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2005

Talk Show Torts Turn Deaf Ear to Plaintiffs

Joseph A. Tomain Indiana University Maurer School of Law, [email protected]

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Part of the Communications Law Commons, and the Torts Commons

Recommended Citation Tomain, Joseph A., " Torts Turn Deaf Ear to Plaintiffs" (2005). Articles by Maurer Faculty. 2651. https://www.repository.law.indiana.edu/facpub/2651

This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Talk Show Torts Turn Deaf Ear to Plaintiffs JOSEPH A. TOMAIN

In August 2004, a New York appellate the studio and had been released into the stance,"4 the trial court found that the court dismissed a lawsuit filed by custody of her mother and grandmother.3 following allegations established the Sheila C., a minor, who alleged that talk When The Povich Show solicit- existence of a duty of care: (1) the show show host and the pro- ed guests to appear on an episode entitled solicited a minor for commercial purpos- ducers of The Maury Povich Show had "Out of Control Teens," Sheila's mother es and brought her into the state; (2) it negligently put her in contact with a responded. Sheila's mother allegedly knew that she had emotional difficulties; limousine driver who later raped her.' informed the show's staff of Sheila's age (3) it represented itself as having expert- This dismissal is the latest in a line of and told them that she was undergoing ise in remedying problems of "out of defense victories in cases involving counseling, she was on medication for control" teens; (4) "Maury's limo driver" "talk show torts"-claims based on emotional illness, she recently attempted was able to approach Sheila on the set appearances on popular television talk suicide, she recently lost an immediate and gain her contact information; shows-illustrating that show family member, and she reported having (5) after taping, the show permitted the genre has provided less than fertile sexual intercourse with one twenty-nine- minor to leave under the supervision of ground for plaintiffs. year old man and five males who were two adults who admittedly could not This article reviews Sheila C. v. Povich under age sixteen. In exchange for control her; and (6) no other precautions and its predecessor talk show cases. As Sheila's appearance on Maury Povich, were taken to protect the minor. the cases demonstrate, the courts have the defendants offered to provide follow- On the negligent hiring and retention been reluctant to impose duties on talk up psychological counseling, send Sheila claim, the trial court held that there show producers that extend beyond the to a corrective "teen boot camp," make were relevant facts exclusively within conduct of the talk show taping itself, and transportation and hotel arrangements, the defendants' control regarding also have rejected claims of invasion of and pay related expenses. "Maury's limo driver" that made dis- privacy and defamation on the part of talk Before taping began, a defendant and missal at the pleading stage improper. show guests and those connected to them. another staff member allegedly told As to the negligent supervision At least for the time being, it seems Sheila to act sexually provocative and claim, the defendants unsuccessfully unlikely that the talk show genre will be to wear only her thigh-length top with- argued that the show should not be the next big hit for plaintiffs. out slacks so that she would appear responsible for the alleged rape because "sexier,'" which would be " for the they were not directly supervising Sorry, Guests, Our show." As Sheila watched other guests "Maury's limo driver" at the time of Duty Is to the Viewers being taped, a man introduced himself the incident. In response, the trial court Sheila C. and the well-known case to her as "Maury's limo driver." He stated: "A caretaker is not automatically against the producers of The Jenny asked for her contact information in exempt from responsibility merely Jones Show2 reflect the judiciary's New York and offered to show her because of a suspension of physical reluctance to impose a duty on talk around the city later that night. Sheila supervision of an injured minor where, gave him this information, taped the as here, the conditions created by the shows to protect their guests from the 6' tortious acts of third parties that occur episode, and returned to her hotel with caretaker are still in effect" after an episode has been taped and the her mother and grandmother. When The appellate court reversed the trial guests have left the studio, even though "Maury's limo driver" showed up at court on both claims. First, it dismissed the show may have played a role in Sheila's hotel, her mother and grand- the negligent hiring and retention claim stirring the tortfeasor to action. mother turned him away, but he per- because Sheila failed to allege that defen- In Sheila C., a fourteen-year-old suaded Sheila to sneak out. Allegedly, dants knew or should have known of female guest of The Maury Povich Show, "Maury's limo driver" drove her to a "Maury's limo driver's" propensity for the 7 Sheila, sued Povich, the show, its pro- dark area, climbed in the back of the type of conduct that allegedly occurred. ducers, and its distributors, alleging that limousine, and raped her. Second, the court dismissed the negli- they negligently allowed a man who Sheila sued for negligent retention gent supervision claim, finding that the identified himself as "Maury's limo and negligent supervision, both based defendants owed no duty to Sheila at the driver" to rape her hours after taping on the limousine driver's conduct. The time of the alleged rape. Generally, the the episode, even though she had left defendants contended that the negli- court noted, defining the orbit of duty is gence claims should be dismissed not the result of an algebraic formula. Joseph A. Tomain ([email protected]) is because they did not owe a duty of care "Rather, [duty] coalesces from vectored a seniorassociate in the Cincinnatioffice of to Sheila. After noting that negligence forces including logic, science, weighty FrostBrown Todd LLC. is a "matter of time, place, and circum- competing socioeconomic policies and

