In this appeal involving a defamation and invasion of privacy lawsuit brought by a well-known actress against her ex-husband and the National Enquirer, Inc., we reverse the preliminary injunction restraining the ex-husband from disclosing his allegedly defamatory statements regarding the plaintiff's sexual relationships and substance abuse. We affirm the order denying the plaintiff's motion to seal the record in this lawsuit.
Plaintiff Melissa Gilbert is a well-known actress. From ages nine through nineteen, she starred as Laura Ingalls in the long-running television series, Little House on the Prairie. As an adult, she has performed in numerous television movies and series (such as Sweet Justice and Cries from the Heart), stage productions, and a motion picture.
Defendant Chester Harry Brinkman III, an actor and screenwriter, was once married to Gilbert. They have one son, Dakota Brinkman, who was born in 1989. The marriage ended in divorce, with Brinkman and Gilbert sharing joint custody of Dakota.
Defendant National Enquirer, Inc. (the Enquirer) published an interview with Brinkman in its July 4, 1995, National Enquirer, which is the basis of Gilbert's defamation and invasion of privacy lawsuit against Brinkman and the Enquirer. The article was published despite Gilbert's attorney's prior warning that the proposed article contained false and defamatory statements about Gilbert.
A. The Brinkman Interview
The July 4, 1995, National Enquirer headline announced, in large, italicized, and bold print, that "Melissa Gilbert is a cold-blooded mother who
The National Enquirer article explained that Brinkman had "decided to speak out after getting fed up with Melissa's public comments about the importance of motherhood to her. She recently told The ENQUIRER that lessons she learned from her TV dad Michael Landon help her to be a better mom. [¶] `Melissa doesn't know how to be a mother,' Bo [Brinkman] fumed."
The National Enquirer article also stated, on the other hand, that Gilbert had unequivocally denied Brinkman's allegations contained in the article. It also quoted Gilbert's publicist, who described Gilbert as a "`great mom.'"
B. Other Publicity Regarding Gilbert's Personal Life and Lawsuit
As indicated in the July 1995 interview, this was not the first time the couple's private affairs were brought into public view. The record contains a 1992 National Enquirer article which had as its headline, "Melissa Gilbert ditches her boozing hubby ... & finds instant love with `Scarecrow' star." The opening paragraph of that article stated: "Melissa Gilbert has booted her boozing husband out of their house and is getting a divorce. But she's not heartbroken — because she's already madly in love with a new guy, handsome "Scarecrow and Mrs. King" star Bruce Boxleitner." Although Gilbert was not quoted directly in the article, her alleged statements to friends were printed in the article.
The 1992 National Enquirer article further stated, without attribution, that Gilbert's marriage to Brinkman had failed due to his heavy drinking. It claimed that Brinkman's rehabilitation efforts were unsuccessful and that while on location in Pennsylvania, Brinkman was "a notorious barfly and night owl," who had spent each night "`drinking and chatting up the local girls.'"
The record also contains an October 15, 1994, edition of TV Guide, featuring Gilbert's photograph on the cover with the headline: "Exclusive [¶]
Regarding Brinkman, the TV Guide article stated: "She turned around and married Brinkman in 1988 after knowing him only eight weeks. `A bit hasty,' says Gilbert now. Their son was born in 1989. But the 4[-]1/2 year marriage floundered when Brinkman's drinking spiraled out of control. They separated, he went into rehab, they tried to reconcile. But, she says, `We just grew apart.'"
Finally, the record contains a June 30, 1995, article from the Daily News with the headline, "Gilbert fires back at ex-husband, gossipy Enquirer." The article quoted Gilbert's lawyer regarding the filing of Gilbert's defamation and invasion of privacy lawsuit against Brinkman and the Enquirer. The attorney accused the Enquirer of having ignored her warning that the article on the Brinkman interview contained false statements about Gilbert. The article quoted Gilbert as stating, "`I am heartbroken about this — and simply must put a stop to the lies.'"
C. Procedural History
Gilbert's complaint, filed July 6, 1995, alleged five causes of action against Brinkman and the Enquirer for defamation, conspiracy to defame, false light invasion of privacy, conspiracy to commit false light invasion of privacy, and intentional infliction of emotional distress. The complaint prayed for compensatory and punitive damages of an unspecified sum.
