Coughlin, James and Coughlin, Patricia, His Wife v. Westinghouse Broadcasting and Cable Inc.Coughlin, James and Coughlin, Patricia, His Wife v. Westinghouse Broadcasting and Cable Inc.
Lead Opinion
OPINION OF THE COURT
Plaintiffs James and Patricia Coughlin filed suit against defendant Westinghouse Broadcasting and Cable, Inc. (“Westinghouse”) alleging that Officer Coughlin, a Philadelphia police officer, was defamed by a series of television programs broadcast in February 1982 by KYW-TV, a Philadelphia television station owned and operated by
On February 28, 1985, the district court, finding that Coughlin, a public official, had failed to adduce sufficient evidence raising a genuine issue of material fact as to the question of actual malice, granted summary judgment in favor of Westinghouse. The court also denied Coughlin’s motion to compel discovery of KYW’s news sources and editorial processes involved in making the documentary pursuant to the Pennsylvania Shield Law.
I.
This action arises out of a television broadcast of “After Hours on American Street,” a February 17, 1982 news report prepared by the KYW-TV investigative news unit, the I-Team.
From a concealed vantage point, the KYW I-Team filmed activities surrounding the Club on the nights of October 10, 11 and 17, 1981. Plaintiff Coughlin, at the time a rookie patrol officer, was assigned to the midnight to 8:00 A.M. patrol shift for the sector containing the Ukrainian American Club. On the night of October 11, 1981, Coughlin was directed by police radio to conduct a “club check” at the Ukranian Club at approximately 4:05 A.M. At the club, Coughlin was informed that another officer had in fact just been there, and Coughlin then proceeded to leave the club carrying what he claimed was his book of incident report forms in his right hand.
At 7:15 A.M. on the morning of February 10, 1982, while returning home from working the midnight patrol shift, Coughlin was approached by a reporter and cameraman from KYW-TV attempting to question him regarding the events on the night of October 11, 1981. Coughlin requested that no filming take place, asked that the reporter identify himself, and, calling KYW’s beha-viour “harassment,” refused to answer any questions. KYW did not seek another interview with Coughlin. Coughlin, however, was told by his superiors at police headquarters that he was free to talk to the I-Team about this incident if he chose to do so.
When the videotape of Officer Coughlin’s October 1981 activities was broadcast by KYW on February 17, 1982, and in followup reports on February 18 and 19, 1982, KYW stated that Coughlin was carrying an envelope when he exited the club on October 11, 1981. This interpretation of the incident as revealed on the videotape, combined with other statements in the broad
An internal police investigation of Coughlin’s activities failed to result in any charges being filed against him. Police officials testified that they believed Cough-lin was carrying a “48” [incident report] book when he left the Club. Subsequent laboratory analysis of the film conducted by the police department and the FBI failed to conclusively establish what Officer Coughlin in fact had in his hand that night.
Applying the rule of New York Times v. Sullivan,
II.
We likewise reject Coughlin’s contentions. We do so substantially for the reasons so well expressed in Chief Judge Luongo’s thoughtful district court opinion. Coughlin v. Westinghouse Broadcasting and Cable, Inc.,
With respect to the constitutional issue raised by Coughlin as to the Pennsylvania Shield Law, 42 PA.CONS.STAT.ANN. § 5942(a) (Purdon 1982),
Each party will bear its own costs.
Notes
. Plaintiff also asserted claims for false light (casting individual in false light), invasion of privacy, and intentional infliction of emotional distress. Mrs. Coughlin alleged loss of consortium. The district court granted summary judgment as to all these additional claims, and the parties have not addressed them separately on appeal.
. For a more detailed recitation of the relevant facts of this case, see the district court opinion, Coughlin v. Westinghouse Broadcasting and Cable, Inc.,
. The Pennsylvania Shield Law, 42 PA.CONS.STAT.ANN. § 5942(a) (Purdon 1982) provides:
§ 5942. Confidential communications to news reporters
(a) General rule. — No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.
