a public policy supporting extensive protection of news sources. In order to effectuate that policy, the court declared, the law must be liberally interpreted in favor of the news media. Id. at 40-42, 193 A.2d at 185-86.
The Pennsylvania Supreme Court has recently asserted that the shield law gives media defendants extensive protection from discovery in civil libel cases. Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, - , 485 A.2d 374, 386-87 (1984) (Hepps II). Accord Lal v. CBS, Inc., 726 F.2d 97 (3d Cir.1984); Steaks Unlimited v. Deaner, 623 F.2d 264 (3d Cir.1980); Mazzella v. Philadelphia Newspapers, Inc., 479 F. Supp. 523 (E.D.N.Y.1979) (applying Pennsylvania's shield law); Hepps v. Philadelphia Newspapers, Inc., 3 Pa.D. & C.3d 693, 707 (C.P. Chester County 1977) (Hepps I) (Taylor "establishes the privilege against disclosure as absolute"). The Court of Appeals for the Third Circuit, recognizing the breadth of the Pennsylvania shield law, has held that unpublished portions of a filmed interview are privileged even though the identity of the primary source has been revealed. Steaks Unlimited, 623 F.2d at 279. The court reasoned that the shield law, as interpreted by Taylor, protects secondary as well as primary sources of news. A reporter need not show that unidentified secondary sources actually exist. Under Taylor, the statutory privilege applies whenever forced disclosure of an unpublished statement or "outtake" may reveal the identity of other sources. Id. (citing Taylor, 412 Pa. at 43, 193 A.2d at 186). The same reasoning mandates protection of a reporter's notes and resource materials from discovery. Lal v. CBS, Inc., 726 F.2d at 100-01; Mazzella v. Philadelphia Newspapers, Inc., 479 F. Supp. at 528-29.
Consistently with the liberal, pro-media approach required by Hepps II and Taylor, information concerning defendant's editorial processes must also be protected from discovery. To permit an inquiry into reporters' thought processes and methods of developing a news presentation would undermine the expansive protection which the shield law provides for newsgathering activities. As the New Jersey Supreme Court stated in holding editorial processes to be protected by a shield law similar to Pennsylvania's: "Discovery of editorial processes is especially threatening to newspersons because it inhibits the exchange of ideas that is crucial to the functioning of a free and vigorous press." Maressa v. New Jersey Monthly, 89 N.J. 176, 188, 445 A.2d 376, 383, cert. denied, 459 U.S. 907, 103 S. Ct. 211, 74 L. Ed. 2d 169 (1982).
Plaintiffs challenge the validity of the shield law under both the Pennsylvania and United States Constitutions. Plaintiffs cite Pa. Const. art. V, § 10(c), which authorizes the Pennsylvania Supreme Court "to prescribe general rules governing practice, procedure and the conduct of all courts." Characterizing the shield law as a rule of evidence and thus as procedural, plaintiffs contend that the legislature unconstitutionally usurped judicial power by enacting the law. Under Pennsylvania law, however, the legislature may "create or alter rules of evidence." Rich Hill Coal Co. v. Bashore, 334 Pa. 449, 485, 7 A.2d 302, 319 (1939). See also Phillips v. Unemployment Compensation Board of Review, 152 Pa.Super.Ct. 75, 82, 30 A.2d 718, 723 (1943); Williams v. American Broadcasting Cos., 96 F.R.D. 658, 666 (W.D.Ark.1983) (it is well established that recognition of a journalist's privilege is for the legislature.) If I were to accept plaintiffs' argument, I must invalidate Pennsylvania's long-standing practice of establishing rules of evidence and privilege by legislative action. I will not interpret Pennsylvania's constitution to require such a result.
Plaintiffs also argue that the shield law, as defendant interprets it, violates the due process guarantees of the Pennsylvania and United States Constitutions. Under the Pennsylvania constitution, protection of one's reputation is a fundamental right. Pa. Const. art. I, § 1.
Although the constitution guarantees freedom of speech, it provides that a citizen is "responsible for the abuse of that liberty." Id. § 7. The state's due process clause specifically provides for vindication of reputational interests in the courts: "All courts shall be open; and every man for an injury done him in his . . . reputation shall have remedy by due course of law." Id. § 11.
