News Media and the Law
New York Law Journal
March 23, 1978
Mr. Goodale, a member of the New York Bar who writes this column as a regular
feature of the Law Journal, is an executive vice president of The New York Times
Company.
Le Mistral v. CBS
Two weeks ago, the Columbia Broadcasting System was held liable to Le Mistral
Restaurant in midtown Manhattan for trespass when it attempted to report the restaurant
had violated the Health Code. The case, decided by the Appellate Division, First
Department, affirmed a lower court’s ruling that the press had no First Amendment right
to gather the news in a place such as a restaurant without the consent of the owner.1
Expressed in these sweeping terms the rationale of the case seems questionable, although
it seems equally clear the press does not have an absolute right to gather the news any
way it sees fit.
Background of Case
What happened in Le Mistral is this. Channel 2, WCBS-TV, a CBS station, made
a practice of reporting violations issued by the New York City Health Services
Administration (HSA) to restaurants and food processing outlets. On July 6, 1972 the
HSA issued a release listing twenty-nine restaurants, including plaintiff's, which had been
found on inspection, to have code violations.
Lucille Rich, a CBS reporter, visited three of the restaurants whose names
appeared on the HSA list. She was accompanied by a news crew, including a television
cameraman with his camera. At the trial there was a conflict in the testimony as to the
specific events that occurred at Le Mistral when Ms. Rich and her crew arrived.
Nevertheless, it appears undisputed that they entered the restaurant with “cameras
rolling.” They were met by plaintiff's president and manager of the restaurant who
refused to be interviewed and requested that they leave the restaurant.
Although the parties gave conflicting reports as to the behavior of the CBS crew
and the reactions of Le Mistral's patrons, the trial court held that “From the evidence, the
1
Le Mistral, Inc., et al. v. Columbia Broadcasting System, et al., NYLJ, March 3,
1978, p. 3, col. 1 (1st Dep’t March 2, 1978).
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jury was entitled to conclude that . . . the defendant's employees burst into plaintiff's
restaurant in noisy and obtrusive fashion and following the loud commands of the
reporter . . . turned their lights and camera upon the dining room. Consternation, the jury
was informed, followed. . . . All told, the CBS personnel were in the restaurant not more
than ten minutes, perhaps as little as one minute. . . .”2
That evening CBS broadcast a report on the HSA release which included the
footage from the abortive visit to Le Mistral.
Suit Filed
The owners of Le Mistral sued CBS in the Supreme Court, New York County, for
defamation and trespass. CBS brought a motion for summary judgment on both issues.
The trial court granted the motion on the defamation cause of action stating: “ . . there
can be no doubt that the Health Services Administration findings were a matter of
legitimate public concern warranting public exposition and that, as a matter of law, the
publisher acted in anything but an irresponsible manner, truthfully reporting the
department action.”3
On the trespass cause of action, however, the trial court refused to grant CBS’s
motion for summary judgment stating: “The right to publish does not include the right to
break and enter or the right to invade or other right to enter upon and trespass upon the
property of these plaintiffs. While the restaurant is a business establishment which by
imputation extends an invitation to prospective diners to enter the premises and purchase
a meal, that invitation is not extended to others whose business purpose is not the
business purpose of the restaurant.4
The case then went to the jury and the jury came in with $1,200 compensatory
damages for Le Mistral and $250,000 punitive damages. The amount of the verdict
staggered the media world and the case received large press coverage.
2
Le Mistral Inc., et al. v. Columbia Broadcasting System, et al., NYLJ, December 30,
1976, p. 11, col. 5 (Sup. Ct. N.Y. Co. Dec, 23, 1976).
3
Le Mistral, Inc. v. Columbia Broadcasting System, NYLJ, April 8, 1976, p. 7, col. 3
(Sup. Ct. N.Y. Co. March 30, 1976).
4
Id.