. Article 1, Section 1 of the Pennsylvania Constitution provides:
Section 1. Inherent rights of mankind
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
Article 1, Section 7 provides:
Sec. 7. Freedom of press and speech; libels
The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right therecf. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
Article 1, Section 11 provides:
Sec. 11. Courts to be open; suits against the Commonwealth
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
Concurrence Opinion
concurring:
Although I believe that Officer Coughlin has been defamed, I cannot fault the majority’s conclusion that plaintiffs have not adduced evidence of malice or reckless disregard sufficient to meet the rigorous New York Times standard. Hence, I agree with the majority’s conclusion that the district court did not err in granting summary judgment on the merits. What for me are the close and difficult questions in this case are whether the Pennsylvania Shield Law violates the Pennsylvania Constitution or the federal Constitution. These questions are essential to the outcome of the case because the Shield Law operates to choke off sources from which Coughlin might have proved actual malice or reckless disregard.
The majority states that the Shield Law survives both constitutional challenges. I agree. The majority does not state its reasoning on the crucial constitutional questions, however, so I cannot be sure of the foundation of our agreement. I believe that these questions are of sufficient complexity and importance that they deserve full analysis. The Pennsylvania constitutional questions have rarely been considered in the case law, never in depth. The federal constitutional question, although the subject of more litigation, presents difficult and complex issues that should not be dealt with summarily. I therefore write separately to explore the relevant history and to articulate the arguments and reasoning involved in these difficult questions.
I. THE PENNSYLVANIA SHIELD LAW
The Pennsylvania Shield Law,
General Rule: No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.
The Pennsylvania courts have repeatedly emphasized the important interests served by the Shield Law, and have held that it is to be broadly construed. In In re Taylor,
[I]mportant information, tips and leads will dry up and the public will often be deprived of the knowledge of dereliction of public duty, bribery, corruption, conspiracy, and other crimes committed or possibly committed by public officials or by powerful individuals or organizations, unless newsmen are able to fully and completely protect the sources of their information. It is vitally important that this public shield against government inefficiency, corruption and crime be preserved against piercing and erosion.
Id. The Court held that the Shield Law protected any documents that might provide evidence of a reporter’s news sources. Id.
II. THE PLAINTIFFS’ DISCOVERY REQUESTS
Plaintiffs moved for discovery of (1) defendant’s outtakes; (2) facts supporting statements made in the broadcast and the sources of those facts; (3) records or evidence of the defendant’s efforts to verify its information; (4) the defendant’s editorial processes as to each statement; and (5) the names of the defendant’s allegedly confidential sources. Coughlin v. Westinghouse Broadcasting and Cable,
The plaintiffs do not dispute that the Shield Law applies to all of the information sought. Therefore, although I have some doubts that the Shield Law does extend so far,
III. ARTICLE I, SECTION 1
Pennsylvania Constitution art. I, § 1 owes its origin to the Constitution of 1790, where it appeared as Article IX, section 1. The Proceedings Relative to Calling the Conventions of 1776 and 1790 at 161 (John S. Wrestling, Harrisburg, 1825) (referred to hereinafter as “Proceedings ”). It states:
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
(emphasis supplied). Except for being shifted to a more prominent place within the Constitution, the provision has remained unchanged since 1790.