Plaintiffs note that in order to prevail in this lawsuit they must prove defendant published false statements with "actual malice."
They claim that if they are barred from investigating defendant's outtakes, sources and editorial processes, they will be prevented from satisfying their heavy burden. Thus, they claim, the shield law in effect makes it impossible for libel victims to recover and grants the media an absolute license to defame. They urge that such a result cannot be reconciled with the Fifth and Fourteenth Amendments to the United States Constitution or with Pennsylvania's constitutional right to vindicate one's reputation in the courts.
The Third Circuit has rejected the argument that a privilege which limits a plaintiff's ability to uncover evidence in a defamation case deprives him of access to the courts. Samuelson v. Susen, 576 F.2d 546, 553 (3d Cir.1978). In Samuelson, plaintiff was allegedly defamed during a medical review committee's proceedings. Such proceedings were privileged under an applicable Ohio statute. Plaintiff argued that the statute violated his Fifth and Fourteenth Amendment due process rights by depriving him of information central to his cause of action and in effect denying him access to the courts. Id. at 552. The Third Circuit upheld the state legislature's right to establish privileges in order to further important public interests. The court stated: "No doubt the statutory provisions affect the manner in which plaintiff may develop evidence to support his defamation claim. Plaintiff is not, however, foreclosed from prosecuting his claim with other evidence, both direct and circumstantial." Id. at 553. Plaintiff's due process argument, according to the court, was "attenuated." Id. Similarly, the Court of Appeals for the District of Columbia Circuit has held that there is "no due process right to offer evidence barred by the attorney-client privilege," even if the evidence is necessary to establish a defamation claim. Rosen v. NLRB, 236 U.S. App. D.C. 298, 735 F.2d 564, 577 (D.C.Cir.1984). The court reasoned:
The attorney-client privilege is but one of several privileges that prevent parties themselves from adducing particular evidence, and thus create an obstacle to fact finding due to the broad judgment that the value of introducing such evidence is outweighed by the harm inflicted upon other policies and values. The explicit burdens imposed by such evidentiary rules have never, to our knowledge, been held inconsistent with due process in the civil law context, because such burdens are simply a necessary consequence of society's attempt to balance the value of the complete admissibility of probative evidence with other competing values, such as the protection of vital professional or associational relationships.
Id. at 572. See also Branzburg v. Hayes, 408 U.S. 665, 706, 92 S. Ct. 2646, 2669, 33 L. Ed. 2d 626 (1972) (states may recognize a journalist's privilege, "either qualified or absolute").
The fact that protection of reputation is a fundamental right in Pennsylvania does not change the result. The supreme court of Pennsylvania, recognizing that even constitutional rights are subject to limitations, has held that certain public officials are absolutely immune from liability for defamation. Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952). According to the court:
Neither 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, it has been found to be in the public interest and therefore sounder and wiser public policy to "immunize" public officials [from liability for defamation].
Id. at 202-03, 88 A.2d at 899. See also Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, , 485 A.2d 374, 380 (1984). The Third Circuit in Steaks Unlimited v. Deaner, 623 F.2d 264, 277 n. 62 (3d Cir. 1980), recognized that by protecting a media defendant's outtakes from discovery it was depriving the plaintiffs of important evidence. The court held, however, that it was bound by the Pennsylvania legislature's decision to provide broad protection to news sources. Id. at 279. According to the court, "to the extent a state chooses to authorize a cause of action for defamation, it may also limit the plaintiff's ability to prove his claim in order to promote other social purposes." Id. at 279 n. 74.
Pennsylvania, like other jurisdictions, has established a number of conditional and absolute privileges applicable in defamation actions. Plaintiffs would have me second-guess the state's policy decisions and strike down an entire class of laws on the basis of an argument which the Third Circuit has characterized as "attenuated." I decline to do so.