2
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New Trial on Damages
The trial court, however, set aside both damage awards and ordered a new trial on
the issue of compensatory damages “in the interest of justice,” and punitive damages
because CBS had not been allowed to testify as to its good faith motives in gathering the
news for the story.5
The Appellate Division reinstated the $1,200 verdict and affirmed the trial court’s
decision in setting aside the award for punitive damages and ordering a new trial. Like
the lower court, the Appellate Division believed the First Amendment arguments were
irrelevant for purposes of this case: “Clearly, the First Amendment is not a shibboleth
before which all other rights must succumb.”6
It seems that both courts proceeded from a major premise that permission is
required to enter a public place such as a restaurant for purposes other than using the
services of the restaurant. In other words, it is all right to go into a restaurant to eat a
meal without permission, but for any other reason you need permission. Thus, when the
jury was asked by the court why it was awarded punitive damages to CBS, it answered:
because “CBS entered Le Mistral without permission and with cameras rolling with a
purpose other than using the services of the establishment.7
Reasoning Questioned
One can question, however, whether this reasoning was correct. Surely a
reviewer of a restaurant for a daily paper need not request permission to enter a restaurant
for purposes of reviewing the food and decor. Nor need the reviewer be identified to the
restaurant. It is customary practice for such reviewers not to identify themselves in order
to be in a position to write a more objective appraisal of the restaurant services. By the
same token a restaurant reviewer does not have a special privilege to put his fork in his
neighbor's eye, or, for that matter, in his food.
5
Le Mistral Inc., et al. v. Columbia Broadcasting System, et al., Dec. 30, 1976, p. 11
col. 5 (Sup. Ct. N.Y. Co. Dec. 23, 1976).
6
Le Mistral, Inc., et al. v. Columbia Broadcasting System, et al., NYLJ March 3,
1978, p. 3, col. 1 (1st Dep’t March 2, 1978).
7
Le Mistral, Inc., et al. v. Columbia Broadcasting System, et al. (Sup. Ct. N.Y. Co.
Index No. 3130-73) Trail Record at 248.
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In other words, there has long been understood to be a First Amendment privilege
to gather the news that permits the press to enter public places to report news - for
example, to appraise the quality of the food or the alleged unsanitary conditions of a
restaurant such as Le Mistral. The press has historically gained access to restaurants,
theaters and the like “for purposes other than using the services of the establishment,” or
exactly contrary to the basis upon which jury imposed liability upon CBS. Other courts
have indicated, however, that the press may abrogate its First Amendment newsgathering
rights by the manner in which it exercises those rights.8
Right Abused?
Thus, it is possible both the Appellate Division and the trial court proceeded on
the wrong assumption and that the case could, after review by the Court of Appeals, be
retried on a theory that more properly reflects First Amendment interests. The question
in such a case would be whether CBS, in carrying out its First Amendment function in
gathering the news, abused this right by the conduct of its reporter or the camera crew.
There is a conflict of testimony on this point. Some witnesses thought CBS was in the
restaurant only for a minute; one for much longer. The trial judge suggested that the
behavior of the CBS crew was “obtrusive;”9 but neither court considered the behavior of
the CBS crew while in the restaurant determinative of the issues in the case. Thus, the
jury was asked “Do you find that plaintiff is entitled to an award of punitive damages
because of the acts of Mrs. (sic) Rich and/or the camera crew on the premises of Le
Mistral restaurant?” and the jury answered “No.”10
It would seem highly doubtful whether punitive damages may constitutionally be
imposed against the news media in circumstances such as in the Le Mistral case.
Punitive damages are highly disfavored in First Amendment cases because of the wide
discretion given juries to award large damages to suppress expression or legitimate news
gathering efforts.
8
Galella v. Onassis, 487 F. 2d 986 (2d Cir. 1973) (constant surveillance of plaintiff
and obtrusive conduct by defendant held beyond the reasonable bounds of news
gathering); Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971) (surreptitiously
recording and photographing doctor in his home/office held invasion of privacy).