Spring 2005 ED Communications Lawyer ED 5 sometimes contractual assumptions of In May 1999, a Michigan jury found The Graves dissent notwithstanding, responsibility.' 8 Specifically, the question the defendants liable to Scott's personal both Graves and Sheila C. were ulti- of duty in Sheila C. was "whether a tem- representatives for $29 million. The mately resolved, as a matter of law, in porary custodian has a continuing duty jury verdict was based on a finding that the defendants' favor. Both courts found to protect a child from harm once that the producers "ambushed"12 Schmitz that a talk show does not owe its guests child has been returned to the custody of with the surprise topic and revelation a duty of care for the intentional acts of a parent or guardian or, as in this case, of a same-sex crush. The award raised a third party that occur away from the both a parent and a guardian."9 The court concerns that a wave of lawsuits seek- studio, whether that third party be the ing to hold talk shows, their hosts, pro- host's limo driver or another guest. A Courts have been reluctant ducers, and owners civilly liable might brief review of other talk show cases be next season's big trend. Multiple reveals a similar reluctance to impose to impose duties on talk commentators addressed this decision, tort liability. noting that the law of talk show torts "remains 1 show producers that extend unsettled" and that viewers That's None of Your Business! 4 beyond the conduct of the should "stayed tuned" to find out just In addition to negligence claims, talk how far this emerging trend of talk show plaintiffs have attempted to rely talk show taping itself. show torts would go toward expanding on several other tort claims, including media liability. the four privacy torts. Interestingly, the In 2002, however, the Michigan invasion of privacy cases show that answered this question in the negative, appellate court reversed and granted willing talk show guests are not the signaling that talk show producers' summary judgment to the defendants, only plaintiffs who face difficulty in duties over their guests--even minors holding that the talk show owed no establishing these claims, but that fami- allegedly placed in risky circum- duty to Amedure to protect him from ly, friends, and "acquaintances" of stances-end at a taping's conclusion. Schmitz. Specifically, the court found guests, regardless of their consent, are that no special relationship existed also subject to having their dirty laun- Perhaps It's Better Left Unsaid between the television show and its dry aired before millions of viewers. The appellate decision in Sheila C. was guest that created an obligation to pro- Anonsen v. Donahue8 applies the consistent with the final result in Graves tect Amedure from the criminal acts of First Amendment principle that pre- v. Warner Bros., a lawsuit against the a third party. Invoking a basic negli- cludes a claim for public disclosure of producers of that gence standard, the court ruled that the private facts when a logical nexus exists attracted considerable publicity following only duty owed to Amedure was that of between a person's identity and a mat- a $29 million trial verdict in the plain- a business host to a business guest, an ter of public interest. While Miriam tiff's favor and later reversed on appeal. obligation that ended three days prior to Booher and her ex-husband were still Graves arose from an appearance by the murder, hundreds of miles away in married, he raped and impregnated her Scott Amedure and Jonathan Schmitz on another state. 5 eleven-year-old daughter, his step- The Jenny Jones Show in . Graves includes a strong dissent, daughter. She gave birth to a son, who Although Schmitz knew that the episode which argues that the plaintiffs adequate- was raised as her half-brother, the "son" was about secret crushes, he did not know ly demonstrated active misconduct on of Miriam. Many years later, the truth the that episode was entitled "Same-Sex the part of the defendants.I According was told to the "son." Sometime after Crushes" because the producers intention- to the dissent, the defendants used lies, that, Miriam appeared on Donahue and ally withheld this information from him. deceit, and outrageous behavior to revealed this story of rape, incest, and During the taping, Amedure revealed his ensure that Schmitz would appear on her own victimization resulting from secret crush on Schmitz. Three days after the show, while hiding the true nature these life-changing events. Miriam's taping, back home in Michigan, Schmitz of the episode-same-sex crushes. The daughter and grandson filed suit against killed Amedure and was subsequently dissent concluded that, for the defendants her, , the show's producer, found guilty of second-degree murder." to be held liable for the consequences the show's owner, and a local television Amedure's personal representatives sued of Schmitz's actions, Schmitz's murder station for invasion of privacy-public The Jenny Jones Show producers for of Amedure did not itself need to be disclosure of private facts. The appel- wrongful death, alleging that the produc- foreseeable. Rather, the dissent con- late court affirmed the trial court's sum- mary judgment for the defendants, ers knew or should have known that cluded more generally that "ambushing" Schmitz with Amedure's holding that Miriam's story was pro- as a matter of public policy, if defendants, for secret same-sex crush for the "sole pur- their own benefit, wish to produce "ambush" tected by the First Amendment. pose" of increasing television ratings shows that can conceivably create a volatile Although Miriam did not reveal the would "unnecessarily and unreasonably situation, they should bear the risk if a guest is identity of her daughter or grandson, psychologically unstable or criminally danger- expose [Amedure] to the risk of harm" ous by being charged with that knowledge in she did reveal her own. The plaintiffs and incite Schmitz to violence. 1 the context of any foreseeability analysis." alleged that Miriam's revelations neces-

