Case Dismissed

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…


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.

 

*

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

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Milwaukee Magazine Contributing Editor Erik Gunn has written for the magazine since 1995. He started covering the media in 2006, writing the award-winning column Pressroom and now its online successor, Pressroom Buzz. Check back regularly for the latest news and commentary of the workings of the news business in Milwaukee and Wisconsin.