In August 1995, Gilbert filed an amended complaint which added a sixth cause of action for injunctive relief against Brinkman. According to the new allegations, Brinkman had "threatened to reveal personal, private information about Melissa and their marriage unless Melissa dismisses Brinkman with prejudice from this action."
Without giving notice to Brinkman, Gilbert obtained an ex parte temporary restraining order (TRO) restricting Brinkman from revealing any information relating to Gilbert, whenever obtained, to anyone other than his
In her declaration in support of the TRO, Gilbert stated that Brinkman had threatened to file a "`really ugly'" cross-complaint if he was not dismissed from the lawsuit. She claimed that Brinkman had warned it would be "`very painful'" for her if the press learned of his allegations. In Gilbert's words, those allegations concerned "very private, personal information about [Gilbert], [their] marriage and [their] relationship and [Gilbert's] private and personal relationships with third parties, some of which was true and some of which was false. The claims concerned drug and alcohol use as well as infidelity."
Gilbert further attested that injunctive relief was necessary to preserve her reputation "as a woman of the utmost honesty, integrity, sensitivity and propriety and a warm and loving mother. Because of this reputation, I continue to enjoy professional success, both creatively and commercially, and continue to enjoy the admiration and respect of millions of people around the world." While acknowledging the "substantial demand for information concerning [Gilbert's] personal and professional activities," Gilbert also pointed out that she and her publicist have tried to protect Dakota's privacy, as well as "the privacy of [Gilbert's] relationship with Brinkman, [their] relationship and the subsequent divorce."
In opposition to the OSC regarding the preliminary injunction, Brinkman contended that the TRO should not have been issued without notice, citing Carroll v. Princess Anne (1968) 393 U.S. 175, 180 [21 L.Ed.2d 325, 330-331, 89 S.Ct. 347]. He urged the court to deny the preliminary injunction as an unconstitutional prior restraint on his First Amendment free speech rights. Brinkman also cited numerous decisions for the proposition that injunctive relief is not available to restrain the commission of a libel or slander. He further pointed out that Gilbert had waived her right to privacy by previously exposing her private relationships to public scrutiny.
In support of the issuance of the preliminary injunction, Gilbert asserted that the information which Brinkman was threatening to disclose concerned irrelevant events that had occurred prior to Dakota's conception. Gilbert characterized Brinkman's threatened disclosure as extortion, and contended that disclosure would expose her and her family to the danger of stalkers, invade her privacy, inflict emotional distress, and cause irreparable harm. While conceding the legitimate public interest in celebrities and their lives, Gilbert asserted the right to privacy must be balanced against the competing interests of a free press.
The trial court issued the preliminary injunction, precluding Brinkman from making any statements or disclosing any information, "(except to the minimum extent necessary insofar as disclosure is required by a court of competent jurisdiction in presenting defenses to the within action)," regarding Gilbert's drug or alcohol use, "obtained by Brinkman before, during and after his marriage to Gilbert and in the course of or as a result of his relationship with Gilbert." The preliminary injunction also precluded Brinkman from divulging "any information relating to any sexual or physical relationships between Gilbert and third parties." It also prohibited Brinkman from making any statements or disclosing any information to the Enquirer, outside the course and scope of preparing a defense against this lawsuit, and without a written agreement not to publish such information.
The court stated in its order of August 24, 1995, that the sixth cause of action did not involve "free press" issues, but rather concerned the threatened disclosure of private information obtained during the parties' marriage. The court stated that "due to the nature of the information obtained during the family fiduciary relationship, [Gilbert's] right of privacy outweighs [Brinkman's] right of free speech." In reaching this conclusion, the trial court expressed concern for Dakota's welfare, and also took judicial notice
The order also pointed out that Brinkman was apparently judgment proof, and that Brinkman's motives for threatening to disclose the information included retaliation and financial gain. Under these circumstances, the court concluded in its order that the damage to Gilbert's and Dakota's privacy that would be inflicted by Brinkman's unrestrained speech justified the issuance of a preliminary injunction.
