High court denies review in wiretap, libel cases

From the Winter 2000 issue of The News Media & The Law, page 27.

The U.S. Supreme Court denied review in early November of a case over publication of transcripts of an illegal wiretap, leaving two Louisiana newspapers to defend at trial their publication of the contents of a telephone conversation played at a political candidate’s press conference.

A Louisiana appellate court held that The Daily News of Middlesboro and the Avoyelles Journal must stand trial for allegedly violating the Louisiana Electronic Surveillance Act when they published the excerpts, and the state high court did not review the decision. (See NM&L, Spring 1999)

Both the Daily News and the Journal covered a news conference held by Carl Aymond Jr., an unsuccessful candidate for state trial judge. The papers included in their coverage excerpts from a recorded telephone conversation between Parish Police Juror McKinley Keller and then-state trial Judge Michael Johnson, which Aymond played at the conference.

Aymond allegedly illegally recorded the conversation, and Keller and Johnson sued Aymond and the newspapers under the Louisiana Electronic Surveillance Act for civil damages in a Louisiana trial court in Marksville. The law makes it unlawful to record a telephone conversation without consent from at least one of the parties to the conversation or to disclose or use the recordings of such conversations.

The trial court in 1997 held that the newspapers could not be liable for civil damages under the Louisiana law since the newspapers exhibited no criminal intent in publishing the excerpts. In December 1998, an intermediate appellate court in Lake Charles reversed the trial court’s decision and revived the claims against the newspapers. In April 1999, the Louisiana Supreme Court in New Orleans refused to hear the case on appeal. (Central Newspapers v. Johnson)

*

The U.S. Supreme Court in mid-January declined to review an August 1999 decision of the U.S. Court of Appeals in San Francisco (9th Cir.) to dismiss a lawsuit against ABC alleging violation of federal wiretapping laws.

The high court let stand a ruling that ABC reporter Stacy Lescht, who posed as a psychic advisor and secretly videotaped conversations with coworkers as part of an investigation of a telephone psychic hotline, did not violate federal wiretapping laws. (See NM&L, Fall 1999)

According to the appellate court, “Where the taping is legal, but is done for the purpose of facilitating some further impropriety, such as blackmail, [the federal wiretapping statute] applies. Where the purpose is not illegal or tortious, but the means are, the victims must seek redress elsewhere.” (Sussman v. American Broadcasting Cos., Inc.)

*

In mid-November, the U.S. Supreme Court denied review of an Indiana Supreme Court’s ruling that under state law, not only public figures, but all individuals who bring libel suits, must prove “actual malice” — knowledge of falsity or reckless disregard for the truth — to recover damages when matters of public concern are at issue.

The Indiana Supreme Court decision affirmed an intermediate appellate court’s reversal of a $985,000 libel award in favor of a restaurant that sued an Indiana newspaper for printing inaccurate information in a headline.

The state Supreme Court’s June 1999 decision marked the first time the state high court in Indianapolis had spoken on the issue of what standard of liability would govern libel claims since the U.S. Supreme Court held in 1974 that states can set their own standards of liability for private individuals suing for libel. The Indiana Supreme Court established that all individuals, not just public figures, must meet a heightened standard of proof to recover for libel when matters of public concern are at issue. (See NM&L Summer 1999)

The Fort Wayne Journal Gazette published an article concerning the health inspection and closing of a local Mexican restaurant, Bandido’s.

Although the story was accurate, the subheadline written by a copy editor inaccurately reported that the inspector actually found rats, rather than evidence of the presence of rats, at Bandido’s. (Bandido’s v. Journal Gazette Co.)