9
Le Mistral, Inc. v. Columbia Broadcasting System, et al., Dec 30, 1976, p. 11, col. 5
(Sup. Ct. N.Y. Co. Dec. 23, 1976).
10
Le Mistral, Inc., et al. v. Columbia Broadcasting System, et al. (Sup. Ct. N.Y. Co.
Index No. 3130-73), Trial Record at 247-48.
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It was, after all, the huge verdict in punitive damages against the New York Times
in the Sullivan case which appears to have led the Supreme Court to take the case in the
first place.11 In Sullivan, the Court held there could be no damages at all in a suit by a
public official unless there was a finding of actual malice by the defendant. And in Gertz
v. Robert Welch, Inc., the Supreme Court decision dealing with the libel of private
individuals, the Court fashioned a far more difficult constitutional test for the plaintiff to
meet for punitive damages than for compensatory damages.12 Indeed, it remains an open
question as to whether punitive damages may ever be constitutionally awarded in libel
cases.13
In Le Mistral, the Appellate Division affirmed the lower court's holding that the
case should be submitted to the jury again to determine whether the defendant was
“acting with evil or wrongful motive or with a willful and intentional misdoing, or with a
reckless indifference equivalent thereto.” The lower court had improperly excluded
evidence on this point preferred by CBS.
Murphy’s Dissent
It seems difficult, however, to imagine a set of circumstances where the news
media would deliberately enter a public place for the explicit purpose of harassing
individuals located there14 and with reckless disregard of those persons’ rights. For this
reason, Judge Murphy dissented in part in the Appellate Division's opinion noting that:
“It is clear from the record that, in dispatching reporters to plaintiff’s restaurant,
defendant was not motivated by actual malice or such an intentional disregard of
plaintiff’s rights as would justify the imposition of punitive damages . . . the defendant
was merely pursuing a newsworthy item in the overly aggressive but good faith manner
that characterizes the operation of the news media today.15
11
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
12
Gertz v. Robert Welch, Inc., 418 U.S. 322, 350 (1974).
13
Compare Stone v. Essex County Newspapers, Inc., 330 NE 2d 161, 169 (S.J. Ct.
Mass. 1975) (No punitive damages held permissible in Massachusetts in any libel
case) with Maheu v. Hughes Tool Co., 3 Med. L. Rptr. 1847, 1862 (9th Cir., Jan. 12,
1978) (punitive damages held permitted in case commenced by public figure).
14
But cf. Galella v. Onassis, 487 F. 2d 986 (2d Cir. 1973).
15
Le Mistral, Inc., et al. v. Columbia Broadcasting System, et al., NYLJ, March 3,
1978, p. 3, col. 2-3 (1st Dep’t March 2, 1978).
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In recent years there seem to have been many more cases dealing with the news
media’s right to gather the news than in previous years. The Florida Supreme Court, for
example, recently held that the press could not be held liable for trespass when reporters
followed police officers into a private home which had burned and photographed a
silhouette of a fire victim.16 The Florida court reasoned that the custom and usage
connected with news gathering gave the press the right to enter private property in these
circumstances. A few years ago, the New Jersey courts held the press has a right to enter
private property to report on the condition of migrant camps.17
All of these cases have a common theme: The press has a First Amendment right
to gather the news even though it enters property that in some respects may be deemed to
be private. Le Mistral would merely seem to be another one of the cases where the only
issue is whether the press abused this right in any fashion and then only to the extent of
determining compensatory damages since the good faith motive in gathering news would
seem to defeat any claim for punitive damages.
--New York Law Journal
March 23, 1978
Page 1, Column 1
16
Florida Publishing Co. v. Fletcher, 340 So. 2d 914 (Fla. 1976), cert. denied, 431 U.S.
930 (1977).
17
Freedman v. New Jersey State Police, 135 N.J. Super 297, 343 A. 2d 148 ( Law Div.
1975).
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