COUNSEL:

 John D. Rowell, Lewis, Goldberg & Ball, Michael L. Goldberg, Paul & Stuart, Stuart Law Firm, Antony Stuart and William A. Daniels for Plaintiffs and Appellants.

 Cornell Chulay, Epstein, Becker & Green, Janet Morgan, Terry M. Gordon, Richard A. Hoyer, Tharpe & Howell, Donald F. Austin, Davis, Wright, Tremaine, Kelli L. Sager, Karen N. Fredericksen and Frederick F. Mumm for Defendants and Respondents.

 James E. Grossberg as Amicus Curiae on behalf of Defendants and Respondents.

 Neville L. Johnson and David A. Elder as Amici Curiae.

 More than 100 years ago, Louis Brandeis and Samuel Warren complained that the press armed with the then-recent invention of "instantaneous photographs" and under the influence of new "business methods," was "overstepping in every direction the obvious bounds of propriety and of decency." (Warren & Brandeis, The Right to Privacy (1890) 4 Harv. L.Rev. 193, 195-196 (hereafter Brandeis).) Even more ominously, they noted the "numerous mechanical devices" that "threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the housetops.'" (Id. at p. 195.) Today, of course, the newspapers of 1890 have been joined by the electronic media; today, a vast number of books, journals, television and radio stations, cable channels and Internet content sources all compete to satisfy our thirst for knowledge and our need for news of political, economic and cultural events -- as well as our love of gossip, our curiosity about the private lives of others, and "that weak side of human nature that is never wholly cast down by the misfortunes and frailties of our neighbors." (Id. at p. 196.) Moreover, the "devices" available for recording and transmitting what would otherwise be private have multiplied and improved in ways the 19th century could hardly imagine.

Over the same period, the United States has also seen a series of revolutions in mores and conventions that has moved, blurred and, at times, seemingly threatened to erase the line between public and private life. While even in their day Brandeis and Warren complained that "the details of sexual relations are spread broadcast in the columns of the daily papers" (Brandeis, supra, 4 Harv. L.Rev. at p. 196), today' s public discourse is particularly notable for its detailed and graphic discussion of intimate personal and family matters -- sometimes as topics of legitimate public concern, sometimes as simple titillation. More generally, the dominance of the visual image in contemporary culture and the technology that makes it possible to capture and, in an instant, universally disseminate a picture or sound allows us, and leads us to expect, to see and hear what our great-grandparents could have known only through written description.

The sense of an ever-increasing pressure on personal privacy notwithstanding, it has long been apparent that the desire for privacy must at many points give way before our right to know, and the news media' s right to investigate and relate, facts about the events and individuals of our time. Brandeis and Warren were themselves aware that recognition of the right to privacy requires a line to be drawn between properly private events, words and actions and those of "public and general interest" with which the community has a "legitimate concern." (Brandeis, supra, 4 Harv. L.Rev. at p. 214.) As early as 1931, in the first California case recognizing invasion of privacy as a tort, the court observed that the right of privacy "does not exist in the dissemination of news and news events." (Melvin v. Reid (1931) 112 Cal.App. 285, 290.)

Also clear is that the freedom of the press, protected by the supreme law of the First and Fourteenth Amendments to the United States Constitution, extends far beyond simple accounts of public proceedings and abstract commentary on well-known events. "The guarantees for speech and press are not the preserve of political expression or comment on public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press." (Time, Inc. v. Hill (1967) 385 U.S. 374, 388.) Thus, "[t]he right to keep information private was bound to clash with the right to disseminate information to the public." (Briscoe v Reader' s Digest Association, Inc. (1971) 4 Cal.3d 529, 534.)

Despite, then, the intervening social and technological changes since 1890, the fundamental legal problems in defining a right of privacy vis-a-vis the news media have not changed -- have, if anything, intensified. At what point does the publishing or broadcasting of otherwise private words, expressions and emotions cease to be protected by the press's constitutional and common law privilege -- its right to report on matters of legitimate public interest - and become an unjustified, actionable invasion of the subject' s private life? How can the courts fashion and administer meaningful rules for protecting privacy without unconstitutionally setting themselves up as censors or editors? Publication or broadcast aside, do reporters, in their effort to gather the news, have any special privilege to intrude, physically or with sophisticated photographic and recording equipment, into places and conversations that would otherwise be private? Questions of this nature have concerned courts and commentators at least since Brandeis and Warren wrote their seminal article, and continue to do so to this day. [FN 1]  

