Media Law Advisory

February 2005


Judge Dismisses Dentist’s Defamation Lawsuit Against TV Station, Sources

Scripps Howard Broadcasting Company’s WCPO-TV in Cincinnati and its sources won summary judgment dismissal of a defamation lawsuit filed by a dentist who claimed the station’s investigative broadcasts about customer complaints damaged his business.

On February 7, Hamilton County, Ohio, Common Pleas Judge Dennis S. Helmick dismissed the lawsuit, finding that the allegedly defamatory statements were true or constitutionally protected opinions.  Even if the statements were actionable, dentist J. Michael Fuchs failed to show that WCPO and its I-Team acted either negligently or with actual malice, Helmick ruled.

Fuchs and his dental practice, Family Dental Care Associates (FDCA), did not name WCPO as a plaintiff when the lawsuit was filed on August 8, 2003.  Instead, Fuchs and FDCA, Cincinnati’s largest dental provider, initially sued former patients and employees for statements made in five broadcasts about billing procedures and customer service.

In an unusual move, WCPO asked the court to allow it to become a defendant in order to support its sources and defend its broadcasts. The judge allowed WCPO, General Manager Bill Fee, News Director Bob Morford and I-Team reporter Hagit Limor to be added as defendants.

The first broadcast on February 24, 2003, reported the complaints of former patients regarding billing errors and their problems getting in touch with FDCA to address their concerns.  The station received an enormous response from viewers after the first broadcast, including dozens of phone calls and emails from former patients and employees supporting the claims in the first broadcast.  As a result, the station broadcast the report again the next evening.

In response, on March 23, 2003, Fuchs took out a full-page advertisement in The Cincinnati Enquirer denying the allegations and attacking WCPO and Ms. Limor.  In response to the ad, on March 24, 2003, WCPO re-ran the initial broadcast and made several statements defending its investigation.

After more than 200 former and current patients and employees contacted the station, WCPO aired its fourth broadcast on March 26, 2003.  This broadcast included interviews with a wide variety of former patients and employees who raised concerns about billing, customer service, cleanliness and unnecessary care.  The fifth broadcast, which aired on June 1, 2003, dealt with cleanliness issues, including sterilization of dental instruments, and the relationship between Fuchs and the Ohio State Dental Board.  The final broadcast in August 2003 was aired after Fuchs filed his lawsuit and included short segments from the previous broadcasts.

Regarding the first three broadcasts, Fuchs challenged several statements made by former patients, whom he also sued:

“They [FDCA] billed my insurance for the same thing they billed me for.  In my heart I honestly think that it’s a way to get double paid.”

“This is not what happens accidentally.  You don’t have 125 accidents and that is just what the Better Business Bureau is aware of.  It just doesn’t seem right.  And you know what’s so funny is you think if there’s that many people that complained, how many didn’t.”

“They continued to bill me for monies that I did not owe them.”

“They don’t care about the customer or the patient.  They care about their money.”

Judge Helmick ruled, “Because all of the statements in the broadcasts are either true or constitutionally protected opinions . . . WCPO cannot be held liable for publishing those statements.”

Even if the statements were actionable, Fuchs failed to establish the requisite degree of fault on the part of WCPO.  The court held that Fuchs and FDCA were private figures before the first broadcast aired, and as a result had to prove only that WCPO acted negligently in reporting any allegedly defamatory statements in the February broadcasts. 

However, Fuchs and FDCA became limited purpose public figures after Fuchs published the full-page advertisement in the Enquirer, the judge ruled.   Regarding the March, June and August broadcasts, Fuchs and FDCA had to prove that WCPO acted with actual malice, meaning WCPO knew the statements were false or acted with reckless disregard for the truth.

The court found that Ms. Limor acted reasonably during the three months of investigation before the first broadcast.  She attempted to interview Fuchs several times, but – like the complaining former patients – she was met with unanswered phones and full voice-mail boxes.  Her reporting included an interview with a spokesman for the Ohio Attorney General’s office, who said that the number of complaints regarding FDCA was unusual.  She interviewed the president of the Cincinnati Better Business Bureau, which tallied more than 100 unresolved complaints about FDCA and reported an unsatisfactory rating for the dental practice.

Limor interviewed some of the people involved in more than 180 lawsuits filed in Hamilton County dealing with FDCA, and those people also complained about service and billing problems.  She also interviewed two non-FDCA dentists about their billing practices.