6 D] Communications Lawyer El Spring 2005 sarily led to the discovery of their iden- defendant should have erased that part that their images would appear on the tities, thereby invading their privacy. of the tape before the broadcast."2 show, and sued for misappropriation of While the court acknowledged that such The trial court dismissed Tammy's likeness, public disclosure of private revelation was a likely outcome, Miriam claims, and the Seventh Circuit affirmed. facts, and false light. The trial court was free to disclose her own identity. The court noted that reading from a granted summary judgment to the defen- The court reasoned that there was a logi- police record may not even qualify as a dants on all three claims. cal nexus between Miriam's identity and private fact, but stated that it need not The dancers appealed the dismissal of a matter of legitimate public interest, i.e., address this issue." Instead, the court their false light claim. The Sixth Circuit the rape, incest, cover-up, and eventual held that "a person whose character is affirmed summary judgment on this discovery. The court emphasized that "to assailed can respond with facts bearing claim, reasoning that "[a]lthough the title hold otherwise would be to imply that on the character of her assailant that of the show was His Bachelor Party one's autobiography must be written might otherwise be off limits."22 Ruined Our Marriage, the Busches- anonymously."19 Thus, Anonsen signals The Seventh Circuit also recognized who are still married-appeared good- that if there is a logical nexus between a that a talk show should not be liable for humored and at ease with each other matter of legitimate public interest and the acts of a third party: "It is one thing throughout the broadcast."2 Moreover, one's identity as revealed on a talk show, to impose liability on the press for Mrs. Busch stated that she intended to then a claim for public disclosure of invading someone's privacy, and anoth- remain married. Thus, the court held that private facts cannot trump the First er to prevent or take steps to rectify an no reasonable juror could conclude that Amendment right to free speech, even invasion of privacy by another."23 the dancers' performance actually ruined outside of a hard news context. Moreover, the court stated that "the the Busches' marriage or that they were 28 stepmother and derivatively the broad- "home wreckers. Judge Posner's "Final Thoughts" caster were entitled to use private facts Sixteen-year-old Tammy, her sister, and about the plaintiff to rebut her very Bad Boys' Names Have their stepmother and stepsister, volun- public attack on the stepmother's own No Intrinsic Value 24 teered to appear on The CharliePerez private character." Although COPS is not a talk show, Show when they learned that the show While finding for the defense, the Reeves v. Fox Television Network29 fol- was planning to tape an episode about Seventh Circuit in Howell stopped short lows a similar line of analysis to talk tensions between stepparents and of expressing approval for the talk show show cases, and illustrates the difficulty stepchildren. Tammy joined her sister in from which the lawsuit arose. Rather that a plaintiff is likely to encounter in making some sharp-tongued attacks Judge Posner offered his own "final establishing a claim for invasion of pri- directed at her stepmother, accusing her thoughts" on the case: "[W]e do not vacy if he or she has willingly agreed to of beginning an affair with their father mean to express approval of the practice appear on television. before he divorced their mother. The of broadcasters of inviting teenagers to On August 30, 1993, Willie Reeves place themselves in embarrassing situa- stepmother fired back by reading from a 25 was in an altercation with another man. police report about Tammy that indicat- tions on television. When police and a COPS camera crew ed that she exhibited violent, profane, arrived at his home to investigate, and indecent behavior. The report also Topless Dancers in a False Light? Reeves answered the door and allowed noted that Tammy had described herself In Fronning v. Jones, topless dancers them inside. After the incident appeared as the biggest gangster in town. At this unsuccessfully alleged that an episode on COPS, Reeves sued Fox Television, point, visibly pregnant Tammy wryly of The Jenny Jones Show entitled "His the producer of COPS, as well as the smiled at the engaged studio audience, Bachelor Party Ruined Our Marriage" police and the City of Cleveland, alleg- did a full turn, and asked, "do I look gave rise to invasion of privacy. 6 During ing that these defendants had commit- like a gangster?" this episode, Mr. and Mrs. Busch ted all four privacy torts. The court Although the show was taped two appeared and told their story of how their granted summary judgment on all of weeks before airing, Tammy never marriage suffered due to the hiring of Reeves's claims. requested that this segment of the show topless dancers for his bachelor party. First, the court found that the be removed. After the show broadcast, As Mrs. Busch told the audience of her "Cleveland Police Department's response however, Tammy suffered unbearable anger upon discovering photos of two to a call regarding a violent crime, their teasing, had to change schools, and topless dancers giving Mr. Busch a "lap investigation and arrest of a suspect are sued the show. In Howell v. Tribune dance," these photos were intermittently all matters of legitimate public con- EntertainmentCo., Tammy sued for shown to the studio and television audi- cern."3 Further, the court held that invasion of privacy by public disclosure ences. Although the dancers' names were Reeves's address, his physical descrip- of private fact, alleging that either Perez not mentioned, their faces were identifi- tion, and images of him being escorted "should have interrupted the program able in several of the pictures. The in handcuffs were not private facts." when he realized that the stepmother dancers, who were described as "home Second, the court dismissed Reeves's was reading from a police report or the wreckers," received no advance notice misappropriation claim on the basis