The inclusion of reputation among the short list of “inherent and indefeasible” rights marked a departure from the then-prevailing Constitution of 1776 which had referred to the rights of “enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” Ch. I § 1. See Proceedings at 55. Indeed, most similar documents of the day did not elevate reputation to the pantheon of inalienable rights. See, e.g., Virginia Bill of Rights, of June 12, 1776 (reprinted in H.S. Commager, Documents of American History 103 (9th ed. 1973)); Declaration of Independence (reprinted in Commager at 100) (referring to “Life, Liberty, and the pursuit of Happiness”); The Declarations and Resolves of the First Continental Congress, October 14, 1774 (reprinted in Commager at 83) (referring to “life, liberty, and property”). The Pennsylvania Constitution was one of the few that expanded the list. Cf. Article XI Massachusetts Bill of Rights of 1780 (reprinted in Commager at 107) (guaranteeing remedies for wrongs to “person, property, or character”). Pennsylvania’s departure seems to have been prompted in part by the controversial case of Respublica v. Oswald,
Given this background, we may assume that the inclusion of reputation in the Constitution was not merely rhetorical or lightly considered. It reflected a considered choice that we must respect. Cf. Commonwealth v. Swallow,
Pennsylvania courts have held that the right to reputation, although undeniably enshrined in the Constitution, is not inviolable. Like other property rights with constitutional “guarantees,” the right to reputation may suffer on account of a public policy or need for some other good. See, e.g., Matson v. Margiotti,
We are faced with the initial problem that the Pennsylvania courts have not articulated a clear standard for the balance. Does legislation that infringes upon the right to reputation have to be the “least restrictive” alternative, that is, must it infringe on the right to reputation only as much as necessary to accomplish its goals? Or, does the legislation have to be only “reasonably related” to its goals to pass state constitutional muster?
Despite this problem, I think that we can reach an answer (and need not abstain, see Railroad Commission of Texas v. Pullman Co.,
More recent cases such as In re Taylor,
Commonwealth v. Tate,
While the question is close, these cases suggest that the Pennsylvania Supreme Court has historically placed such importance on free speech in general, and on the Shield Law in particular, that it would uphold its constitutionality today against the art. 1, § 1 challenge despite the consequent cost to the right of reputation. Perhaps the Pennsylvania courts, which are the authoritative interpreters of the Pennsylvania Constitution, will view the matter differently. Perhaps they will impose a “least restrictive alternative” analysis, or strike a somewhat different balance that will give libel plaintiffs a better chance of success.
IV. ARTICLE I, SECTION 7
Plaintiffs’ second argument relies on
The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right there-cf. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, print on any subject, being responsible for the abuse of that liberty____
(emphasis supplied). The restraint on the press imposed by the requirement that the press be responsible for abuses of its liber
[T]he people have a right to freedom of speech, and of writing and publishing their sentiments; therefore the freedom of the press ought not to be restrained.
Quoted at Proceedings at 56. Elsewhere the Constitution of 1776 stated:
The printing presses shall be free to every person, who undertakes to examine the proceedings of the legislature, or any part of government.
Chapter II, section 35, quoted in Proceedings at 63. The earlier Constitution was thus clearly more concerned with preventing limitations on the press than with curbing potential abuses by the press. The Constitution of 1790, by contrast, evidences a significant concern with press abuses. The Superior Court of Pennsylvania has recently described the shift from the 1776 Constitution to the 1790 Constitution:
The apparent absoluteness of the 1776 guarantee of freedom of expression and its capability for abuse gave rise to an exemption from its protection, for it soon became clear, that although the freedom of expression is arguably an absolute right, the right to protection from prosecution for abuse of freedom is a limited one.
Long v. 130 Market Street Gift and Novelty of Johnstown,
Plaintiffs’ argument, simply stated, is that the Shield Law makes it virtually impossible for plaintiffs to succeed in a libel suit against the television station; that libel suits are the principle guarantors that the press be responsible for its abuse of liberty; and, thus, that the Shield Law effectively absolves the defendant of all responsibility for the abuse of its liberty, in violation of art. I § 7. I cannot accept this argument for two reasons. First, it requires an unjustifiably broad reading of art. I, § 7. On its face, that section would require only that the press not be absolutely immune from libel and defamation actions. Clearly, the Shield Law would not violate this reading of art. I, § 7. Plaintiffs, however, would have us read that section as guaranteeing not only that the press is not immune but also that plaintiffs have certain rights of access to press documents in libel and defamation actions. Plaintiffs can point to no elements of the legislative history of the provision that would justify this reading, however, and it is doubtful that the authors of 1790 had in mind such a right of access.
