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WOLFSON v. LEWIS

April 8, 1996

Richard Wolfson and Nancy Wolfson
v.
Paul Lewis, Stephen Wilson, Jane Doe and John Doe



The opinion of the court was delivered by: BRODERICK

 Broderick, J.

 April 8, 1996

 In this diversity action, plaintiffs seek to enjoin the activities of defendants, two broadcast journalists preparing an expose on the high salaries being paid to executives of U.S. Healthcare for an upcoming episode of the syndicated daily television news program Inside Edition. Plaintiffs, a couple who live with their children in the residential community of Gwynedd Valley, Pennsylvania, claim that defendants invaded their rights of privacy.

 Nancy Wolfson is the director of the health education department at U.S. Healthcare and her husband, Richard Wolfson, is the director of the pharmacy and dental operations at U.S. Healthcare. Mrs. Wolfson is the daughter and Mr. Wolfson the son-in-law of U.S. Healthcare's chairman of the board and principal executive officer Leonard Abramson. Defendants contend that they did not invade plaintiffs' privacy and that their conduct investigating the salaries of U.S. Healthcare executives is protected by the First Amendment to the United States Constitution. This Court must determine whether defendants invaded plaintiffs' privacy.

 Plaintiffs filed their complaint on February 14, 1996 in the Montgomery County Court of Common Pleas, and defendants removed the action to this Court on February 15, 1996. Plaintiffs' complaint alleges that the defendants engaged in "tortious stalking, harassment, trespass, intrusions upon seclusion and invasions of privacy." Plaintiffs requested that the Court enter a "temporary restraining order and after a hearing a preliminary and permanent injunction against the Defendants' ongoing stalking, harassment, trespass, and invasions of privacy, including Defendants' 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.

 Id. at 669, 111 S. Ct. at 2518.

 The First Amendment does not, therefore, shield the press from torts and crimes committed in the pursuit of a story. In Galella v. Onassis, 353 F. Supp. 196 (S.D.N.Y. 1972), aff'd in part and rev'd in part, 487 F.2d 986 (2d Cir. 1973), the District Court found Galella, a freelance photographer known as a "papparazo", guilty of harassment, intentional infliction of emotional distress, assault and battery, commercial exploitation of defendant's personality, and invasion of privacy for his conduct photographing Mrs. Onassis and her children. The Court concluded that the First Amendment "does not immunize all conduct designed to gather information about or photographs of a public figure . . . and that there is no constitutional right to assault, harass, or unceasingly shadow or distress public figures." Galella, 353 F. Supp. at 223. On review, the Second Circuit narrowed the scope of the permanent injunction entered by the District Court but flatly rejected Galella's contention that the First Amendment is a wall of immunity protecting the media from any liability for their conduct. The Second Circuit concluded: "Crimes and torts committed in news gathering are not protected" and that "there is no threat to a free press in requiring its agents to act within the law." Galella, 487 F.2d at 995-996. In A.A. Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971), the Ninth Circuit, rejecting the contention that the First Amendment immunized the media from liability for gathering information from plaintiff's home using hidden cameras and electronic devices, stated:

 Id.

 As both Galella and Dietemann illustrate, First Amendment freedoms can at times collide with another important cornerstone of democratic society -- the right to privacy. The use of sophisticated video and recording equipment by T.V. journalists has increased the threat that a person's right to privacy may be violated. Furthermore, the television market for scandal and sensationalism has encouraged T.V. journalists to engage in forms of newsgathering that may bring about a clash between the right to privacy and freedom of the press. Recognizing this potential clash between privacy and the First Amendment, this Court must proceed with caution in making its determination as to whether the plaintiffs' privacy rights were invaded under the facts of this case.

 The U.S. Constitution is one source of a right to privacy, despite the absence of the word "privacy" in the text of the Constitution. The Fourth Amendment's search and seizure clause has been characterized as a privacy provision. See, e.g., Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). The Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), recognized the right of privacy in the "penumbras" of the First, Third, Fourth, Fifth and Ninth Amendments. In considering the constitutionality of ordinances regulating the time, place and manner of speech, the Supreme Court has recognized the competing values of freedom of expression and an individual's right to privacy. Carey v. Brown, 447 U.S. 455, 100 S. Ct. 2286, 65 L. Ed. 2d 263 (1980); see also Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988). In Carey, the United States Supreme Court underscored that the state's interest in "protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." Carey, 447 U.S. at 471, 100 S. Ct. at 2296. Quoting from Gregory v. Chicago, 394 U.S. 111, 125, 89 S. Ct. 946, 953, 22 L. Ed. 2d 134 (1969), the Supreme Court in Carey further stated:

 
Preserving the sanctity of the home, the one retreat to which men and women can repair to escape the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual 'to be let alone' in the privacy of the home, 'sometimes the last citadel of the tired, the weary, and the sick.'