The trial court, however, refused to extend the protective order. The court stated in its order that Gilbert had waived her expected right of privacy by filing a lawsuit concerning private matters that must be revealed in order to resolve the dispute. Accordingly, the file in this action is no longer under seal.
The Enquirer petitioned for a writ of mandate and stay on September 6, 1995, and Brinkman filed a joinder to the petition on September 8, 1995. Amicus curiae Association of American Publishers, Inc., filed a brief on September 11, 1995. On September 15, 1995, we denied the petition on the ground that petitioners had failed to show that appeal was an inadequate remedy.
The Enquirer and Brinkman appealed from the preliminary injunction, and Gilbert appealed from the denial of her motion to seal the record. We granted the motions to expedite both the appeal and the cross-appeal.
Brinkman and the Enquirer contend (I) the preliminary injunction must be reversed as an unconstitutional prior restraint, and (II) Gilbert has failed to establish a likelihood of success on the merits.
Gilbert contends (III) the court abused its discretion by denying her motion to seal the record.
A. Prior Restraints
In addition, prior restraints are not permitted to stop the publication of a defamatory statement. As our state Supreme Court put it, the published First Amendment cases "leave no doubt that the truth or falsity of a statement on a public issue is irrelevant to the question whether it should be repressed in advance of publication." (Wilson v. Superior Court, supra, 13 Cal.3d at p. 658.) "The concept that a statement on a public issue may be suppressed because it is believed by a court to be untrue is entirely inconsistent with constitutional guarantees and raises the spectre of censorship in a most pernicious form. [¶] Chief Judge Lumbard made this abundantly clear in Crosby v. Bradstreet Company (2d Cir.1963) 312 F.2d 483, 485, cert. den., 373 U.S. 911 ..., when he held that publication of information about a person, `without regard to truth, falsity, or defamatory character of that information,' was not subject to prior restraint." (Id. at p. 659.)
Moreover, the California Constitution provides an even broader guarantee of the right of free speech and the press than does the First Amendment. (Wilson v. Superior Court, supra, 13 Cal.3d at p. 658.) California Constitution, article I, section 2, subdivision (a) provides, "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
B. The Preliminary Injunction
The scope of the preliminary injunction, however, is far broader than Gilbert contends. It applies to information concerning Gilbert's substance abuse and sexual relationships obtained at any time in the course of, or as a result of, Brinkman's relationship with Gilbert. It is not limited to communications made by Gilbert during the marriage.
As worded, the preliminary injunction covers information acquired, for example, as a result of Brinkman's joint custody relationship with Gilbert. The injunction would arguably cover comments made by Dakota to his father upon returning from his mother's home. The restriction, accordingly, is too broad. The "publication of information about a person, `without regard to truth, falsity, or defamatory character of that information,' [is] not subject to prior restraint." (Wilson v. Superior Court, supra, 13 Cal.3d at p. 659.) While Brinkman maybe held responsible for abusing his right to speak freely in a subsequent tort action, he has the initial right to speak freely without censorship. (In re Marriage of Candiotti (1995) 34 Cal.App.4th 718,
In In re Marriage of Candiotti, supra, 34 Cal.App.4th 718, the appellate court reversed that part of an order banning the appellant in a family law custody and visitation proceeding from disseminating independently acquired information concerning her ex-husband's new wife. The appellate court upheld, however, that portion of the order banning dissemination of information acquired during discovery.
As to the independently acquired information, the court concluded that even though the appellant had no legitimate motivation for disseminating the potentially libelous information, the remarks were "too attenuated from conduct directly affecting the children to support a prior restraint on [the appellant's] constitutional right to utter them." (In re Marriage of Candiotti, supra, 34 Cal. App.4th at p. 726.) The order in Candiotti went beyond restraining one parent from making disparaging comments about the other parent in the presence of their children, which is a permissible order in family law cases (id. at p. 725). There was no justification, however, for preventing the appellant "from talking privately to her family, friends, coworkers, or perfect strangers about her dissatisfaction with her children's living situation." (Ibid.)
This case, unlike Candiotti, is not a child custody and visitation case. This is a defamation and invasion of privacy action that has nothing to do with determining who should have custody of the child. Even if this were a family law action, the preliminary injunction went beyond precluding Brinkman from making disparaging remarks about Gilbert in Dakota's presence. As in Candiotti, the order in this case restrained Brinkman from talking privately to family, friends, and coworkers about his dissatisfaction with Gilbert as a parent.