Under Pennsylvania's shield law, defendant cannot be compelled to disclose information concerning outtakes, sources, or editorial processes. Plaintiffs also seek discovery with respect to the factual bases for the broadcast and defendant's efforts to verify its information. A review of the exhibits to plaintiffs' memorandum shows that plaintiffs have requested, and defendant has supplied, extensive material concerning defendant's investigation and the bases for the allegedly defamatory statements. Plaintiffs have not identified any specific factual information, other than that protected by the shield law, which defendant has failed to provide. Accordingly, plaintiffs' motion to compel discovery must be denied.
Defendant Westinghouse has moved for summary judgment, claiming that the allegedly defamatory statements are not actionable and that plaintiffs cannot prove actual malice. Defendant's memorandum of law analyzes the broadcast statement by statement, purporting to show that the broadcast consisted of indisputably true statements, videotapes of actual occurrences, and protected expressions of opinion. In particular, Westinghouse defends the statement that Coughlin was carrying an envelope as an expression of I-Team reporters' subjective opinion. Defendant claims plaintiffs have produced no evidence from which it can be inferred that any KYW employee did not believe the statements in the broadcast to be true. Plaintiffs cannot, therefore, prove that defendant published the allegedly defamatory statements with "actual malice."
Plaintiffs claim that defendant has attempted to disguise the defamatory impact of the broadcast as a whole by analyzing each statement apart from its context. According to plaintiffs, the film segments and accompanying narrative defamed Officer Coughlin by strongly implying that he had accepted a bribe. Plaintiffs also assert that Coughlin is not a "public official" for the purposes of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and thus need not prove malice in order to prevail. Plaintiffs argue, however, that the record contains ample evidence of malice. They claim that I-Team reporters were hostile toward the police because of earlier confrontations between members of the I-Team and the police department, and that the investigation on American Street arose from a desire to discover official corruption. Reporters filmed police activities which could conceivably be interpreted as suspicious, and developed a broadcast on the basis of those activities. Although the I-Team's observations were made in October of 1981, and the broadcast was not aired until February of 1982, plaintiffs claim reporters made no realistic effort to determine whether innocent explanations existed for the videotaped activities. Plaintiffs also assert that the I-Team, in developing the broadcast, relied solely upon sources biased against the police and the Ukrainian-American Club.
Plaintiffs claim that a minimal investigation would have revealed that on October 11, 1981, Officer Coughlin was a rookie policeman patrolling alone for the first time. Early in his shift, he was ordered to investigate a vandalism complaint at the Ukrainian-American Club. After talking to the club's steward, he returned to his patrol car and filled out a "48" book, used by police to file incident reports. He attributes his difficulty in starting the car to the fact that he had never driven a patrol car before that night. Plaintiffs object to the broadcast statement that the officer in car 35 did not appear to be Coughlin. According to plaintiffs, this statement implied that Coughlin had someone else surreptitiously take his place and fill out his reports while he was somewhere else, perhaps inside the club.
At approximately 2:45 a.m. on October 11, Coughlin was ordered to check several private clubs outside his assigned patrol area to ensure compliance with city liquor laws. He had never performed a club check before, and one of his fellow officers had to explain his duties to him in detail. At 3:57, after checking the clubs, he reported over police radio that he was returning to headquarters. He then turned in his club check reports at headquarters and was sent to determine whether the Ukrainian-American Club had already been checked by another officer. Coughlin explains the events which the I-Team described as "suspicious" as follows: When he arrived at American Street, he saw another police officer driving away. He followed in order to ask whether the officer had checked the Ukrainian-American Club. After losing sight of the patrol car, he returned to the club. He went inside, learned that another officer had just checked the club, and left immediately. He claims that the object in his hand was a 48 book. He also asserts that the officers in his district were not required to wear uniform jackets that night.
Coughlin describes the I-Team's attempt to interview him on February 10, 1982, as an "ambush." According to Coughlin, when he returned from work early that morning two men confronted him outside his house. One was operating a television camera and the other began to question Coughlin about his activities on October 11, 1981. Coughlin claims he was unnerved by the camera and by the abrupt questioning. The reporters refused to turn the camera off, and Coughlin therefore refused to answer their questions.
