The Onassis case

In the early 1970s, free-lance photographer Ronald Galella made a career of selling photos of well-known people, including Jackie Onassis and her two children. According to the appeal court’s decision, Galella sometimes endangered the family: interrupting Caroline at tennis, jumping in John’s path as he rode his bike home from school, coming too close to Onassis in a power boat while she swam.

When the Secret Service arrested Galella, he sued for false arrest and Onassis counter-claimed, charging that the photographer had invaded her privacy, assaulted and battered her, caused emotional distress and harassed her.

She won an injunction.

What Onassis won is still possible to win today. The court enjoined Galella from "harassing, alarming, startling, tormenting, or touching" the family, blocking their movements, invading their "zone of privacy" and from "performing any act reasonably calculated to place (their) lives and safety ... in jeopardy."

The appeals court limited the order somewhat, but still forbade Galella from going within 25 feet of Onassis, or 30 feet of her children, and listed several forbidden activities, including anything that might alarm the children. This order applied even when the family was in public. When Galella violated it, Onassis returned to court where he was convicted of 12 instances of contempt.

The court noted that it could have been worse. In New York, harassment was a criminal violation when, with the intent to harass, a person follows another in public, touches them or acts annoyingly. Galella’s conduct could have been the basis of a criminal charge, the trial court said.

Onassis was a public figure whose activities excited public interest. However, the court said, "Galella’s action went far beyond the reasonable bounds of newsgathering. ... If there were any doubt in our minds, Galella’s inexcusable conduct toward defendant’s minor children would resolve it." The court held that the First Amendment isn’t protection for crimes of newsgatherers.

This has been a longstanding rule, but there are some flaws in the conclusion. Perhaps daily activities of the Onassis-Kennedy family were unimportant, but they were of great interest, a fact the court ignored. The court deprived Galella of a critical defense — that of "newsworthiness." Newsworthiness is supposed to be an editor’s call, and should not be confined to important or breaking events. Anything that helps tell a story in which the public has a legitimate interest can be newsworthy.

However, there was the unfortunate fact that Galella’s behavior affected children. Note how this nailed down the conclusion that his actions were unreasonable. If he endangered children, the court said, his actions were unreasonable.

The Wolfson case

In 1996, a federal court in Pennsylvania issued a similar decision that also seemed swayed by the fact that children were involved. This time, though, there was no finding that the reporters’ actions could have been the basis for a criminal charge or that children were endangered.

According to the trial court’s decision, the tabloid TV show "Inside Edition," assigned a crew to investigate high salaries paid to executives of U.S. Healthcare, a large health maintenance organization. The crew asked for an interview with company chairman Leonard Abramson and were denied.

Prior to this — and unknown to "Inside Edition" — Abramson and his family had received threats, so the company hired a security team for the family.

Enter the "Inside Edition" crew. Exit Leonard Abramson and his wife for their home in Florida. Undeterred, the crew turned their attention to Abramson’s daughter and son-in-law, the Wolfsons, also U.S. Healthcare executives. The Wolfsons had two small children and were expecting a third. They were never asked for an interview, but the crew staked out, followed and taped the family. The Wolfsons flew to the Abramsons’ Florida home. "Inside Edition" followed, and staked out the home from a boat anchored nearby.

According to the court, this caused the Wolfsons anxiety; they kept the curtains shut and their children inside to avoid the crew. The court surmised that the crew intended to send Abramson  a message: they would leave his family alone in exchange for an interview.

The crew intruded into the Wolfsons’ lives more than taking pictures from the public highway or waterway, the court found. "They undertook a course of ... frightening conduct in complete and blatant disregard of the Wolfsons’ ‘right to be let alone’ ... (and) demonstrated a complete lack of compassion and respect for the Wolfsons’ legitimate" safety fears.

The judge’s disapproval of the behavior of "Inside Edition" is clear, but nothing indicates the crew did anything illegal. Before the trial, the court imposed an injunction on "Inside Edition" similar to the order against Galella: that the crew could not invade the Wolfsons’ privacy by hounding or frightening them.

Trial was set for October 1996, but postponed until an appeal was concluded. Then the parties settled days before oral argument had been scheduled. A review by an appeals court would have been helpful, perhaps corrective, but the trial court’s reactions are interesting.

The presence of children again seems to shrink the court’s tolerance for the photographers’ behavior. Also, the court believed that taping the Wolfsons was designed to put pressure on their real target, Abramson. It may be implying that the taping had no news value. The footage described could have been background. The court seemed to miss the fact that the pictures supported the news material.

The Shulman case

California’s high court is considering another instance where the plaintiff unexpectedly became the subject of a documentary. Here, the newsworthiness of the pictures is clear, but the intermediate appeals court decided to send the case to a jury. The state Supreme Court will decide whether to send the case to trial. ASNE, with other news organizations, has filed a friend of the court brief in this case.

The Shulman family’s car spun out of control on a highway and tumbled down an embankment. Ruth Shulman and her son were trapped in the car, which had landed upside down. Rescuers had to cut it open to extricate Ruth Shulman as onlookers watched from above.

According to the appeals court’s decision, Group W had put a wireless microphone on the flight nurse, then its camera operator followed the nurse at the scene. Most of Shulman’s rescue was taped, including things she said to the nurse while pinned. When she was placed inside the med-evac helicopter, nurse, mike, camera and operator followed. While inside, the nurse radioed Shulman’s vital signs ahead.

The accident left Shulman a paraplegic. Three months later, she saw the Group W broadcast while still hospitalized. She had not known until then that her rescue had been recorded. She and her son sued, but the trial court dismissed their claim.

The appeals court reinstated the Shulmans’ claims for invasion of privacy by intrusion (into the helicopter) and Ruth’s claims for disclosure (her appearance and demeanor during the trip to the hospital.) The court found that her privacy was not invaded by the broadcast of events at the scene because there was no reasonable expectation of privacy there.

A helicopter, on the other hand, is a flying ambulance, the court held. Like a hospital room, it is a private place, giving rise to a reasonable privacy expectation. The court said: "It is neither the custom nor the habit of our society that any member of the public at large or its media representatives may hitch a ride in an ambulance and ogle as paramedics care for an injured stranger."

The appeals court relied heavily on another California decision, where a crew followed paramedics into the plaintiff’s home and taped rescue measures that failed to revive her husband. She was unaware of this until weeks later when she stumbled upon the broadcast while watching TV. When she sued for trespass and intrusion, the court allowed the claim.

In the Shulman case, the court held that there was no trespass, but that trespass was not necessary for intrusion. The camera’s presence in the helicopter was the crux of Shulman’s case. Though the actions of paramedics are newsworthy, the appeals court held that it should be left for a jury to decide whether showing "an injured person being transported by ambulance was either newsworthy or offended community mores."

Though one can feel sympathy for Ruth Shulman, these claims should be dismissed. The intense interest in such events — rarely seen by the public — should justify the photographer’s actions. Shulman was not in the midst of treatment by a doctor, merely protected and stabilized by rescue workers, nor was anything embarrassing, ugly or even intimate seen in the broadcast. The skill of the rescue workers, the procedures they follow, the speed with which they work, is critical information. Further, the photographer was so unobtrusive that the Shulmans didn’t seem to realize he was there.

Copyright Alice Neff Lucan 1998

Lucan is a Washington lawyer whose practice concentrates on newspapers. For details on these and other cases, visit her Web site, http://www.infi. net/~newslaw