Running head: SHULMAN V GROUP W PRODUCTIONS

Shulman v Group W Productions

Caleb Ostrander

Running head: SHULMAN V GROUP W PRODUCTIONS

ABSTRACT
The case of Shulman v Group W Productions made it to the California Supreme Court in 1998
and nearly made it all the way to the US Supreme Court, but was settled before reaching that
level. The case dealt with the victims of a serious automobile accident, Ruth and son Wayne
Shulman and their claim of invasion of privacy against Group W Productions, who had their
cameraman, Joel Cooke, film the entire incident. Cooke was present from the time medics
arrived to the scene through the arrival at the hospital of the seriously injured Ruth. This paper
will look at the history of privacy laws in court as well as any other similar cases that preceded
this one. Shulman v Group W Productions will be discussed in full, and the results and court
decisions will be analyzed in terms of significance and other key factors. Lastly, the ethical
questions and implications of the case will be discussed in order to provide a non-legal way that
the case should be viewed.

Running head: SHULMAN V GROUP W PRODUCTIONS

Shulman v Group W Productions

The right to privacy is something that has appeared in lawsuits and court cases many
times over the last century. In the United States, there is no original statement in the Bill of
Rights or Constitution that grants citizens the rights to such a thing. So why has it become such
a widely assumed, yet highly debated privilege over that period of time? Perhaps it has been
the emergence of mass media in our society that has brought about the realization that the line
between public and private has been blurred and in many cases removed altogether. Perhaps it
has been the ever fast-moving technological revolution since the 19th century that has brought
about devices and ways to capture images and information in ways that could have never been
approached in the past. No matter the reason, privacy is becoming something that is more
widely sought and less readily available with each passing moment, it seems. As a result, courts
all over the US are faced with tougher and tougher decisions with each case they hear about
this coveted right that is such a prevalent issue in todays society.
Historical Discussion
This push for privacy began back in the late 19th century. In The Right to Privacy, Louis
Brandeis and Samuel Warren noticed some scary facts that came with the development of the
recently invented instantaneous photographs and expansion of the press. They complained
that the press was overstepping in every direction the obvious bounds of propriety and of
decency, and also that the "numerous mechanical devices threaten to make good the
prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'
(Warren and Brandeis, 195-196). Little did they know that these numerous mechanical
devices would multiply by an enormous amount over the ensuing 100 years. Technology is in a
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state of constant exponential growth and has been for decades. Their take on this would most
likely be very similar to many Americans who are disgruntled today by the lack of privacy that is
offered to them.
Pioneers such as Warren and Brandeis were some of the first to open the door to the
conversation on privacy as it relates to media, but the formal legal discussion didnt come about
for another 30 years. One of the first major recorded legal cases dealing with privacy and the
media came in February of 1931 in the state of California.
Melvin v Reid
The case of Melvin v Reid opened the door to many ensuing privacy cases and is still
used to this day as a major reference in court decisions. In this case, the appellant Gabrielle
Melvin was at one time a prostitute who was tried for murder but was later acquitted. After
marrying and allegedly rehabilitating her life, a movie called The Red Kimona, which was
billed as a true story of Melvins life, was released in 1925 by the defendant Dorothy Reid.
Melvin claimed that the movie caused her harm and ridicule and exposed her to obloquy. She
brought the suit on four cases of action, the first being a violation of her right to privacy. While
many of the claims for this case were dismissed, the appellate court did set some standards
that are still used to this day. The case report published a list of a few general principles,
founded on authority or reason (112 Cal.App. 285), which are commonly understood to this
day and are very useful in the decisions of many privacy cases. Some of these points include the
assertions that public figures have no reasonable expectation of privacy, the fact that privacy
dies along with a person, or the fact that privacy can only occur through publication or
broadcast, and not word of mouth. These standards have been referenced and applied
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numerous times over the years in many cases, but this is not to say that they are gold
standards or 100 percent applicable and reliable. Nonetheless, they have been instrumental in
helping to reach decisions in a large number of cases.
More Recent Privacy History
Since the beginning of the discussion on the topic of privacy in the media, there has
been no shortage of difficulty in defining the legal terms of this issue. The balance between
protection of ones personal life and private matters and the protection of the First
Amendment is a debate that really has never shown a clear answer. At what point does the
media cross the line from providing what is of legitimate public interest to territory that causes
unnecessary harm on a persons life? Finding the right answer to this is something that courts
have been trying to do for years, and with technology and the media both growing at all times,
it seems like a more and more difficult task to accomplish.
A more recent case did its best at drawing this line by coming up with a four-part test to
determine whether content was newsworthy enough to publish. Diaz v Oakland Tribune, Inc.
(1983) was a landmark case in the fact that it set a precedent for all cases dealing with the tort
of public disclosure (which in most cases is through publication or broadcast). In this case, Toni