In order to be entitled to summary judgment, defendant must show that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The first question presented by defendant's summary judgment motion is whether the challenged statements are capable of a defamatory meaning. Under Pennsylvania law, "[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971) (quoting Restatement of Torts § 559 (1938)). The allegedly defamatory statements must be read in context:
The test is the effect the [communication] is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them.
Id. at 447, 273 A.2d at 907 (quoting Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936)). Accord Marcone v. Penthouse International, 754 F.2d 1072, 1078 (3d Cir.1985).
Defendant's broadcast is clearly capable of a defamatory meaning. The broadcast outlined the apparent law enforcement problems on American Street and, quoting a 1974 Pennsylvania Crime Commission Report, characterized the situation as "ripe for corruption." The narrator described the police activities filmed on October 11, 1981, as "the most suspicious activity we saw on American Street." The subsequent films and descriptions of Officer Coughlin, considered in the context of the entire broadcast, are reasonably susceptible to the interpretation that Coughlin accepted a bribe. The I-Team's presentation of its attempt to interview him reinforced the implication that he was evasive and therefore guilty of corrupt activities. Because I conclude that the broadcast is capable of a defamatory meaning, it would be for a jury to determine whether that meaning was conveyed to the broadcast's audience. Corabi, 441 Pa. at 442, 273 A.2d at 904.
Defendant also seeks summary judgment on the ground that the broadcast was substantially true. Defendant argues that each allegedly defamatory statement was either true or a protected expression of opinion. Under Pennsylvania law, however, allegedly defamatory words must be read in context. Pierce v. Capital Cities Communications, Inc., 576 F.2d 495, 502 (3d Cir.), cert. denied, 439 U.S. 861, 99 S. Ct. 181, 58 L. Ed. 2d 170 (1978). The literal accuracy of individual statements will not insulate a defendant from liability where the overall impression left by those statements is false. According to the Pennsylvania Superior Court, "'true facts' that in context imply a falsehood are, in an action for defamation, not 'true. '" Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super.Ct. 475, 491, 448 A.2d 6, 15 (1982). Thus, it is not sufficient for defendant "'to take every sentence separately and demonstrate its individual accuracy, detached and wrenched out of context. '" Id. at 493, 448 A.2d at 15-16 (quoting Clark v. Pearson, 248 F. Supp. 188, 191 (D.D.C.1965)).
I have already determined that the broadcast can reasonably be construed as implying that Officer Coughlin was involved in corrupt activities. Plaintiffs have presented evidence, including the affidavit of Coughlin himself and the testimony of other police officers, that this implication was false. Defendant has not seriously challenged plaintiffs' explanation for the events of October 11, 1981. In fact, on February 20, 1982, KYW aired a follow-up program during which the president of the Fraternal Order of Police presented Coughlin's version of those events. I conclude that there is a genuine issue of fact concerning the truthfulness of those segments of the broadcast dealing with Coughlin.
Defendant's final argument is that plaintiffs must show "actual malice" on its part in order to prevail. Defendant contends that the record contains no evidence of malice, and that it is therefore entitled to summary judgment. Plaintiffs claim that Officer Coughlin, the target of the alleged defamation, is not a public official required to prove malice under New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 725-26, 11 L. Ed. 2d 686 (1964).
Courts have consistently treated police officers as public officials within the meaning of New York Times. See, e.g., Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S. Ct. 633, 636, 28 L. Ed. 2d 45 (1971); St. Amant v. Thompson, 390 U.S. 727, 730, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262 (1968); Henry v. Collins, 380 U.S. 356, 85 S. Ct. 992, 13 L. Ed. 2d 892 (1965); Cibenko v. Worth Publishers, 510 F. Supp. 761, 765 (D.N.J.1981); Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super.Ct. 475, 493-94, 448 A.2d 6, 16 (1982). Police officers qualify as public officials because:
They "have or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs," . . . and their position "has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees . . . ." . . . The cop on the beat is the member of the department who is most visible to the public. He possesses both the authority and the ability to exercise force. Misuse of his authority can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss. The strong public interest in ensuring open discussion and criticism of his qualifications and job performance warrant the conclusion that he is a public official.