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Case Dismissed
An ambushed bus driver loses a round against WTMJ-TV.

The "gotcha" moment: Rob Koebel and Melissa Dumas

A former Milwaukee Public Schools bus driver who sued WTMJ-TV and its former reporter, Rob Koebel, for publicizing an old misdemeanor prostitution conviction – leading her employer to fire her – was blocked this week from pursuing her claim.


In his summary judgment ruling throwing out Melissa Dumas’s lawsuit, Judge Timothy M. Witkowiak concluded the TV station’s First Amendment freedom of speech and of the press largely overrode what happened to her as a consequence of the story.


Her lawyer, Richard Schulz, had sought to blunt those protections with a line from the Wisconsin Constitution – namely, that to acquit someone accused of libel, the report doesn’t just have to be true, it must also be “published with good motives and for justifiable ends.” The Constitution also appears to reserve for the jury the right “to determine the law and fact” on that question.


Ruling from the bench, however, Witkowiak passed over Schulz’s argument. Although he acknowledged he was “sympathetic” with Dumas’s distress at the station’s report, the judge said that “public debate must tolerate outrageous statements” in order to give the First Amendment “room to breathe.”


The story starts with Koebel’s WTMJ-TV broadcast in April about people with criminal records driving buses for private contractors hired by MPS. The story relied on a list of private company drivers the station got from MPS – only after a long delay – and on a review of court and police records.


As part of the report, Koebel confronted Dumas – who had a 2005 misdemeanor conviction for prostitution – on her bus, camera rolling. Dumas’s employer, Durham School Services, subsequently fired her.


In June, she sued Koebel and the station for invasion of privacy. The suit also accused the station and Koebel of intentional infliction of emotional distress and interference with her employment contract because they had disclosed the conviction to Durham while researching the story.


Lawyers defending the station and Koebel responded that the First Amendment conferred the right to report information in the story that came from public records and asked to throw out the case.


Schulz disputed that the list of drivers constituted a public record. And in a brief opposing summary judgment, Dumas’s lawyer – noting that she was a private individual, not a public figure – argued that the station and the reporter “cannot use the First Amendment to shield them from their intentional, extreme and outrageous conduct giving rise to liability” for the emotional distress and contract claims.


Rejecting the contract claim, Witkowiak said the station was within its bounds in reporting Dumas’s record to the bus company as part of its research for the story.


The judge did agree with Schulz that the First Amendment doesn’t offer a blanket privilege for an emotional distress claim. In the end, though, that wasn’t enough to keep the case going; the public concern about the safety of schoolchildren in the care of bus drivers was enough to justify the station’s report, Witkowiak said.


The station’s lawyer, Robert Dreps of Godfrey & Kahn’s Madison office, says his client declined comment on the ruling. As of Wednesday morning Koebel had not replied to my request for comment.


Schulz – who said after the hearing Monday that he was “shocked” by the ruling, tells Pressroom Buzz that he plans to appeal on Dumas’s behalf.


“There have been no depositions or extensive review of documents to provide us an opportunity to create an adequate factual basis to support our case,” Schulz says. “This process will make our case clearly one where there are issues for a jury’s determination.”


Given the courts’ overall expansive approach to the First Amendment – allowing the anti-gay Westboro Baptist Church to picket military funerals with “God Hates Fags” signs, granting corporations a nearly unlimited right to spend whatever they want to promote their preferred political candidates, or, on Tuesday, granting drug companies the freedom to promote their products for uses not officially approved by federal regulators – Dumas’s prospects for prevailing don’t look  promising.


But beyond the letter of the law, the case points to why the public has very mixed feelings about the power of the press.


“That woman did not need to be stalked,” Donna Hietpas of the Women’s Harm Reduction Program at Milwaukee’s Benedict Center told Steven Elbow of  Madison’s Capital Times last summer.


Benedict Center executive director Jeanne Geraci, describing prostitutes as victims more than criminals, told Elbow: “I think journalists have a responsibility to focus on real issues and problems, not to sensationalize a would-be scandal when there really isn’t one and ruin people’s lives in the process.”


Elbow himself noted dryly the disconnect in how TMJ billed the story it got from combing through 1,200 drivers’ names: “What did it come up with? Billed as ‘another explosive I-Team investigation,’ the team found three drivers with records.”


The story reinforced TMJ’s image for cheap sensationalism. (There is no small irony in Koebel’s own departure from the station a few months later: He resigned in September after his late-night arrest in August was widely publicized; he told the Journal Sentinel’s Duane Dudek that he should be held to “a higher standard” as a reporter.)


The safety of schoolchildren and the proper background checks of drivers are legitimate subjects. It’s the judgment over what really constitutes a danger that’s in question here.


Too often – and I’ve said this before – “investigative reporting” seems to be less about exploring and exposing the hidden recesses of power and instead going after hapless and troubled nobodies just because they’re sleazy – and it’s easy.


Yet sensationalism isn’t always self-evident, as divergent reactions to a Jim Romenesko report Tuesday show. Romenesko writes about a woman with a bizarre medical condition that caused near-constant sexual arousal who killed herself after the Tampa Bay Times – with her consent and approval – published a story about it.


Where some readers see the newspaper’s actions as tawdry and despicable, others find that the story was sensitively and responsibly handled and the outcome, however sad, to be essentially unavoidable.


In Britain, where the press also espouses freedom but has no First Amendment to fall back on, a recent scandal over phone-hacking by the now-defunct News of the World newspaper prompted  a full-scale inquiry that last week led to a call for an independent – but government sanctioned – body to regulate newspapers.


That’s unimaginable here. Even across the pond its chances look mixed at best. But don’t be surprised if the idea generates some sympathy, however misguided, back in the States as well.



Comment below, or write Pressroom at pressroom@milwaukeemagazine.com.

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(image taken from video posted on 620wtmj.com)

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