Diaz, who had just underwent surgery to change her gender from male to female, wanted the
fact of this to remain private except to close friends and family. While at college, a writer was
confidentially told about Diaz surgery and then proceeded to write a story about Diaz, which
served as the publication of information that Diaz wanted to remain private. Diaz, highly
affected and depressed from the publication of this article, sued Jones for invasion of privacy,
and the ensuing case produced this four-part test that is widely used in privacy cases to this
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day. The four-part test discerns the elements of this as (1) public disclosure (2) of a private fact
(3) which would be offensive and objectionable to the reasonable person and (4) which is not of
legitimate public concern (Johnson, 3). This test has been one of the most instrumental
measures in determining the balance between the publics right to knowledge with the
individuals right to privacy.
Miller v NBC
A somewhat similar and contemporary case to Shulman v Group W Productions, the
case of Miller v NBC involved a claim of invasion of privacy along with a bevy of other claims in
the case of a man, Dave Miller, who was filmed mid-heart attack by an NBC Productions crew.
On October 30, 1979, an NBC television camera crew entered the Los Angeles apartment of
Dave and Brownie Miller, sans consent, and filmed the activities of paramedics as they were
attempting to resuscitate Miller as he was having a heart attack. The attempts of the
paramedics were unsuccessful, and Miller passed away later that night in the hospital. Not only
did the crew enter and film without consent, but they then proceeded to air the filmed material
on NBCs nightly news without obtaining any consent.
This did not sit well with Millers wife, Brownie, and Millers daughter Marlene Miller
Belloni, who proceeded to send written complaints to NBC after the filming and airing of the
unsuccessful resuscitation process. To take it even a step further, following these complaints,
NBC then used portions of this filming in a commercial advertising an NBC mini-documentary
about the paramedics work. Following this, Brownie and Marlene brought suit against NBC on a
multitude of counts, including trespass, infliction of emotional distress, and invasion of privacy.
NBC moved for a summary judgement, which the original trial court upheld. This was appealed
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by the Millers, and the Appellate Court affirmed in part and reversed in part the decisions of
the trial court. Some of the counts ended up being dismissed and the summary decisions stood,
but on the counts of infliction of emotional distress and invasion of privacy, NBC was found to
be guilty, and had to pay damages. The decision was made on the basis that people receiving
emergency medical attention do not open the door for for persons without any clearly
identifiable and justifiable official reason who may wish to enter the premises where the
medical aid is being administered, and the clear line of demarcation between the public
interest served by public officials and that served by private business must not be obscured
(187 Cal. App. 3d 1470). The decision reached in 1986, four years before the Shulman case,
attempted to define a line between public interest and privacy for individuals. The case of
Shulman v Group W Productions would ensue with the court making another attempt to define
this clear yet not-so-clear line.
Case Information
On June 24, 1990, Ruth and son Wayne Shulman were injured in a serious automobile
accident on a highway in California in which their vehicle flew off the road and flipped upside
down into a drainage ditch on state-owned property. Both Ruth and Wayne had to be removed
from the car by the jaws of life, and Ruth after being pinned under the car, ended up being
the most seriously injured of the two. A helicopter operated by the company Mercy Air was
dispatched to the scene. Aboard the flight was the pilot, a medic, flight nurse Laura Carnahan,
and Joel Cooke, a cameraman employed by Group W Productions to film the rescue. Once at
the scene, Cooke videotaped the entire rescue while Nurse Carnahan wore a wireless
microphone that picked up conversations that she had with the badly injured Ruth Shulman.
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Ruth and Wayne were then airlifted to a hospital, with Cooke and Carnahan on board recording
the footage. The accident left Ruth a paraplegic and with serious upper back injuries, but both
her and Wayne survived thanks to the medical attention they received.
The recordings and videos gathered by Cooke were edited into a segment slightly under
ten minutes for the show On Scene: Emergency Response, which was broadcast on
September 29, 1990. Wayne is only shown in a glimpse during the broadcast, but many shots
and soundbites of a badly injured and very confused Ruth Shulman are included throughout.
During the segment, Carnahan addresses Ruth by her first name and at one point, Ruth
exclaims I just want to die. I dont want to go through this. Other clips revealed Ruth
repeating questions she had already asked the nurse, clearly revealing the depleted state that
she was in. These clips, along with other revealing and possibly embarrassing statements of
Shulmans were broadcast, along with several shots that could have directly identified Ruth.
As the segment was shown, Ruth was notified that it was being broadcast by Wayne and
by numerous staff of the hospital she was in. This news was not taken particularly well. Upon
the revelation of this information, Shulman exclaimed that she was shocked, so to speak, that
this would be run and I would be exploited, have my privacy invaded, which is what I felt had
happened. When questioned about the broadcast at a later date, Shulman made this
statement: Asked at deposition what part of the broadcast material she considered private,
Ruth explained: "I think the whole scene was pretty private. It was pretty gruesome, the parts
that I saw, my knee sticking out of the car. I certainly did not look my best, and I don't feel it's
for the public to see. I was not at my best in what I was thinking and what I was saying and
