Media Law Advisory
January 31, 2007
Private Mental Health Companies Shielded FromOhioPublic Records ActBy MonicaL.Dias
The Ohio Supreme Court has again restricted the public's ability to inspect records of private entities doing work for the government. In a 4-3 ruling, the court decided on December 28 that a private company hired by a county to provide mental health services is not a public agency and does not have to turn over its records for public inspection. State ex rel. Repository v. Nova Behavioral Health, Inc., 2006-Ohio-6713.
Applying the "functional equivalency" test it created just two months earlier, the court found that Nova Behavioral Health, Inc., a private, non-profit corporation, was not subject to the Ohio Public Records Act even though it received most of its funding from a county agency that was funded by state and local taxpayers and federal subsidies.
Ohio law requires counties with a population of at least 50,000 people to establish an alcohol, drug addiction and mental health service district. An appointed board oversees the district. The board serves as the county's mental health planning agency, enters contracts with public and private agencies to provide services and monitors the agencies with which it contracts. The mental health board in Stark County, Ohio contracted with 14 organizations, including Nova Behavioral Health, Inc., to provide those services in 2004.
Nova projected in 2004 that 92 percent of its revenue would come from its contract with the county mental health board.
In April 2005, the Repository newspaper in Canton, Ohio requested access to the personnel file of a Nova employee who was suspended pending an investigation into allegations that he used counseling techniques that were sexually suggestive or otherwise improper. Nova rejected the request, arguing that it was not a public agency and was not subject to the Ohio Public Records Act. The Repository filed a lawsuit in the Ohio Supreme Court to force Nova to disclose the records.
When the Repository filed its lawsuit, the Ohio Supreme Court was using a different test to determine whether a private entity was a public institution for purposes of the Public Records Act. Generally, the court applied a two-part test. If an entity was organized for rendering services to residents of the community and was supported by public taxation, it was a public institution and subject to the Public Records Act.
But in October 2006, the court modified the test for determining a private entity's status as a public institution. (Oriana House, Inc. v.Montgomery, 2006-Ohio-4854.) The test, which the court applied to Nova, states that a private entity is not subject to the Public Records Act unless there is a showing by clear and convincing evidence that the private entity is the functional equivalent of a public office. The test examines four factors:
- whether the entity performs a governmental function;
- the level of government funding;
- the extent of government involvement or regulation; and
- whether the entity was created by the government to avoid the requirements of the Public Records Act.
The court found only one factor - the level of government funding - was wholly in the Repository's favor. As for the other factors, Nova performed a government function only to a limited extent. The court found that providing mental health services is not a historically governmental function. But Nova was performing a governmental function to the extent that it contracted to provide mental health services to StarkCounty residents regardless of their ability to pay, the court noted.
As for the remaining factors, Nova's operations were independent of government because the Stark mental health board did not control Nova's day-to-day functions or make decisions for Nova. Finally, Nova was not created by government or as the alter ego of a governmental agency, the court found.
As a result, the majority opinion by Justice Pfeifer found that "providing public access to Nova's records does not serve the policy of governmental openness that underlies the Public Records Act."
Chief Justice Moyer's dissenting opinion would have given greater weight to the level of government funding. The dissenting justices also disagreed with the majority's ruling that providing mental health services is not a government function. Moyer argued that treatment of the mentally ill is historically a state responsibility.
"In my view, the evidence in this case and our duty to resolve doubt in favor of broad access require the holding that Nova is the functional equivalent of a public office for purposes of the Public Records Act," Moyer wrote.
KentuckyCourt of Appeals Affirms Defense Verdict in Defamation CaseBy JosephA.Tomain
In an unpublished opinion, the Kentucky Court of Appeals affirmed the trial court's summary judgment findings and a jury verdict all in favor of co-defendants Clear Channel d/b/a 84 WHAS Radio and its former talk show host John Ziegler. In large part, the jury based its verdict on Divita's failure to prove that defendants acted with actual malice.
