So you think the $5.5 million Food Lion judgment against ABC was bad for the press? How about three recent rulings in which courts declared that plaintiffs can try to hold the press liable for injuries, including death, suffered by people who have been the subject of news reports?

 The most recent ruling came in an offshoot of the "tele-psychic" case, in which a reporter for ABC's PrimeTime Live went undercover with a hidden camera to work in the office of a telephone psychic hotline service (see "Hidden Camera: A Million-Dollar Peek," CJR, March/April 1995). The reporter secretly videotaped conversations between two self-described psychics, Mark Sanders and Naras Kersis, which suggested that they did not believe in the advice they were dispensing over the phone. These conversations were broadcast as part of an expose on PrimeTime Live in February 1993. The two men sued ABC for invasion of privacy. Sometime after the broadcast, Kersis, a recovering alcoholic, relapsed into alcoholism and died. A Los Angeles jury awarded Sanders $1.2 million in the privacy suit, but in January 1997, a California court of appeals overturned that verdict. The court found that Sanders did not have a reasonable expectation of privacy in his conversations because he worked in an open room with several other employees.

 Meanwhile, Kersis's parents sued. They claimed that their son had been so humiliated by the broadcast that he resumed drinking and that ABC was responsible for his death. A federal district court dismissed the case. But in November 1996 the Ninth Circuit Court of Appeals reversed the dismissal, and said the case should go to trial. Neville Johnson, the Kersis family attorney, trumpeted in his press release, "The decision is the first in the United States to allow a wrongful death action to proceed because of an alleged invasion of privacy by the news media." A trial date has not been set.

 Last December, in a similar case, Rhode Island's highest court also allowed a suit to proceed to trial in which a TV reporter was accused of negligently causing a man's death. In Cliff v. Narragansett TV, a woman rushed home from work one morning after her husband phoned to tell her he was planning to commit suicide. She tried to convince him to change his mind, but he cut his throat with a piece of broken glass and began firing guns in the house and into the surrounding shrubbery. The police arrived, the woman fled, and an expert in hostage negotiations attempted to dissuade the man. Reporters from the local media arrived on the scene.

 Around 5 p.m., without informing the police or the family, a reporter from WPRI in Providence phoned the house and interviewed the distraught man. The reporter told him that the taped interview would be broadcast later on the 6 o'clock news. At 6:04 p.m. the WPRI journalist, reporting live from outside the house, introduced the interview. At 6:07 p.m. the man killed himself. The police entered the house immediately and found that the TV sets were tuned to WPRI.

 The widow sued the TV station, claiming that the actions of the reporter and the station were negligent under the circumstances and caused her husband's death. In December 1996, the Supreme Court of Rhode Island held that the case could go to trial. The court refused to find any special First Amendment defense against a negligence claim. Instead the court wrote, "We realize in expressing that belief that there are those both in and out of the press-media field who insist that the First Amendment is an impenetrable shield from both press criticism and civil liability. We also realize that First Amendment rights of the press are as much endangered by its zealots as by its critics."

 Negligence by the media was also at issue in a 1996 Texas case, Risenhoover v. England, stemming from the failed 1993 raid on the Branch Davidian compound in Waco, Texas by the Bureau of Alcohol, Tobacco and Firearms. During the raid, four BATF agents were killed and several others injured. The agents and the surviving relatives sued the Waco Tribune-Herald and its parent companies, Cox Texas Publications and Cox Enterprises, as well as KWTX Broadcasting Company. The plaintiffs claimed that an article published in the Waco Tribune-Herald the day before the raid, combined with the actions of TV reporters in the area around the compound, removed the element of surprise, thereby increasing the injuries suffered by the agents.

 In West Texas, a federal district court admitted that it could find no case in which a journalist had been held liable for negligence in reporting on a law enforcement operation. Still, the court objected to the journalists' conduct in an angry tone: "Common sense would dictate that a reporter on the scene would do everything possible to avoid detection when covering what is known to be a secret law enforcement operation. Instead, the media arrogantly descended on the compound as if the First Amendment cloaked them with immunity from acting as reasonable individuals under the circumstances."

 The court found that the media had a duty not to negligently interfere with the agents' execution of arrest and search warrants, and that the First Amendment would not shield them from liability. The Waco Tribune-Herald's insurance company settled the claim out of court, over the newspaper's objections. The other defendants also settled.

 Jonathan Hart, one of the defense attorneys, calls the judge's decision an "aberration" and remains confident that the newspaper would have prevailed at trial. He emphasizes that reporting and gathering news about government operations is a constitutionally protected activity at the core of the First Amendment. "If reporters can't show up at a government raid of a religious compound in which one hundred agents are involved, they might as well sit around the newsroom and wait for the press releases," says Hart. "I genuinely hope that this case will not discourage conscientious reporters from covering the actions of government."

 That, of course, is the question. Until recently, the prevailing wisdom was that cases attempting to hold the press liable for the injuries or deaths of the subjects of news coverage would be dismissed right away. After these three cases, the press can no longer take that for granted.

 Even if none of the plaintiffs ultimately prevail at the trial, the fact that they were allowed to get there at all is a significant blow to the media defendants who are forced into expensive legal proceedings or settlements. While the law remains unsettled, it is likely there are more negligence cases to come.

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