 Id. at 472, 100 S. Ct. at 2295.

 Specifically at issue in this case is whether the defendants violated plaintiffs' right to privacy under Pennsylvania and Florida law. The tort of invasion of privacy was originally conceptualized by Samuel D. Warren and Louis D. Brandeis in their seminal law review article entitled "The Right to Privacy", 4 Harv. L. Rev. 193 (1890). Warren and Brandeis characterized the right of privacy as "the right to be let alone", and they advanced two major threats to privacy. Id. at 195. One threat was the press, which they viewed as "overstepping in every direction the obvious bounds of propriety and of decency." Id. at 196. The second threat was the advent of "numerous mechanical devices" which "threatened to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'" Id. at 195.

 The next major advancement in the development of the tort of invasion of privacy occurred seventy years later when William L. Prosser published his law review article "Privacy." 48 Cal. L. Rev. 383 (1960). Prosser asserted that privacy was comprised of four distinct torts: (1) intrusion upon seclusion or solitude; (2) public disclosure of private facts; (3) publicity which places the plaintiff in a false light; and (4) appropriation of name or likeness. Id. at 389. These four torts were later adopted by the Restatement (Second) of Torts in sections 652B-652E. Plaintiffs' invasion of privacy claim in this case is based solely on the tort of intrusion upon seclusion under state law.

 B. Invasion of Privacy: Pennsylvania and Florida Law

 In Pennsylvania a violation of the right to privacy is an actionable tort. Harris v. Easton Pub. Co., 335 Pa. Super. 141, 483 A.2d 1377, 1383 (Pa. Super. 1984). In and early Pennsylvania invasion of privacy case, Bennett v. Norban, 396 Pa. 94, 151 A.2d 476, 479 (Pa. 1959), the Supreme Court of Pennsylvania explained that "the gist of privacy is the sense of seclusion, the wish to be left alone, and it is a trespass to abuse these personal sensibilities." In Bennett, plaintiff was accosted on the public street by an assistant manager of a shop who erroneously suspected her of shoplifting. He ordered her to take off her coat, reached into the pockets of her dress, and searched through her purse. The Court found that the tort of invasion of privacy redressed the "sense of personal outrage to which [plaintiff] was subjected" and that the "angry performance of defendant's agent was an unreasonable and serious interference with appellant's desire for anonymity and an intrusion beyond the limits of decency." Id. at 479. In a variety of contexts, moreover, Pennsylvania courts have consistently expressed their commitment to an individual's right to privacy. See, e.g., Commonwealth v. Matos, 1996 Pa. LEXIS 235, 1996 W.L. 82831 (Pa. Feb. 26, 1996); In Re B, 482 Pa. 471, 394 A.2d 419 (Pa. 1978); see also, Commonwealth v. McIvor, 670 A.2d 697, 1996 W.L. 21588 (Pa. Super. 1996); Klebanoff v. McMonagle, 380 Pa. Super. 545, 552 A.2d 677 (Pa. Super. 1988), alloc. den., 563 A.2d 888 (Pa. 1989).

 Pennsylvania has adopted the tort of intrusion upon seclusion as set forth at § 652B of the Restatement (Second) of Torts. See Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (Pa. 1974). Section 652B of the Restatement (Second) of Torts defines intrusion upon seclusion as follows:

 
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

 Florida also recognizes the tort of invasion of privacy based on intrusion upon seclusion. See, e.g., Cason v. Baskin, et al., 155 Fla. 198, 20 So. 2d 243 (Fla. 1944) (originally adopting the tort of invasion of privacy in Florida); Guin v. City of Riviera Beach, 388 So. 2d 604, 606 (Fla. Dist. Ct. App. 4th 1980) (recognizing that the tort of invasion of privacy is ordinarily considered to encompass four categories, one of which consists of "intrusion upon the plaintiff's physical solitude or seclusion, as by invading his home."); Tucker v. American Employers' Ins. Co., 171 So. 2d 437, 438 (Fla. Dist. Ct. App. 2nd 1965). The Court notes the parties do not dispute the application of Pennsylvania and Florida law to the facts of this case.

 An actionable intrusion upon seclusion consists of "an intentional interference with [a person's] interest in solitude or seclusion, either as to his person or his private affairs or concerns . . . ." Restatement (Second) of Torts § 652B, comment a. As stated in comment b of § 652B, the interference may be,

 
by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's sense, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or taping his telephone wires.