[FN 1] Historical scholarship has led some writers to question whether the Boston newspapers of 1890 were in fact abusively invasive of personal privacy, or whether Brandeis and Warren's hostile attitude stemmed rather from patrician adherence to an anachronistically narrow view of what was proper "news." (See Barron, Warren and Brandeis, The Right to Privacy, 4 Harv. L.Rev 193 (1890): Demystifying a Landmark Citation (1979) 13 Suffolk U. L.Rev. 875.) Whether or not Brandeis and Warren exaggerated the sensationalism and invasiveness of the newspapers of their day, however, they undoubtedly highlighted and gave vivid expression to a continuing legal problem -- how to protect personal privacy without infringing on freedom of the press.

In the present case, we address the balance between privacy and press freedom in the commonplace context of an automobile addident, Plaintiffs, two members of a family whose activities and position did not otherwise make them public figures, were injured when their car went off the highway, overturning and trapping them inside. A medical transport and rescue helicopter crew came to plaintiffs' assistance, accompanied on this occasion by a video camera operator employed by a television producer. The cameraman filmed plaintiffs' extrication from the car, the flight nurse and medic' s efforts to give them medical care during the extrication, and their transport to the hospital in the helicopter. The flight nurse wore a small microphone that picked up her conversations with other rescue workers and with one of the plaintiffs. This videotape and sound track were edited into a segment that was broadcast, months later, on a documentary television show, On Scene: Emergency Response. Plaintiffs, who consented neither to the filming and recording nor to the broadcast, allege the television producers thereby intruded into a realm of personal privacy and gave unwanted publicity to private events of their lives.

The trial court granted summary judgment for the producers on the ground that the events depicted in the broadcast were newsworthy and the producers' activities were therefore protected under the First Amendment to the United States Constitution. The Court of Appeal reversed, finding triable issues of fact exist as to one plaintiff's claim for publication of private facts and legal error on the trial court's part as to both plaintiffs' intrusion claims. Agreeing with some, but not all, of the Court of Appeal's analysis, we conclude summary judgment was proper as to plaintiffs' cause of action for publication of private facts, but not as to their cause of action for intrusion. [FN 2]

[FN 2] Five justices (Chief Justice George, Justice Mosk, Justice Kennard, Justice Chin and myself) conclude summary judgment was proper on the cause of action for publication of private facts. Five justices (Chief Justice George, Justice Kennard, Justice Baxter, Justice Brown and myself) conclude summary judgment was improper on the cause of action for intrusion. Part I of this opinion' s discussion expresses the views of a majority of the court's members. (See conc. and dis. opn. of Chin, J., post, at p. 1.) Part II expresses a majority' s views except for the reservations stated by Justice Brown. (See conc. and dis. opn. of Brown, J., post, at p. 1, fn. 1.)

On June 24, 1990, plaintiffs Ruth and Wayne Shulman, mother and son, were injured when the car in which they and two other family members were riding on Interstate 10 in Riverside County flew off the highway and tumbled down an embankment into a drainage ditch on state-owned property, coming to rest upside down. Ruth, the most seriously injured of the two, was pinned under the car. Ruth and Wayne both had to be cut free from the vehicle by the device known as "the jaws of life."

A rescue helicopter operated by Mercy Air was dispatched to the scene. The flight nurse, who would perform the medical care at the scene and on the way to the hospital, was Laura Carnahan. Also on board were the pilot, a medic and Joel Cooke, a video camera operator employed by defendants Group W Productions, Inc., and 4MN Productions. Cooke was recording the rescue operation for later broadcast.

Cooke roamed the accident scene, videotaping the rescue. Nurse Carnahan wore a wireless microphone that picked up her conversations with both Ruth and the other rescue personnel. Cooke's tape was edited into a piece approximately nine minutes long, which, with the addition of narrative voice-over, was broadcast on September 29, 1990, as a segment of On Scene: Emergency Response.

