Vanessa Bryant Suing LA County Over Crash Photos

world has been so uplifting. Now Bryant is taking on Los Angeles County in federal court, saying her privacy was invaded when sheriff's deputies and firefighters shared crash site photos with their friends and colleagues. Join me is Warrington Parker, a partner Crowell and Mooring, explain what her causes of

action are. She is doing over three different things. One is the invasion of her right to privacy, that is that people have a right to prior to see as to photos and content of materials relating to the death of a loved one. The second is negligent that l a county in the Sheriff's department the fire department of the individuals negligent may disclose these materials, which are the photos of Kobe Bryant and his daughter. And then the

third is a statutory client. It's called the section actions, which is that constitutional deprocess likes were violated by the disclosure of the various photographs. Are any of these claims unique in this kind of situation, It is certainly unique. This doesn't happen every day, but in reading the various papers, there appears to be cases that have dealt with these issues before. And part of the legal tension in the case is are these claims viable? And certainly the defendants

are saying that they're not viable. For example, defense that they're saying it's not enough just to have a private photo. Instead, there needs to be more publicity, such as it being on the Internet and so on. And MS Bryant's council has pointed out that in fact are cases where it does not need to be made public, that this is enough. I think that legal tension may under alive this That may be an issue in part going to the jury, but mainly that's going to ultimately be an issue for

the court. A primary issue in the case is whether she suffered emotional distress as a result of the County's actions and how much it should be compensated for that. So Los Angeles County officials are arguing. One thing they're arguing is that she suffered emotional distress from the death of her husband and daughter, rather than distress that the photos were leaked. How can a jury separate those well, emotional distress damages are always a very difficult thing, both

to prove and to disprove. Right, it's just how much are you hurt? And there's no clear marker for that. However, I think the County has a difficult time with that argument made. Certainly without any dispute. Someone suffers emotional distress

when a loved one dies. But I think it is within the realm of experience and probability that you can exacerbate that emotional distress by mistreating the body, mistreating the family of loved ones, or taking photos really according to appointness at least almost like there was a trophy hunting type of experience. And I think think any rational person can separate out one trauma from another. Now, does that

impact your damages? Perhaps, yes, It doesn't make it impossible to conceive that she suffered additional emotional distress because of these photos. I don't think that's true. Bryant's expert witness testified that Los Angeles cops and deputies keep what's called Google books with graphic photos of dead celebrities. Isn't that testimony about other officers prejudicial in this case? So I think it is prejudicial, but it's it's wrongfully prejudicial. I

think is the question right? It certainly hurts in that way it's prejudicial, but I think the question is legally

as the prejudicial. I think when the defendants opened by saying that this is all part of a train exercise for the distribution was necessary, I think it opened the door to precisely this type of evidence, because it certainly shines the light on on the truth or not of the statement that the distribution of the taken of the pose and in the distribution was for the purpose of training for some necessary a rather than being a entry

in the Ghoul book. The defense wanted to show Instagram photos of you know, Brian's social media posts that show her and her family on lavish vacations and socializing with celebrities since the death of her husband. It hasn't come in so far. I don't know whether that would come in if I had to handicap it, I would say that's not coming in because however rich and famous you are, and and and I understand they're playing that up. That

doesn't mean that you can't suffer emotional distress. Now, if they're saying that these photos are inconsistent with that claim of emotional distress, but that's different. And so as an example, it's well known in the insurance world that if someone is claiming back injuring collecting insurance, they'll often be photos taken or video taken of that person lifting heavy boxes

and so on. And that's perfectly admissible. But merely to show someone has the ability to live in a rich lifestyle isn't sufficient to rebut a claim of emotional distress. There is one photo of her on Halloween dressed as Kruella de Ville. The talks about the stages of grief, and she adds one called revenge. Might that have some bearing, perhaps but fairly minimal. The fact that she's thinking to

vindicate her right. Whether you call it revenge or you call it thinking to vindicate what you think is a wrongdoing, is I think well within the norm? Which side do you think has the better case here? Right now, I like pointest chances, and let me tell you what I'm thinking. You have a case where word photos were taken and there is a history of these photos being taken in a Google book. You have a case in which people have at least as points painted have lied outright lie

about what they did with the photos and why. You have the defendant saying that these photos were taken and then distributed for the purposes of training. But you have them distributed at a bar, you have them distributed to a been playing a video game, you have them distributed at an awards ceremony. That doesn't make sense. You didn't