Spring 2005 D] Communications Lawyer D] 7 that it requires more than the mere later, the psychic appeared on Montel ed , offering to publication of one's name or likeness. Williams again. Describing the psychic's appear on an episode concerning Instead, a plaintiff must allege that his "powers," Williams told the audience fathers' rights. He appeared on two or her "name or likeness has some that the psychic had given Erica's moth- episodes. Although he appeared in dis- intrinsic value, which was taken by er Chris Mineer's name during the break guise, his wife recognized him and the defendant for its own benefit, commer- of the September 1998 episode. Williams plaintiff was apprehended. Shortly cial or otherwise."32 On this element, the explained that Chris killed his girlfriend thereafter, the newspaper published an court found that Reeves's name and and himself in a panic, believing that he article on this custody battle, including likeness had no intrinsic value, notwith- would soon be arrested for a crime that a prior incident in which the Houston standing the profit motive of the COPS he committed. police asked the plaintiff to remain in a producers: "[T]he fact that the defen- Chris's mother sued Williams, the holding room. The plaintiff sued over dant is engaged in the business of publi- producers of The Montel Williams the paper's characterization of the cation.., out of which he makes or Show, and the psychic for false light Houston incident as an arrest. seeks to make a profit, is not enough to invasion of privacy. The court granted The court granted the defendants sum- make the incidental publication a com- defendants' motion to dismiss, applying mary judgment, finding that the father 33 mercial use of the name or likeness. the Restatement principle that, "'[e]xcept was a public figure and that he could not Third, Reeves lost on his claim for for the appropriation of one's likeness, an establish actual malice. Citing Gertz v. false light because Ohio does not recog- action for invasion of privacy can be Robert Welch, Inc.," the court held that, nize this invasion of privacy tort.34 maintained only by a living individual 3'7 when the father invited media attention Finally, Reeves's claims for intrusion whose privacy is invaded.' by appearing on Donahue to discuss upon seclusion and trespass failed. His child snatching and fathers' rights, he Guest Pass for Defamation? thrust himself into a public controversy Talk show guests have not Talk show guests have not had any and became a public figure for these greater success with defamation claims issues. This status and his inability to had any greater success than with other torts. As with other tort establish actual malice resulted in sum- claims, defamation claims generally fail mary judgment for the defendants. with defamation claims because talk show guests create or vol- Similarly, in Contemporary Mission, untarily participate in situations that Inc. v. New York Times Co.,"4 the U.S. than with other torts. they eventually regret. Court of Appeals for the Second Circuit affirmed summary judgment for the own testimony, as well as videotaped When Everybody Knows Your Name New York Times Co., finding that the footage of the arrest, show that he con- Reeves v. Fox Television, discussed plaintiffs were limited-purpose public sented to the police and the camera 35 above, rejected privacy claims based on figures who could not establish actual crew entering his home. an appearance on COPS, largely because malice. The New York Times reported the plaintiff permitted a camera crew to on religious and business controversies Apparitions Have No Claim to Privacy enter his home. Similarly, defamation concerning Contemporary Mission, Mineer v. Williams36 is a story about a claims arising from the talk show con- Inc., and several of its priests. Specifi- mother, a psychic, and a talk show. In text have been dismissed as a result of cally, the Times reported allegations October 1997, a teenage girl, Erica, the plaintiffs' voluntary conduct in that the priests forged proof of their disappeared. In September 1998, while appearing on television, which in some ordinations and that the Mission was a Erica was still missing, a psychic instances has been held to give rise to front to attain tax-exempt status for its appeared on public figure status. successful mail-order business. The to help guests learn information about In Anderson v. Rocky Mountain priests and the Mission sued the loved ones who were missing or dead. News," the plaintiff sued a newspaper newspaper for defamation. Erica's mother appeared on the show and based on the defamatory statement that During the underlying religious asked the psychic whether anyone had he was jailed for violating a child cus- controversy, the Mission had formed a information about her missing daughter. tody agreement. The appellate court folk-rock group, The Mission Singers. The psychic told her that Erica was mur- affirmed summary judgment for the In addition to performing hundreds dered and that a man named Chris had newspaper because the plaintiff was a of concerts, The Mission Singers information. Although the show edited public figure-based on his prior "appeared on numerous television and the sound to eliminate the name "Chris," appearance on a television talk show- talk radio shows, including television viewers could read the psychic's lips and who could not establish actual malice. shows such as the Ed Sullivan Show, discern the name. One day after the While in the middle of a custody the Mike Douglas Show, and the Joey show aired, Chris Mineer, who knew dispute, the plaintiff crossed state lines Bishop Show."'" One of the priests com- Erica, shot and killed his girlfriend and with his daughter. In response to a posed a rock-opera, Virgin, which sold then committed suicide. Four months request for guests, the plaintiff contact- 20,000 copies."

