stalking of Plaintiffs, their three year old child, their families, business and social associates." Defendants deny that they engaged in "tortious stalking, harassment, trespass, intrusions upon seclusion and invasions of privacy" of the plaintiffs during the investigation of the story on U.S. Healthcare.
A hearing was held between February 27, 1996 and March 9, 1996 regarding plaintiffs' request for injunctive relief. Pursuant to Federal Rule Civil Procedure 15(b), the Court permitted testimony at the hearing concerning defendants' conduct in Florida on the weekend of February 17, 1996.
This memorandum contains this Court's findings of fact and conclusions of law in connection with Plaintiffs' equitable action seeking injunctive relief.
I. Legal Background
Before setting forth the Court's findings of fact and conclusions of law, the Court will discuss the legal framework it will apply to its determination of whether defendants invaded plaintiffs' privacy rights.
A. Freedom of the Press and the Right to Privacy
The First Amendment of the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press." When the First Amendment became part of the Constitution more than two hundred years ago, its drafters could not have imagined the existence of a television in most homes and the sophisticated tools available to T.V. journalists. T.V. journalists have at their disposal cameras with powerful zoom lenses, video camcorders that simultaneously record pictures and sound, directional microphones with the capacity to pick up sound sixty yards away, and miniature cameras and recording devices easily hidden in a pocket or behind a tie.
Although some may contend that judges should discern exactly what the framers of the constitution intended in order to resolve the issues before them, this Court agrees with Justice Brennan's view that "those who would restrict claims of right to the values of 1787 specifically articulated in the Constitution turn a blind eye to social progress. . ." Television has become this nation's most powerful media. There is no question that T.V. journalists are protected by the First Amendment.
The First Amendment guarantee of a free press has a long and rich history in the United States. It is a cornerstone of liberty and "basic to the existence of constitutional democracy." Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S. Ct. 444, 449, 80 L. Ed. 660 (1936). A vigorous press, even a "cantankerous press, an obstinate press, [and] an ubiquitous press" guarantees the flow of information and opinions to the public. United States v. New York Times Co., 328 F. Supp. 324, 331 (S.D.N.Y.), rev'd, 444 F.2d 544 (2d Cir. 1971) (en banc), rev'd, 403 U.S. 713, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971) (per curiam). The United States Supreme Court has observed that the First Amendment serves a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open", New York Times v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721, 11 L. Ed. 2d 686 (1964), and that the press has been a "mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences. . . ." Estes v. Texas, 381 U.S. 532, 539, 85 S. Ct. 1628, 1631, 14 L. Ed. 2d 543 (1965). First Amendment protections extend to "all issues about which information is needed or appropriate to enable members of the society to cope with the exigencies of their period." Curtis Publishing Co. v. Butts, 388 U.S. 130, 147, 87 S. Ct. 1975, 1987, 18 L. Ed. 2d 1094 (1967) (citations omitted).
The values underlying the First Amendment might well be served by a story about the compensations paid to executives at health maintenance organizations ("HMOs") such as U.S. Healthcare. The press has the right to inform the public about the organizations that provide health insurance to millions of Americans. As of December 1994, U.S. Healthcare had about two million members.
At the core of the First Amendment is the right to publish or broadcast the news without prior restraint. See, e.g., Near v. State of Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931); Grosjean, 297 U.S. at 249, 56 S. Ct. at 449; CBS Inc. v. Davis, 127 L. Ed. 2d 358, 114 S. Ct. 912 (1994). Implicit in the right to publish the news is the right to gather the news. "Without some protection for seeking the news, freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. Ct. 2646, 2656, 33 L. Ed. 2d 626 (1972). There is an "undoubted right to gather news 'from any source by means within the law. . . .'" Houchins v. KQED, Inc., 438 U.S. 1, 11, 98 S. Ct. 2588, 2594, 57 L. Ed. 2d 553 (1978) (citations omitted). Because a "free press cannot be made to rely solely upon the sufferance of government to supply it with information," the First Amendment protects the right of journalists to lawfully obtain information using "routine newspaper reporting techniques." Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S. Ct. 2667, 2671, 61 L. Ed. 2d 399 (1979).
The issue posed by this case is, therefore, the extent to which the First Amendment protects newsgathering by T.V. journalists using modern technologies.
James Madison declared in 1798: "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." Like other first amendment rights, however, the right to gather the news is not absolute. Zemel v. Rusk, 381 U.S. 1, 17, 85 S. Ct. 1271, 1281, 14 L. Ed. 2d 179 (1965) (noting in dicta that the "right to speak and publish does not carry with it the unrestrained right to gather information."). As the United States Supreme Court pointed out in Branzburg, the "First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." The Branzburg Court also emphasized that the press has no "special immunity from the application of general laws", nor does it have a "special privilege to invade the rights and liberties of others." Branzburg, 408 U.S. at 683, 92 S. Ct. at 2657. In Cohen v. Cowles Media Co., 501 U.S. 663, 668-669, 111 S. Ct. 2513, 2518, 115 L. Ed. 2d 586 (1991), the Supreme Court held that the First Amendment does not prohibit a plaintiff from recovering damages for a newspaper's breach of a promise of confidentiality. The Supreme Court stated:
generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news . . . The press may not with impunity break and enter an office or dwelling to gather the news.