately, a fairly stinging rebuke to the FOX Network for allowing that to go forward without a proper vetting of the background of the candidate.  ¹³¹

There was a case in Sweden where somebody threw himself in front of a train.  ¹³² Then there was the report of a woman in Holland who, for a few seconds, was shown on a urinal or the toilet, which was not exactly a good thing to happen, and there's the fellow who got threatening on Big Brother in Burbank and had to be excused from the show.  ¹³³

Question: The background checks are lacking.

Johnson: So it's that and it's this devil-may-care attitude, combined with a need to be outrageous, because outrageous, to these producers, means compelling. Now, if everybody's a willing participant, then it's okay and fine. What we're talking about really is common sense for the most part. When the situations do arise, then it becomes, "Well, gee, I guess we should've thought this one out."

F. From Initial Involvement to Lasting Legacy

 Despite the fact that the law firm of Johnson & Rishwain touts itself as "specializing in invasion of privacy, defamation, unfair competition and contractual and tortious disputes in music, film and television,"  ¹³⁴ Neville Johnson did not begin his legal carry seeking to sue the media. Nonetheless, that aspect of his practice plays a large part in his prominent reputation.

In this section, Johnson traces his initial involvement with the media - starting with his days as a paperboy to his time as a student journalist in college - to his perch as a prominent plaintiffs' attorney who now sues broadcast journalists. Johnson's roots are in print journalism; although it does not come up during the interview, Johnson is the author of a book on former UCLA basketball coach John Wooden titled The John Wooden Pyramid of Success.  ¹³⁵ It becomes clear that Johnson loves journalism, but not all of the practices employed by some in the broadcast realm today.

Question: What is it that attracted you to suing the media? How did you, in other words, first become a plaintiffs' attorney who has made his mark suing the media in cases?

Johnson: I would not say that I was ever attracted to it; it fell in my lap.

By way of background, I've been reading newspapers pretty seriously since I was ten or eleven years old. I was a paperboy for five years.

Question: What paper?

Johnson: The Los Angeles Herald Express, which became the Los Angeles Herald Examiner. In college I was an editor at U.C. Berkeley at the school newspaper and took many courses in journalism. I've read the Columbia Journalism Review since I was in college, and I owned a newspaper for a brief amount of time after college.

Question: What paper was that?

Johnson: It was an entertainment bi-weekly in the San Francisco Bay area.

I never had any intention of suing the media. But Naras Kersis walked into my office with a problem with a musical group that wanted to abandon a contract to which he had been a party, and when I got the facts of it, I discovered that he'd been the victim of a hidden camera.

At that point, I had never heard of the tort of intrusion. So I told him to wait in my office for a minute while I went into my library, because I felt that there was something wrong in my bones about this conduct. And I looked and I discovered it. I went back in and said, "Let's sue ABC."

When you get involved in a case like that, the plaintiffs have no trouble beating a path to your door.

Question: That's what happened since that time?

Johnson: Yes.

Question: How did Carolyn Condit come to you?

Johnson: That was a referral.

Question: Tom Goldstein, a long time dean of journalism  ¹³⁷ He says that "gadflies play a crucial role in strengthening journalism."  ¹³⁸ Is that how you see yourself? As strengthening journalism in some way?

Johnson: I dispute the appellation "gadfly," particularly since Professor Goldstein is a friend of mine and a recent expert witness for me.

No, I don't think of myself as a gadfly at all. If you ask the defendants, I think they'd say I was a pest.

I view myself as a freedom fighter and a warrior for the little people of America who are powerless. I am protecting and preserving fundamental freedoms.

Question: Is one of those freedoms privacy? Would that be the key one and how would you define the concept of privacy?

Johnson: It's a dual issue. It's privacy combined with fair reporting. I'm not saying it has to even be neutral reporting, although that's the ideal that the journalists are supposed to have - fair and neutral reporting if it's not an opinion piece.

I'm just interested in making sure the rules of the game are such that individuals are not squashed. What people don't realize is that the damages that are caused are enormous on many levels to those who suffer the vicissitudes of improper journalistic conduct, including severe and long-term psychological injuries ranging from depression to fear to paranoia to frustration to chagrin to a feeling of powerlessness.