8 ED Communications Lawyer ED Spring 2005 These public appearances, particular- Daughter Off the Street." Before the pute: "If the defendants knew that Weber ly the television shows, formed the show, Misty claimed she was a prosti- was not a prostitute, then the Show was basis of the court's finding that the tute, but in her lawsuit she alleged that riddled with substantial falsification and 55 plaintiffs were public figures. After cit- she was not a prostitute and had only fictionalization." Thus, this invasion of ing Gertz, the court also cited the four- been induced by the show to portray privacy claim survived dismissal because part test announced in Lerman v. Flynt one. To determine which statement was the court found that substantial fictional- Distributing Co., Inc.," for determining truthful, the defendants propounded ization of Misty could trump the news- limited-purpose public figure status:' interrogatories requesting the names worthiness privilege. A defendant must show the plaintiff has: (1) of every person with whom Misty had successfully invited public attention to his a sexual relationship, and every person Misty Tales Episode III views in an effort to influence others prior to who provided Misty with illegal drugs. the misappropriation claims the incident that is the subject of litigation; (2) Although voluntarily injected himself into a public con- The plaintiffs sought to limit the survived the motion to dismiss, they troversy related to the subject of the litigation; scope of these interrogatories to were defeated on summary judgment." (3) assumed a position of prominence in the whether she was a prostitute and, if so, public controversy; and (4) maintained regular As noted, the court previously sustained and continuing access to the media." the names of her customers. The court the misappropriation claims because the found that the defendants were entitled newsworthiness privilege would not Applying the Lerman test, the court to the interrogatory responses request- the show engaged in substantial found that the priests were limited-pur- apply if ed, noting that the defendants were "not pose public figures because they thrust fictionalization concerning whether required to accept plaintiff Weber's self- a teenage prostitute. But, themselves to the forefront of a public Misty was 4 reporting on this issue."51 The court fur- between controversy, the religious controversy. 1 an unrelated case intervening explained that not only was the Seeking to avoid public figure status, ther these two Misty opinions held that relevant to whether Misty the priests argued that because the information "there is no 'substantial fictionalization' a prostitute but it was also relevant religious controversy occurred almost was limitation on the newsworthiness excep- to 5'7 twenty years earlier, they were no to her claim for damages for injury tion." In the face of this holding, the decision is only longer public figures. The court rejected her reputation. But this court granted summary judgment on the this argument noting that "the passage a small part the Misty Nicole Weber misappropriation claims. of time will not necessarily change an legal saga. Misty's defamation and negligence 47 individual's status as a public figure." claims also failed on summary judg- The plaintiffs then argued that they Misty Tales Episode II ment. The defamation claim failed for were not limited-purpose public figures In addition to asserting a defamation three independent reasons. First, Misty's for purpose of the business controversy claim, Misty claimed that the show mis- voluntary appearance on the show because they had not voluntarily entered appropriated her image for commercial claiming to be a prostitute barred her into this controversy. The court agreed purposes by portraying her as a prosti- defamation claim. As the court that the plaintiffs did not thrust them- tute, even though she told the show selves to the forefront of the business before taping that she was one and that "There is no 'substantial controversy because "they had not uti- her appearance was voluntary. The lized the media to further their points or defendants moved to dismiss Misty's 48 fictionalization' limitation to sway public opinion on the matter." claims for misappropriation, arguing that Nevertheless, the court held that the the newsworthiness privilege applied.5" on the newsworthiness plaintiffs qualified as limited-purpose The court rejected Misty's argument public figures for the business controver- that The Jesse Raphael Show is exception." sy because it was "necessarily inter- "unworthy" of the newsworthiness 49 twined with the religious controversy. privilege "because of the nature of the Thus, when two public controversies forum, a television talk show."53 In a observed, "'there is no publication,' and intertwine, a party can become a limited- passage unlikely to amuse print journal- therefore no liability, 'if the defamatory purpose public figure for both simply by ists, the court observed that "television statement is exposed to a third party by 58 thrusting itself, even on a television talk shows are the equals of The New the person claiming to be defamed."' 54 show, to the forefront of one of them. York Times in the eyes of the law. Second, under New York law, a party Based on that finding, plus the plain- cannot be liable for defamation when a Misty Tales Episode I tiffs' concession that the show's topic- story is "'arguably within the sphere of Misty Nicole Weber, a minor, and her teen runaways and teenage prostitu- legitimate public concern' . . . unless mother sued Sally Jesse Raphael and tion-was a matter of public concern, 'the publisher acted in a grossly irre- 59 the producers of her show for defama- the court found that the newsworthiness sponsible manner."' The court held tion based on the allegation that they privilege can apply to talk shows. that the talk show defendants did not induced Misty to portray a prostitute on Nonetheless, the court denied the act in a grossly irresponsible manner the episode entitled "I Want My Teen motion to dismiss based on a factual dis- because they reasonably relied on the

