Benford v. American Broadcasting Companies

• Decision Date: 14 November 1980
• Docket Number: Civ. A. No. N-79-2386.
• Citation: 502 F. Supp. 1148
• Parties: George H. BENFORD v. AMERICAN BROADCASTING COMPANIES, INC., and Mrs. Isaac (Betty) Hamburger and Miss Kathleen T. Gardner and Mrs. Lillian M. Teitelbaum and David L. Holton and Margaret Osmer.
• Court: U.S. District Court — District of Maryland

502 F. Supp. 1148

George H. BENFORD v. AMERICAN BROADCASTING COMPANIES, INC., and Mrs. Isaac (Betty) Hamburger and Miss Kathleen T. Gardner and Mrs. Lillian M. Teitelbaum and David L. Holton and Margaret Osmer.

Civ. A. No. N-79-2386.

United States District Court, D. Maryland.

November 14, 1980.

COPYRIGHT MATERIAL OMITTED

Wilson K. Barnes, Baltimore, Md., and Dean E. Sharp, Washington, D. C., for plaintiffs.

Alan I. Baron and Ellen Scalettar, Baltimore, Md., for defendants American Broadcasting Co., Inc. and Margaret Osmer.

Stanley M. Brand, Steven R. Ross and Michael L. Murray, Washington, D. C., for defendants Miss Kathleen T. Gardner, Mrs. Lillian M. Teitelbaum, David L. Holton and Mrs. Isaac (Betty) Hamburger.

NORTHROP, Chief Judge.

Plaintiff, George H. Benford, instituted the instant action in the Circuit Court for Baltimore County¹ against American Broadcasting Companies, Inc. (ABC), Margaret Osmer, an ABC employee, David L. Holton, Chief Investigator for the Select Committee on Aging, United States House of Representatives (Select Committee), Kathleen T. Gardner, professional staff member of the Select Committee, and Betty Hamburger and Lillian M. Teitelbaum, both special senior citizen investigators of the Select Committee. Defendants Holton, Gardner, Hamburger, and Teitelbaum will hereinafter be referred to collectively as the "congressional defendants."

This case arose from the events surrounding the Select Committee's investigation of abuses in the sale of supplemental health insurance to the elderly. Plaintiff Benford is an independent agent of the American Family Life Assurance Company of Columbus, Georgia. His responsibilities include the recruitment and training of independent agents for American Family. On October 20, 1978, and as part of the Select Committee's investigation, defendant Gardner visited Benford's office and expressed her desire to serve as an independent agent. Unaware that Gardner was a member of the Select Committee's investigatory team, Benford hired Gardner as an independent agent.

On or about November 1, 1978, Gardner informed Benford that a friend knew of two elderly women who were interested in learning about American Family's cancer policy. Stating that she was not confident in her ability to handle the sale herself, Gardner asked Benford to accompany her to the meeting. Benford agreed and arrangements were made to meet with the two women, defendants Hamburger and Teitelbaum, at the home of Hamburger in Pikesville, Maryland. On November 3, 1978, Benford and Gardner arrived at Hamburger's home where they were met by defendants Hamburger, Teitelbaum, and Holton, who introduced himself as the friend of Gardner who recommended the meeting.

At the meeting, Benford presented his standard cancer insurance promotion to the women. Without Benford's knowledge or consent, the November 3 meeting at Hamburger's home was taped by ABC. On November 28 and 29, 1978, portions of the taped meeting were broadcast on the ABC Nightly News. Following this broadcast, Benford learned that the congressional defendants were part of the Select Committee's investigatory team. As a result of the alleged actions by ABC and the congressional defendants, Benford has instituted the present action claiming that the taping and broadcasting subjects the defendants to liability under the Maryland Wiretapping and Electronic Surveillance Act, Md.Cts. & Jud.Proc.Code Ann. §§ 10-401, et seq., the fourth amendment of the Constitution, the Federal Eavesdropping Statute, 18 U.S.C. §§ 2510, et seq., and the common law torts of civil conspiracy, malicious interference with business relations, and invasion of privacy.