Fuchs finally returned Limor’s calls, denied the patients’ allegations, and told Limor that he would not release his patient’s files to her unless she obtained releases from them.  When she did so, Fuchs continued to refuse to release patient files.  Limor and a cameraman visited Fuchs’ home in an unsuccessful attempt to gain an interview.  When she set up a meeting between Fuchs, his attorney and WCPO, Fuchs did not attend, and his attorney refused to comment on the actual story.

Fuchs claimed “investigatory failure” on Limor’s part.  He argued that she should have contacted insurance companies to educate herself about dental billing procedures.  He also argued that Limor should have contacted the author of one email sent to WCPO in support of Fuchs. (The author later retracted support of Fuchs and praised WCPO for uncovering the truth about FDCA.)

The court found Fuchs’ claims of “investigatory failure” were “ruses by Plaintiff, mere distractions” and “disingenuous attempts to muddle the issues.”

“No evidence has been presented by Plaintiff that Limor failed to act reasonably in attempting to discover the truth or falsity of the broadcast statements,” the court ruled.

Fuchs did not show that Limor and WCPO acted with actual malice with regard to the March, June and August broadcasts, the judge found.

Fuchs challenged a statement from a former employee that “the health of the patients was always in question, broken equipment, failed Spore test.”   The court found that Fuchs presented evidence that supported these allegations.

Likewise, the court found evidence supporting allegations about the cleanliness of FDCA offices, including Fuchs’ admission that he closed all of the offices to clean and replace $12,000 worth of instrumentation in May 2000 in response to complaints from patients and a state inspector’s comments.

The judge also found that the station did not act with actual malice in reporting statements that there was not enough time to sterilize equipment and statements that Fuchs knew in advance about state inspections.  Fuchs presented no evidence that WCPO acted with actual malice in reporting statements about unnecessary care at FDCA offices, the judge ruled.

Finally, the judge rejected Fuchs’ “defamation by innuendo” claim.  To sustain such a claim, Fuchs had to show either a material omission which, if published, would have rendered the broadcasts non-defamatory or that Limor and WCPO intended to endorse a defamatory inference.  Fuchs and FDCA produced no such evidence, the court ruled.

Ohio Supreme Court Holds Confidential Information Drawn From Reports Made To Children Services Agencies Exempt From Disclosure

The Ohio Supreme Court recently evaluated whether the Ohio Public Records Act requires release of police reports that contain excerpts and information from investigative child-abuse reports. State ex rel. Beacon Journal Publishing Co. v. City of Akron, 104 Ohio St.3d 399 (Ohio 2004).  The Ohio Public Records Act favors broad access to records kept by public offices.  The Act, however, provides an exception for “records the release of which is prohibited by state or federal law.”  Under Ohio law, reports made by a public children services agency in response to a report of child-abuse are confidential.  The court held that the exception provided in the child-abuse reporting laws precludes disclosure of portions of police reports drawn from reports made to children services agencies.  Accordingly, a police department may redact or delete such information before releasing its reports to the public.

On February 29, 2001, two Akron police officers received a call from one of the officer’s cousins complaining about her son’s unruly behavior and requesting that the officers scare him into acting properly.  The officers responded to the request by pushing the boy around and threatening him with a gun.  Subsequently, the Summit County Children Services Board (“SCCSB”) opened a case and created a report based on its investigation of the incident.  The SCCSB forwarded the report to the Akron Police Department, which conducted a criminal investigation of the officers.

On February 14, 2002, a 14-year old girl was raped by two boys in a garage in Akron.  The parents took their daughter to the hospital and a hospital employee reported the rape to the SCCSB.  The SCCSB did not open a case concerning the rape because the police were involved and the parental care of the child was not an issue of concern.  The girl’s mother contacted the Akron Beacon Journal to complain about the lack of coverage regarding the rape and expressed a desire to warn the community about the perpetrators.

In January of 2002, after learning that the two police officers involved in the 2001 incident had been suspended, Stephanie Warsmith, a reporter for the Beacon Journal requested an unredacted copy of the record relating to the police department’s internal-affairs investigation of the officers.  Likewise, in March of 2002, Warsmith requested that the police department provide her a copy of the incident report on the rape.  The city of Akron denied both requests, claiming that the city did not want to risk committing a misdemeanor by improperly releasing the contents of a child-abuse report.

The Beacon Journal subsequently filed a petition for a writ of mandamous in the Court of Appeals for Summit County to compel the city to provide access to the complete reports.  The court of appeals granted summary judgment in favor of the Beacon Journal and Warsmith, reasoning that the child-abuse reporting laws did not exempt the reports from disclosure.  The city of Akron appealed the decision to the Ohio Supreme Court.