Spring 2005 ED Communications Lawyer Dl 9 expertise of a person hired to identify with Cunningham, who is known for his on the stage of this still-evolving form potential guests. Third, this person, to blowtorch rhetoric."' Thus, there could of broadcast entertainment. whom Misty allegedly said before the be no claim for intrusion upon seclusion. show that she was not a prostitute, was The smoking regulation claim was dis- Endnotes an independent contractor with expert- missed because the regulation did not 1. Sheila C. v. Povich, 11 A.D.3d 120 ise in finding potential guests for the create a private right of action. (N.Y. App. Div. 2004). show, was not an employee of the show, Although the court permitted the 2. Graves v. Warner Bros., 656 N.W.2d 195 (Mich. Ct. App. 2002), cert. denied, 124 and his knowledge could not be imput- battery claim to survive, it spent two S. Ct. 2884 (2004). ed to the show's producers. paragraphs expressing its disdain that 3. The trial court dismissed the negli- As a result of the elimination of the such a case would clog a court's docket. gence per se, slander per se, and intention- defamation claim, Misty's negligence The court noted that this "case empha- al/negligent infliction of emotional distress claim necessarily failed. Because the sizes the need for some form of alterna- causes of action. Sheila C. v. Povich, 768 N.Y.S.2d 571 (N.Y. Sup. Ct. 2003). negligence claim was merely a deriva- tive dispute resolution operating totally 4. Sheila C., 768 N.Y.S.2d at 575. tive of the defamation claim, it could outside the court system as a means 5. Id. at 576. not survive standing alone. The court to provide an attentive ear to the 6. Id. at 577. noted that to hold otherwise would be parties and a resolution of disputes in 7. Sheila C., 11 A.D.3d at 130. a "transparent and impermissible a nominal case."65 8. Id. at 126. 9. Id. attempt to evade the exacting require- 10. People v. Schnmitz, 586 N.W.2d 766 ments that New York has imposed on a Now... 6 0 And A Word (Mich. Ct. App. 1998), aff'd, No. 222834, claim for defamation. from Our Sponsor 2002 Mich. App. Lexis 71 (Jan. 22, 2002). Barring the Graves dissent's viewpoint 11. Graves v. Warner Bros., 656 N.W.2d 195, 198 (Mich. Ct. App. 2002). When Smoke Gets in Your Eyes being adopted by a majority, the courts 12. Robin Famoso, Note: Ambush TV: Even when a court allows a talk show that have considered talk show torts offer Holding Talk Shows Liable for the Public tort case to survive dismissal, it can scant reason for optimism among would- Disclosure of Private Facts, 1998 RUTGERS express its displeasure in doing so. be plaintiffs. Graves and Sheila C. both L.J. 579 (1998). Ahron Leichtman, a guest on a talk hold that courts view the relationship 13. Jason S. Schlessel, Note: The Deep Pocket Dilemma: Setting the Parameters of radio show, sued the host, the host's between a talk show and its guests as one Talk Show Liability, 20 CARDozo ARTS & employer, and another guest (a talk between a business invitor and invitees. ENT. L.J. 461, 486 (2002). show host from the same station) for Once this temporary relationship efids, so 14. Richard M. Goehler & Jill Meyer battery, invasion of privacy, and viola- does the duty of care. In Graves, that Vollman, Expansion of Tort Law at the 6 tion of a city health regulation. 1 relationship was clearly over when three Expense of the FirstAmendment: Has the Jones Court Gone Too Far?Stay Tuned to Specifically, Leichtman alleged that he days had passed since the taping and the Find Out, 27 N. Ky. L. REv. 112, 115 (2000). was a nationally known antismoking guests were hundreds of miles away in 15. Graves, 656 N.W.2d at 202-03. advocate who appeared on Bill another state before the incident giving 16. Id. at 207. Cunningham's radio talk show on the rise to the suit occurred. In Sheila C., that 17. Id. at 211. date of the Great American Smokeout. duty ended at the time the guest left the 18. 857 S.W.2d 700 (Tex. App. 1993). 19. Id. at 706. During Leichtman's appearance, physical custody of the talk show and 20. 106 F.3d 215, 219 (7th Cir. 1997). Cunningham's other guest, Andy was released into the custody of her 21. Id. at 220. Furman, repeatedly blew cigar smoke mother and grandmother, even though the 22. Id. in his face, allegedly "for the purpose incident occurred the same night of tap- 23. Id. at 221. of causing physical discomfort, humili- ing and involved the host's limo driver. 24. Id. at 222. distress. 62 25. Id. ation, and Courts considering claims of defama- 26. Fronning v. Jones, No. 94-2205, 1996 The appellate court reversed the trial tion and invasion of privacy have shown U.S. App. Lexis 5725 (6th Cir. Feb. 23, 1996). court's dismissal of the battery claim a similar reluctance to impose liability 27. Id. at *5. because, under Ohio law, smoke is a on talk show producers. On those 28. Id. "particulate matter" capable of making claims, the courts have emphasized that 29. 983 F Supp. 703 (N.D. Ohio 1997). 30. Id. at 709. contact, thus satisfying the physical a plaintiff's voluntary appearance and 31. Id. contact element of the battery tort.63 disclosure of personal information, or 32. Id. at 710 (citations omitted). The court did, however, affirm the dis- the public significance of a talk show's 33. Id. (citing Zacchini v. Scripps-Howard missal of the invasion of privacy and city topic, likely will defeat claims based on Broad. Co., 351 N.E.2d 454, 459 (1976), smoking regulation claims. The court reputational or privacy interests. rev'd on other grounds, 433 U.S. 562 (1977) (quoting with approval proposed found that the invasion of privacy claim On the whole, talk show cases and RESTATEMENT (SEcoND) OF TORTS § 652C could not withstand dismissal because their outcomes strongly suggest that the (Draft No. 13, 1967))). Leichtman "willingly entered the WLW safest place for talk show fans is at 34. Id. (citations omitted). studio to make a public radio appearance home watching television, rather than (Continued on page 25)