There are economic damages; lives and businesses can be ruined. And then there's the ripple effect of the shame and humiliation that occurs and affects the members of the family and the individual and in their social and business lives.

It's just massive, the damages that can be caused. So I am looking for just compensation for those kinds of people.

Now, as relating to privacy, certainly I'm seeking to bolster the right of privacy. Something that I commonly say is that the right to a free press does not trump the First Amendment. Both of these fundamental rights have to live together and can, should and usually do. I would like to think that we take on only the most egregious cases. We don't file cases we don't think we're going to win.

So it's usually fairly shocking, I think, when an individual analyzes the conduct in an objective, dispassionate manner. That's why we have juries and that is the saving grace for what I do because they keep all of us honest. At the end of the day, jurors are the ones making the rules because, for the most part, the kinds of cases I take on deal with the common law and we are determining where that law applies.

Question: What would you like to see twenty or thirty years from now of your legal legacy in terms of media law?

Johnson: I view the work that we do here as holding the dike from the onslaught of the media barons who are arguing that anything goes.

To the extent that I leave a legacy at all, I expect it will be twofold. One would be to identify and justify the roles of news gathering and reporting. Tied into that is educating journalists, specifically, and the public and judiciary, generally, about the importance of adhering to traditional notions of decency and fairness.

We all love to watch television shows that are breaking ground in news. But we must be mindful that the effects of inadequate, improper, unlawful and/or illegal newsgathering can cause destruction that will last a lifetime and possibly also cause the deaths of people.

I view those who wield such power to have certain obligations, just as lawyers have obligations. And I intend to hold them to their obligations because of the pain and harm that they can cause, not just to the victims, specifically, but also to the public, generally. I also want to hold them personally accountable whenever possible and name them individually as defendants in cases so that they will understand, recognize and be held up as an example for others who want to engage in such activity.

I want it to be recognized that that the press will not suffer if we eliminate what was called, many years ago, stunt journalism.  ¹³⁹ It's the cheap and easy way out to use these tactics to tell a story, and I'm interested in news and it's fine if it's entertaining. I just don't want the entertainment value to be the dominating factor, and I hope that the work that we do will have an effect in that area.

Question: In light of the work that you have accomplished so far, which has been national in scope and certainly made public through articles in the mainstream press, do you believe the media has changed the way it gathers news?

Johnson: Yes, but not to the extent necessary.

Ninety-eight or ninety-nine percent of the media do a really good job, if not an adequate job, and I have no quarrel with them.

There is, however, a select group of journalists who, and shows which, as their stock and trade, engage in news gathering methods that are tawdry, unethical, unfair, and demeaning to themselves as journalists if they're really trying to justify it.

After Sanders, there was a pull back, to some degree, of the outrageousness of some of the schemes involving hidden cameras, but by no means have they disappeared and, as I have viewed the news magazine shows lately, they are being used with frequency and regularity.

Leah Thompson of NBC loves to use the hidden camera on Dateline. It's ironic since she's supposed to be a consumer reporter. I would be happy to debate her or Bob Steele anytime and anywhere on the propriety of utilizing such tactics.

I know hidden cameras continue to be used, especially during sweeps period and on a local television level. But I'm not seeing the frequency of impersonation that was happening in the 1990s until the Sanders decision.

We're currently involved in a case against ABC in California which may have a significant further repercussion and deterrent effect.

Question: Can you talk a little bit about that fact scenario?

Johnson: The case is Turnbull v. American Broadcasting Companies, Inc. It involves the show 20/20. A producer for ABC went into acting workshops and wore a hidden camera. A show was ultimately broadcast. The thesis of the show was that these actors and actresses, by paying to attend the workshop, were paying for auditions. We represent thirteen actors who have brought suit for invasion of privacy for intrusion and for violation of the California wiretapping statute. We have also sued for a violation of California's anti-stalking statute, California Civil Code Section 1708.8,  ¹⁴⁰ which is relatively new and has virtually no case law interpreting it. The case is currently in the discovery phase and should be tried sometime this year.

Question: So they were using hidden cameras again in this whole situation?

Johnson: Correct.

Question: And the gist is that it portrays them as buying auditions?

Johnson: It effectively called them prostitutes, and it portrayed them as sort of pathetic losers and wannabes. They are not that.