Plaintiff Darcie Divita, an undisputed all-purpose pubic figure in Louisville, Kentucky, sued her former dating partner and controversial radio talk show host JohnZiegler and his employer Clear Channel. She claimed statements Ziegler made on the air defamed her and invaded her privacy. His statements included his belief that Divita was a "pathological liar" and comments about her genital grooming habits, breast implantations, and other sexually charged comments. Divita admitted the truth of many of the statements in her deposition and at trial, but the trial judge did not grant summary judgment or a directed verdict as defendants hoped once Divita admitted the truth of the statements. Nonetheless, the trial judge did provide a complete and accurate jury instruction on actual malice, which was probably critical to success at trial.
Divita's Complaint alleged claims for defamation, all four invasion of privacy torts, intentional infliction of emotional distress, and negligent hiring/supervision. The trial court granted summary judgment to Clear Channel on the negligent hiring/supervision, intentional infliction of emotional distress, and misappropriation of likeness claims. The trial court granted summary judgment to Ziegler on the misappropriation claim. The appellate court affirmed all the summary judgment findings.
In discussing the negligent hiring/supervision claim, the Court unequivocally stated that "[s]ummary judgment is favored in cases involving defamation claims against media defendants." Then, the court noted negligent hiring/supervision claims are derivative torts. Thus, the court held that this issue was moot because the jury found Divita failed to prove defendants acted with actual malice.
But the court went on to state that even if Ziegler had been found liable for the underlying torts, summary judgment was still proper. Evidence showed that Ziegler had been instructed by his employer to refrain from talking about Divita's personal life a few months prior to the broadcast giving rise to the lawsuit. When news broke that Divita would no longer be employed as an anchor for a local morning show, Ziegler violated that instruction. This broadcast gave rise to the lawsuit. This broadcast also resulted in Ziegler's termination for violating his employer's instruction. Because Ziegler had obeyed his employer's instruction for a period of months and because he was terminated after the broadcast, the court affirmed Clear Channel did not know and did not have any reason to know of the risk of Ziegler's employment.
Importantly, the court did not accept evidence that Ziegler had been warned to refrain from talking about other people or subjects in the past as proof to support the negligent hiring/supervision claim. This aspect of the decision is helpful because it respects the importance of free speech and is consistent with the Illinois Supreme Court decision Van Horne v. Muller, 705 N.E.2d 898 (Ill. 1998). In Van Horne, another case involving a controversial radio show host, the Illinois Supreme Court held that a narrow interpretation of employer notice must be adopted in negligent supervision cases based on speech because it would run afoul of First Amendment principles to "hold a media employer liable for its decision to hire or retain a broadcaster simply because the broadcaster was a controversial figure." Id at 907. This Kentucky Court of Appeals decision bolsters Van Horne and helps maintain First Amendment protections for controversial speech.
Another major aspect of the Divita opinion is the express acknowledgement that Kentucky applies actual malice to intentional infliction of emotional distress claims based on speech about a public figure. Divita tried to argue on appeal that Kentucky had never applied Hustler v. Falwell to intentional infliction claims. She also argued that her intentional infliction claim was based in part on true statements and, therefore, Hustler did not apply. The court soundly rejected both arguments. First, the court stated that Hustler is clearly the controlling precedent and courts across the nation uniformly apply actual malice to a variety of claims based on speech when brought by a public figure. Second, the court seemed to accept Clear Channel's argument that "First Amendment principles require more - not less - protection for true statements about public figures than obviously false statements." Thus, the Kentucky Court of Appeals expressly accepts that Hustler applies in Kentucky and that it can apply to a variety of claims based on speech.
Although unpublished, this opinion shows strong support for First Amendment protection in a public figure defamation and invasion of privacy case under Kentucky law, including the important value of summary judgment to avoid the chilling effect on free speech.
Toledo Mayor Cannot Bar Reporter from Press ConferencesBy JosephA.Tomain
A federal trial court judge granted a temporary restraining order (TRO) against Toledo, Ohio Mayor Carleton Finkbeiner. Mayor Finkbeiner barred reporter KevinMilliken and two others from his radio station, WSPD-AM, from attending a press conference because of coverage critical of the Mayor. The Mayor also removed WSPD-AM from its e-mail list notifying the media of press conferences. Judge James G. Carr granted WSPD's motion for a TRO and ordered the Mayor and other defendants to: (1) allow Milliken and others from WSPD to attend public press conferences; and (2) give advance notice to defendants equivalent to the notice given to other press organizations. A hearing on WSPD's motion to make the TRO permanent is scheduled for January 26, 2007.
