Suing the media, supporting the First Amendment: the paradox of Neville Johnson and the battle for privacy.

• Author: Richards, Robert D.

1. 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. (8) "You did a good job. Thank you,"' she told Neville Johnson. (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 (14) based on its newsgathering methods), NBC, (15) and CBS, (16) to musical artists Snoop Dogg (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.

2. 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...