WisBar News: Reporter Did Not Invade Privacy, Bus Driver’s Emotional Distress Claim Fails:

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  • WisBar News
    November
    05
    2013

    Reporter Did Not Invade Privacy, Bus Driver’s Emotional Distress Claim Fails

    Joe Forward
    Legal Writer

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    Nov. 5, 2013 – An investigative reporter who uncovered criminal records of school bus drivers in Milwaukee and highlighted one driver's prior prostitution conviction in a news broadcast did not violate her privacy rights, a state appeals court has ruled.

    Investigative reporter Robert Koebel was working for TMJ-4’s “I-team” when he obtained a list of bus drivers working for the Milwaukee Public School District.

    Then, the “I-team” began digging into their backgrounds, searching for details that may lead to an explosive news broadcast about children’s safety. Eventually, the “I-team” highlighted three bus drivers with criminal records, including bus driver Melissa Dumas.

    Koebel uncovered details from police reports that highlighted her previous misdemeanor prostitution conviction, and confronted and questioned her on camera about it.

    The report noted that Dumas had been fired after Koebel confronted MPS officials about her prior conviction. After the broadcast, Dumas filed suit for invasion of privacy, infliction of emotional distress, and interference with a contractual relationship.

    Koebel and his employer, Journal Communications Inc., argued that the privacy claim should be dismissed because the information highlighted was public record.

    Dumas’s other claims should be barred, they argued, because the First Amendment right to free speech allows individuals to make true statements on public matters.

    The trial court, after allowing limited discovery on the issue of whether Koebel obtained the information through public records, granted summary judgment in favor of Koebel.

    In Dumas v. Koebel, 2013AP365 (Nov. 5, 2013), a three-judge panel for the District I Court of Appeals affirmed. The panel concluded that discovery was properly limited, the information was public record and Koebel’s report was a “matter of public concern.”

    Dumas’s counsel wanted to depose Koebel on issues related to “editorial judgment,” including the use of so-called “ambush journalism” in investigative reporting. Koebel had successfully limited discovery to the issue of whether Koebel used public records.

    The appeals panel concluded the trial court properly limited discovery, in part because Dumas did not provide examples of what she might find if discovery was not limited.

    The invasion of privacy claim failed, the panel ruled, because “Dumas’ name was a matter of public record.” The panel rejected Dumas’s argument that MPS had a duty to keep her name confidential under state statute protecting certain employee information.

    The appeals panel also agreed that Dumas’ emotional distress and contract interference claims were barred by the First Amendment right to free speech, which can serve as a defense to tort suits if the speech at issue was a matter of public concern.

    “In the broadcast, details of Dumas’ misdemeanor conviction and other arrests appeared as part of a story about individuals with convictions being entrusted with the safe transport of children,” wrote Judge Patricia Curley for the three-judge panel.

    “While the information aired about Dumas was undoubtedly embarrassing, we conclude that it was a matter of public concern,” wrote Judge Patricia Curley. “[W]hether public school bus drivers have criminal histories is a matter of public concern.”

    The appeals panel found support for its conclusion in the U.S. Supreme Court case of Snyder v. Phelps, 131 S. Ct. 1207 (2011), the high-profile case involving Baptist picketers with provocative anti-gay signs who rallied near a U.S. Marine’s funeral.

    The Marine’s family sued for emotional distress. The Court ruled that picketers invoked “matters of public import,” even if their speech fell “short of refined social or political commentary.” Like in Snyder, the panel found that Koebel’s report was “salacious” but highlighted an important public issue about bus drivers with criminal histories.

    The panel rejected Dumas’s claim that under Hustler Magazine Inc. v. Falwell, 485 U.S. 46 (1988), “the First Amendment may serve as a defense against intentional infliction of emotional distress claims only in cases involving public figures.”

    “[W]hile the Hustler case did deal with a public figure … as we have already seen by examining Snyder, the issue before us – whether a defendant’s speech is a matter of public concern – is not so limited,” Judge Curley explained.

    Related Article

    Investigative TV Reporter Did Not Defame Alleged Scammer, Appeals Court Rules WisBar News, Oct. 17, 2013.