| Johnson & Johnson LLP Neville
L. Johnson, Douglas L. Johnson, |
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Neville L. Johnson |
Douglas L. Johnson |
ESTABLISHING CONSTITUTIONAL MALICE FOR DEFAMATION AND PRIVACY/ FALSE
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Loyola of Los Angeles Entertainment Law Review http://elr.lls.edu/issues/v22-issue2/johnson.pdf *327 ESTABLISHING CONSTITUTIONAL MALICE
FOR DEFAMATION AND PRIVACY/FALSE LIGHT CLAIMS WHEN HIDDEN CAMERAS AND DECEPTION
ARE USED BY THE NEWSGATHERER
David A. Elder, [FNa1] Neville
L. Johnson [FNaa1] Brian A. Rishwain [FNaaa1]
I. Introduction
In
the last two decades network television newsmagazines in an endless search for ratings,
which translates into revenues, have declared war on the right of privacy we all enjoy as
Americans. [FN5] The hidden camera *329 is
"infotainment" [FN6] masquerading as journalism, Christians versus Lions journalism, The
Truman Show, [FN7] EdTV [FN8] come to life, pandering to
the most base emotions, including voyeurism, with eavesdropping used to obtain the
salacious footage. [FN9] The common ingredients
of a newsmagazine show are: *330 "features" (i.e., stories with stars),
late-breaking news, and "investigative pieces" with hidden cameras because they
are cheap and easy to produce, especially when there
is no need to get the victim's point of view. [FN10] Numerous commentators have written on the
iniquities of the hidden camera and generally ridiculed this technique. [FN11] *331
The era of television newsmagazines began in the early 1970's with the creation of
"60 Minutes," which ultimately became a cash cow for CBS. [FN12] News at the networks had never been considered or
required to be a moneymaker, but now these shows have "become the preeminent profit
engine for network television." [FN13] In 1989, the newsmagazine "PrimeTime
Live" premiered on ABC, and in the show's second year, the hidden camera became
almost a weekly feature in its stories. [FN14] One ABC News executive observed, "[t]here are
only so many stories out there and everyone is mining the same territory, so sometimes you
end up going to another level of stories that you wouldn't otherwise look to." [FN15] No other *332
television show has used the hidden camera as much as ABC's "PrimeTime Live,"
nor has any other show been so seriously sanctioned for unlawful conduct relating to their
use. [FN16] Indeed, the two most
important cases in the modern history of the hidden camera, where liability was
established, involve stunning defeats of this show: Food Lion v. Capital Cities/ABC, Inc.,
[FN17] where a nominal judgment for a corporate plaintiff [FN18] was upheld on grounds of trespass and breach of fiduciary duty, and
Sanders v. ABC, Inc., [FN19] where a substantial judgment was affirmed in favor of an employee *334
taped surreptitiously in the work place. As a result of these cases, the landscape in
America has been permanently altered and journalists must be extremely wary of engaging in
anti-social conduct. [FN20]
Based
on the authors' experience, hidden camera cases come in differing varieties, but some
features are constant. The methodology is
usually never explained to the viewer. The
"gold" television stations want is the hidden camera footage. There is usually no investigative show without it;
rather the need for hidden camera footage drives the creation of the story--not the other
way around. Usually the company doing the
spying neither shows the footage to the subjects of the hidden camera nor *335
gives any opportunity to comment. [FN21] It is as unfair an
investigation as can *336 be concocted. Not
only is it unfair to the victims of the hidden camera, but also to the public overall, who
receive a distorted view because they are not informed that crimes and torts were
committed to gather the smear. By virtue of
the use of hidden cameras, the media necessarily denies the public an unbiased report.