what was being shown, and it's not for the public to see this trauma that I was going through."
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Clearly upset by the airing of the program and not consenting to it in any way, Ruth and
Wayne sued the producers of Group W Productions on two counts relating to invasion of
privacy. The first cause of action was for the alleged unlawful intrusion of the defendants by the
videotaping of the rescue in the first place, and the second was for public disclosure of private
facts, which in this case was the broadcast.
Group W Productions filed for a summary judgement based on the fact that their
conduct was protected by the First Amendment because of its newsworthy content. In
response to the summary judgement motion, the Shulmans did concede that accidents and
rescues were matters of public interest. For this reason, the trial court granted the summary
judgement on all causes of action, but this decision was appealed by the Shulmans.
The Court of Appeals reversed the Trial Courts decision and demanded further
proceedings of the case, but on limited grounds. The court held that there was no reasonable
expectation for privacy at the scene of the accident, but once on the helicopter and in the
hospital, there could have been a reasonable expectation for this. With regard to the
publication of private facts, the court held that the newsworthiness and offensiveness was
triable in this case. Therefore, both causes for action, the intrusion and publication of private
facts were deemed to be in need of further proceedings.
Following the reversal of decision by the Court of Appeals, the defendants appealed the
case one step further to the California Supreme Court by arguing that the broadcast was
protected by the First Amendment as newsworthy content. The result of this trial was a split
decision. The Court rejected the Shulmans claim of publication of private facts, holding that the
information broadcasted fell within the realms of what is considered to be newsworthy. The
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court also ruled similarly to the Court of Appeals that there could be no expectation of privacy
on public lands, but did find the defendant guilty of intrusion based on the recording of videos
and conversations on the helicopter on the way to the hospital. Conversations between
patients and medical officials are protected by a set of laws known as the HIPPA laws.
Additionally, the Shulmans in their condition, were in no position to keep careful watch or
give consent to any recording of their conversations. The court ruled that this invasion of
privacy by the means the defendant obtained the audio and video footage would most likely be
highly offensive to a reasonable person.
Since the decision was split, the case was further appealed to the US Supreme Court,
only to reach settlement prior to getting to that level. Despite not reaching that ultimate level,
this case has certainly been one of the most known and referenced examples of media privacy
cases in recent memory. It has set precedents for the media and their actions and interactions
on an emergency scene, and has paved the way for many similar cases since its time.
Personal Analysis of Court Decisions
Since this case saw decisions made at multiple levels, each level will be analyzed
separately. Like any case that goes through multiple courts, many different opinions weighed in
on the decisions made. With so many voices being heard on one incident, there is obviously
room for debate and disagreement and at the very least, critical analysis.
At the first level, the original trial court accepted Group W Productions request for a
summary judgement, finding issue of fact on both causes of action. In this decision, I feel that
the court did not take the time to carefully consider all of the facts of the case. While one of the
claims in this case could have been easily determined to be covered by a law, the second claim
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was certainly not a matter of fact, and for this reason, the court of appeals overturned this
ruling.
Clearly disagreeing with the original court as mentioned, the Appellate Court found that
one of the causes for action did have a triable matter, and was not on a basis of factuality. The
publication of private facts was not revisited as it was agreed that the material broadcasted was
newsworthy enough to be merited. The matter of intrusion however, was not as cut and dry
according to the court. I believe that this was the correct decision, as the first matter did have a
fairly clear position stated, but the second cause of action was not nearly as clearly drawn out
and therefore, required further investigation.
Once appealed to the California Supreme Court by the Shulmans, the trial proceeded
only on the grounds of the intrusion, the second cause of action. It was found that intrusion did
occur by Cooke and Group W Productions, but only once the Shulmans were transferred onto
the helicopter and were no longer on public land. Clearly, intrusion cannot be possible on a
public highway in which any car that passes by can observe what is going on. Therefore, filming
in this area should be and is fair game, and the court affirmed this. Once on the helicopter ride
though, Ruth and any other reasonable human being should be able to expect a certain amount
of privacy, and I believe that this court did a good job of upholding this standard. This decision
was not reached unanimously, but the split decision was found in favor of Shulman on this
count, which I believe was the right call.
Ethical Questions about the Case
In a case such as this one, not all of the importance and relevance comes from matters
of law. Ethical questions can certainly be brought up dealing with this case, and the discussion
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about those questions can go on for significant time without a clear cut answer being reached.
In Shulman v Group W Productions, there are two goods that are in question, where it is
necessary to find the line or at least some sort of balance between the two. The first of the
two goods in this case is the newsworthiness and public interest of an event, or the right to