10 ED Communications Lawyer l Spring 2005 argument could effectively narrow the client's First Amendment rights. The California law automatically invalidated class of conduct within the ambit Court did so, however, without passing the injunction, and that Tory could not of the First Amendment. on the more significant First Amendment know whether the injunction was void Finally, the government is pressing questions presented by the case. until a court ruled on it, the Court a limiting view of the compelled speech The case grew out of a successful observed that the injunction continued doctrine. Building on the Court's recent defamation action brought in California to restrain Tory's speech and therefore decision in Johanns v. Livestock by Cochran against Ulysses Tory. The presented an ongoing controversy. Marketing Association' (discussed state trial court found that Tory had But the Court went on to note that, above), the federal defendants contend engaged in an extended campaign of although it did not moot the case, that the doctrine is inapplicable to the unlawful defamatory activity, and further Cochran's death did make unnecessary Solomon Amendment, because the that he had used such defamatory speech any consideration of "petitioners' basic expression in question is "government in at attempt to coerce Cochran into pay- claims." "Rather," the Court explained, "we speech" and, therefore, entirely beyond ing him a monetary "tribute" to desist need only point out that the injunc- the purview of the First Amendment. from his activities. The court issued an tion, as written, has lost its underlying This case thus presents the Court with its injunction preventing Tory and his asso- rationale," which was to prevent Tory first opportunity to elaborate on newly ciates from picketing Cochran's offices from coercing Cochran to pay him a clarified "government speech" theory. and from making any oral statements tribute. As a result, the injunction as Whether the Court will accept the about Cochran in any public forum. The written became "an overly broad prior government's invitation to reshape free California Court of Appeal affirmed, and restraint upon speech, lacking plausible speech doctrine in the context of the the Supreme Court granted certiorari to justification." Justice Thomas, joined by FAIR case, of course, remains unclear. determine "[w]hether a permanent Justice Scalia, dissented, arguing that But given the complex, intersecting injunction as a remedy in a defamation the writ of certiorari should have been First Amendment issues at play in action, preventing all future speech about dismissed as improvidently granted, and FAIR, the free speech bar undoubtedly an admitted public figure, violates the criticizing the majority for "strain[ing] will follow the case with great interest. First Amendment." to reach the merits of the injunction While the case was pending, and after Cochran's death." Tory v. Cochran after oral argument, Cochran died. On May 31, 2005, the Counsel for Cochran and his widow, Endnotes Supreme Court in Tory v. Cochran8 who was substituted as respondent, 1. 408 U.S. 665 (1972). vacated a broad injunction obtained by moved the Court to dismiss the case as 2. 533 U.S. 405 (2001). famed lawyer Johnnie Cochran prevent- moot. In a seven-to-two opinion, the 3. 521 U.S. 457 (1997). 4. 390 F.3d 219 (2004). ing a former client from picketing and Court vacated the judgment of the 5. Id. at 245. publicly speaking about Cochran, hold- California Court of Appeal. Justice 6. 391 U.S. 367 (1968). ing that the injunction lacked justifica- Breyer, writing for the majority, first 7. 125 S. Ct. 2055 (2005). tion after Cochran's recent death and held that the case did not become moot 8. 125 S.Ct. 2108 (2005). was an unconstitutional restraint on the upon Cochran's death. Noting that no