have these arguments about foliation of evidence. And I know that the defendants are saying that the reason that they immediately told people to remove it from their phones in order to mitigate any continuing harm. But there was no attempt to ensure that these photos were in fact destroyed, and it looks more like they were trying to cover up more than anything else included though in that To have the extra spite is you have at least one of the deputy high up deputy saying, should we really

do this? We've gotten in trouble before for this and I'm paraporting, and so even at that time, there's a bit of distinction about this. I would add just to two more points. First of all, you know, Kobe Bryant is a well known figure in Los Angeles. His wife is a well known figure in last area, Joyce, and

no one thinks anything bad about this. Contrast that to the Los Angeles Police Department in the Los Angeles Sheriff's Office, where at least the Sheriff's Office has very recently been in the news for threatening a newspaper reporter and otherwise doesn't necessarily have the best pr campaign in the world. I think these other things that will weigh in points favor how much money they collect, how much money is

awarded as a completely different question. But on the issue of liability, if I were handicapping it, I would put my money on point. And what do you think the biggest legal hurdle is for Bryant. I think that the biggest legal hurdle will be whether or not what happened here is consistent with a viable claim under the law. And defendants are certainly saying, with no exception that this is not cognizable under the law, that it does not

fall within the scope. Prior case, Los Angeles County agreed to pay two and a half million dollars to settle a similar case brought by two families whose relatives died in the crash. That indicate to you that Vanessa Briant is asking for more than that, or there are reports that she just didn't want to settle. I don't know the answer, at least believe that she must have been asking for more. Just finally, I'll ask you about the jury.

The jury includes a nun, someone who works in TV production, a college student, a real estate investor, a pharmaceutical researcher, a computer professor, and a restaurant host. So a real cross section of l A. That's a very educated jury for the commany of l A. It's a cross section. Um, it's both educated and come with work experience. But this is also a function of it being in federal court, where I think the voting wills supply the names of

a jury. But in l A County or the Central District of California, which includes more than l A County, UM, you can get people who are much less educated and experienced than this jury. I tend to think that that's also weighs in favor of points if in this case, I don't think this is the case where you need to have a jury with less experience or less education. Thanks for being on the show. That's Warrington Parker, a

partner Crowell and Mooring. There has been a dramatic uptick in banning books, book bands, and challenges doubled from one according to the American Library Association, and it seems to reflect the growing polarization in our country. Joining me is First Amendment expert Eugene Polk, a professor at u c l A Law School. Eugene tell us about the one Supreme Court case about school libraries where the split was four for one. Well, let's just first step back. One

thing that the said in that case. Basically all the justices agreed that curriculum decisions what to include in the reading materials for a class are basically up to the school. So the school can say we just don't think this book is suitable for a class for whatever reason. We just don't think this is the kind of book we should be studying it in class. So that's one thing,

just to make clear. The other thing that that the court actually never did he has used the word ban with regard to remove of books from the library school library, because it's not a ban, it's a choice about which books to include in which books to exclude, in a situation where of course, the library has to be making these choices all the time, right First of all, it has only limited space, and second, unlike a public library, it's supposed to be focusing on books that are special

interest in value to children. So the court understood that it wasn't a ban of a book, it was a choice to remove a book from the library. And the other thing that basically everybody on the court agreed on is that if the removal was on grounds that it was not age suitable, for example, because it was pervasively vulgar, which is to say view by the school is pervasively vulgar. Obviously people disagree on such matters or otherwise not age appropriate,

that the school would be entitled to remove. The issue on which the court split four four is whether a library once and by the way, pretty much everybody also agreed that a library can decide what books to get in the first place, based on more or less whatever criteria the library wants. But the courts split four four on this question of whether a library can rem or a school system can remove a book from the library

because of the book's ideology. Could it say this book is unpatriotic or perhaps today it would be questioned, is it anti gay or is it unduly pro gay, or setting aside whether whether there's explicit sexual discussion there, or whether it's racist, or whether it's for trays smoking in a positive light, although maybe that's also a matter of age appropriateness. So in any event that the court split on four four, how did that happen? Why four four

when there were nine justice? Well, for Justice is basically said the school can't discriminate based on ideology more or less in removing books. And because there's a dispute on the real reason why they discriminated based on ideology, this case should be sent back down for further fact finding

on what the real reason that was. For Justice more or less the liberal justice then the more or less conservative justices, four of them said school is perfectly free to discriminate based on ideal that you may be not in extreme situations like if it's actually partisan, we won't have any books by Republican writers or any books by democratic writers. But setting aside extreme situation like that a school is free to discriminate based on ideology, so therefore

there's no need to send the case back. Justice White was the swing vote. And here's what he said. There's this factual dispute as to what the reason was why the school removed the books. If it turns out that it removed the books because they were pervasively vulgar otherwise not inappropriate, then no constitutional problem. Everybody agrees. If it turns out they did it for ideological reasons, then there

might or might not be a constitutional problem. Could be that the liberal justices are right, could be conservative justice right. I don't have to decide it. We don't have to decide. The better route is to wait until we figure out the real reason for the removal and then resolved this First Amendment question of whether that reason is a permissible reason.

