Medical Laboratory Management Consultants v. American Broadcasting Companies

AMENDED ORDER

FACTUAL BACKGROUND

This action arises from a broadcast on American Broadcasting Companies (“ABC”)’s television program Prime Time Live about faulty pap smear testing. On or about February 10, 1994, Defendant Robbie Gordon, an employee of Defendant ABC, telephoned Plaintiff John Devaraj, a co-owner with his wife, Carolyn Devaraj, of Medical Laboratory Consultants (d/b/a Consultants Medical Lab) (hereinafter “Medical Lab”). Ms. Gordon, who had no prior contact with Mr. Devaraj, told him that she was a cyto-technologist 1 from Georgia interested in starting a pap smear laboratory in that state and “wanted to find out more details on the costs involved ... and the financial end of running such a lab.” (Pls.[’j Resp. to Defs.[’] First Set of Interrogs., No.l, attached to Defs[’] Statement of Facts (“DSOF”) as Exh. A.) She informed Mr. Devaraj that she would be in Phoenix visiting friends or relatives and asked if she could visit his laboratory to learn more about the industry. (Id.) Mr. Devaraj claims that he asked Ms. Gordon “a few questions such as ‘Who are you?’ [and] ‘Do you- have enough funds available?’ ” (Deva-raj Dep. at 91, attached to DSOF as Exh. B.) Mr. Devaraj agreed to schedule a meeting with Ms. Gordon at Medical Lab because it “appeared to be that she would be willing to bring some business to [his] laboratory.” (Id. at 92.) In fact, Ms. Gordon was not a cytotechnologist and her only interest in Medical Lab was as a possible source of information for an upcoming episode of Prime Time Live concerning error rates in pap smear testing conducted by medical laboratories.

The meeting took place at Medical Lab on March 18, 1994. Ms. Gordon was accompanied by Jeff Cooke — who claimed he was a computer expert but was an undercover camera specialist — and another individual whose name, has not been revealed. (Id. at 212.) Ms. Gordon and Mr. Cooke entered the laboratory through an unlocked door leading into a reception room. (Id. at 213, 215.) Mr. Devaraj met them there and escorted them to a conference room adjoining the reception area. (Id. at 215.) The conference room had windowed French doors and was visible by an accounting clerk who was working on the other side of the door. (Id. at 216.)

During roughly two hours, they spoke generally about the laboratory industry, about Medical Lab in particular, and about Ms. Gordon’s fictitious plans to open a laboratory. Mr. Devaraj told them that Medical Lab tried to compete with larger labs by offering a “better turnaround time.” (Id. at 214; DSOF at ¶ 4.) In addition, Mr. Devaraj invited Ms. Gordon and Mr. Cook on a tour of the laboratory, an invitation he occasionally made to prospective customers, physicians, and others who had “proper identification.” (Id. at 212, 220.) At one point during the tour, Ms. Gordon appeared to be heading into Mr. Devaraj’s office and was asked not to go *1186 there. (Id. at 221.) This was the only occasion during the visit when Ms. Gordon or Mr. Cooke were told not to enter a particular area. (Id.) Medical Lab employees were present for portions of the conversation during the tour. (Gordon Dep. at 14, attached to DSOF as Exh. C; Cooke Dep. at 45, attached to DSOF as Exh. E; Tiffany Split-torff Dep. at 37, attached to DSOF as Exh. G.) At no point during the interview did Mr. Devaraj ask that they keep any of the information discussed confidential. (Tr. of 3/18/94 Interview, attached to DSOF as Exh. D.) As many as 20 or more patients visited Medical Lab each day for blood work and other laboratory tests, but the conference room where the interview took place was located in an adjoining suite used for administrative purposes. (Hermosillo Dep. at 15-16, attached to DSOF as Exh. L; Devaraj Dep. at 213, attached to DSOF as Exh. B.)

Unbeknownst to Plaintiffs, Mr. Cooke filmed the entire episode with hidden cameras located in his wig. (Cooke Dep. at 14-15, attached to DSOF as Exh. E.) ABC featured footage from the interview on a broadcast designed to highlight what it perceived were frequent errors in pap smear testing at medical laboratories. Also as part of preparation for the broadcast, Defendants sent pretested pap smear slides to Medical Lab for testing, claiming the slides were from patients at a fictitious clinic called the Huron Women’s Health Collective. When the program, which was titled Rush to Read, aired on May 19, 1994, it was reported that Medical Lab mistakenly failed to identify cervical cancer on several of the slides. Rush to Read did not identify Mr. Devaraj and Medical Lab by name but a picture of his face was published during the broadcast.

