May 2011.pmd

KING R BALLOW LAW OFFICES
EDITOR, DOUGLAS R. PIERCE
Vol. 25, Number 5
May 2011
2011 King R Ballow
Dr. Byron D. Neely decided he had heard enough media A U.S. District Court in Illinois has determined a televi- reports about him. He filed a defamation claim against a sion program’s broadcast of a person being arrested is pro- television station and its reporter for broadcasting a report tected by the First Amendment as a matter of public concern, on Neely’s personal and professional history. More specifi- and cannot give rise to a right of publicity or privacy claim.
cally, the reporter discussed the complaints filed with the A production company produced an unscripted “reality” Texas Medical Board, the seven medical malpractice suits, television program featuring female police officers for the the three year probated suspension of his license, the hand City of Naperville performing their duties and interacting tremors, and the substance abuse - all true events. The with the public. One such officer was being followed by a broadcast also informed the public that despite these many camera crew for the production company when she was blemishes on his record, Dr. Neely currently practices medi- called by another officer who had pulled over a driver for an expired license plate. Thirty minutes later, the female Two of the seven malpractice claims can only be de- officer arrived at the scene with the camera crew and di- scribed as heart-wrenching accounts. In September of 1999, rected the driver to exit her vehicle. The officer explained Paul Jetton, ex-Cincinnati Bengal linebacker, went to the to the driver she was being filmed for a documentary, then hospital for his annual physical and came out with what re- proceeded to perform a field sobriety test, which the driver sulted in approximately twelve brain surgeries. After view-ing an MRI, Neely told Jetton he had a “small mass in his midbrain,” requiring surgery to drain fluid from the area.
REPORTER'S PRIVILEGE
Jetton, conceding to Neely’s expertise in the area, agreed to the two hour surgery where, due to “surgical difficulties,” Neely extended the procedure an additional six hours. Af- ter discharge, he experienced many complications including infection, abscesses, meningitis, and fluid build-up in the spi-nal cord as consequences to Neely’s negligence during sur- Criminal judges have often wrestled with the Sixth gery. These issues required additional surgeries, and now Amendment’s confrontation requirement regarding the ad- Jetton is physically disabled and requires the use of a walker.
mission of hearsay statements. The Sixth Amendment's In November 1999, Wei Wu, a Texas state engineer, went Confrontation Clause presents a unique issue when a wit- to Neely for surgery to remove a brain tumor. Once biopsied, ness actually testifies at trial based on statements made Neely and an oncologist said the tumor was malignant and outside of court. In a recent case, the U.S. Court of Ap- Wu had a short time to live. Days later, Wu committed peals in New York held a district court committed “harm- suicide. An autopsy revealed “no residual metastic mela- less error” when it limited a lawyer’s cross-examination of noma." Neely had misdiagnosed Wu.
a Wall Street Journal (WSJ) reporter. The lawyer’s exami-nation was limited after the judge restricted the scope of The truth
the cross-examination, citing the journalist’s privilege.
During 1999, Neely admitted he experienced hand trem- The former president of a company that operates a job- ors, which were witnessed by co-workers and patients. He hunting website was convicted of securities fraud. During said he can control them by “holding [his] hands down on trial the government subpoenaed a WSJ reporter to testify the patient.” Also in this year, he was self-prescribing him- the president had made statements attributed to him in an self with medications including Hydrocodone, Darvocet, article co-written by the reporter. The article quoted the EMOTIONAL DISTRESS
Public speech outweighs an individual's private pain them until he watched the evening news. Mr. Snyder be- came physically ill upon seeing what had been said about his son. He stated he was unable to separate the thought of his dead son from Westboro’s picketing and had fallen into a severe depression. Snyder then filed suit against Westboro Baptist for intentional infliction of emotional distress.
A jury granted Synder an award against Westboro Bap- tist for $2.9 million in compensatory damages and $8 million in punitive damages. The district court later lowered the award to $2.1 million. The Court of Appeals overturned the verdict and the case was brought before the Supreme Court.
Top of the ladder speech
The Supreme Court ruled in an 8-1 decision, that Westboro On March 10, 2006, as Albert Synder laid to rest his son, Baptist’s speech was protected under the First Amendment, Marine Lance Corporal Matthew Snyder, who was killed despite the pain caused to Lance Corporal Snyder’s grieving in the line of duty in Iraq, Fred Phelps and six of his follow- family. Chief Justice John Roberts said in his opinion for the ers picketed his funeral. The picketing took on an adjacent court, the First Amendment protects “even hurtful speech corner of public land 1000 feet from the funeral. The pro- on public issues to ensure that we do not stifle public de- testors displayed numerous signs including, “Thank God for bate.” The content of Westboro’s signs relates to the broad Dead Solders” and “America is Doomed.” Several of the interest of society at large and is designed to reach a broad signs were specifically directed at the Synder family with audience. Moreover, the statements made were on matters slogans such as, “You’re Going to Hell” and “God Hates of public concern and were not provably false.