 This tort generally does not apply to matters which occur in a public place or a place otherwise open to the public eye. Comment c to § 652B illustrates this point:

 
The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs. Thus there is no liability for the examination of a public record concerning the plaintiff, or of documents that the plaintiff is required to keep and make available for public inspection. Nor is there liability for observing him or even taking his photograph, while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or the lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.

 Comment c underscores the traditional rule that watching or observing a person in a public place, or taking a photograph of a person who can be observed from a public vantage point, is not generally an invasion of privacy. See, e.g., Wehling v. Columbia Broadcasting System, 721 F.2d 506, 509 (5th Cir. 1983) (broadcasting a picture of plaintiff's residence which showed nothing more than what could be seen from a public street is not an invasion of privacy); Dempsey v. The National Enquirer, 702 F. Supp. 927, 931 (D. Me. 1988) (a reporter's presence on a public thoroughfare and in a restaurant open to the public cannot constitute an intrusion upon seclusion of another); Machleder v. Diaz, 538 F. Supp. 1364, 1374 (S.D.N.Y. 1982) (no liability for intrusion upon seclusion when defendant accosted and filmed plaintiff on the property of a corporation, a "semi-public" place, where he was visible to the public eye).

 Conduct that amounts to a persistent course of hounding, harassment and unreasonable surveillance, even if conducted in a public or semi-public place, may nevertheless rise to the level of invasion of privacy based on intrusion upon seclusion. See, e.g., Galella. The Restatement recognizes that conduct that is repeated with such persistence and frequency as to amount to a "course of hounding the plaintiff, [and] becomes a substantial burden to his existence" may constitute an invasion of privacy. § 652B, comment d. Pennsylvania courts, moreover, have specifically refused to recognize a separate tort of harassment on the ground that "an action for invasion of privacy will ordinarily be an adequate remedy for highly offensive conduct which unreasonably interferes with another's right to be left alone." DeAngelo v. Fortney, 357 Pa. Super. 127, 515 A.2d 594, 596 (Pa. Super. 1986); Speight v. Personnel Pool of America, Inc., 1993 U.S. Dist. LEXIS 9974, 1993 W.L. 276859 at 4-5 (E.D.Pa. July 20, 1993) (Padova, J.) (repeated harassment that amounts to hounding and becomes a substantial burden to a plaintiff may be an intrusion upon seclusion). Other courts including Florida also recognize this general principle. See, e.g., Tucker v. American Employers' Insurance, 171 So. 2d 437 (Fla. Dist. Ct. Ap. 2nd 1965) (genuine issue of material fact existed as to whether defendant's shadowing of plaintiff constituted invasion of privacy); Summers v. Bailey, 55 F.3d 1564, 1567 (11th Cir. 1995) (conduct constituting offensive, frightening and unreasonable surveillance of plaintiff's private affairs supports cause of action for intrusion into seclusion); Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1536-1537 (11th Cir. 1983) (noting that offensive and coercive sexual demands that interfered with plaintiff's "emotional sanctum" actionable invasion of privacy regardless of where the conduct occurred); Pinkerton Nat'l Detective Agency v. Stevens et. al., 108 Ga. App. 159, 132 S.E.2d 119 (Ga. App. 1963) (defendants' conduct shadowing plaintiff in a manner designed to frighten her and which caused mental and emotional suffering sufficiently alleged invasion of privacy.).

 In Pennsylvania there is no liability for intrusion upon seclusion "unless the interference with the plaintiff's seclusion is a substantial one, of a kind that would be offensive to the ordinary reasonable [person], as the result of conduct to which the reasonable [person] would strongly object." Restatement (Second) of Torts § 652B, comment d; see also, Chicarella v. Passant, 343 Pa. Super. 330, 494 A.2d 1109, 1114 (Pa. Super. 1985) (holding that intrusion must be substantial and highly offensive to ordinary person). A tortious invasion of privacy must "'cause mental suffering, shame or humiliation to a person of ordinary sensibilities.'" DeAngelo v. Fortney, 515 A.2d at 595 (quoting Hull v. Curtis Publishing Co., 182 Pa. Super. 86, 125 A.2d 644, 646 (Pa. 1956)).

 Likewise, in Florida, the intrusion must be substantial. In Cason the Florida Supreme Court noted:

 20 So. 2d at 251 (citations omitted). See also, Harms v. Miami Daily News, Inc., 127 So. 2d 715, 717 (Fla. Dist. Ct. App. 3rd 1961) (observing that the "standard by which the right [of privacy] is measured is based upon a concept of the man of reasonable sensibility; the hypersensitive individual will not be protected.").