I am encouraged in this reading by the very similar case of Maressa v. New Jersey Monthly,
The entire thrust of Art. 1, ¶ 6 is protection of speech. The framers, however, did not want that protection to be absolute. Specifically, they did not view the existence of a libel action as inimical to free speech. They therefore inserted a clause to insure that the broad speech protection they were providing would not be construed to preclude libel suits.
This is all that the clause means. We do not believe that it was intended to create a right to sue for damages in libel. Had the framers intended such a right, they surely would have expressed that intent more directly.
Id. at 192,
The second reason we reject plaintiffs’ argument under art. I, § 7, is that although the Shield Law affects the manner in which plaintiffs may develop evidence to support his defamation claim, it does not make successful defamation claims impossible. Plaintiff may use other evidence, both direct and circumstantial, to substantiate his claim. Admittedly, the plaintiffs’ case is made much more difficult by the Shield Law, but that reflects a choice by the state legislature that it is not within our power to upset.
V. PLAINTIFFS’DUE PROCESS CLAIM
Plaintiffs argue that the Shield Law in conjunction with the heavy burden of proof imposed upon them by New York Times v. Sullivan,
It is hard not to sympathize with plaintiffs. The New York Times standard makes it hard enough for a public figure to win a libel suit, even when faced, as here, with what any fair observer must agree is egregious conduct on the part of the media. The Shield Law makes it more difficult still.
A. Reporters’ Common Law Privileges
My analysis begins with the seminal case of Branzburg v. Hayes,
In the wake of Branzburg, courts faced with assertions of reporters’ privileges have proceeded on a case-by-case basis,
B. The Statutory Privilege
The situation in this case differs from that in the cases just cited, for here we have a shield law, a statutory privilege, whereas those cases involved the constitutional, common law privilege. Although there was no statutory privilege at issue in Branzburg, the Court there considered how such a law might have affected its analysis:
There is ... merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to their relations between law enforcement officials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman’s privilege, either qualified or absolute.
[T]his court (whether or not sympathetic to the predicament of the parties) has no choice but to effectuate the balance struck by the Rhode Island General Assembly and to follow exactly the letter of a well-drawn legislative enactment,
(footnote omitted). In Maressa,
It would appear that the Supreme Court’s strong dictum in Branzburg and the persuasive precedent of Fischer and Maressa would control this case and make
C. The Relevance of Mathews v. El-dridge
Once it is recognized that deference to the state’s policy determination embodied in the Shield Law is inappropriate on account of plaintiffs’ due process claim, it seems clear that a Mathews v. Eldridge,
Mathews warned that due process “ ‘is not a technical conception with a fixed content unrelated to time, place and circumstance,’ ”
[Ojur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official actions; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
Id. at 335,
Here, the private interest at stake is clear and significant — Officer Coughlin’s reputation. Not only is reputation protected by the state constitution, but it has deep, philosophical foundations: the high value we place on reputation “reflects no more than our basic concept of the essential dignity and worth of every human being.” Rosenblatt v. Baer,
Weighed against these considerable interests are the state’s interest in maintaining a free and uninhibited press and the vital role that the Shield Law plays in maintaining that free press. I have already referred to cases in the state courts that have spoken of the crucial structural role played by the press and the Shield Law. The significance of the Shield Law is attested to by the fact that at least 26 states have enacted their own shield laws,
. I wish to acknowledge at the outset the excellent and comprehensive briefs filed by both parties. They made the difficult analyses much easier.
. The Shield Law protects only sources of information, not the thought or editorial processes of reporters or news organizations. Neither plaintiffs’ third nor fourth requests — evidence of defendant’s efforts to verify its information and the editorial process of each statement — would necessarily disclose any information about the defendant’s sources. The distinction between source information and information about editorial processes is well-recognized. See, e.g., Note, Source Protection in Libel Suits after Herbert v. Lando, 81 Colum.L.Rev. 338, 359 (1981).