You.” The protestors sang hymns and recited Bible verses, Roberts stated that there was no doubt the protesters but were generally peaceful. None of the picketers entered added to Albert Snyder’s “already incalculable grief.” Yet, the church or went into the cemetery.
as the Court noted, “speech on public issues occupies the Albert Synder, father of Lance Corporal Snyder, later highest rung of the hierarchy of First Amendment values, stated that he could see the tops of the picket signs as he and is entitled to special protection.” The Court found that drove to the funeral, but could not see what was written on Westboro had conducted its picketing peacefully on matters her rights of privacy and publicity, among other claims.
After informing the driver she was driving on a suspended The court considered whether the citizen’s arrest was a driver’s license, the officer arrested her and placed her in matter of public concern so that the broadcast was protected the back of the squad car. The officer then searched the by the First Amendment. Despite the fact the broadcast did car, where she found a pipe and a small amount of mari- not involve court proceedings or pending charges, the court determined information about arrests rises to the level ofpublic concern. As such the court found the depiction of the A matter of legitimate concern
arrest and the surrounding circumstances, including the screen After the search, the driver was transported to the po- shot of the officer’s computer displaying the driver's private lice station and informed the footage of the arrest and search information, were matters of public concern protected under would not appear on television if she did not sign a written consent form. The driver refused to sign the form, but the The court was not swayed by the entertaining nature of production company used the footage in an episode of the the program or the fact her arrest was for the minor crime program anyway. The program was broadcast over thirty of driving under a suspended license. Although the program times and featured footage of the field sobriety test, the was not a news show, it still depicted an arrest on criminal arrest, and the moment the driver was placed in handcuffs, charges, which is a legitimate matter of public concern, even throughout which her face was visible and voice audible.
if on the lower end of the spectrum of criminality. Accord- At one point during the segment, the officer’s dashboard ingly, the court dismissed the claims regarding rights to pri- computer displaying private information about the driver was also featured. The driver then sued the officer, the Comment reported on this case in October 2010 when the same court previously refused to grant an City of Naperville, the production company, and the net- earlier motion to dismiss the case.„ work on which the program was broadcast for violations of ACCESS TO RECORDS
Supreme Court gets personal with privacyby Brent [email protected] The U.S. Supreme Court ruled that the Freedom of In- would “embarrass” it within the meaning of the FOIA ex- formation Act’s (FOIA) exemption for law enforcement emption was at odds with established FCC and judicial pre- records that “could reasonably be expected to constitute an cedent. The Supreme Court affirmed the FCC.
unwarranted invasion of personal privacy” does not applyto corporations.
Don’t take it personal
request, unless they fall within precisely the opposite of the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The The company argued that, under FOIA, a “person” is Court considered whether corporations have personal pri- defined to include a “corporation.” Thus, the company con- vacy for the purposes of this exemption.
cluded, “by expressly defining the noun ‘person’ to include A large telecommunications company participated in an corporations, Congress necessarily defined the adjective FCC sponsored program in which the company provided form of that noun—‘personal’—also to include corpora- advanced telecommunications services to educational insti- tutions at low cost to the institutions with the government The Court rejected this argument noting that “we do not picking up the remainder of the bill. The company discov- usually speak of personal characteristics, personal effects, ered that it might have been overcharging the government personal correspondence, personal influence, or personal on its portion of the bill, and voluntarily reported this poten- tragedy as referring to corporations.” The word personal, tial violation of federal communications law to the FCC.
the Court noted, is used when we mean something pre- The FCC’s enforcement bureau investigated the poten- cisely the opposite of “business-related.” tial violation. As part of its investigation, the company pro- The Court next examined the surrounding context of the vided to the Bureau various documents. The FCC and the word “personal” in the statute. The provision of FOIA at company resolved the matter in an agreement whereby the issue pertained not only to the word “personal” but also to company—without conceding liability— agreed to pay the “personal privacy.” The usage of the phrase “personal pri- FCC $500,000 and to institute a plan to ensure compliance vacy,” the court explains, means more than just “the pri- vacy of a person.” The Court says that it suggests a type Several months after the agreement, a trade association of privacy evocative of human concerns—not the sort usu- representing several of the Company’s competitors submit- ally associated with a corporate entity.