The congressional defendants have filed a motion to dismiss, or alternatively for summary judgment, as to each cause of action. Because both sides have submitted affidavits, the Court will treat defendants' motion as a motion for summary judgment. In addition, the congressional defendants have moved for a protective order staying all discovery until the motions presently before the Court are resolved. These motions raise an important question regarding the congressional defendants' immunity from suit. At present, therefore, this Court is deciding only the threshold question of legislative immunity. The Court is not addressing whether plaintiff has alleged valid causes of action in Counts I through VI. Although the congressional defendants have based their motion to dismiss, or alternatively for summary judgment, on a variety of grounds, this Court is only deciding whether the motion should be denied or granted on the basis of legislative immunity.

In their motion to dismiss, or alternatively for summary judgment, and their motion for a protective order, the congressional defendants contend that their conduct is protected by the Speech or Debate Clause of the Constitution and/or the common law doctrine of official immunity. In considering the congressional defendants' contention, it is important to note that some of the counts in the plaintiff's complaint deal exclusively with the actual taping while others require an examination of both the taping and the subsequent broadcast. As a result, in addressing the issue of legislative immunity, this Court must consider whether the taping, the broadcasting, or both, are absolutely protected by the Speech or Debate Clause or the doctrine of official immunity.

For the reasons set forth below, it is the opinion of this Court that neither the taping nor the subsequent broadcasting is absolutely protected by either the Speech or Debate Clause of the doctrine of official immunity. Upon showing that the taping and the broadcasting were properly authorized, however, the congressional defendants will be entitled to assert a defense of qualified immunity.² This defense only protects the defendants if they meet their burden of proving that they acted reasonably and in good faith. Whether this is a viable defense under these circumstances, therefore, cannot be resolved at this stage in the proceedings.

I. THE SPEECH OR DEBATE CLAUSE

The congressional defendants' primary contention is that their conduct is absolutely protected by the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1.³ The Speech or Debate Clause was included in the Constitution to insure the independence of the legislative branch and to protect legislators "not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427, 18 L.Ed.2d 577 (1967). See also United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972). As the Supreme Court explained in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), "the purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions." Id. at 505, 89 S.Ct. at 1955.

The Supreme Court has construed the Speech or Debate Clause few times in its history. See Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1975); Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); Powell v. McCormack, 395 U.S. 486, 86 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881). In these cases, the Court has read the Speech or Debate Clause "broadly to effectuate its purposes ...." United States v. Johnson, 383 U.S. at 180, 86 S.Ct. at 755. Among the actions the Court has deemed protected under the Clause are voting by legislators, the preparation of committee reports, and conduct at legislative committee hearings. See Gravel, 408 U.S. at 624, 92 S.Ct. at 2626. In addition, "a published report may, without losing Speech or Debate Clause protection, be distributed to and used for legislative purposes by Members of Congress, congressional committees, and institutional or individual legislative functionaries." Doe v. McMillan, 412 U.S. at 312, 93 S.Ct. at 2024.

Moreover, the Court has unequivocally declared that the Speech or Debate Clause protects legislative aides as well as the legislators themselves. In Gravel, the Court stated that "for the purpose of construing the privilege a Member and his aide are to be `treated as one,' ...." 408 U.S. at 616, 92 S.Ct. at 2622 (quoting from United States v. Doe, 455 F.2d 753, 761 (1st Cir. 1972)). The Court has indicated, however, that the protection afforded legislative aides may not be as great as that afforded the legislators. As the Court stated in Dombrowski, "This Court has held, however, that this doctrine is less absolute, although applicable, when applied to officers or employees of a legislative body, rather than to legislators themselves." 387 U.S. at 85, 87 S.Ct. at 1427. Similarly, in Tenney v. Brandhove, the Court declared that when a legislator is sued the Clause "deserves greater respect than where an official acting on behalf of the legislature is sued ...." 341 U.S. at 378, 71 S.Ct. at 789.

Although the Speech or Debate Clause has been broadly construed, the Court has placed definite limits on the scope of its protection. In Gravel, the Court defined the scope of the Clause as follows:

Legislative acts are not all-encompassing. The heart of the

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