Daily Development for Thursday, May 6, 1999
By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
TRESPASS; SCOPE OF CONSENT; FREEDOM OF SPEECH. A genuine issue of material fact exists as to whether television reporter who enters care facility as a volunteer exceeds the facility operator's consent by secretly videotaping activities at the facility. The First Amendment does not insulate a person from liability for trespass or
other torts.
Special Force Ministries v. WCCO Television, 584 N.W. 2d 789 (Minn. App. 1998).
An employee of a television station applied for a volunteer position at a residential health care facility. The employee provided the operator of the facility with references (who were also employees of the station). Neither the employee nor her references disclosed that the employee worked for the television station or that she intended to videotape
activities at the facility. The employee spent 120 hours volunteering for the operator and used a hidden camera to tape footage to be used by the station. The station broadcast a report which contained footage of the operator's staff allegedly forgetting to feed patients and of the staff allegedly giving double doses of medication.
The operator brought suit against the station alleging fraud, trespass, and defamation. The The station moved for summary judgment under Minn. Stat. §§554.02 and 554.03 (which provide immunity from suit for protected speech activities) on the grounds that the operator had not proven that the station's action constituted a tort. The district court
denied the station's motion. The station appealed. The court of appeals ruled that there is no conflict between First Amendment interests and holding members of the media liable for the tort of trespass.
Although the case was remanded on the question if consent, it seems quite clear that the defendants have lost on that issue. The court comments that when the defendant "volunteer" started taking pictures, this action exceeded the scope of her invitation and rendered her a trespasser.
Comment 1: The result makes sense, but is possible that it will not do the plaintiffs all that much good. It's one thing to conclude that someone has committed a tort, but quite another to prove damages. Certainly the court is not going to enjoin the speech rights of the television station in broadcasting the data it obtained. If the data is accurate, it is unlikely that the care facility will be able to show damages. If inaccurate, it probably is irrelevant that the information was obtained through trespass. The plaintiffs (including several of the patients) did sue for emotional distress however, and if they can show
that, it may be an additional basis for damages.
Comment 2: One little used form of remedy that might be helpful in the appropriate case is the remedy of restitution. In these cases, the measure of recovery is not the loss suffered by the plaintiff, but the financial benefit enjoyed by the defendant as a consequence of the wrongful invasion. It may be that the plaintiff here could fashion a
remedy based upon the revenues obtained by the station.
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