ted a FOIA request to the FCC seeking all correspondence Finally, the Court noted that the statutory language at and legal documents from the FCC regarding the FCC’s issue was adopted at the same time as another similar pro- vision of FOIA that protected from disclosure “personneland medical files and similar files the disclosure of which FCC ruling favors disclosure
would constitute a clearly unwarranted invasion of personal The FCC concluded that some of the information re- privacy.” This provision uses an identical phrase to protect quested should be protected from disclosure under FOIA’s from disclosure information that is clearly inapplicable to exemption from disclosure for “records compiled for law corporations—medical files. Congress’s use of the same enforcement purposes” that “could reasonably be expected phrase in a similar exemption aimed at preventing “unwar- to constitute an unwarranted invasion of personal privacy.” ranted invasions of personal privacy” indicates that Con- The FCC concluded that the individuals identified in the gress intended the phrase “personal privacy” to operate in company’s submissions have privacy rights that warrant pro- First Amendment Law Comment is published monthly by the law firm of King& Ballow, Nashville, Tennessee, and San Diego, California. The materials The FCC, however, concluded the company itself had no contained herein have been abridged from laws, court decisions and personal privacy rights that needed protection, reasoning that administrative rulings and should not be construed as legal advice on specific "businesses do not possess personal privacy interests as re- subjects.
Additions and/or deletions to King & Ballow’s e-mailing list should be e-mailed quired by the exemption." The FCC found that the company’s to [email protected]. Professional educational courses for CLE credit are position that it is a “private corporate citizen” with personal also available online at www.kingballowlearning.com.
privacy rights that should be protected from disclosure that of public concern at a public place adjacent to a public street.
bal assault that occurred in this case,” he said.
Despite upholding the decision in favor of Westboro As Chief Justice Roberts wrote in the Court’s opinion, Baptist, the Court pointed out that Westboro’s choice of “Speech is powerful. It can stir people to action, move them when and where to picket is not beyond the Government’s to tears of both joy and sorrow, and inflict great pain. We regulatory reach. Such picketing can be subject to reason- cannot react to that pain by punishing the speaker. As a able time, place, or manner restrictions. In fact, Maryland Nation we have chosen a different course – to protect even has subsequently passed a law imposing restrictions on fu- hurtful speech on public issues to ensure that we do not stifle public debate.” In the case at hand, no matter how hurtful Justice Samuel Alito, the lone dissenter, said Snyder the speech was to Corporal Snyder’s family, it was still pro- wanted only to “bury his son in peace.” Instead, Alito felt tected public speech. As such, public speech outweighs the the protesters “brutally attacked” Matthew Snyder to at- tract public attention. “Our profound national commitmentto free and open debate is not a license for the vicious ver- Caroline Tippens is a student at Nashville School of Law president, and discussed the sale and date of stock options tioning the reporter’s credibility. After his conviction, the president appealed. The president argued the district courtdenied him his Sixth Amendment Confrontation Clause rights When the privilege is gone, it's totally gone
by limiting his cross-examination of the reporter.
After being subpoenaed to testify against the president, The court ruled once a trial court has determined the Gov- the reporter moved to quash the subpoena. The district ernment has made the required showing to overcome the court denied the reporter’s request, but greatly limited both journalist's privilege and compel a reporter’s direct testimony, the direct and cross-examination of the reporter.
the trial court may not, consistent with the Confrontation The district court’s reasoning in limiting the questioning Clause, thereafter employ the privilege to restrict the of the reporter was based on a qualified journalist’s privi- defendant’s cross-examination of the reporter to a greater lege, which protected the reporter from the compelled dis- degree than it would restrict such cross-examination in a closure of certain subjects. The district court prevented the president’s counsel from asking the reporter about a follow The appeals court held the limitations on the president’s up e-mail the reporter sent to a public relations executive at cross examination were improper. The appellate court found, however, the district court had committed harmless error in Allowing the defense to question the reporter regarding limiting the reporter’s testimony. In the end, the court of this e-mail arguably supported the defense’s version of the appeals concluded there was abundant other evidence pre- conversation between the president and reporter. More- sented by the government demonstrating the president’s guilt.
over, the president’s lawyers were constrained from ques- Propoxyphene, and Phenergan to name only a few.
When the Texas Medical Board was alerted, they sus- pended his license, and decided a three year probation was “Dyed in the Wool”- Those who work with wool know that if you adequate, because they also warned him not to prescribe attempt to dye an item after it is already spun into cloth, the odds of “prescription drugs or controlled substances” to himself any- having an even, colorfast result are slim to none. The proper way to more. Neely went back to work. All of this information dye wool is to color the raw material before it is ever woven. By thesame token, one said to be “dyed in the wool” is a person who is thoroughly indoctrinated with a belief, who believes in his cause To assert defamation, one must show that the defendant through, who leaves no gaps, no holes, no openings for any change 1) published a statement of and concerning him; 2) that was defamatory; and 3) with the requisite degree of faultto whether the statement was false. The Texas Court ofAppeals dismissed Neely's defamation claim because the Reprinted with permission of Scribner, an imprint of Adult Publishing Group from I DIDN’T KNOW THAT by Karlen Evins. Visit www.karlenevins.com.

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