Moreover, this case involves a plaintiff who is a well-known actress. We cannot ignore the fact that Gilbert's publicist has sought media attention on her behalf. Numerous articles have been printed concerning her personal relationships, marriage, divorce, and remarriage. While public figures do not relinquish all privacy rights (Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 422 [198 Cal.Rptr. 342]), the heightened public interest in their personal activities is a factor to be weighed in balancing the competing interests.
The issue in Friedan was whether Ms. Friedan was entitled to summary judgment on her former husband's complaint, filed under a New York civil statute, for damages for the unauthorized use of his name and photograph in Ms. Friedan's magazine article describing her life in 1949 as a housewife. The court held that Ms. Friedan's use of the name and photograph had a newsworthy purpose and thus fell outside the scope of the statute, which dealt with unauthorized uses for purposes of trade or advertising. While the court acknowledged that Mr. Friedan had not gone out of his way "to make himself newsworthy, within the limited context of his past relationship to defendant Betty Friedan, who is a public figure, such a role has been thrust upon him." (414 F. Supp. at p. 79.)
Here, unlike in Friedan, the person seeking to avoid publicity is the public figure herself, not her ex-spouse. Public figures, however, must tolerate some criticism as the price of living in a free society. "Justice Frankfurter put it succinctly in Baumgartner v. United States, 322 U.S. 665, 673-674 ... (1944), when he said that `[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures.' Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to `vehement, caustic, and sometimes unpleasantly sharp attacks,' New York Times [v. Sullivan (1964)] 376 U.S. [254,] 270, ... `[T]he candidate who vaunts his spotless record and sterling integrity cannot convincingly cry "Foul!" when an opponent or an industrious reporter attempts to demonstrate the contrary.' Monitor Patriot Co. v. Roy, 401 U.S. 265, 274... (1971)." (Hustler Magazine v. Falwell (1988) 485 U.S. 46, 51-52 [99 L.Ed.2d 41, 49, 108 S.Ct. 876].)
Brinkman contends he is attempting to set the record straight concerning prior articles which have cast him as the irresponsible alcoholic and Gilbert as the ideal mother. Gilbert has publicly blasted Brinkman's claims as lies. While their son is the unfortunate bystander in this feud, we are bound by decades of United States Supreme Court precedent on the law of prior restraints. The threatened invasion to Gilbert's right of privacy and the threatened harm to her reputation are not the sort of "extraordinary circumstances" required to justify a prior restraint. (Wilson v. Superior Court,
We hold, as a matter of law, that Gilbert's right to privacy does not outweigh Brinkman's right to express his uncensored opinion about her use of drugs and alcohol and her sexual relationships, or the Enquirer's right to publish that information, subject, of course, to possible civil liability for the abuse of those rights. We conclude the preliminary injunction is an invalid prior restraint that must be reversed.
In view of our determination in part I, we need not address the contention that Gilbert has failed to demonstrate a probability of success on the merits.
While Gilbert has not lost all of her privacy rights by virtue of attaining celebrity status, the media attention regarding her personal relationships has to some degree diminished the zone of privacy surrounding those relationships.
In this case, if the court had extended the order sealing the record, the order would have operated as an unlawful prior restraint on the press for the reasons discussed above. Accordingly, Gilbert has failed to show that the trial court abused its discretion by lifting the sealing order.
On the appeal, we reverse the order issuing the preliminary injunction and award costs to defendants. On the cross-appeal, we affirm the order denying the motion to seal the record in this case and award costs to defendants.
Spencer, P.J., and Vogel (Miriam A.), J., concurred.
Having considered defendants' letter brief of January 30, 1996, we conclude the preliminary injunction may not be justified as an injunction against the crime of extortion. The trial court never made a factual finding that Brinkman had committed or attempted to commit extortion. Had the trial court believed such a crime was committed, we doubt it would have unsealed the record and permitted Brinkman to file his cross-complaint (a copy of which was appended as an exhibit to defendant's January 30, 1996, letter brief). Accordingly, the record does not support Gilbert's position that Brinkman had committed or attempted to commit extortion.