And that's why he agreed with the liberals solely on the question whether the case should be sent back down for further fact find So he expressly declined to go along either with the descent position on the substantive issue

or with the liberals. Hesited called a plurality explurality often means the opinion that got the most votes but actually got the same number of votes as the descent for basically, so, White concluded that he didn't didn't agree with either of them because he didn't agree that this issue should even

be decided until necessary. So then do you agree? In a case in Missouri, a judge rejected the student's request for a preliminary injunction, and he questioned their reliance on Justice Brennan's plurality opinion in that case, So do you agree with that that there really isn't a majority opinion to rely on there? There definitely is not a majority opinion to rely on in Pico, And in fact, quite a few lower courts have taken that view that basically

there's nothing in Pico to follow. I mean, there are arguments that we should pay attention to, but they do not resolve this issue. He's having been said there was an Eighth Circuit opinion, of course, but he said, even under that opinion, which might be said to kind of go along with the liberals position, even if that opinion

is still binding, it's an old case. Even so, books could be removed because of their pervasive vulgarity, which is a pervasive sexual content, or let even the pervasive because of substantial sexual content. And these particular three books sure did have sexual cunt and a school is entitled to say, we're not banning it. Students can get them in lots of other ways, but we're not going to be providing to our students books with that kind of sexual content.

So besides sexual content, as you refer to, a lot of books are being challenged because they deal with LGBTQ issues or racism. Well, let's say just a school board camp chigns if we want to take these books off the shelves, what would be the reasons that you would say are legally substantial? Would hold in court? Sure, So I would say, look, if you want to not include them in your curriculum, if you want to not include them as assigned or recommended readings, you're perfectly free to

do that. Setting aside a few situations under the establishment clause. I suppose if they insist that everybody read the Bible as devotional materials, that's not allowed. But that's not free speech issue. That's an establishment close issue. So setting that aside, if you think this is a bad history book, then you shouldn't assign it to have it be assigned in your placess If you think that this material is highly sexually themed, and if you think for good reason it's

highly sexually themed, you're not just making that out. But but if it is highly sexually themed or otherwise, you can show his age inappropriate. Maybe because it describes things are very gra violent in a very graphical way, and it's an elementary school library left there some such then

in that case you're also free to remove it. If you think that these are kind of portray or convey ideas that you disapprove of, whether ideas one or or the other about sexual orientation or about gender identity, or about American history, about race, or about the environment, or about whatever else, then you know it might be unconstitutional for you to remove them from public school library shelves.

So that's so then you're worried, and you should be worried about a lawsuit in this kind of situation, because there is a plausible claim against that. Then just keep them on the shelves. Presumably your most students don't go down to the library these days to read just right and them say history books, maybe it would be good if more students did. But my sense is that the problem most schools of students are reading too few of them are other than too many or the wrong kinds.

And if it's not in the curriculum, it's probably not going to be much of an issue unless you try to exclude them and make it an issue, and then people will fail a lot more attention to them. Like my understanding is that when this school to in Tennessee, try to remove I think, not from the library shelves, but from actual the curriculum, which are perfectly free to do. Remove Mouse the graphic novel because there were a few relatively mild vulgarities there. There was that, and there was nudity.

You know, this is nudity of a mouse. I mean the pomorphic mouse, to be sure about a mouse um who I'm told in the state of nature tend to be nude. I think so from everything I know exactly. So the result was a lot more attention to mouse and a lot more people buying mouse, I am told. So. I think it's a mistake for school boards to remove

things from library shelves because of their ideas. I think it actually sends a bad message in many ways to students, and I think it practically has very little effect in the symbolic effect may in fact be bad relevant good, and the practical effect may be contraproductive. Because of this,

I guess what's called the band in Boston phenomenon. I'm told that back in the day when there really were bands and not just exclusives from library shelves, bands of movies, movies couldn't be shown if the local sensors forbade it, and I think maybe even books couldn't be sold. Boston was known as being a place that would ban a lot of things in the grounds of their selations, and those places proudly labeled their items as banned in Boston in other cities because that sort of showed that they

were racy. In Virginia, there's a different situation of former congressional member is trying to seek a ban on the sale of certain books that he says are obscene. So this would be stripping the right to sell a book from a Barnes and Noble, or you can't sell this book to a minor. Is that different? Yes? It is? I mean that really is there we are talking about banning, We're talking and not just about the government choosing what to include in its school library, much less school curriculum.