A Recap: National Conference on Media ReformNet Neutrality and War Major Themes of ConferenceBy JosephA.Tomain
Approximately 3,500 people congregated in Memphis, Tennessee, over MartinLutherKing , Jr. weekend for Free Press' National Conference on Media Reform. Speakers included Helen Thomas, FCC Commissioners Michael Copps and Jonathan Adelstein, Senator Bernie Sanders, Rev. Jesse Jackson, AmyGoodman of Democracy Now, and many others. Net Neutrality and war coverage emerged as major themes throughout the conference.
Law Professor described Net Neutrality as the backside of the First Amendment. Meaning, the First Amendment provides the right to speak, but it does not provide the means. Net Neutrality provides the means because anyone with internet access can create content or applications without seeking permission from someone else. This makes the Internet similar to the electric grid. The electric grid is an open source transmission system that does not discriminate between toaster oven or televisions or Sony or RCA. The importance of non-discrimination is higher in the Internet context than the electricity context because of the constitutional First Amendment implications involved when operators of the network have the ability to control the content or applications created by end users.
Speakers discussed the recent victory for preserving Net Neutrality in the AT&T - Bell South merger. As a merger condition, AT&T agreed to maintain Net Neutrality for two years. This merger condition, however, is only the beginning of what proves to be a busy year in the Net Neutrality debate. Senators Snowe and Dorgan have already introduced their Internet Freedom Preservation Act in the new Congressional session. With the strange bedfellow coalition supporting Net Neutrality - Gun Owners of America, ACLU, Christian Coalition, Moveon.Org, Google, eBay, and others - expect this once obscure First Amendment issue to be a prominent one for the foreseeable future.
The intersection of war coverage and First Amendment issues emerged as another major focus of the conference. One panel in particular provided a broad perspective of these timely issues. "The Press at War and the War on the Press" featured Helen Thomas, author of Chasing Ghosts, Paul Rieckhoff, ErichBoehlert of Media Matters for America, and Sonali Kolhatkar, host and producer of "Uprising" on KPFK radio in Los Angeles. All brought unique, but related, perspectives.
Rieckhoff, an Iraq war veteran, stated that the media failed the military in its coverage of the war. When he returned from Iraq, the disconnect between the reality of the war and what most Americans understand about the war struck him the most. Rieckhoff also expressed being uncomfortable with embedded journalists because he believes it is difficult to maintain objectivity in that close of a relationship, especially when a journalist depends on those very troops for safety. Rieckhoff stated that troop blogs are the best source of information on the war, but that they are quickly pulled down by the Defense Department.
Kolhatkar, who recently co-authored Bleeding Afghanistan, focused on Afghanistan and urged the press to provide more coverage of forgotten wars. She discussed how Afghanistan is falling back into Taliban control and that only recently has the press provided significant coverage on the issue. She noted how the stories seem to express surprise of this turn of events. She offered that this would not be a surprise had there been better coverage over the last few years because there has been a slow but noticeable move in this direction for some time.
Veteran journalist HelenThomas stated that the American press corps lost its way by failing to keep a constant spotlight on the government to hold it accountable to the citizens it serves. In coverage of the war and the lead-up to the war, Thomas stated that the press gave up its one weapon: healthy skepticism. She emphasized that "you cannot have a free country without a free press."
While all speakers were critical, none were despondent. The panel served more as a constructive dialogue to improve the future of the press by reflecting on the difficulties of the recent past, than any type of negative indictment. This forward-looking perspective hit home when two unannounced speakers were invited to share their personal experiences.
Journalist Josh Wolf's mother described how he reached his decision to serve jail time rather than give up his sources and videotape. Wolf refuses to turn over videotape capturing a WTO protest in San Francisco. She stated that Josh believes in a free press and that he is standing up for all rights. On February 6, 2007, Wolf will be the longest jailed journalist in the history of America.
Freelance journalist SarahOlson discussed her current subpoena in the case against 1st Lt. Ehren Watada, the first commissioned officer to publicly refuse to deploy to Iraq.