know. The second good is an individuals right to privacy and not having their personal matters
broadcasted to the public. Both of these goods can be considered very important, but the
matter of balancing the two is certainly not simple. Aristotles Golden Mean can certainly be
applied in this case, as we look to find a desirable middle between two extremes, which are
the two goods listed above.
There are some ethical questions which I believe can help us to consider this and come
to a good conclusion. Questions such as Is it ethical/tasteful to show footage of people
involved in a serious accident like this?, Is there a problem with revealing the identity of
seriously injured people?, or Does newsworthiness always provide adequate reason to
broadcast certain footage? immediately come to mind, among others. Some of my viewpoints
on these ethical questions will be analyzed and discussed in the following paragraphs.
The question of what kind of footage is too graphic or too revealing maybe deals
more with tastefulness than ethics, but I feel that it is one that should and can be considered
and debated. Is it really necessary to the public interest for graphic footage of injuries and
medical treatment? The Shulmans in this case certainly believed it was not. And they may have
a valid point. There could be alternate ways to report to the public what occurs in a tragic
accident without compromising the identities of the subjects and showing them in a light that
could possibly publicly humiliate them. Is video footage really something that changes whether
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or not the public understands that an accident occurred? While in some cases, I do believe that
video footage may provide the best representation of a story, I do not believe in a case like this,
it really provides an overwhelming benefit to show rather than tell. I do not have a
significant problem with the showing of footage for news in this case, but I certainly do not find
it to be of absolute necessity.
I think that the main ethical problem that I have with Group W Productions in this case
that was not addressed by the courts was the fact that the identity of Ruth Shulman was
completely and blatantly used and abused without any hint of consent. While there is no way to
stop news or the broadcast of news legally or ethically, I think that the extra step of using it for
a reality television show oversteps the often referred to and misunderstood concept of
newsworthiness. While this program could be viewed as educational to the public, I do not
believe that it can be considered crucial to public interest to the point that it would take
someone like Mrs. Shulman and portray her in a way where she feels humiliated and
embarrassed. If either a) the identity of Shulman was not revealed, or b) consent was acquired,
the ethical dilemma here could be completely avoided in my opinion. Since Group W
Productions chose to not conceal her identity or gain any sort of consent, I feel that they used
poor taste and judgement and overstepped the line.
When speaking about the obvious errors in judgement that Group W Productions had in
this case, the two actions that were clearly legally and ethically wrong were Cooke being on and
filming the helicopter ride to the hospital and the nurse wearing a hidden microphone
recording conversations between her and Shulman. I think that there is no doubt that Group W
Productions was way off base in these actions, and the court also (eventually) found this to be
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true as well. HIPPA laws completely protect conversations between medical staff and patients,
and this was blatantly and completely blown off in this case. It goes without saying that this is a
major problem, and I think this alone completely wins this case in favor of Shulman without any
further evidence or discussion necessary.
In terms of Cooke even being on the helicopter, I think that this obviously oversteps
boundaries. The general public would never have access to this, and the fact that Cooke was
able to do this makes it seem that he, being a part of the media, has the privilege to act at the
same level of qualification as medical personnel. I would like to refer to the case of Cohen v
Cowles Media Co. in which it was clearly ruled that freedom of the press does not exempt
journalists from generally applicable laws (501 U.S. 663 (1991)). In other words, if a person in
the general public would not be able to ride on the helicopter to the hospital without expressed
consent, then the media does not and should not have that right either.
Going back to the two values at hand here, I believe that this case is a good example of
why both are important in their own ways. I think that reasonable personal judgement can help
us to reach a logical conclusion. In this case, I believe that while there was certainly
newsworthiness to the event, certain boundaries were crossed, and ultimately, there should
have been much more respect for the Shulmans right to privacy, the value which I think wins
out in this case.
Conclusion
To conclude, the issue of privacy in media is something that has been discussed for over
a century, and it is definitively one that will continue to be discussed for years to come. The
balance between public knowledge and private interest is constantly being contemplated, and
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this case is most certainly a prime example of this. Whether speaking legally or ethically, people
are quick to hold on to their right to know, as they should be. The real question that comes into
play is when the individuals right to privacy simply becomes the greater cause. In the case of
Shulman v Group W Productions, no consensus decision was reached, even until the end. I think
that this really speaks to how complicated and debatable of an issue that this alleged right to
privacy really is. Until further notice, courts will most certainly use four-part tests and ethical
judgement to reach their decisions on this issue, but it will be very interesting to follow the
events in the coming years to see whether the legal and ethical views on this issue will change
or remain the same.

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