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 AJR  Columns :    THE PRESS & THE LAW    

From AJR,   July/August 1999  issue

Skirmishing Over Freedom Of Speech    

A judge reluctantly denies a hospitalís request to block a CBS news segment from airing.


By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

The U.S. Supreme Court has said many times that prior restraints on speech are presumed to violate the First Amendment. Judges rarely agree to issue restraining orders to stop the press, and the few who do almost always find themselves reversed on appeal. That's why a skirmish in federal court in Charlotte, North Carolina, between CBS and a chain of psychiatric hospitals, ended in a victory for the TV network.

On April 20, Charter Behavioral Health Systems tried to stop CBS from airing a "60 Minutes II" program about conditions at its facilities. The hospital chain claimed that broadcast of the hourlong investigation would violate the privacy of patients who had been captured on a hidden camera worn by a licensed social worker named Terrance Johnson. He had obtained a job as a mental health technician at Charter's Charlotte facility at the behest of the network.

CBS issued a statement saying that "the privacy of all patients is protected" in the program, and that a restraining order against the broadcast would be unconstitutional.

At a 90-minute oral argument on April 21, less than eight hours before the segment was scheduled to air, a lawyer for Charter argued that the network had broken the law when it used a hidden camera to videotape the patients, even though concealed cameras are legal in North Carolina. According to Associated Press accounts, attorney John Wester contended that "you can't have confidence in the therapeutic process" if psychiatric patients are subjected to surreptitious videotaping.

Lee Levine, an attorney representing CBS, countered that the privacy interests of the patients were not in peril because their identities had been kept so secret that even the lawyers for the network didn't know their names. He also argued that the broadcast raised significant questions about the quality of care at Charter's facilities, matters that were clearly of public interest.

CBS has been embroiled in a similar controversy before. In 1994, Federal Beef Processors, a slaughterhouse and meat packing company, sued the network in state court in Rapid City, South Dakota, demanding that the judge forbid the broadcast of an episode of "48 Hours." It contained footage of questionable sanitary conditions in its cutting room, videotaped by an employee wearing a hidden camera. Judge Jeff W. Davis issued the injunction, finding that CBS had obtained the videotape through "calculated misdeeds" that led a Federal Beef employee astray. The network therefore was not entitled to First Amendment protections, he wrote.

The next day, the state Supreme Court denied the network's application to stay the order. CBS filed an appeal to U.S. Supreme Court Justice Harry Blackmun, then-Circuit Justice for the 8th Federal Circuit, who issued an emergency stay within 24 hours.

Blackmun's opinion rejected the trial court's reasoning that CBS' "calculated misdeeds" had stripped the network of First Amendment protection. Federal Beef's remedy for any harm suffered as a result of wrongdoing, he wrote, was to file civil actions seeking damages, "rather than through suppression of protected speech."

With that precedent before him, it is not surprising that presiding Judge Graham Mullen refused to issue the restraining order demanded by Charter. But his ruling was not exactly a ringing endorsement of First Amendment principles.

The Associated Press reported that Mullen acknowledged he had no choice but to deny the relief Charter sought. "It appears to this court that the Supreme Court has elevated press powers to the point where prior restraint is all but impossible to obtain, even when the press sets out to commit a crime," he said.

CBS aired the story April 21, as scheduled. According to lawyers for the network, the hospital did not appeal the court's order, and Charter's claims against the network were dismissed May 3.

The ruling doesn't mean that CBS may not face more trouble. Patients, doctors and other employees who were depicted in the broadcast still could file suits claiming libel, invasion of privacy, infliction of emotional distress or any of the so-called "trash torts" focusing on the newsgathering process that have become so popular in the wake of the case Food Lion brought against ABC. That network's appeal of the verdict against it was pending before the 4th U.S. Circuit Court of Appeals when Charter's case was dismissed.

But these days, it is prudent to take your victories where you find them. At a time when allegations of invasion of privacy are routinely trotted out by governments and corporations as a pretext to eviscerate rights of access and free speech, it is reassuring when a trial judge upholds the First Amendment principle against prior restraints on speech. Even if he does so with reluctance.