A
hidden camera story is essentially a "grainy little morality play," [FN22] edited to heighten the entertainment value, where journalists go
undercover to mythologize their work by becoming protagonists, modern "folk
heroes" who ferret out wrongdoing as the superheroes of pop culture. [FN23] The *337 investigative journalist is always the hero of any
story, and there is always a bad guy/villain. [FN24] Accordingly, it is high
drama when the bad guy is actually captured on camera and exposed. We usually see "gotcha" interviews,
surprise "attacks" by the journalist upon the unsuspecting alleged miscreant in
which they are asked to confess or explain their supposed wrongful conduct. [FN25] As
the plaintiffs' success in Shulman v. Group W Productions, Inc. [FN26] and Sanders, [FN27] aptly evidence, courts are willing to protect--and
vigorously--individual plaintiffs from intrusions upon protected spheres of privacy,
whether locational [FN28] or non-locational. [FN29] Undoubtedly, the most
insidious and frightening intrusion cases involve an expectation of privacy, with spies
working in conjunction with an enemy or competitor of the victim to set up the fraud. A good example is Food Lion, where a union
antagonist (with indirect support from union-organized food market competitors) cooperated
closely with "PrimeTime Live" in a fraudulent *338 "employee"
hidden camera "sting" operation with incredibly damaging results. [FN30] In
addition to intrusion and/or statutory privacy claims (or in the case of business
entities, non-privacy claims [FN31]), this Article contends that hidden cameras portray individuals in
both a defamatory manner and in a false light--by definition and by design. As the discussion hereafter demonstrates, courts
should treat these hidden camera stories as presumptively false and made with constitutional malice--a standard required for all
public persons [FN32] (and in false light claims by private persons in many jurisdictions [FN33]) as a threshold precondition for receiving actual, presumed and
punitive damages. [FN34] Precedent, common sense,
fairness and an awareness of the Supreme Court jurisprudence balancing competing interests
in reputation and free expression support such a result. As
a preface to the constitutional malice discussion, Part II provides a brief overview and
offers some cautionary comments about media defendants' legal and tactical strategies. Part III then presents an overview of hidden
camera methodology and motivation, illustrating the corrosive and corrupting influences
hidden cameras have had on American television and journalistic integrity. Part IV provides a specific, detailed analysis of
the issues not litigated in Food Lion. Part V
examines in detail the precedent supporting this Article's thesis: constitutional malice
should be easy to prove in hidden camera cases--indeed, it should be presumed. Lastly, Part VI draws some conclusions and
suggests how this thesis fits well within, and in fact enhances the "marketplace of
ideas" function of the First Amendment. II. The Constitutional Framework
A. An Overview
The exacting scienter requirement of New York
Times Co. v. Sullivan [FN35]--knowing or reckless
disregard of falsity--in hand with its heightened evidentiary standard--"convincing
clarity" [FN36]/"clear and *339 convincing" [FN37] evidence--(the "New York Times standard") are "widely
perceived as essentially protective of press freedoms" [FN38] imposing on the public plaintiffs subject thereto an
"undoubtedly . . . very difficult and demanding" [FN39] or "formidable barrier" [FN40] as a constitutional
condition to liability and damages--actual, [FN41] presumed, [FN42] and punitive. [FN43] However, plaintiffs trying to meet these standards
in a libel or false light privacy case need to be cautious and not allow defendants to map
out the terrain of battle and muddy the waters in a fashion that needlessly enhances the
already exalted standards confronting the plaintiff. B. Special Considerations for Litigation
A
series of cautionary considerations should be noted.
First, plaintiffs must be wary, both at trial and on appeal, of defendants' divide
and conqueror strategy to constitutional malice, i.e., trying to focus both the court's
and jury's [FN44] attention on purportedly
discrete, severable and *340 unrelated items of evidence. Occasionally, courts have followed the media's
proffered approach--unaware of the Supreme Court-sanctioned perspective [FN45]--with very skewed,
head-scratching results. [FN46] However, the law is clear. The First Amendment imposes no restrictions on
the types of evidence admissible to prove constitutional malice, with the Court repeatedly
affirming the utilization of circumstantial evidence in proving this "critical
element." [FN47] Indeed, the Court and
lower state or federal courts [FN48] have undoubtedly recognized
that such evidence is essential considering that "it would . . . be rare for a
defendant . . . to admit to having had serious, unresolved doubts . . . ." [FN49] Requiring proof of
recklessness *341 "without being able to adduce proof of the underlying facts
from which a jury could infer recklessness . . . . would limit successful suits to those
cases in which there is direct proof by a party's admission of the ultimate fact." [FN50] Furthermore,
the cases expressly recognize that the New York Times standard by definition
"encompasses innumerable subtleties of the defendant's mind set and conduct, [and] is
exceedingly difficult to apply to the varying circumstances of each case." [FN51] Accordingly, the basic theme is that followed by
the great volume of case law, [FN52] i.e., that the
"varying circumstances, taken as a whole, must provide reasons to question the truth
of [the defendant's] publication." [FN53] In fact, in most cases no single factor is
determinative [FN54] and the plaintiff logically endeavors to construct "a collage of
pieces of evidence," [FN55] what one decision has termed a "grab-bag of circumstantial evidence,"