Talk Show Torts (Continued from page 10)

35. Id. at 713. 50. Weber v. Multimedia Entm't Inc., 97 59. Id. at *21 (quoting Chapadeau v. Utica 36. 82 F. Supp. 2d 702 (E.D. Ky. 2000). Civ. 0682 (PKL) (THK), 1997 U.S. Dist. Observer-Dispatch, 341 N.E.2d 569, 571 37. Id. at 704 (quoting RESTATEMENT Lexis 18592 (S.D.N.Y Nov. 24, 1997). (N.Y. 1975)). (SECOND) OF TORTS (1976) § 6521); see also 51. Id. at *4. 60. Id. at *35 (citation omitted). Ky. REV. STAT. §§ 391.170, 411.140 (2004). 52. Weber v. Multimedia Entm't Inc., 97 61. Leichtman v. WLW Jacor 38. 1988 U.S. App. LEXIS 19304 (10th Civ. 0682 (PKL), 1998 U.S. Dist. Lexis 2 Communications, Inc., 634 N.E. 2d 697 Cir. July 7, 1988). (S.D.N.Y. Jan. 5, 1998). (Ohio Ct. App. 1994). 39. 418 U.S. 323, 345 (1974). 53. Id. at *9. 62. Id. at 698 (internal quotation omitted). 40. 842 F2d 612 (2d Cir. 1988). 54. Id. 63. Id. at 699. 41. Id. 55. Id. at *11. 64. Id. 42. Id. 56. Weber v. Multimedia Entm't Inc., 97 65. Id. at 700. 43. 745 F.2d 123, 136-37 (2d Cir. 1984). Civ. 0682 (JGK), 2000 U.S. Dist. Lexis 44. Contemporary Mission, 842 E2d at 617. 5688 (S.D.N.Y. May 2, 2000). 45. Id. (citing Lerman, 745 F.2d at 136-37). 57. Id at *15 (citing Messenger v. Gruner 46. Id. at 618. + Jahr Printing & Publ'g, 727 N.E.2d 549 47. Id. at 619 (citing Meeropol v. Nizer, (N.Y. 2000)). 560 F.2d 1061, 1066 (2d Cir. 1977)). 58. Id. at *20 (quoting Church of 48. Id. at 620. Scientology of California, Inc. v. Green, 354 49. Id. F. Supp. 800, 804 (S.D.N.Y. 1973)).

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