It's choosing what private parties can distribute to other private parties in public places. So my understanding of the Virginia lawsuit is that there's already a law I think in Virginia that pre inhibits bookstores from selling material that's obscene as to miners to miners, So you don't need a specialized lawsuit for that, I think. Of course, then the question is what is obscene as to minors, and the

answers has to be pretty pornographic. Simply, something that has as part of a novel some sexual elements is not going to make the work o scene. So I think he's trying to get the stuff removed from the shelves even where miners could browse. So he actually got a court to issue restraining order finding there's probable cause to believe that a court of mist and fury is obscene for unrestricted viewing by miners. So there it's not just at the checkout counter they have to card the buyer.

It sounds like this was actually an attempt to try to get to the material from being even put on the shelves where miners could browse it, which is a much more serious bird. So the general rule is that a law that says you can't distribute so called harmful to miners, or more precisely obscene as to miners material two miners is constitutional the Supreme Court so held fifty plus years ago. But to be obscene as to minors, it has to lack serious artistic or literary or scientific

or political value for miners. Taken as a whole. It has to appeal to the shameful or morbid interest in sex of miners. Again, taken as a whole, and it's got to be patently offensive under community standards when distributed to miners because of the way it described sex or pass excretion. So you can imagine let's say some porn magazine which is allowed for adults, but can't be distributed

to miners under that standard. However, if it's a well received novel that, in the process of describing what happened to the characters, has sex scenes, then I think taken as a whole, this reviewed as having serious value, especially for older miners, and taken as a whole reviewed does

not appealing to the shameful or morbid interested sex. So I think that as a practical matter, that kind of law is actually quite narrow, and it looks like that lawsuit is trying to actually apply it too books that do not fit that narrow definition, and on top of that also bar them from even being available on the normal shelves, which may be constitutionally permissible against some at least obstatist of minors material, but it's surely an even

more clear burden on constitutional rights when applied to these kinds of novel, precisely because then that interferes with adults ability to privately look at those books, as well as the miners built in this age where you can get almost anything on the internet, why do you think the request to remove materials from schools or libraries hit a record since they've been counting it since two thousand one?

Is it politics? So let me broaden this question. Given that it's so easy to get things on the internet, you might imagine a people would say, what's the point of removing it from the library. It's still so easily accessible. And you might also say people would say, why should we care if someone removes it from the library. It's still easily accessible. So you might ask, why are both advocates of these removals and enemies of these removals adversaries

of these removals? Why are they so concerned about it? And I think the answer is that it is at least partly symbolic. I think a lot of people are really upset not just that there is this highly sexually explicit material out there, but that their tax dollars in the schools that they run, that supposedly their representatives run, are being used to distribute what they view as material that's highly inappropriate for their children. And this is perfectly understandable.

I mean, imagine, for example, there was a library had Mind comproments shop, public school library a Mind for the show. I think nothing wrong with that. It's an important work of world politics. I certainly don't want any to be persuaded by it. But if you want a really rich and deep understanding of Nazi era history, surely you have to read that. Of course, most high school students don't want a really rich understanding, but if they knew, more

power to them. Would it shock me if somebody says it's outrageous that we have Mind come not just in a library, but on a school library, and it wouldn't shock me, wouldn't surprise me. And if there somebody were to say, well wait a minute, you could probably Google for my company find all of these free copies that say, well, okay, fine, let them find it on Google. Let them not come up with it in the school library with kind of

the school's impromoter. So I could totally understand that. So likewise, with regard to situations where people think, you know, not only is there talk in these books about kind of sexual behavior that we would rather our children not engage in, but on top of that, it's really highly graphic. It's the kind of thing that we wouldn't want in our house. Is just because of the review those passages is actually pornographic, But I think the main reasons are symbolic on both

sides of the debate. Thanks so much, Eugene. That's Professor Eugene Wallak of u c l A Law School, And that's it for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com. Slash podcast, Slash law. I'm June Grasso and you're listening to Bloomberg