Watada is facing up to six years in prison if convicted. Olson interviewed Lt. Watada regarding his decision to refuse deployment. The government is seeking Olson 's testimony to verify what Watada told her. At this point, Olson refuses to comply with the subpoena because she believes it is not her obligation to testify against her sources, particularly when it involves political speech. Lt. Watada has publicly stated that his reason for refusing deployment is because the war is immoral and illegal. At a press conference he stated: "It is my duty as a commissioned officer of the United States Army to speak out against grave injustices. I stand before you today because it is my job to serve and protect soldiers, the American people and innocent Iraqis with no voice." If Olson refuses to comply with the subpoena, she faces a felony charge and a $500 fine or six months jail.
Finally, the role of the First Amendment in the civil rights movement served as an appropriate and overarching theme throughout the conference held in Memphis, Tennessee. FCC Commissioner Adelstein expressed concern about the potential affects of media consolidation on minority ownership. AmyGoodman of Democracy Now emphasized the significance of being in Memphis over MartinLutherKingJr. weekend because the voices of hope and struggle so important to the civil rights movement are also critical in maintaining a vibrant and free press.
While some may view the conference as anti-media, perhaps a more prospective view is that the attendees and speakers are some of the media's strongest advocates and are working to ensure its continued success. In short, the conference provided an excellent forum to reflect on how the Fourth Estate remains as essential to our country today as it did at the time of the founding.
* JoeTomain attended the National Conference on Media Reform in Memphis, Tennessee January 12-14, 2007.
Army Trial Court Denies 1stLt.Watada's First Amendment ArgumentsBy JosephA.Tomain
In June 2006, 1st Lt. EhrenWatada became the first commissioned officer to publicly refuse deployment to Iraq. Lt. Watada held a press conference to announce his decision and stated that he refused to deploy because he believes that the war is illegal and immoral. He also conducted interviews with journalists. The United States Army has brought several charges against Lt. Watada , including charges based on Lt. Watada's public statements regarding the war and his refusal to deploy. On January 16, 2007, the U.S. Army Trial Judiciary Court denied Lt. Watada's motion to dismiss the charges based on his speech.
Lt. Watada argued that the First Amendment protects his speech. The court disagreed. First, the court noted that the test for protected speech is different for civilians and those in the military. For civilians, the test is whether the speech presents a "clear and present danger" that is likely to produce imminent lawless action. (Schenk v.United States , 249 U.S. 47 (1919); Brandenburgv.Ohio, 349 U.S. 444 (1969). For the military, however, there is a much lower threshold for unprotected speech. "The test in the military is whether the speech interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops." United States v. Brown, 45 M.J. 389, 395 (CMA 1986).
The court denied Lt. Watada's motion to dismiss because, under the military test, a fact finder could conclude that an "officer challenging the lawfulness of a war or combat action could tend to interfere with or prevent the orderly accomplishment of the mission or present a clear danger to loyalty, discipline, mission or morale of the troops."
Lt. also argued that Article 133 of the Uniform Code of Military Justice (UCMJ) is unconstitutionally vague and overbroad. Article 133 of the UCMJ precludes "conduct unbecoming an officer and a gentleman." The court summarily concluded that this argument lacked merit and that it is "long settled under military law that prosecuting contemptuous speech by an officer directed at the President under" Article 133 passes constitutional muster.
If convicted on all counts, Lt. Watada faces up to six years in prison. Freelance journalist SarahOlson also faces possible imprisonment as a result of this case. She has been subpoenaed to testify regarding her interview with Lt. Watada on his decision to refuse deployment. Currently, Olson refuses to comply with the subpoena, arguing: "It is my job as a professional journalist to report the news, not to act as the eyes and ears of the government. I am repelled by this approach that jeopardizes my credibility and seeks to compel my participation in muting public speech and dissenting personal opinion." ( Sarah Olson, "Why I Object to Testifying Against Lt. Watada," (December 30, 2006).) If she refuses to comply with the subpoena, Olson risks a felony conviction and a $500 fine or up to six months in jail.
OhioDefamation Claim Rejected - False Innuendo From True Statements Not ActionableBy JillP.Meyer
An Ohio appellate court dismissed a defamation claim against WJW Television, holding that statements about the plaintiff, a criminal defendant, were either substantially true or opinion. Stohlmann v. WJW TV, Inc., 2006-Ohio-6408. Plaintiff agreed that WJW accurately quoted its various sources. She filed the lawsuit, however, calling it "unquestionable that [WJW] chose to depict the plaintiff as criminally causing or contributing to the death of Madelyne Hall."
