The opinion of the court was delivered by: LUONGO
Plaintiffs James and Patricia Coughlin, a Philadelphia police officer and his wife, brought this defamation action because of a televised broadcast entitled "After Hours on American Street." The broadcast dealt with alleged official corruption in connection with a Philadelphia after hours club. KYW-TV (channel 3), a Philadelphia television station owned and operated by defendant Westinghouse Broadcasting & Cable, Inc., aired portions of the program on February 17, 18 and 19, 1982.
In 1981, KYW's investigative news team (the I-Team) received complaints concerning the Ukrainian-American Club on American Street in Philadelphia. According to local residents, the club's patrons were noisy and disruptive and the club consistently served liquor after 3:00 a.m., in violation of the Philadelphia Liquor Code. The residents charged that the Philadelphia police and the Liquor Control Board had ignored their complaints. Based on these reports, the I-Team began to investigate the club. The results of their investigation were broadcast in "After Hours on American Street." The program portrayed the activities which led to neighbors' complaints and reported that the investigation raised serious questions concerning whether members of the police department and the Liquor Control Board were doing their jobs. KYW reporter Stan Bohrman described a 1974 Pennsylvania Crime Commission report, which had concluded that Philadelphia's practice of using police officers to enforce the liquor laws with respect to private clubs fostered corruption. The I-Team, according to the program, had observed police activities on American Street similar to those described by the Crime Commission. The program illustrated this point with films taken outside the club on October 11, 1982, describing the filmed activity as "the most suspicious activity we saw on American Street." The films, accompanied by commentary, first showed police car 39 arriving at the club. An officer entered the club at 3:52 a.m. and left five minutes later. A number of people remained in the club. At 3:57 Officer Coughlin, who was driving car 35, reported over police radio that he was returning to headquarters for paperwork. The officer in car 39 returned to the club at 4:04 and left at 4:11 without recording the stop in his patrol log. Coughlin then drove car 35 to the club, backed up slowly, and drove away. Several minutes later car 35 returned. Coughlin entered the club and came out almost immediately, carrying an object in his hand. At this point, KYW stopped the film and showed Coughlin with a circle drawn around the object in his hand. The accompanying narrative stated: "As far as police radio knows, car 35 is still out at headquarters doing paperwork. Well, the only paperwork we saw him doing was carrying this envelope out of the club less than a minute after he went in. That officer is Patrolman James Coughlin." Elsewhere in the broadcast the narrative stated that an officer who stops without reporting his location over police radio "generally does not want it known that he's there."
KYW then showed film clippings of Coughlin refusing to be interviewed by I-Team reporters about the events described above and another incident on October 11. According to Mr. Bohrman, car 35 had arrived at the Ukrainian-American Club at 12:50 a.m. on October 11 in response to a vandalism complaint. The I-Team noted that when the officer returned from investigating the complaint he tried four times to find the right key to start the car. Because the officer was apparently unfamiliar with car 35, the I-Team conjectured that he was not Officer Coughlin. Coughlin's name was on the official report of the incident, however, and the patrol log recorded him as being in car 35 from 12:00 to 8:00 a.m., October 11. In conclusion, the program reported several other facts for which the I-Team could find no apparent explanation. Coughlin had entered the club at 4:17 a.m. without his standard patrol equipment consisting of nightclub, uniform jacket and hat. Car 35's official patrol log contained an unexplained gap for the period between 4:00 and 4:20 a.m., during which the I-Team had observed Coughlin on American Street. At 3:57, however, Coughlin had reported that he was returning to headquarters for paperwork.
Plaintiff James Coughlin alleges that this program defamed him by implying that he had engaged in corrupt activities and accepted a bribe from the Ukrainian-American Club. He claims the program placed him in a false light, invaded his privacy, and caused him severe emotional distress. Plaintiff Patricia Coughlin seeks damages for loss of her husband's society, companionship and consortium. Plaintiffs seek punitive as well as compensatory damages, alleging that defendant's conduct in airing the broadcast was outrageous.
Currently before me are plaintiffs' motion to compel defendant to answer certain interrogatories and deposition questions and defendant's motion for summary judgment. I will deal with the discovery motion first, and then turn to the summary judgment motion.
Plaintiffs have moved for discovery with respect to the following: (1) portions of defendant's videotapes not included in the broadcast ("outtakes"); (2) facts supporting statements made in the broadcast and sources of those facts; (3) efforts made by defendant to verify its information; (4) defendant's editorial processes as to each statement; and (5) defendant's allegedly confidential sources. Defendant opposes plaintiffs' motion on the ground that the information sought is privileged under the Pennsylvania Shield Law, 42 Pa. C.S.A. § 5942(a).
Because I conclude that Pennsylvania law protects this information from discovery, I will deny plaintiff's motion to compel.
Pennsylvania's shield law provides:
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 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 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 ...