Question: We've covered a lot of ground here this morning. Is there anything that we haven't covered that you want to talk about?

Johnson: There needs to be news coverage of the media. One of the things that really bothered me in the Sanders case was that the news media, as a whole, filed a brief which argued that there should be effectively no right of privacy in the workplace. That was an absolutely earth-shattering, momentous, and stupendous assertion for this group of news people to make. That it was not covered or debated in public was something that is indicative of how sad the state of affairs is when it comes to watching the media.

Now I'm very happy to see that there is a robust debate in politics going on right now where you've got FOX News, on one side, and Molly Ivins, Al Franken, and Michael Moore and others getting their points of view across. There appear to be spirited, interesting debates where points are made on both sides.

Query why isn't there a similar debate going on for significant media issues? I am heartened by the fact that certain newspapers have columnists whose job it is to cover the press itself and to be critical and, in some cases, even self-critical. The Los Angeles Times is one such example; they've been doing a pretty good job with Tim Rutten and David Shaw. I'm also glad to see that there is Reliable Sources on CNN on Sunday mornings with Howard Kurtz.

But there are not enough of such individuals and shows. There should be regular public debates on radio and television involving significant issues relating to the media. I have tried, in my own ways, to have dialogues with those in the media, but, for the most part, I've been rebuffed. They're not really interested in my point of view. They think they know what it is and, in any event, they don't think whatever I have to say is going to help.

The news business is far too insular and, as a result, it's becoming, to some degree, hidebound and hamstrung by its own logic or illogic, as the case may be. Take a look right now at the esteem in which journalists are held and it is along side that of attorneys, in a recent Pew Research Center  ¹⁴² which is not good, and it's a far cry from Edward R. Murrow  ¹⁴³ and the halcyon days of traditional journalism.

Overall, we have probably the strongest, fiercest, and most independent news media in the world. I'm very proud to be an American and to see the overall quality of reporting when I look at the New Yorker magazine and the kind of stories that they sometimes break and some of the books that are being written. The Wall Street Journal does good work. Most of the people who have won the Pulitzer Prize deserve it for their excellent work.

It's this two percent that's going to bring down the rest and the reputation of journalism as a whole. Maybe this conversation will go a little bit towards putting that issue in front of those who have the ability to make the decisions about significant ethical issues relating to newsgathering.

I'll just say, finally, that it's not always about what was said in reporting, but how the news was gathered. That's the next frontier - newsgathering - that we're all going to be facing off on over the next couple of decades. As technology becomes increasingly miniaturized, the issues, conversely, are going to become that much larger.

IV. Analysis and Conclusion

 It would be easy for anyone who knows the work of Neville Johnson to assume that he harbors a strong disgust for the media. That assumption, however, would be incorrect.

Johnson's insights during the interview make clear that he respects the media and values the work they do, for the most part.  ¹⁴⁴ Where he parts company with a very small minority of the press is at the intersection of aggressive newsgathering techniques and laws of general applicability. Quite simply, Johnson does not believe media organizations are above the law. When they cross the line, they should be held accountable, and he stands ready to hold them to their obligations.  ¹⁴⁵

That line typically is drawn at the tort of invasion of privacy by intrusion.  ¹⁴⁶ Johnson admits he did not know that this tort existed when Naris Kersis first walked into his office - but, instinctively, he knew something was wrong about an undercover news producer posing as a coworker and using a hidden camera to surreptitiously record the conversations and interactions of Kersis and his colleagues.  ¹⁴⁷ That meeting precipitated a protracted court battle, one in which Kersis would not live to see completed. It was a battle that had a powerful impact on the use of hidden cameras, particularly in California, and put the news media on notice that there was a Los Angeles attorney that would be vigilant in pursuing these kinds of cases.

