News Media and the Law New York Law Journal March 23, 1978
News Media and the Law
New York Law Journal
March 23, 1978
Mr. Goodale, a member of the New York Bar who writes this column as a regular feature of the Law Journal, is an executive vice president of The New York Times Company.
Le Mistral v. CBS
Two weeks ago, the Columbia Broadcasting System was held liable to Le Mistral Restaurant in midtown Manhattan for trespass when it attempted to report the restaurant had violated the Health Code. The case, decided by the Appellate Division, First Department, affirmed a lower court’s ruling that the press had no First Amendment right to gather the news in a place such as a restaurant without the consent of the owner.[1] Expressed in these sweeping terms the rationale of the case seems questionable, although it seems equally clear the press does not have an absolute right to gather the news any way it sees fit.
Background of Case
What happened in Le Mistral is this. Channel 2, WCBS-TV, a CBS station, made a practice of reporting violations issued by the New York City Health Services Administration (HSA) to restaurants and food processing outlets. On July 6, 1972 the HSA issued a release listing twenty-nine restaurants, including plaintiff's, which had been found on inspection, to have code violations.
Lucille Rich, a CBS reporter, visited three of the restaurants whose names appeared on the HSA list. She was accompanied by a news crew, including a television cameraman with his camera. At the trial there was a conflict in the testimony as to the specific events that occurred at Le Mistral when Ms. Rich and her crew arrived. Nevertheless, it appears undisputed that they entered the restaurant with “cameras rolling.” They were met by plaintiff's president and manager of the restaurant who refused to be interviewed and requested that they leave the restaurant.
Although the parties gave conflicting reports as to the behavior of the CBS crew and the reactions of Le Mistral's patrons, the trial court held that “From the evidence, the jury was entitled to conclude that . . . the defendant's employees burst into plaintiff's restaurant in noisy and obtrusive fashion and following the loud commands of the reporter . . . turned their lights and camera upon the dining room. Consternation, the jury was informed, followed. . . . All told, the CBS personnel were in the restaurant not more than ten minutes, perhaps as little as one minute. . . .”[2]
That evening CBS broadcast a report on the HSA release which included the footage from the abortive visit to Le Mistral.
Suit Filed
The owners of Le Mistral sued CBS in the Supreme Court, New York County, for defamation and trespass. CBS brought a motion for summary judgment on both issues. The trial court granted the motion on the defamation cause of action stating: “ . . there can be no doubt that the Health Services Administration findings were a matter of legitimate public concern warranting public exposition and that, as a matter of law, the publisher acted in anything but an irresponsible manner, truthfully reporting the department action.”[3]
On the trespass cause of action, however, the trial court refused to grant CBS’s motion for summary judgment stating: “The right to publish does not include the right to break and enter or the right to invade or other right to enter upon and trespass upon the property of these plaintiffs. While the restaurant is a business establishment which by imputation extends an invitation to prospective diners to enter the premises and purchase a meal, that invitation is not extended to others whose business purpose is not the business purpose of the restaurant.[4]
The case then went to the jury and the jury came in with $1,200 compensatory damages for Le Mistral and $250,000 punitive damages. The amount of the verdict staggered the media world and the case received large press coverage.
New Trial on Damages
The trial court, however, set aside both damage awards and ordered a new trial on the issue of compensatory damages “in the interest of justice,” and punitive damages because CBS had not been allowed to testify as to its good faith motives in gathering the news for the story.[5]
The Appellate Division reinstated the $1,200 verdict and affirmed the trial court’s decision in setting aside the award for punitive damages and ordering a new trial. Like the lower court, the Appellate Division believed the First Amendment arguments were irrelevant for purposes of this case: “Clearly, the First Amendment is not a shibboleth before which all other rights must succumb.”[6]
It seems that both courts proceeded from a major premise that permission is required to enter a public place such as a restaurant for purposes other than using the services of the restaurant. In other words, it is all right to go into a restaurant to eat a meal without permission, but for any other reason you need permission. Thus, when the jury was asked by the court why it was awarded punitive damages to CBS, it answered: because “CBS entered Le Mistral without permission and with cameras rolling with a purpose other than using the services of the establishment.[7]
Reasoning Questioned
One can question, however, whether this reasoning was correct. Surely a reviewer of a restaurant for a daily paper need not request permission to enter a restaurant for purposes of reviewing the food and decor. Nor need the reviewer be identified to the restaurant. It is customary practice for such reviewers not to identify themselves in order to be in a position to write a more objective appraisal of the restaurant services. By the same token a restaurant reviewer does not have a special privilege to put his fork in his neighbor's eye, or, for that matter, in his food.
In other words, there has long been understood to be a First Amendment privilege to gather the news that permits the press to enter public places to report news for example, to appraise the quality of the food or the alleged unsanitary conditions of a restaurant such as Le Mistral. The press has historically gained access to restaurants, theaters and the like “for purposes other than using the services of the establishment,” or exactly contrary to the basis upon which jury imposed liability upon CBS. Other courts have indicated, however, that the press may abrogate its First Amendment newsgathering rights by the manner in which it exercises those rights.[8]
Right Abused?
Thus, it is possible both the Appellate Division and the trial court proceeded on the wrong assumption and that the case could, after review by the Court of Appeals, be retried on a theory that more properly reflects First Amendment interests. The question in such a case would be whether CBS, in carrying out its First Amendment function in gathering the news, abused this right by the conduct of its reporter or the camera crew. There is a conflict of testimony on this point. Some witnesses thought CBS was in the restaurant only for a minute; one for much longer. The trial judge suggested that the behavior of the CBS crew was “obtrusive;”[9] but neither court considered the behavior of the CBS crew while in the restaurant determinative of the issues in the case. Thus, the jury was asked “Do you find that plaintiff is entitled to an award of punitive damages because of the acts of Mrs. (sic) Rich and/or the camera crew on the premises of Le Mistral restaurant?” and the jury answered “No.”[10]
It would seem highly doubtful whether punitive damages may constitutionally be imposed against the news media in circumstances such as in the Le Mistral case. Punitive damages are highly disfavored in First Amendment cases because of the wide discretion given juries to award large damages to suppress expression or legitimate news gathering efforts.
