A case headed for the Arizona Supreme Court could determine when anyone with a video camera or cell phone can – and cannot – immediately broadcast or post what they witness without fear of being sued.
On the surface, the case involves a decision by Fox News to show a live 80-mile car chase in 2012, one that ended with the man getting out of his vehicle and shooting himself on live TV. On Tuesday, the state Court of Appeals concluded the First Amendment rights of the network to show news as it unfolds – including the suicide – trumped any emotional harm to the man’s children who found the video later on YouTube.
But attorney David Abney who represents the family said the appellate judges failed to give due consideration to the fact that Fox had access to a tape-delay system that would have allowed the network to stop the live broadcast before the televised suicide. He said he will ask the state’s high court to take another look and, if the justices balk, take the issue to the U.S. Supreme Court.
What the courts ultimately rule, however, will have implications far beyond this case in an age when virtually everyone has a cell phone and applications like Periscope enable them to instantly share that with the world.
Abney said he believes anyone who does these kinds of immediate broadcasts should be held responsible for any emotional harm they cause. The only question, he said, is where to draw the line between what’s legitimate news and what is “simply appealing to the prurient interest, to the ghouls in the audience who want to see that sort of disgusting stuff.”
Attorney David Bodney who defended Fox countered there is a right to immediately transmit events that occur in public as long as it is not being done with the specific intent of causing anyone any harm. And he said that right, which this ruling spells out for a TV network, extends to anyone with a cell phone or video camera.
The case decided Tuesday involves a lawsuit brought by Angela Rodriguez on behalf of her three minor children who saw the video of their father, JoDon Romero, getting out of the vehicle he stole at gunpoint vehicle after a chase with speeds exceeding 100 miles an hour, put the gun to his head and shot himself.
The local Fox affiliate had stopped the broadcast. But the network kept the feed on live TV, with the video eventually winding up on YouTube where the children, curious about the incident, first learned that the victim was their father.
Abney and co-counsel Joel Robbins said Fox had the technology to delay such broadcasts but did not use it here even though there was a good chance the chase would end in violence. But appellate Judge Diane Johnsen, writing for the unanimous three-judge panel, said the chase was a matter of public concern protected by the First Amendment.
“Requiring a broadcaster covering a matter of public concern to cut away whenever a violent or disturbing sight may be caught on camera, or to avoid broadcasting such a scene by use of a split-second tape delay, would chill the broadcaster’s news coverage to a degree the First Amendment does not permit,” she wrote.
Abney said that’s an overly broad reading of the Constitution.
“Whatever the First Amendment provides, there’s got to be a point when it just becomes too much,” he said.
He said the chase was certainly newsworthy, as is the fact that Romero committed suicide.
“But you don’t have to show the actual act of suicide,” Abney said. “That, itself, is not newsworthy.”
Abney acknowledged that raises the question of exactly who gets to decide that line. He said the fact that Fox had the delay technology but failed to use it shows the network crossed the line.
But he acknowledged it’s not that simple.
For example, he cited a South Carolina incident earlier this year where an officer was taped shooting an unarmed man eight times.
“I’m sure his family is devastated by seeing that played over and over,” Abney said. But he said that is outweighed by the importance of what is being shown.
“There is nothing you could ever show anybody to show the current mentality of a lot of police and what they do when they don’t think anybody’s watching,” he said.
Where it gets even trickier is current technology allows cell phones to broadcast images in real time. And that, said Abney, creates situations where someone viewing some event in public will end up broadcasting some horrific event.
“If you’re going to jump on the tightrope along with everybody else and just start broadcasting willy-nilly whatever you want, then you’re going to be responsible,” he said, and have to answer for it in court. “You might accidently catch some act of perverse child pornography.”
“If one publishes truthful information lawfully obtained on a matter of public concern, there can be no (legal) cause of action for intentional infliction of emotional distress,” he said. Bodney acknowledged, though, there are limits, one being that something has occurred in a public place.
That leaves that question of “public concern.”
Bodney said courts looking at other cases of intentional infliction of emotional distress look at several factors. These include whether the person broadcasting the information knew the person and whether there was an actual intent to cause harm.
“If one went out with a camcorder or cell phone camera and uplinked video tape of somebody with the sole impression of causing that person distress, he knew it would cause harm, he wanted to cause harm, and the public interest in the matter is almost nil … then, maybe, there would be a claim,” Bodney said. That, he said, might include a personal squabble, a domestic dispute or even pictures of someone’s children.
But, absent that, Bodney said the right to broadcast without fear of suit is the same for an individual as it is for a commercial TV station.