[FN56] collectively pointing toward constitutional malice. One oft-cited opinion has made this point
powerfully in its discussion and approval of an instruction that the jury consider all the
evidence appertaining to the defendants' actions and conduct: "There is no doubt that
evidence of negligence, of motive and of intent may be adduced for the purpose of
establishing, by cumulation and by appropriate inferences, the fact of a defendant's
recklessness or of his knowledge of falsity." [FN57] *342
Other decisions parallel this approach, emphasizing that constitutional malice is
determined from assessing the "totality" of the defendant's "choices" [FN58] and that the plaintiff is
"entitled to an aggregate consideration of all these claims." [FN59] The Supreme Court itself
has recently reflected this attitude in making its required independent review, concluding
"the evidence in this record in this case, when reviewed in its entirety, is
'unmistakably' sufficient to support a finding of actual malice." [FN60] This broad
all-factors/all-evidence approach is peculiarly appropriate in hidden-camera cases, where
a news agency plays agent provocateur and does not just report a story after it has
transpired, but literally generates it and carries it out to completion as if it is a
spying mission-- manufactured "news." Unlike
the typical defamation case, the participants in these "news" events are usually
employees, independent contractors, or interns of the
news organization. The media is thus covering
itself and is going to make itself look good to the viewer. Second,
as a result of this broad approach to constitutional malice, the pivotal issue would be
"the credibility of the reporter or publisher in the context of the surrounding facts
and circumstances." [FN61] The logical corollary of
this, particularly as to hidden cameras with their inherently suspect, [FN62] creative, self-interested, self-reporting and self- justifying
attributes, is to treat reporters, producers, and editors as interested parties that the
jury may deem "not credible and disbelieve," [FN63] a function entrusted to
them by the Supreme Court. [FN64] As one court has said, "We accept the jury's
finding as to disputed facts when there is supporting evidence because we claim no
superior ability to divine the truth by reason of judicial office, and we question the
good judgment of any judge who thinks he has such special powers." [FN65] Undoubtedly,
hidden-camera cases with the inherent hazards therein, including the defendant's
propensity for self-justifying selective editing, mandate that a jury assess both actions
and inactions and motivation. Indeed, courts
have frankly recognized that constitutional malice may be *343 predicated on
"the fact-finder's negative assessment of the speaker's credibility at trial." [FN66] Consider, for example, the recent Third Circuit
case, where the court remanded for trial the issue of whether the defendant-attorney published a defamation in the face of
a complaint served on and received by him. [FN67] In responding to the defendant's contention that
there could be no constitutional malice as he did not read the complaint before speaking,
the court replied:
[A] reasonable jury could believe that a person who is added as a defendant in a
multi-million dollar lawsuit is very likely to read the complaint shortly after receiving
it in order to see why he or she has been sued. A
reasonable jury could disbelieve [defendant's] story and find by clear and convincing
evidence that [defendant] did read the First Amended Complaint before the interview. [FN68] In other words, the Third
Circuit has decided that a jury's conclusion that the defendant lied as to receipt of
contradictory information could alone sustain a constitutional malice finding. The Ninth Circuit has similarly found that
"[t]he editors' statements of their subjective intention are matters of credibility
for a jury." [FN69]
Third,
plaintiff-lawyers should respond unambiguously and unequivocally to any suggestion that
special rules for summary judgment are mandated by the First Amendment, i.e., that summary
judgment is "favored," a common bit of posturing by media lawyers. The Supreme Court's jurisprudence rejects any such
special protection. Indeed, the Court has
recognized society's "pervasive and strong interest" [FN70] in protecting reputation
and cautioned against "substantial
depreciation" thereof "without any convincing assurance that such a sacrifice is
required under the First Amendment." [FN71] The Court has implemented this strongly *344
held view by repeatedly rejecting Due Process and/or First Amendment-based special
protections. [FN72] As the Court has
repeatedly indicated, [FN73] it has "already declined in other contexts to grant special
procedural protections to defendants . . . in addition to the constitutional protections .
. . in the substantive laws." [FN74] The
Supreme Court has also rejected in dicta the suggestion that summary judgment "might
well be the rule rather than the exception," expressing "some doubt about the
so-called 'rule.' The proof of 'actual
malice' calls a defendant's state of mind into question . . . and does not readily lend
itself to summary disposition." [FN75] Later, in Anderson v.
Liberty Lobby, Inc., [FN76] the Court characterized this latter acknowledgment as reflective of
"our general reluctance" to grant such special procedural protections. [FN77] In adopting the
"heightened evidentiary requirements" [FN78] (clear and convincing
evidence standard) at the summary judgment stage, the Court took considerable pains to
emphasize several things--general requirements of the federal rule must be followed, the
jury's fundamental *345 role must remain intact, and summary trial by affidavit may
not be authorized. [FN79] In powerful language the Court reaffirmed:
Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he is ruling on a motion for summary judgment or
for a directed verdict. The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.