 In determining whether an invasion of a privacy interest would be "offensive" to an ordinary, reasonable person, a court should consider all of the circumstances including "the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded." Hill v. National Collegiate Athletic Assoc., 7 Cal. 4th 1, 865 P.2d 633, 648 (Ca. 1994).

 Finally, the intrusion upon seclusion must be intentional. The Third Circuit has stated that an actor commits an intentional intrusion, "only if he/[she] believes, or is substantially certain, that he/[she] lacks the necessary legal or personal permission to commit the intrusive act. . . The intrusion, as well as the action, must be intentional." O'Donnell v. United States, 891 F.2d 1079, 1083 (3d Cir. 1983).

 II. Preliminary Injunction vs. Permanent Injunction

 Before proceeding to make findings of fact and conclusions of law, the Court will first clarify the procedural posture of this case. At plaintiffs' request, the parties met in chambers on February 16, 1996 to discuss plaintiffs' application for a temporary restraining order. At the Court's urging, the parties, outside the Judge's presence, engaged in lengthy negotiations and eventually arrived at the following stipulation, thus eliminating the need for the Court to rule on Plaintiffs' request for a temporary restraining order:

 
Defendants, their agents and those acting in concert with them will not until 5:00 p.m. on February 29, 1996 (subject to either party's application or further agreement of the parties):
 
(1) follow the children and grandchildren of Leonard Abramson;
 
(2) go to the homes or schools of the children or grandchildren of Leonard Abramson; or
 
(3) broadcast any likeness or photographs of the grandchildren of Leonard Abramson, or use any such likenesses or photographs for any purposes.

 In a note attached the above stipulation, the parties stated: "The Judge is requested not to sign this stipulation but to be sure that it is filed. . . ." Also on the February 16, 1996, the Court, with the parties' consent, entered an order pursuant to Fed. R. Civ. Proc. 65(a)(2) advancing and consolidating Plaintiffs' application for a preliminary injunction with the trial on the merits. The Court ordered the consolidation based on its understanding that the plaintiffs were primarily concerned with obtaining preliminary and permanent injunctive relief. After the Court was made aware that both plaintiffs and defendants had demanded a jury trial, the Court considered that portion of Rule 65(a)(2) which provides:

 
This subdivision shall be so construed and applied as to save to the parties any rights they may have to trial by jury.

 After reviewing several cases including Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L. Ed. 2d 44 (1962); and Perez-Serrano v. DeLeon-Velez, 868 F.2d 30 (1st Cir. 1989), it became apparent that by making findings of fact and conclusions of law in connection with plaintiffs' request for a permanent injunction, this Court might well be depriving the parties of their 7th Amendment right to a trial by jury. The Court has therefore determined to limit its findings to plaintiffs' request for a preliminary injunction.

 In ruling on a motion for a preliminary injunction, the district court must consider (1) the likelihood that the plaintiff will prevail on the merits at trial; (2) the extent to which the plaintiffs will suffer irreparable harm in the absence of an injunction; (3) the extent to which the defendant will suffer irreparable harm if the preliminary injunction is issued; and (4) the public interest. The injunction should issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary injunctive relief. Merchant & Evans v. Roosevelt Bldg. Products, 963 F.2d 628, 632-633 (3d Cir. 1992); Opticians Ass'n v. Independence Opticians, 920 F.2d 187, 191-92 (3d Cir. 1990).

 III. Findings of Fact and Conclusions of Law Re: Likelihood of Success on the Merits

 Plaintiff Richard Wolfson is the son-in-law of Leonard Abramson, the chairman of the board and principal executive officer of U.S. Healthcare. Mr. Wolfson is director of pharmacy and dental operations at U.S. Healthcare. He supervises thirty employees. Nancy Wolfson, Leonard Abramson's daughter, is director of the health education department at U.S. Healthcare. In this position, she administers the preventive healthcare programs for members of U.S. Healthcare. U.S. Healthcare classifies Nancy and Richard Wolfson as operations and administration officers. According to U.S. Healthcare's 1994 Annual Report, there are 160 officers in the company including the Wolfsons and Leonard Abramson. Non-party Marcy Shoemaker is Nancy Wolfson's sister and the president of a video post-production company called Criterion. U.S. Healthcare owns 51 percent of Criterion Communications.