The segment begins with the Mercy Air helicopter shown on its way to the accident site. The narrator's voice is heard in the background, setting the scene and describing in general terms what has happened. The pilot can be heard speaking with rescue workers on the ground in order to prepare for his landing. As the helicopter touches down, the narrator says: "[F]our of the patients are leaving by ground ambulance. Two are still trapped inside." (The first part of this statement was wrong, since only four persons were in the car to start.) After Carnahan steps from the helicopter, she can be seen and heard speaking about the situation with various rescue workers. A firefighter assures her they will hose down the area to prevent any fire from the wrecked car.

The videotape shows only a glimpse of Wayne, and his voice is never heard. Ruth is shown several times, either by brief shots of a limb or her torso, or with her features blocked by others or obscured by an oxygen mask. She is also heard speaking several times. Carnahan calls her "Ruth," and her last name is not mentioned on the broadcast.

While Ruth is still trapped under the car, Carnahan asks Ruth's age. Ruth responds, "I'm old." On further questioning, Ruth reveals she is 47, and Carnahan observes that "it's all relative. You're not that old." During her extrication from the car, Ruth asks at least twice if she is dreaming. At one point she asks Carnahan, who has told her she will be taken to the hospital in a helicopter: "Are you teasing?" At another point she says: "This is terrible. Am I dreaming?" She also asks what happened and where the rest of her family is, repeating the questions even after being told she was in an accident and the other family members are being cared for. While being loaded into the helicopter on a stretcher, Ruth says: "I just want to die." Carnahan reassures her that she is "going to do real well," but Ruth repeats: "I just want to die. I don't want to go through this."

Ruth and Wayne are placed in the helicopter, and its door is closed. The narrator states: "Once airborne, Laura and [the flight medic] will update their patients' vital signs and establish communications with the waiting trauma teams at Loma Linda." Carnahan, speaking into what appears to be a radio microphone, transmits some of Ruth's vital signs and states that Ruth cannot move her feet and has no sensation. The video footage during the helicopter ride includes a few seconds of Ruth's face, covered by an oxygen mask. Wayne is neither shown nor heard.

The helicopter lands on the hospital roof. With the door open, Ruth states while being taken out: "My upper back hurts." Carnahan replies: "Your upper back hurts. That's what you were saying up there." Ruth states: "I don't feel that great." Carnahan responds: "You probably don't."

Finally, Ruth is shown being moved from the helicopter into the hospital. The narrator concludes by stating: "Once inside both patients will be further evaluated and moved into emergency surgery if need be. Thanks to the efforts of the crew of Mercy Air, the firefighters, medics and police who responded, patients' lives were saved." As the segment ends, a brief, written epilogue appears on the screen, stating: "Laura's patient spent months in the hospital. She suffered severe back injuries. The others were all released much sooner."

The accident left Ruth a paraplegic. When the segment was broadcast, Wayne phoned Ruth in her hospital room and told her to turn on the television because "Channel 4 is showing our accident now." Shortly afterward, several hospital workers came into the room to mention that a videotaped segment of her accident was being shown. Ruth 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." She did not know her rescue had been recorded in this manner and had never consented to the recording or broadcast. Ruth had the impression from the broadcast "that I was kind of talking nonstop, and I remember hearing some of the things I said, which were not very pleasant." 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."

Ruth and Wayne sued the producers of On Scene: Emergency Response, as well as others. [FN 3] The first amended complaint included two causes of action for invasion of privacy, one based on defendants' unlawful intrusion by videotaping the rescue in the first instance and the other based on the public disclosure of private facts, i.e., the broadcast.

[FN 3] Mercy Air, Warner Brothers, Inc., and television station KNBC were originally named as defendants but have been eliminated through proceedings in the trial court and Court of Appeal, the merits of which are not before us.

Defendants moved for summary judgment, contending primarily that their conduct was protected by the First Amendment because of the broadcast' s newsworthy content. In their response to the summary judgment motion, plaintiffs conceded, as undisputed facts, that an account of their accident and rescue appeared in a San Bernardino area newspaper shortly after the rescue and before the broadcast; that Mercy Air was dispatched to the scene by Riverside County officials and rendered service pursuant to Mercy Air's license and agreement with the county; and that auto accidents on public highways and publicly provided emergency rescue and medical services were both matters of public interest that constituted public affairs.

 The trial court granted the media defendants' summary judgment motion, basing its ruling on plaintiffs' admissions that the accident and rescue were matters of public interest and public affairs. Those admissions, in the trial court' s view, showed as a matter of law that the broadcast material was newsworthy, thereby vesting the media defendants' conduct with First Amendment protection. The court entered judgment for defendants on all causes of action.

