Reilly 02 - Invasion of Privacy (3 page)

"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 twelve 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 editing 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."

Terry’s face, white as milk against the soft gray of the lynx, looked sly. She stepped closer to Nina, and Nina felt the lush f
_u
r brush her again. "Did you see the woman from the Tahoe Mirror in back?" Terry asked.

"Yes."

"Controversy. Lawsuits. Publicity. Worth every dime. This is my chance. No more chamber of commerce propaganda films. No more PBS shit that pays close enough to nothing. After this is shown, I’ll be able to get the backing for a full-length feature film. It’s already in the planning stages. And it’ll blow everyone away. I’ll be rich and famous. Riesner got it right. He’s an asshole, but he reads me right."

"That’s not what you told me at my office. You said you had put your heart and soul into this work of art—"

"And a hundred fifty grand, mostly borrowed."

Nina realized then that she disliked Terry. The First Amendment was America’s most shining statement of liberty. She had taken this case because it presented a constitutional issue, but Terry mocked it while she hid behind it.

Terry said, "Come on, don’t give me that high-minded crap you gave the judge. You’re not that naive. You look like one thing, but you’re really something else, hmm? Soft on the outside, doe-eyed. Curvy little female body. Inside overloaded with that big bulldoggy brain. I saw you push Riesner away. That was gutsy. He must outweigh you by a hundred pounds."

Nina said, "Well. Call you next week, as soon as we get the judge’s decision." And when I get it, I’m outta this case, she said to herself.

"Don’t you want to know how Riesner’s right?" Terry said. "I mean, between you and me, confidentially of course?"

"Okay. How’s he right?"

Terry leaned close, pushed Nina’s hair away from her ear. The snow had begun falling. The lynx coat pressed against her, deep and warm and sensual, but made after all from carnivores. "I am a pervert," she whispered. "Maybe someday you’ll find out some of the things I’ve seen and done. I gave up on conventional standards a long time ago, and I’m not just talking art here."

Nina cleared her throat, moving away, thinking that no one knew what lawyers had to put up with on a daily basis. "I see."

"Wait," Terry said, taking her by the arm to stop her. "I want to ask you something—you lived in Monterey before coming to Tahoe, right? I mean, you’ve been up here less than a year."