The Ohio Supreme Court began its analysis by evaluating the exception to the Ohio Public Records Act created by Ohio’s child-abuse reporting provision to determine whether the reports at issue actually involved child-abuse.  The reporting provision does not restrict the reporting of child-abuse or neglect to a family setting, but rather refers broadly to a child who has suffered any physical or mental injury that reasonably indicates abuse or neglect.  As such, the reports did in fact involve child-abuse.

The court then focused on whether the reports were confidential child-abuse investigatory records, as defined by the statute.  The statute does not expressly exempt public disclosure of reports prepared by law enforcement, thus police investigative reports are not generally confidential.  However, the statute also makes the contents of the reports specified in the statute confidential.  Thus, to the extent that a police report references the contents of a report created by a public children’s services agency, the police department is entitled to redact or delete those references before releasing its reports.  For these reasons, the Akron Police Department was justified in denying the Beacon Journal and Warsmith access to the redacted portions of its reports.

The court declined to address the issue of whether the requested records were properly withheld under the constitutional right of privacy because the pertinent personal and identifying information concerning the victims was excepted from disclosure based on the child-abuse reporting laws.  It was therefore not necessary for the court to decide the constitutional right of privacy issue.

Kentucky Federal Court Refuses to Allow Press Access to Juvenile Court, But Appeals Court Allows TV Station to Broadcast Juvenile Court Documents Obtained Through Other Means

The Federal District Court for the Western District of Kentucky dismissed a lawsuit by the Kentucky Press Association on February 1, 2005 seeking to open the state’s juvenile court system to the public.  U.S. District Judge Joseph M. Hood, in dismissing the case, relied on both the state’s asserted interest in protecting the juveniles and the fact that juvenile court proceedings have historically never been open to the press or the public in Kentucky.  All juvenile court proceedings, including criminal cases and abuse and neglect proceedings, are closed to the general public.  Only the juvenile, family members, witnesses and victims, and state workers are allowed to be present, and all records pertaining to juvenile court proceedings are sealed.

Notwithstanding that ruling, the Kentucky Court of Appeals allowed a Louisville television station, WLKY-32, to broadcast excerpts of juvenile court records the television station obtained from parents whose children had been taken by the state.  A Louisville circuit judge issued a restraining order to keep WLKY-32 from broadcasting the records, but the Kentucky Court of Appeals vacated that order as an improper prior restraint.  WLKY-32 broadcast excerpts of the records that evening on its local newscasts.

The court of appeals affirmed the right of WLKY to broadcast the normally confidential records, but did not address whether the parents of the children involved had a right to turn the confidential records over to whomever they choose.

Mississippi Supreme Court Grants Television Coverage of Sentencing Hearing

After David H. Richardson entered a guilty plea on a conspiracy charge in Mississippi state court, WLBT-TV notified the court of its intent to cover the sentencing hearing with television cameras.  WLBT made this request in accordance with  the Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings (MREPC).  The trial court denied this request reasoning that such coverage “may” jeopardize the right to a fair trial of another defendant in a companion case who was charged with the same conspiracy.   WLBT appealed this decision and the Mississippi Supreme Court reversed the lower court, allowing television coverage of Richardson’s sentencing hearing.  See In re WLBT, Inc., 2005 Miss. Lexis 39 (Miss. Jan. 20, 2005).

The Mississippi Supreme Court recognized that when determining whether to allow media coverage of judicial proceedings, the court necessarily balances two fundamental interests: the right to a fair trial and the right of a free press. The court also noted that when it adopted the MREPC in 2003 that it established a policy favoring electronic media coverage.  Thus, the court held that the proper standard for restricting media access is whether there is a “substantial probability” that the defendant would be deprived of a fair trial.  Because the trial judge’s reasoning was that television coverage “may” impact the right to a fair trial of a defendant in a companion case, the “substantial probability” standard was not met.

Additionally, the Mississippi Supreme Court noted that MREPC 3 only addresses the right to a fair trial for a party “in the pending case.”  Thus, on its face, the MREPC would not protect another defendant in a companion case, as the trial judge sought to do here.  Nonetheless, the supreme court noted that the presiding judge still might limit media access in one case to protect the rights of another defendant in a companion case, but that the trial judge did not provide any circumstances warranting such restriction here.  For example, the trial judge did not indicate that the companion trial was imminent.  Additionally, the defendant in the companion case did not seek to intervene or raise any objections to cameras at Richardson’s sentencing hearing.  In short, the trial judge “failed to articulate sufficient reasons to deny television coverage by WLBT-TV.” 