[FN80] In other words, "[t]he
Court expressly repudiated the special and media protective minority view . . . [that
suggested] that the trial court should evaluate the credibility of witnesses and make its
own inferences from the evidence adduced." [FN81] In
sum, summary judgment is "favored" only to the extent that there inures in the
New York Times standard a difficult substantive burden for the plaintiffs to overcome. The California Supreme Court made this point
elegantly in Reader's Digest Ass'n v. Superior Court: [FN82]
It is pointless to declare in the abstract that summary judgment is a favored or
disfavored remedy. A more subtle analysis is
required--one that explains how a motion for summary judgment should be decided in a
defamation case under the New York Times test. The
Fifth Circuit in Rebozo v. Washington Post Co. undertook such an analysis and reached the
following conclusion: "[T]he standard of review of First Amendment defamation
actions, as in all summary judgment cases, is whether the record, construed in a light
most favorable to the party against whom the judgment has been entered, demonstrates there
are genuine issues of fact which, if proven, would support a jury verdict for that party. Given, however, a jury verdict in a defamation
case can only be supported when the actual malice is shown by clear and convincing
evidence, rather than by a preponderance of evidence as in most other cases, the evidence
and all the inferences which can reasonably be drawn from it must meet the higher
standard."
We recognize a potential chilling effect from protracted litigation as well as a
public interest in resolving defamation cases promptly.
That does not mean, however, that a court *346 should grant summary judgment
when there is a triable issue of fact as to actual malice.
Instead, courts may give effect to these concerns regarding a potential chilling
effect by finding no triable issues unless it appears that actual malice may be proved at
trial by clear and convincing evidence--i.e., evidence sufficient to permit a trier of
fact to find for the plaintiff and for an appellate court to determine that the resulting
judgment "does not constitute a forbidden intrusion on the field of free
expression." To this extent, therefore,
summary judgment remains a "favored" remedy in defamation cases involving the
issue of "actual malice" under the New York Times standard. [FN83] The
California Supreme Court in Reader's Digest approved and adopted the analysis of the Fifth
Circuit in Rebozo v. Washington Post Co., [FN84] an analysis which squarely repudiates the view that media defendants
receive a second procedural "bonus" in summary judgment practice implicating the
constitutional malice standard, and instead
forcefully advances the view that the only benefits defendants receive are those embedded
in the protective New York Times standard itself. [FN85] Thus, media defendants are not entitled to any
special breaks. They are only entitled to
the substantive benefits of the New York Times standard.
Plaintiffs, in turn, are entitled to have the issue called "straight up." If there are triable issues of fact regarding the
defendants' (often just the producer of the piece--whose constitutional malice is imputed
to the employer, co-defendant [FN86]) state of mind, issues that
would place in context one way or another the question of whether a jury could reasonably
find knowing or reckless falsity by clear and convincing evidence, the plaintiff is
entitled to have the case placed before a jury. Common
fairness, the procedural rules, and the Supreme Court have so decreed. *347 III. The Role of Hidden Cameras
A. Hidden Cameras: A Product of the "Bottom
Line" Mentality
Television
journalists, at least at the newsroom level, [FN87] decry the dominance of commercial over journalistic consideration in
the newsroom, [FN88] feeling they are "caught in a self-defeating spiral" [FN89] from "a heightened, unseemly lust" for great profits [FN90] with a concomitant diminution in quality. [FN91] Why is this? It is all about television *348 newsmagazines, with hidden cameras as the
drive-trains, becoming "the preeminent profit engine[s]" [FN92] for network television while needing to compete with each other,
cable and a host of non-news programs [FN93] that attract voyeuristic
viewers [FN94] with a great affection for "clear, simple stories, *349
with victims and villains, preferably illustrated with eye- catching video" [FN95] using state-of-the-art hidden camera technology. [FN96] As
one distinguished commentator has concluded, "[D]espite wrapping themselves in the
cloak of public interest, the contemporary media are profit- driven and altruistic only
when the bottom line has been secured." [FN97] Unfortunately, this "profit center" /"bottom
line" /"new era of profit worship" [FN98] mentality, particularly as
to the electronic media, [FN99] has *350 resulted in
"a ratings-driven descent by the major networks into the swamp of tabloid
journalism." [FN100] In the latter,
sensationalism reigns [FN101] and television news is
infected by the "climate of make-believe" [FN102] and the desperate demand
