Magazine article Editor & Publisher

Troubling Ruling Restricts News Gathering

Magazine article Editor & Publisher

Troubling Ruling Restricts News Gathering

Article excerpt

A troubling new strategy by a creative plaintiffs' lawyer has succeeded in freezing the investigative efforts of journalists in a high-profile case in Pennsylvania.

It is a strategy that seeks to circumvent the First Amendment obstacles otherwise faced by those who hope to squelch the news by bringing defamation and related claims against the media.

It is a strategy that holds the potential of swift interference by a court in the form of injunctive relief, and a strategy that is likely to be mimicked in other states if it is upheld on the currently pending appeal.

The recent decision by the United States District Court in Pennsylvania combines an expansive notion of the scope of press liability for the privacy tort of intrusion with a mechanical application of the "provisional remedies" available to tort plaintiffs, including preliminary injunctive relief.

While the First Amendment bars virtually all injunctions against publication, the Pennsylvania court found no similar concern restricting an injunction against traditional news gathering by working journalists.

In Wolfson vs. Lewis, two award-winning journalists were sued for news-gathering activities relating to a report for the television show Inside Edition.

The journalists were preparing a story on the extremely generous compensation packages paid to top employees of U.S. HealthCare while the company was imposing severe cost constraints on patients.

Based on SEC filings, the journalists knew that the chairman of U.S. HealthCare had received a 1994 compensation package exceeding $3 million. They also learned that several immediate also members, including his daughter and her husband, Richard Wolfson, were employed by the company in highly paid positions.

The developing story became particularly timely when the company announced a merger with Aetna that reportedly would put $290 million in cash and stock into the pockets of the chairman and his family.

In covering the story, the journalists sought to demonstrate the quality of life enjoyed by the officers of the company, including the chairman and his children. To do so, they briefly videotaped the Wolfsons entering and leaving their cars at the U.S. HealthCare parking lot in Pennsylvania, followed each of the Wolfsons one day as they traveled from home to work and videotaped the exterior of their luxurious home in Pennsylvania.

Later that same week, the journalists traveled to Florida to videotape the chairman's vacation estate for one day. From a boat in public waters and later standing on a public street, they videotaped the exterior of the house at a time when, unknown to the journalists, the Wolfsons were also present.

Without informing the reporters, the Wolfsons had traveled to Florida earlier in the week after learning of the videotaping activity in Pennsylvania.

Claiming they felt threatened and harassed by the presence of the journalists - first in Pennsylvania and subsequently in Florida - the Wolfsons filed a civil action in federal court. Their lawsuit sought to enjoin the journalists' news-gathering activities and demanded substantial compensatory and punitive damages. The trial court ordered expedited discovery into the circumstances of the filming, and then took seven days of testimony.

Based on this quickly compiled record, the district court found that the Wolfsons had sufficiently demonstrated that they were likely ultimately to succeed at trial on their invasion of privacy claim. …

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