Although two dissents were written, In re WLBT, shows that Mississippi has adopted a favorable policy toward allowing media access to judicial proceedings.  While noting that the presiding judge retains authority over the use of technology in the courtroom, the court made clear that the discretion to restrict media access is limited by the MREPC.  Therefore, when seeking media access to Mississippi judicial proceedings, consult the MREPC for helpful information in crafting requests for access, including filing deadlines.

Bills to Establish a Federal Reporter’s Privilege Are Introduced in Congress

Three bills introduced in the House and Senate would establish a federal shield law to protect journalists from compelled disclosure of confidential sources.
Each of the bills grants an absolute privilege to journalists against revealing the identities of confidential sources.  Journalists could not be forced to identify their sources in any proceeding in federal court even if the information was highly relevant and could not be obtained any other way.

The bills come at a time when reporters in several jurisdictions are facing contempt charges for refusing to reveal confidential sources.  In one of the most closely watched cases, a panel of the D.C. Circuit Court of Appeals ruled on February 15 that New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper do not have a First Amendment right to refuse to reveal their confidential sources to a federal grand jury.  Federal prosecutors subpoenaed their testimony to force disclosure of the person who leaked the identity of undercover CIA agent Valerie Plame to the media.

At least nine journalists face sanctions for refusing to obey court orders to reveal their sources, according to the Reporters Committee for Freedom of the Press.
A summary of the bills:

S. 369

Introduced by Chris Dodd (D-Conn.) and titled the “Free Speech Protection Act of 2004,” the bill would protect against compelled disclosure of confidential and non-confidential sources.  The bill also would protect other information that is gathered but not reported in the news media, including notes and outtakes.

The bill would allow one exception.  If the entity seeking the information established by clear and convincing evidence that the news or information was critical and necessary to the resolution of a significant legal issue, could not be obtained any other way, and that there was an overriding public interest in disclosure, then a journalist could be compelled to disclose the news or information.  However, a federal court could not force the reporter to disclose the source of the news or information.

The bill defines a journalist broadly as someone engaged in gathering news or information with the intent, at the beginning of the newsgathering process, to disseminate the news or information to the public.  Its definition of “news media” as including “any printed, photographic, mechanical, or electronic means of disseminating news or information to the public” would apply to Internet-based news sites.

S. 340 and H.R. 581

The identical bills, titled the “Free Flow of Information Act of 2005,” would provide an absolute privilege against compelled disclosure of confidential sources or any information that could lead to disclosure of a confidential source.

For other information, a federal entity could compel a journalist to testify or produce a document if the entity established by clear and convincing evidence that the information could not be obtained any other way.  In addition, in a criminal investigation, the testimony or document could be obtained if there were reasonable grounds to believe a crime had occurred and that the journalist’s testimony or document was essential to the investigation.  In a non-criminal investigation, the testimony or document would have to be essential to a dispositive issue of substantial importance. 

The bill also would apply to journalists’ information sought from third parties, such as phone companies and Internet service providers.  Journalists would have to be notified that their phone records or e-mails had been subpoenaed, and they would have to be given an opportunity to be heard in court before the subpoenaed records were turned over.

The bills would protect employees, contractors or other persons who gather, edit, photograph, record, prepare or disseminate news or information for newspapers, books, magazines, periodicals, radio or television stations, cable systems, satellite carriers, or a channel or programming service for a TV or radio station, and news agencies or wire services.  The bill would not protect Web-only news sites.

Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) are sponsoring H.R. 581, and Sen. Richard Lugar (R-Ind.) sponsors S. 340.

Kentucky Legislation Prohibiting Use of Noncompete Clauses In Broadcaster Employment Contracts

Kentucky legislators have refiled proposed legislation prohibiting Kentucky broadcasters from including noncompete clauses in employment contracts.  Both the Kentucky House and Senate have filed bills containing these prohibitions.  Kentucky broadcasters and member stations successfully stopped similar legislation in prior legislative sessions.  However, in the 2005 session, the House License and Occupation Committee approved the bill on February 9, 2005 and submitted it to the House floor for vote where the bill passed on February 16, 2005 with a vote of 69 in favor and 23 opposed.  The Senate version of similar legislation has been scheduled for committee hearings.  The Senate version was amended to also prohibit noncompete agreements with physicians.

The specific legislation would create a new section in the Kentucky statutes prohibiting contractual, noncompete clauses and other contractual provisions that require a former employee to report any new employment offers after separation from employment in the broadcasting industry.  The legislation also imposes damages, attorneys’ fees and court costs against any broadcast industry employer that required or attempted to enforce such provision.  The broadcast industry employer would include television stations and networks, radio stations and networks, cable stations and networks, and any associated broadcast entity.