Desnick v. American Broadcasting Co., Inc.
44 F.3d 1345 (1995)
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Rule of Law:
Entering a place of business that is open to the public does not constitute trespass, even if consent to enter is obtained by misrepresentation, so long as the entry does not disrupt business activities or invade a private space in which the owner has a legitimate expectation of privacy.
Facts:
- An ABC PrimeTime Live producer, Entine, told Dr. Desnick that the program wanted to do a 'fair and balanced' segment on large cataract practices and promised not to use 'undercover' surveillance.
- Based on these assurances, Dr. Desnick permitted an ABC crew to film at the Desnick Eye Center's main office in Chicago.
- Unbeknownst to Dr. Desnick, ABC also dispatched seven 'test patients' equipped with concealed cameras to other Desnick Eye Center offices in Wisconsin and Indiana.
- These test patients posed as individuals seeking eye examinations from the Center's ophthalmic surgeons, including Drs. Glazer and Simon.
- The examinations of the test patients by Drs. Glazer and Simon were secretly videotaped.
- ABC later aired a broadcast segment that was highly critical of the Desnick Eye Center, using the secretly recorded footage and accusing the center of performing unnecessary surgeries and rigging a diagnostic machine.
Procedural Posture:
- The Desnick Eye Center and two of its surgeons (plaintiffs) filed a lawsuit against Capital Cities/ABC, Inc. and its employees (defendants) in the U.S. District Court for the Northern District of Illinois.
- The complaint alleged multiple torts, including trespass, defamation, invasion of privacy, and fraud.
- The defendants moved to dismiss the lawsuit for failure to state a claim upon which relief could be granted.
- The district court granted the defendants' motion and dismissed the entire case.
- The plaintiffs (as appellants) appealed the dismissal to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does a media defendant commit trespass by having its agents pose as patients to gain entry with concealed cameras into a medical clinic's offices that are open to the public?
Opinions:
Majority - Posner, Chief Judge.
No. A media defendant's agents posing as patients to enter a publicly accessible clinic do not commit trespass because the entry, although based on a misrepresentation of purpose, does not invade the specific interests protected by the tort of trespass. The court reasoned that consent to enter a property is often legally effective even if procured by fraud. The key distinction is the interest the tort protects: the inviolability of property and private space. Unlike a trespass into a private home or an entry that disrupts business, the test patients entered offices open to anyone seeking ophthalmic services, did not disrupt the clinic's activities, and did not invade any private, personal space. The court compared the testers to restaurant critics or housing discrimination testers, whose misrepresentation of purpose does not negate consent to enter a business's public areas. Therefore, because no interest in the ownership or possession of land was infringed, there was no trespass.
Analysis:
This decision significantly impacts media law by providing legal protection for undercover journalistic investigations conducted in commercial or professional settings. The court created a crucial distinction between invasions of private spaces (like a home) and entry into premises open to the public, even when access is gained by deception. This ruling lowers the legal risk for news organizations using surreptitious recording tactics in quasi-public spaces, thereby encouraging investigative reporting. However, it explicitly does not create a general 'journalists' privilege' to trespass, limiting its protection to situations where the entry does not disrupt business or infringe upon legitimate privacy interests.
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