. Plaintiffs raise one other state constitutional issue, whether the Shield Law violates art. I, § 11 which states, in relevant part, that "[a]ll courts shall be open; and every man for an injury done him in his ... reputation shall have remedy by due course of law.” Plaintiffs argue that this section guarantees them a cause of action for damage to reputation and that the Shield Law effectively abridges that right of action.
Leaving aside whether it may accurately be said that the Shield Law actually abridges a cause of action, or merely makes it more difficult to prosecute such an action, see infra pp. 21, 28 & n. 16, I believe that this argument rests upon a misreading of art. I, § 11. That section was aimed at corrupt judges and court officers who extorted money for hearing cases, see C.R. Buckalew, An Examination of the Constitution of Pennsylvania 17-18 (1883); T.R. White, Commentaries on the Constitution of Pennsylvania 159-60 (1907), and was intended only to guarantee equal access for all litigants. It was not meant to enshrine any causes of action in the state constitution. Cf. McCollum v. Birmingham Post Co.,
. Oswald, a newspaper publisher, was arrested for libel. After his release on bail, he published an article accusing several members of the state Supreme Court of bias. He was cited for contempt of court. The Supreme Court upheld the contempt charge, rejecting Oswald’s argument that freedom of the press guaranteed him immunity. Both Chief Justice McKean, who sat on the case, and William Lewis, who prosecuted Oswald’s contempt citation, were delegates to the Convention of 1790. R.L. Brunhouse, The Counter-Revolution in Pennsylvania, 1776-1790 225 (1942).
. I thus reject defendant's attempt to diminish the significance of the right to reputation. Neither the fact that Blackstone may have considered reputation less significant than other rights, see 1 W. Blackstone, Commentaries *122,
. A long line of cases demonstrates that police officers are public figures, see, e.g., Time Inc. v. Pape,
. These are, of course, the tests often used in the federal due process and equal protection areas, but there is no reason that the Pennsylvania courts must be limited to these and cannot develop other standards for the interpretation of their own statute.
. The Court said:
[N]either freedom of speech nor freedom to protect one’s property and reputation — each of which is guaranteed by the [Pennsylvania] Constitution — is unlimited, and it is obvious that they must sometimes be competing and conflicting____ Even though the innocent may sometimes suffer irreparable damage, ithas been found to be in the public interest and therefore sounder and wiser public policy to "immunize” public officials [from liability for defamation].
. I note, however, that any finely tuned balancing may have to await the United States Supreme Court’s decision in Hepps,
. The Pennsylvania Supreme Court took an especially long historical view of art. I, § 7 in Goldman Theaters v. Dana,
. It is important to note that my conclusion that the Shield Law does not violate the Pennsylvania Constitution does not preclude the possibility that the Shield Law violates the due process clause. The questions asked and issues raised in the two inquiries may be similar, see supra n. 7; however, the standards that we use to evaluate the two questions may be different. The state courts might mandate a less demanding test or the state courts might focus on different factors than do the federal courts in due process cases. Either way, the state constitutional analysis concluding that the Shield Law passes state constitutional muster would not preclude a federal due process analysis.
. Other courts and scholars have noted the difficult position of public figures confronted with claims of reporters’ privilege. See, e.g., Carey v. Hume,
. All of the justices acknowledged that the confidentiality of sources did have a basis in the first amendment. See
. Justice Powell's concurrence in Branzburg had suggested that this was precisely the course that the lower courts should take.
. See
. As the court in Samuelson v. Susen,
. Two other federal constitutional issues deserve mention. First, defamation plaintiffs are required to show actual malice with "convincing clarity,” Bose Corp. v. Consumer Corp.,
Second, although the majority does not discuss it, I believe that our scope of review is plenary on account of Bose, supra. See Bender v. Wil-liamsport School Dist.,