On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 83-0944)
BEFORE: GARTH and BECKER, Circuit Judges and VAN DUSEN, Senior Circuit Judge
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 Westinghouse.*fn1 According to Coughlin, those broadcasts impliedly accused him of accepting a bribe when it broadcast a clandestine videotape of Coughlin exiting a so-called after hours club with what appeared to be an envelope while on patrol duty. Coughlin also challenged the constitutionality under the state and federal constitutions of the Pennsylvania Shield Law, 42 PA. CONS. STAT. ANN. § 5942(a) (Purdon 1982), which was applied by the district court to preclude plaintiff's discovery of outtakes and source materials used in preparation of the allegedly defamatory broadcasts.
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.
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.*fn2 The Broadcast stemmed from complaints registered by local residents in late 1980 that the Ukranian-American Club, located at 610 American Street in Philadelphia, was a so-called "after hours" club illegally selling liquor to the general public past the 3:00 A.M. closing time mandated by Pennsylvania state liquor law. The investigation conducted by the I-Team was directed to discovering whether citizen complaints that the responsible government authorities--the Philadelphia Police Department and the Pennsylvania Liquor Control Board--were not properly enforcing the liquor laws at the club.
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 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 behaviour "harassment," refused to answer any questions. KYW does 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 follow-up reports on February 18 and 19, 1982, KYW stated that Coughlin was carrying an envelope when he excited the club on October 11, 1981. This interpretation of the incident as revealed on the videotape, combined with other statements in the broadcast concerning possible police corruption surrounding the enforcement of liquor laws at after hours clubs, combined to support Coughlin's charge that the broadcast accused him of taking a bribe.
An internal police investigation of Coughlin's activities failed to result in any charges being filed against him. Police officials testified that they believed Coughlin 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, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), to this public official libel action, the district court correctly held that Coughlin had the status of a public official; that the broadcast was capable of a defamatory meaning; and that Coughlin had raised a genuine issue of material fact concerning the truth or falsity of those allegedly defamatory statements. Coughlin, 603 F. Supp. at 385. As to the issue of actual malice, the district court determined that Coughlin had failed to raise a genuine issue of material fact that KYW broadcast those statements "with knowledge that [the statements were] false or with reckless disregard of whether [they were] false or not." Id., 376 U.S. at 279-80. The court rejected Coughlin's contentions that Westinghouse's alleged hostility towards the Philadelphia police department, reliance on biased sources and failure to investigate, constituted sufficient evidence of malice to withstand the defendant's motion for summary judgment. Coughlin, 603 F. Supp. at 386.
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., 603 F. Supp. 377 (E.D. Pa. 1985). Accordingly, we hold that the district court correctly determined that Coughlin was a public official, and correctly concluded as well that Coughlin failed to raise a genuine issue of material fact as to the issue of actual malice.
With respect to the constitutional issue raised by Coughlin as to the Pennsylvania Shield Law, 42 PA. CONS. STAT. ANN. § 5942(a) (Purdon 1982),*fn3 we recognize this issue was not presented as forcefully as the issue of actual malice under New York Times. However, pursuant to our request at oral argument, the parties submitted more extensive briefs directed to the question of the constitutionality of invoking the Pennsylvania Shield Law to preclude discovery of a s and sources by a plaintiff in a public official libel action. Upon review of their submissions, we are satisfied that the Pennsylvania Shield Law, as applied to public official libel actions, suffers from no state or federal constitutional infirmity. Specifically, we hold that the Shield law does not abridge any rights guaranteed by Article I, Sections 1, 7 or 11 of the Constitution of the Commonwealth of Pennsylvania, nor does it result in a denial of due process in violation of the fourteenth amendment to the United States Constitution.*fn4
Accordingly, we will affirm the district court's order of February 28, 1985 which granted Westinghouse's motion for summary judgment.
Each party will bear its own costs.
BECKER, Circuit Judge, 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 agreed 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.*fn1
I. THE PENNSYLVANIA SHIELD LAW
The Pennsylvania Shield Law, 42 Pa. Cons. Stat. Ann. § 5942(a) (Purdon 1982) provides, in relevant part:
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, 412 Pa. 32, 193 A.2d 181 (1963), for example, the Supreme Court of Pennsylvania stated that the Shield Law was to be "liberally construed in favor of the newspapers and news media," id. at ...