The Court of Appeal reversed and remanded for further proceedings, but on limited grounds and as to some causes of action only. First, the Court of Appeal held plaintiffs had no reasonable expectation of privacy in the events at the accident scene itself. According to the lower court, "Appellants' accident occurred on a heavily traveled public highway . . . . The videotape itself shows a crowd of onlookers peering down at the rescue scene below. Appellants could be seen and heard by anyone at the accident site itself and could not have had a reasonable expectation of privacy at the scene in regard to what they did or said. Their statements or exclamations could be freely heard by all who passed by and were thus public, not private." Once inside the helicopter, however, the court next reasoned, plaintiffs did have a reasonable expectation of privacy; the helicopter was essentially an airborne ambulance, and an ambulance in emergency medical use is considered a private space, both by social tradition and by analogy to a hospital room, which was deemed private in Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654.

As to Ruth's cause of action for publication of private facts (limited to the broadcast of events inside the helicopter), the Court of Appeal concluded triable issues of fact existed on the element of offensiveness and on a defense of newsworthiness. With regard to plaintiffs' claims of intrusion, also as related to the recording of events in the helicopter, the Court of Appeal, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, held the trial court erred in applying a complete defense of newsworthiness; instead, the trial court should have conducted an analysis balancing plaintiffs' privacy rights against defendants' First Amendment interest in recording the rescue. The Court of Appeal therefore remanded for further proceedings as to both plaintiffs' cause of action for intrusion and as to Ruth' s cause of action for publication of private facts.

We conclude the Court of Appeal's judgment should be affirmed except insofar as it remanded for further proceedings on Ruth's private facts claim. With regard to that claim, we hold that the material broadcast was newsworthy as a matter of law and, therefore, cannot be the basis for tort liability under a private facts claim. Summary judgment thus was proper as to both plaintiffs on the private facts cause of action.

As to intrusion, the Court of Appeal correctly found triable issues exist as to whether defendants invaded plaintiffs' privacy by accompanying plaintiffs in the helicopter. Contrary to the holding below, we also hold triable issues exist as to whether defendants tortiously intruded by listening to Ruth's confidential conversations with Nurse Carnahan at the rescue scene without Ruth's consent. Moreover, we hold defendants had no constitutional privilege so to intrude on plaintiffs' seclusion and private communications.

Influenced by Dean Prosser's analysis of the tort actions for invasion of privacy (Prosser, Privacy (1960) 48 Cal.L.Rev 381) and the exposition of a similar analysis in the Restatement Second of Torts sections 652A-652E (further references to the Restatement are to the Restatement Second of Torts), California courts have recognized both of the privacy causes of action pleaded by plaintiffs here: (1) public disclosure of private facts, and (2) intrusion into private places, conversations or other matters. (See Forsher v. Bugliosi (1980) 26 Cal.3d 792, 808; Kapellas v. Kofman (1969) 1 Cal.3d 20, 35-36; Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1482; Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126 (Diaz).) [FN 4]

[FN 4] The other two "Prosser torts" are presentation of the plaintiff to the public in a false light and appropriation of image or personality. (See Kapellas v. Kofman, supra, 1 Cal.3d at p. 35, fn. 16.)

We shall review the elements of each privacy tort, as well as the common law and constitutional privilege of the press as to each, and shall apply in succession this law to the facts pertinent to each cause of action.

The claim that a publication has given unwanted publicity to allegedly private aspects of a person' s life is one of the more commonly litigated and well-defined areas of privacy law. In Diaz, supra, 139 Cal.App.3d at page 126, the appellate court accurately discerned the following elements of the public disclosure tort: "(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." (See Forsher v. Bugliosi, supra, 26 Cal.3d at pp. 808-809; Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 228-231; Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 744-748.) That formulation does not differ significantly from the Restatement's, which provides that "[o]ne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that [¶] (a) would be highly offensive to a reasonable person, and [¶] (b) is not of legitimate concern to the public." (Rest.2d Torts, § 652D.)