Plaintiff Stohlmann was the babysitter of Hall, a five-month old, who died while in her custody. Following the death, Stohlmann was charged with, and pleaded guilty to, child endangerment, tampering with evidence and falsification. She received a sentence of probation, which many members of the public found too lenient. Stohlmann was not charged in the death of the baby, a fact the criminal court noted during her proceedings and sentencing. WJW reported on the case in three broadcasts, which became the subject of her lawsuit against the station. Plaintiff did not challenge particular statements as false and defamatory. Instead, she asserted that WJW, "through the use of accurate quotes and facts, gives an inaccurate slant or 'gist' to its articles [sic] that can only be considered as defamatory, i.e., the plaintiff's [sic] either intentionally or negligently caused the death of Madelyn [sic] Hall." Analyzing her argument, the court stated: "We agree with [Stohlmann]; however, this argument works against her claim. Truth is an absolute defense to defamation. *** Furthermore, 'Ohio does not recognize libel through implied statements.'"
The court also ruled Stohlmann's criminal defendant status did not make her a limited purpose public figure; thus, she remained a private figure who need prove only negligence. It also held that, "the safety of children in home-based day cares is, by common sense, a matter of public concern." In analyzing the statements that the court determined to be at issue, it systematically held that many of them were either substantially true or protected opinions. For example, the statement, "[Stohlmann] admitted her role in the infant's death," was true because she pled guilty to child endangering concerning the baby, a guilty plea is an admission, and "having a role in an event is not the same thing as causing an event. It is undisputed that the appellant pled guilty to failing in her duty to care, protect or support Hall on the day she died. We feel that it is an accurate statement to say that appellant played a role in the events surrounding Hall's mysterious death." Another challenged statement, a quote from a police lieutenant that Stohlmann "got away with murder," was true because he said those very words in reaction to her sentence of probation. Other statements were held to be protected opinions, including the grieving parents' emotional statements that Stohlmann "did not fulfill her duty of care and is going to hell" and that she "is lucky but … is not fooling anyone." Thus, the summary judgment dismissal of Stohlmann's claim was upheld.
Federal Agencies Continue Cracking Down on Improper Marketing of Pharmaceutical ProductsBy StephenM. Gracey
Federal Agencies are continuing their efforts to crack down on improper marketing of pharmaceutical products. On Wednesday, January 17, the Schering Sales Corp. and its parent company, Schering-Plough, were ordered to pay a total of $435 million as part of a settlement reached with the United States Justice Department over claims that it marketed multiple drugs for off-label use to physicians and lied to government agencies about drug pricing. Off-label use occurs when a physician uses a drug in a manner other than that approved by the FDA. Physicians are allowed to do so with a given drug, but the pharmaceutical company that manufactured the drug is not allowed to market the drug to the physician for any off-label uses. For example, prosecutors alleged that Schering had marketed one of its drugs approved for treatment of a specific type of brain tumor to treat other types of brain tumors. Schering claims it did not market the drug for such use, but merely presented physicians with peer review articles that discussed off-label uses for the drug. Schering is not alone in this arena. In 2004, Pfizer also paid a sizeable sum after a company it acquired was alleged to have marketed one of its drugs for off-label use.
In addition to the Department of Justice and the FDA, the FTC, which governs marketing and advertising of non-prescription products, recently announced it would fine marketers of several over-the-counter weight loss supplements for deceptive advertising. The FTC plans to fine these companies a total of $25 million, alleging that the claims made in the advertisements for these products were not substantiated by scientific evidence. The FTC will use the money paid to provide refunds to consumers of the products.
This recent activity by the FDA, the FTC and the Department of Justice reinforces the need to take extra precautions when developing a marketing and advertising campaign for over-the-counter and prescription drugs. Any marketing or advertising claims, whether through sales representatives or a media campaign, must be substantiated and must be limited to the usage approval obtained for the marketed product. Failure to do so can result in extremely large fines and greater scrutiny on a company's subsequent marketing and advertising of its products. Having a marketing campaign and materials reviewed by product researchers, compliance officers and attorneys is a good start to preventing this from happening.
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