for hidden camera footage [FN103] with its capacity to jolt
ratings. [FN104] Without such, as a
critic says, "you ain't got squat." [FN105] *351
The damning [FN106] evidence of the impact of
hidden cameras is irrefutable. [FN107] Hidden cameras are most prominent during
"sweeps" periods [FN108] so that they can enhance
advertising charges and ultimately revenue. [FN109] They are most likely to
lead the program. [FN110] The "teasers"
hyping the program usually feature the hidden cameras" technology as *352
prominently as the substance [FN111] in order to snare viewers
with voyeuristic instincts. The net effect is
that many newsroom journalists feel that this commercial mentality has caused journalism
to "lose its professional soul" [FN112] and, concomitantly, its
editorial independence, [FN113] resulting in an
increasing demand for professional standards to immunize newsrooms from such corrosive and
corrupting influences. [FN114] *353 B. The Corrosive and Corrupting
Influence of Hidden Cameras
Echoing
McLuhanesque sentiments, [FN115] media critics have warned that hidden cameras, instruments
journalists would be appalled [FN116] to have turned *354
on themselves, have a tendency to "perpetrate the initial deception" [FN117] by a *355 number of overlapping, dangerous practices. Among
them are: "entrapping" persons via "scams or stings" using
"staged" scenes [FN118] to *356 confirm a
preconceived "bad guy/villain" theme [FN119] on "gotcha"
videotapes; [FN120] executing "ambush interviews;" [FN121] sensationalism; [FN122] *357 "muckraking;" [FN123] deceptive or distorted editing; [FN124] innuendo or insinuation; [FN125] and creating a false impression. [FN126] All of these techniques *358 allow the
defendant to "declare reality, not to report it," [FN127] "not . . . a message of
truth" but a broadcast media news "message of power and force and image" [FN128] that facilitates a societal self-delusion that "the world is
still binary: cops and robbers, cowboys and Indians, good and evil." [FN129] Undoubtedly,
the most damning and damaging [FN130] is the hidden camera's creation of "an atmosphere of corruption
that insinuates wrongdoing when none has occurred." [FN131] Both journalistic
defenders of hidden cameras (under at least some circumstances [FN132]) and media *359 executives have conceded this undoubted
potential. For example, as (now retired) ABC
Senior Vice President Dick Wald (who ruled on hidden camera proposals) has said, hidden
camera footage per se "tends to make anything seem suspicious." [FN133] One critic has made the
point thusly and powerfully:
Insinuating guilt is easy when you have a hidden camera. Put one of those tiny bug-eye cameras in a
suitcase and lug it around at kneecap level in Mother Teresa's Calcutta mission and the
footage will have the inescapable air of corruption and wrongdoing. Hidden cameras produce the video equivalent of the
trick question, "So are you still beating your wife?" [FN134] Everyone looks guilty on hidden camera. [FN135] Likewise,
the "'[a]mbush [i]nterview' convict[s] by implication alone." [FN136] Once the tactic of
"last resort," it has become the preferred tactic because it "immediately
identifies the bad guy . . . the one saying '[n]o
comment' in a parking lot somewhere while he fumbles for his car keys." [FN137] *360 Why is guilt
insinuated? "In a media-mad society
where the very presence of a microphone demands that someone Say Something, remaining
silent when jumped by a reporter is tantamount to crowing, 'Not only am I physically
unattractive under these lighting conditions, but I'm guilty as hell and I'll do it again! Hahahaha!" ' [FN138] In
sum, hidden cameras convey a defamatory impression and put the target in a false light by
definition [FN139] with an appalling impact [FN140] on the stunned deer-in-the-headlight victim. Media defendants know this and are indifferent to
it, [FN141] an indicator of the arrogance [FN142] that is an unconscionable
corollary of the blurring of the line between entertainment and news, reality and
pretense. [FN143] This hidden camera
practice has been condemned as dangerous [FN144] and as tantamount to
"vigilante justice" with the media as *361 unilateral determiner of guilt
[FN145] with the authorities being contacted only after the bottom
line--ratings--have been secured. [FN146] The public is horrified by such arrogance [FN147] and the credibility of serious journalism impaired. [FN148] Almost seventy-five
percent of the public has condemned hidden camera use. [FN149] But, after a brief hiatus after the Food Lion
initial award, [FN150] hidden camera usage seems to be on the rise again after Food Lion's
damages were reduced to a meager two dollars. [FN151] This should not
surprise anyone. As media journalist-critic
Daniel Schorr, a critic of the television newsmagazines, has asked rhetorically,
"[I]n a medium so laden *362 with mendacity, do you think they are really
aware of what a lie is?" [FN152] IV. Food Lion, Inc. v. Capital Cities/ABC, Inc.:
[FN153] The Libel Case Not
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