Ninth Circuit Says Secret Video Wasn’t Protected

LOS ANGELES (CN) — The Ninth Circuit ruled that a former Safari Club International board member cannot use First Amendment protections to defeat claims that his YouTube video of another hunting club member violated his privacy.

Safari Club and Joan Whipple sued Dr. Lawrence Rudolph in 2013 for secretly videoing a five-hour meeting with the hunting club’s late president John Whipple at an Orange County restaurant. They claimed the recording violated California eavesdropping laws and invaded privacy.

But the Ninth Circuit on Wednesday affirmed U.S. District Judge James Selna’s rejection of Rudolph’s motion to strike plaintiffs’ three claims on free speech grounds. The third claim was negligence.

“On appeal, Rudolph seeks to line up the perfect shot, arguing all three claims must fail because there can be no objectively reasonable expectation of confidentiality in a conversation that occurs in a public place. Rudolph’s marksmanship, apparently on target in the tundra, here is wide of the mark,” U.S. District Judge Richard Seeborg, sitting by designation, wrote for the unanimous panel.

Defendant-appellant Rudolph met Whipple after he had sued Safari Club International and its board members in Pennsylvania, claiming he had been forced out of the group after being falsely accused of submitting bogus invoices and having an extramarital affair with an Atlanta woman.

In the video, Rudolph discussed the claims made against him by the Safari Club board and apparently found an advocate in Whipple. Rudolph posted the video on YouTube, claiming that Whipple’s comments vindicated him, and showed that the board’s claims were false.

Seeborg found that Rudolph’s recording was in the public interest as it related to the inner workings of Safari Club, a hunting and wildlife organization with 50,000 members. For that reason, Rudolph could claim that his speech was protected under California’s Anti-SLAPP law.

But though Rudolph leaped that first legal hurdle, Seeborg said the Safari Club had showed it could prevail if the case went to a jury.

Whipple had a reasonable expectation of privacy when he sat down at the table with Rudolph, Seeborg wrote. By luring Whipple to the meeting beneath a veneer of friendship, Rudolph’s conduct was offensive enough to defeat his protections under the Anti-SLAPP law.

“Though the question is close, we think plaintiffs’ proffered evidence, taken as whole, could support a reasonable jury finding that Rudolph’s actions constituted a ‘highly offensive’ intrusion into Whipple’s privacy,” Seeborg wrote.

Ninth Circuit Judges Johnnie Rawlinson and Carlos Bea joined Seeborg’s opinion.

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