The element critical to this case is the presence or absence of legitimate public interest, i.e., newsworthiness, in the facts disclosed. After reviewing the decisional law regarding newsworthiness, we conclude, inter alia, that lack of newsworthiness is an element of the "private facts" tort, making newsworthiness a complete bar to common law liability. We further conclude that the analysis of newsworthiness inevitably involves accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment to the United States Constitution, and that in the circumstances of this case -- where the facts disclosed about a private person involuntarily caught up in events of public interest bear a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevance -- the broadcast was of legitimate public concern, barring liability under the private facts tort.

The Diaz formulation, like the Restatement's, includes as a tort element that the matter published is not of legitimate public concern. Diaz thus expressly makes the lack of newsworthiness part of the plaintiff' s case in a private facts action. (See also Diaz, supra, 139 Cal.App.3d at pp. 128-130 [plaintiff bears burden of proving published matter was not newsworthy].) Our own decisions are consistent, if less explicit, on this point. (See Forsher v. Bugliosi, supra, 26 Cal.3d at p. 809 [The defendant' s First Amendment right to disseminate information to the public must be considered "[i]n determining whether a cause of action [for publication of private facts] has been stated . . . ."]; Gill v. Curtis Publishing Co. (1953) 38 Cal.2d 273, 278 [Public interest in the dissemination of news and information must be balanced against the privacy right "in defining the boundaries of the right."].) The Diaz approach is consistent with the tort' s historical development, in which defining an actionable invasion of privacy has generally been understood to require balancing privacy interests against the press' s right to report, and the community' s interest in receiving, news and information. (See Brandeis, supra, 4 Harv. L.Rev. at p. 214; Melvin v. Reid, supra, 112 Cal.App. at p. 290; Sidis v. F-R Publishing Corp. (2d Cir. 1940) 113 F.2d 806, 809; Barber v. Time, Inc. (1942) 348 Mo. 1199, 1206; Carlisle v. Fawcett Publications, Inc., supra, 201 Cal.App.2d at p. 745; Gill v. Curtis Publishing Co., supra, 38 Cal.2d at p. 277; Briscoe v. Reader' s Digest Association, Inc., supra, 4 Cal.3d at p. 534.)

We therefore agree with defendants that under California common law the dissemination of truthful, newsworthy material is not actionable as a publication of private facts. (Kapellas v. Kofman, supra, 1 Cal.3d at pp. 35-36; Diaz, supra, 139 Cal.App.3d at p. 126; Rest.2d Torts, § 652D.) If the contents of a broadcast or publication are of legitimate public concern, the plaintiff cannot establish a necessary element of the tort action, the lack of newsworthiness. To so state, however, is merely to begin the necessary legal inquiry, not to end it. It is in the determination of newsworthiness -- in deciding whether published or broadcast material is of legitimate public concern - that courts must struggle most directly to accommodate the conflicting interests of individual privacy and press freedom.

Although we speak of the lack of newsworthiness as an element of the private facts tort, newsworthiness is at the same time a constitutional defense to, or privilege against, liability for publication of truthful information. (Forsher v. Bugliosi, supra, 26 Cal.3d at p. 809; Gilbert v. Medical Economics Company (10th Cir. 1981) 665 F.2d 305, 307-308; Vassiliades v. Garfinkel' s Brooks Bros. (D.C. 1985) 492 A.2d 580, 589.) Indeed, the danger of interference with constitutionally protected press freedom has been and remains an ever-present consideration for courts and commentators struggling to set the tort's parameters, and the requirements of tort law and the Constitution have generally been assumed to be congruent. (See Rest.2d Torts, § 652D, com. d, p. 388 [newsworthiness standard developed in common law but now expresses constitutional limit as well]; Virgil v. Time, Inc. (9th Cir. 1975) 527 F.2d 1122, 1128-1130 [accepting Restatement test of newsworthiness as constitutional standard]; Ross v. Midwest Communications, Inc. (5th Cir. 1989) 870 F.2d 271, 273 [Stating of Texas law, which follows the Restatement, that "[i]n the 'newsworthiness' line of argument . . . the state law and constitutional tests are the same."].) Little is to be gained, therefore, in attempting to keep rigorously separate the tort and constitutional issues as regards newsworthiness, and we have not attempted to do so here. Tort liability, obviously, can extend no further than the First Amendment allows; conversely, we see no reason or authority for fashioning the newsworthiness element of the private facts tort to preclude liability where the Constitution would allow it.