 The Wolfsons live in an attractive single-family home in Gwynedd Valley, Pennsylvania, a short distance from U.S. Healthcare's corporate headquarters in Blue Bell, Pennsylvania. They have a three year old daughter and a one year old son. At the time of the events hereinafter described, Mrs. Wolfson was pregnant with the couple's third child. Mr. and Mrs. Wolfson endeavor to live a quiet life with their children.

 Paul Lewis and Steve Wilson are award-winning journalists who work for the syndicated television news program Inside Edition. Inside Edition is produced by Inside Edition, Inc. Inside Edition is distributed to a nationwide television audience by King World Productions. Stephen Wilson resides in Florida, and Paul Lewis resides in Massachusetts.

 Mr. Wilson has been an investigative journalist and correspondent with Inside Edition for five years, and a professional journalist for twenty-six years. As correspondent, Mr. Wilson conducts interviews and provides on-screen narration for Inside Edition broadcasts. Mr. Wilson was in charge of the investigation of the story on U.S. Healthcare. Paul Lewis has been an investigative producer for Inside Edition for approximately one and a half years and a professional journalist for approximately eighteen years. Non-party Bob Read is the senior producer in charge of Inside Edition 's investigative reporting unit. Mr. Read supervises Mr. Wilson and Mr. Lewis. Non-party Michael Tracey is the freelance cameraman and non-party Richard Robinson the freelance sound recordist Inside Edition hired to assist Mr. Wilson and Mr. Tracey with the U.S. Healthcare story. Non-party John Weitzman is the freelance cameraman who worked for Mr. Lewis and Mr. Wilson in Florida during the weekend of February 17, 1996.

 Inside Edition has no written guidelines governing reporters' conduct in the field when investigating a story. Inside Edition journalists investigating a story are expected to conduct themselves in a lawful manner, but the newsgathering approach to each story is discussed on a case by case basis.

 Mr. Lewis, the producer of the story about executive salaries at U.S. Healthcare, arrived in Pennsylvania at around 6 p.m. on February 11, 1996 to begin preliminary work on the story. He rented a white Chrysler at the Philadelphia Airport and drove around checking out the offices of U.S. Health Care in Blue Bell and the home of Mr. Abramson.

 At about daybreak on February 12, 1996, Mr. Lewis parked his rented white Chrysler on the shoulder of a public road approximately 100 yards from the electronic gate to surveil Mr. Abramson's home. Sometime that morning, Mr. Lewis discovered that he was being followed by security personnel from U.S. Healthcare and made a quick maneuver while driving to avoid detection. To insure that he would not be recognized later, he traded in the rented white Chrysler for a Jeep Cherokee on the afternoon of the 12th when he met Mr. Wilson at the Philadelphia Airport.

 On or about January 29, 1996, Mr. Lewis, on Mr. Wilson's behalf, faxed Mr. Abramson a letter requesting an on-camera interview regarding salaries paid to executives at U.S. Healthcare. Mr. Abramson did not respond to this request. Prior to his arrival in Pennsylvania on February 11, 1996, Mr. Lewis faxed the identical written request for an on-camera interview to Mr. Abramson on two more occasions. Mr. Abramson never responded.

 Mr. Wilson made one last attempt to obtain an on-camera interview with Mr. Abramson on February 12, 1996 after he arrived in Pennsylvania. He called Mr. Abramson's office and was referred to U.S. Healthcare's public relations firm. Public relations strongly indicated on February 12, 1996 and informed Mr. Wilson definitively on February 13, 1996 that neither Mr. Abramson nor any other executive at U.S. Healthcare would be interested in providing an on-camera interview to Inside Edition. Mr. Wilson and Mr. Lewis learned from a confidential source that Mr. Abramson intended to leave for Florida on February 13, 1996. On the morning of the 13th, Mr. Wilson, Mr. Lewis and their camera and sound crew went to Atlantic Aviation and from a van stationed outside the tarmac surreptitiously videotaped Mr. Abramson and Mrs. Abramson boarding a corporate jet. To conceal their activities, they hung an opaque, black cloth know as duvetyn over the windows of the van.

 After their requests for an on-camera interview with Mr. Abramson had been firmly rejected, and after learning that Mr. Abramson would be departing on February 13, 1996 for Florida, Mr. Wilson and Mr. Lewis turned their full and undivided attention to Mr. and Mrs. Wolfson and Marcy Shoemaker. At no time did either Mr. Lewis or Mr. Wilson ever request an interview with Mr. or Mrs. Wolfson. Mr. Wilson and Mr. Lewis had obtained information concerning Mr. Wolfson's ...


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