Despite his dogged and indefatigable approach to litigation against the media, Johnson considers himself a First Amendment attorney - a believer in the principles that the Constitution embodies. In fact, he sees his work as helping to shape the direction - "graphing the contours,"  ¹⁴⁸ as he puts it - of the First Amendment during a time when the needs of society are constantly changing. Nonetheless, he recognizes that many journalists will, whenever convenient, avail themselves of the First Amendment protections that have been carved out over the years, ironically, in cases against the media brought by attorneys like himself.  ¹⁴⁹

Ready to challenge those plaintiffs' attorneys is an organized defense bar - a growing cadre of well-trained and highly paid lawyers who regularly gather to share information and strategies.  ¹⁵⁰ Plaintiffs' media attorneys have no such formal organization - and any such group would be "sparsely populated"  ¹⁵¹ given the financial costs associated with taking on large media companies. Without question, media organizations have the resources and legal talent to relentlessly pursue a vigorous defense.

While he recognizes the occasional abuses by the media - often brought to light in the legal positions they take - Johnson believes the First Amendment is strong, perhaps at the strongest point in its history.  ¹⁵² In his opinion, the only risk associated with this type of litigation is for the media to lose credibility:  ¹⁵³ an occupational hazard for an industry that survives only if consumers trust its product. Plaintiffs' media attorneys may be small in number but, as Johnson points out, the ones who do this type of work routinely are innovative and tough-minded individuals who are eager to expose media transgressions.

Exposure of media abuses, however, does not always translate into large verdicts for plaintiffs. Johnson believes that the lack of publication damages in intrusion cases in certain jurisdictions not only disadvantages plaintiffs in particular cases but also "performs no prophylactic or prescriptive deterrent to those who engage in [intrusive] tactics."  ¹⁵⁴ Moreover, having no possibility of a large payoff provides a disincentive to attorneys who might otherwise take on a plaintiff in such a case.

Johnson would like to see other changes in the tort of intrusion; specifically he does believe that newsworthiness should be a factor in assessing the validity of the claim. As he sees it, intrusion is a matter of strict liability:  ¹⁵⁵ if someone "commits a crime or tort to gather the news, there's no excuse."  ¹⁵⁶ Johnson's signature case, Sanders v. American Broadcasting Companies,  ¹⁵⁷ unquestionably helped to change the law in California and made the journalism community take notice because "it was the first case in the United States where substantial compensatory damages were awarded against a news gathering entity for the tort of intrusion."  ¹⁵⁸ Punitive damages were also levied in the case.

Johnson suggests that the case was a turning point because, until that decision, "television magazines were using hidden cameras with impunity."  ¹⁵⁹ While cases such as Sanders provide one way for news organizations to take notice, he believes journalists need to do a better job of policing themselves, and one way to accomplish that task is through stricter codes of ethics.  ¹⁶⁰

He readily noted during the interview that the reason why some news organizations refuse to codify ethical rules is that "they feel that those rules can be used against them should litigation ensue."  ¹⁶¹ Johnson also admitted the he would use codes in that tactical fashion, but he also suggested that the absence of an ethical code on the part of a journalistic organization might have the same deleterious effect. The bottom line, he observed, is that better training of journalists needs to replace "the pathetic state of the quality of education for both students of journalism and practicing journalists."  ¹⁶²

Not all of Neville Johnson's media-directed attention is focused on journalists. Reality television undoubtedly will provide another frontier for plaintiffs' attorneys to explore,  ¹⁶⁴ Litigation arising out of these reality programs may take a variety of forms, ranging from defective releases - "when they shoot [videotape] first and then try to get the release signed later"  ¹⁶⁵ - to stunts that put participants into harm's way - "this devil-may-care attitude, combined with a need to be outrageous."  ¹⁶⁶ Once again, Johnson is concerned that the media companies producing these types of shows will be driven to disregard the adverse impact on the individuals involved and "it's when the vectors of humiliation cross with the need for increasingly more outrageous stunts that reality shows are going to get into trouble."  ¹⁶⁷

Whether Neville Johnson becomes the go-to attorney for plaintiffs who have fallen victim to reality shows remains to be seen, but it is clear that he has carved out a niche as an advocate of personal privacy for a wide range of clients, from the individual who unwittingly gets caught on tape to the wife of a high-profile congressman. He views his role as educating journalists, judges and the public "about the importance of adhering to traditional notions of decency and fairness."  ¹⁶⁸ It is a formidable task, he recognizes, but it also folds directly into what he hopes to be the lasting legacy of his work, which Johnson describes as "holding the dike from the onslaught of media barons who are arguing that anything goes."  ¹⁶⁹