’60 Minutes’ must answer to revived invasion of privacy claim for segment on domestic violence

From the Summer 2001 issue of The News Media & The Law, page 17.

A Florida appeals court has reinstated a “false light” invasion of privacy lawsuit brought by an attorney against CBS’s “60 Minutes,” even though the report at issue was true.

John Heekin, an attorney shown in a “60 Minutes” segment on domestic violence, may pursue his case against CBS, the court held on May 16.

If allowed to stand, the ruling by the District Court of Appeal in Tampa (2nd district), would strike a blow to truthful reporting in the state, attorneys for the media argued.

“In a free society, where you publish the truth about someone, you should never be punished,” Gregg Thomas told the Sarasota Herald-Tribune in May. Thomas’ firm, Holland & Knight, filed a friend of the court brief in the case on behalf of several media organizations in the case.

On April 30, 1995, “60 Minutes” aired a segment on domestic violence and how the judicial system deals with the problem. The segment showed an interview with Heekin’s ex-wife, Judy Heekin, juxtaposed with stories and pictures of women who had been abused and even killed by their domestic partners. Judy Heekin had lodged allegations of domestic violence against her then-husband, but law enforcement officials did not arrest him, citing a lack of evidence. However, Judy Heekin had filed three petitions for a restraining order, each time receiving an emergency order forbidding domestic violence from a magistrate.

In his complaint, filed one day short of four years from the broadcast, Heekin admitted that the information in the broadcast was true, but claimed that the juxtaposition of the other women’s stories with his wife’s created the false impression that he had abused her and their children.

After Heekin sued CBS in April 1999, a Sarasota County judge dismissed the case in March 2000, ruling that the two years he had to bring the case after the program aired had passed. The court also ruled that Heekin failed to allege that CBS acted with actual malice; that is, knowing the report was false or showing a reckless disregard of the truth. Finally, the judge ruled that CBS could not be liable for publishing information gleaned from public records.

On appeal, the appellate court determined that actual malice is not a necessary element of false light invasion of privacy. The court rejected CBS’s argument that a 1967 Supreme Court case, Time v. Hill, required that Heekin prove actual malice for his false light claim based on a publication about a mater of public concern. The court ruled that the case was inapplicable because in Hill, “the action was essentially one for defamation,” whereas in Heekin, the action was simply for false light.

Jim McGuire, a Holland & Knight attorney who assisted on the media’s friend-of-the-court brief, disagreed with the court’s ruling.

“The Supreme Court’s holding is in fact quite broad: the constitutional protections for speech and press preclude imposing liability for a false report on a matter of public interest without proof of actual malice,” he said.

The appellate court also stated that even if actual malice were required, Heekin met this requirement by alleging in his complaint that CBS “aired the broadcast with actual knowledge of or in reckless disregard for ‘the effect the broadcast would have.'”

CBS’s argument that the case should be dismissed under the fair report privilege also failed. That doctrine allows the news media to rely on information in public records when publishing the news. The appellate court ruled the doctrine was irrelevant because Heekin alleged a false light invasion of privacy, not a public disclosure of private facts by CBS.

The appellate court also criticized the trial judge for not comparing the broadcast material with the actual public records to determine whether the publication was a “reasonably accurate and fair” description of the public records.

The court of appeals determined that a four-year, not a two-year, statute of limitations applied in this case. The invasion of privacy tort is not specifically mentioned in the statute of limitations legislative code section. The statute of limitations for defamation cases is two years; for causes of action not listed, it is four years.

CBS cited several Florida cases it said stood for the proposition that false light invasion of privacy claims received a two-year statute of limitations. However, the appellate court read those cases to mean that when a plaintiff claimed both defamation and false light claims, the false light claims were a two-year statute of limitations.

“A plaintiff may not avoid the two-year statute of limitations for defamation actions by simply renaming the defamation action as one for false light invasion of privacy,” Judge James Parker said in the opinion. “In this case, however, Heekin has alleged that the publication of truthful, nondefamatory facts was done in such a manner as to cast him in a false light in the public eye.”

Now, bringing a claim of false light invasion of privacy and getting the case before a jury is easier, McGuire said.

“The Heekin decision also makes it clear that the truth of the facts reported is no defense, so even a completely factually accurate report may be actionable,” he said.

CBS petitioned the Florida Supreme Court on June 8 to review the case, said Lee Levine, the network’s counsel.

In the petition, the network argued that the court of appeal’s decision violated the constitutional principle that “the publication of truthful information about matters of public concern is protected by the First Amendment absent a demonstrated need to vindicate ‘a state interest of the highest order.'” CBS cited Bartnicki v. Vopper, a newsgathering and privacy case decided this term by the Supreme Court.

“In my opinion, it does not make sense to require reporters to be more focused on the ‘impression’ their stories create than on whether the reported facts are true,” McGuire said. — DB