It was, after all, the huge verdict in punitive damages against the New York Times in the Sullivan case which appears to have led the Supreme Court to take the case in the first place.[11] In Sullivan, the Court held there could be no damages at all in a suit by a public official unless there was a finding of actual malice by the defendant. And in Gertz v. Robert Welch, Inc., the Supreme Court decision dealing with the libel of private individuals, the Court fashioned a far more difficult constitutional test for the plaintiff to meet for punitive damages than for compensatory damages.[12] Indeed, it remains an open question as to whether punitive damages may ever be constitutionally awarded in libel cases.[13]
In Le Mistral, the Appellate Division affirmed the lower court's holding that the case should be submitted to the jury again to determine whether the defendant was “acting with evil or wrongful motive or with a willful and intentional misdoing, or with a reckless indifference equivalent thereto.” The lower court had improperly excluded evidence on this point preferred by CBS.
Murphy’s Dissent
It seems difficult, however, to imagine a set of circumstances where the news media would deliberately enter a public place for the explicit purpose of harassing individuals located there[14] and with reckless disregard of those persons’ rights. For this reason, Judge Murphy dissented in part in the Appellate Division's opinion noting that: “It is clear from the record that, in dispatching reporters to plaintiff’s restaurant, defendant was not motivated by actual malice or such an intentional disregard of plaintiff’s rights as would justify the imposition of punitive damages . . . the defendant was merely pursuing a newsworthy item in the overly aggressive but good faith manner that characterizes the operation of the news media today.[15]
In recent years there seem to have been many more cases dealing with the news media’s right to gather the news than in previous years. The Florida Supreme Court, for example, recently held that the press could not be held liable for trespass when reporters followed police officers into a private home which had burned and photographed a silhouette of a fire victim.[16] The Florida court reasoned that the custom and usage connected with news gathering gave the press the right to enter private property in these circumstances. A few years ago, the New Jersey courts held the press has a right to enter private property to report on the condition of migrant camps.[17]
All of these cases have a common theme: The press has a First Amendment right to gather the news even though it enters property that in some respects may be deemed to be private. Le Mistral would merely seem to be another one of the cases where the only issue is whether the press abused this right in any fashion and then only to the extent of determining compensatory damages since the good faith motive in gathering news would seem to defeat any claim for punitive damages.
--New York Law Journal
March 23, 1978
Page 1, Column 1
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[1] Le Mistral, Inc., et al. v. Columbia Broadcasting System, et al., NYLJ, March 3, 1978, p. 3, col. 1 (1st Dep’t March 2, 1978).
[2] Le Mistral Inc., et al. v. Columbia Broadcasting System, et al., NYLJ, December 30, 1976, p. 11, col. 5 (Sup. Ct. N.Y. Co. Dec, 23, 1976).
[3] Le Mistral, Inc. v. Columbia Broadcasting System, NYLJ, April 8, 1976, p. 7, col. 3 (Sup. Ct. N.Y. Co. March 30, 1976).
[4] Id.
[5] Le Mistral Inc., et al. v. Columbia Broadcasting System, et al., Dec. 30, 1976, p. 11 col. 5 (Sup. Ct. N.Y. Co. Dec. 23, 1976).
[6]Le Mistral, Inc., et al. v. Columbia Broadcasting System, et al., NYLJ March 3, 1978, p. 3, col. 1 (1st Dep’t March 2, 1978).
[7] Le Mistral, Inc., et al. v. Columbia Broadcasting System, et al. (Sup. Ct. N.Y. Co. Index No. 3130-73) Trail Record at 248.
[8] Galella v. Onassis, 487 F. 2d 986 (2d Cir. 1973) (constant surveillance of plaintiff and obtrusive conduct by defendant held beyond the reasonable bounds of news gathering); Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971) (surreptitiously recording and photographing doctor in his home/office held invasion of privacy).
[9]Le Mistral, Inc. v. Columbia Broadcasting System, et al., Dec 30, 1976, p. 11, col. 5 (Sup. Ct. N.Y. Co. Dec. 23, 1976).
[10] Le Mistral, Inc., et al. v. Columbia Broadcasting System, et al. (Sup. Ct. N.Y. Co. Index No. 3130-73), Trial Record at 247-48.
[11] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
[12] Gertz v. Robert Welch, Inc., 418 U.S. 322, 350 (1974).
[13] Compare Stone v. Essex County Newspapers, Inc., 330 NE 2d 161, 169 (S.J. Ct. Mass. 1975) (No punitive damages held permissible in Massachusetts in any libel case) with Maheu v. Hughes Tool Co., 3 Med. L. Rptr. 1847, 1862 (9th Cir., Jan. 12, 1978) (punitive damages held permitted in case commenced by public figure).
[14]But cf. Galella v. Onassis, 487 F. 2d 986 (2d Cir. 1973).
[15] Le Mistral, Inc., et al. v. Columbia Broadcasting System, et al., NYLJ, March 3, 1978, p. 3, col. 2-3 (1st Dep’t March 2, 1978).
[16]Florida Publishing Co. v. Fletcher, 340 So. 2d 914 (Fla. 1976), cert. denied, 431 U.S. 930 (1977).
[17]Freedman v. New Jersey State Police, 135 N.J. Super 297, 343 A. 2d 148 ( Law Div. 1975).