John and Carolyn Devaraj and Medical Lab (“Plaintiffs”) 2 sued ABC, KTVK-TV (ABC’s then-affiliate in Phoenix) and other individuals (“Defendants”) allegedly involved in the production of Rush to Read after it aired. In an Order dated April 25, 1996, the Court dismissed all of Plaintiffs’ claims against KTVK-TV and the public disclosure of private facts, intentional infliction of emotional distress, unfair practices, trade libel, negligent infliction of emotional distress, and conspiracy claims against the remaining Defendants. 3 Defendants now move for summary judgment on the remaining claims of intrusion, fraud, interference with contractual relations, trespass, eavesdropping, and punitive damages. Defendants Lorri Garcia-Cottrell and Rhondi Charleston independently move for summary judgment on all the claims against them. In addition, Plaintiffs have filed a Motion for an Order Granting Leave to File a Second Amended Complaint to Add Claims for Defamation & False Light to Conform to Proof. The motion for summary judgment raises a panoply of issues which have conflicted many courts for two reasons. First, it requires grappling with and finding a balance between two fervently protected fundamental rights in competition: the right of the individual to be left alone and the right of society to access information of public interest. Second, it involves a difficult analysis of common law causes of action enshrouded by the First Amendment.

LEGAL DISCUSSION

Fed.R.Civ.P. 56(c) authorizes the granting of summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Judgment for the moving party must be entered “if, under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “If reasonable minds could differ as to the import of the evidence,” judgment should not be entered in favor of the moving party. Id. at 250-251, 106 S.Ct. 2505.

The moving party bears the initial burden of identifying the elements of the claim in the pleadings, depositions, answers to the interrogatories, affidavits, and other evidence, *1187 which the moving party “believes demonstrates the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties’ differing versions of the truth.” S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir.1982). The burden then shifts to the non-moving party to establish that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. More than a “metaphysical doubt” is required to establish a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The parties bear the same substantive burdens of proof as would apply at a trial on the merits. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. In a summary judgment motion, the Court does not weigh the evidence or the credibility of witnesses, rather “the nonmov-ant’s version of any disputed issue of fact is presumed correct.” Eastman Kodak Co. v. Image Technical Serv., Inc., 504 U.S. 451, 458, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992).

I. Intrusion

Plaintiffs’ first claim for relief is that Defendants invaded Mr. Devaraj’s privacy by using false pretenses to gain entrance to Medical Lab and by secretly videotaping the conversation. 4 Arizona recognizes the four branches of the tort of invasion of privacy outlined in the Restatement: 1) intrusion on seclusion; 2) commercial appropriation; 3) publication of private facts; and 4) false light. 5 Rest. (Second) of Torts § 652A (1977); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 783 P.2d 781, 784 (Ariz. 1989) (citing Rest. § 652A-I); Hart v. Seven Resorts Inc., 190 Ariz. 272, 947 P.2d 846, 853 (Ariz.App.1997); Mary Jo Rudd, Note, Is Invasion of Privacy A Viable Action in Arizona?: Rethinking the Standard, 30 Ariz. L.Rev. 322-24 (1988). The Restatement describes the tort of intrusion upon seclusion as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.” Hart, 947 P.2d at 853 (quoting Rest. § 652B). 6

A. The Intrusive Act

To prevail on an intrusion claim, a plaintiff must first show that the defendant “has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.” Rest. § 652B, cmt. c; Shulman v. Group W. Productions, Inc., 18 Cal.4th 200, 74 Cal.Rptr.2d 843, 864, 955 P.2d 469 (Cal. 1998) (to recover for intrusion, plaintiff must show that “defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff.”) The Restatement states:

The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiffs room in a hotel or insists over the plaintiffs objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiffs private affairs, as by looking into his upstairs window with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents.

*1188 Hart, 947 P.2d at 853 (quoting Rest. § 652B, cmt. b) (emphasis added). Regardless of the method of intrusion used, a plaintiff can recover “only if he had an objectively reasonable expectation of seclusion or solitude in the place, conversation, or data source.” Shulman, 74 Cal.Rptr.2d at 864, 955 P.2d 469; Kemp v. Block, 607 F.Supp. 1262, 1264 (D.Nev.1985) (emphasis added); People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269, 1279 (Nev.1995).

When an intrusion occurs in a home or other personal sphere, the plaintiffs expectation of privacy has, in most instances, been deemed to be objectively reasonable. Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir.1971) (“Plaintiffs den was a sphere from which he could reasonably expect to exclude eavesdropping newsmen”). However, courts have recognized that there is a diminished expectation of privacy in the workplace. See, e.g., Ali v. Douglas Cable Communications, 929 F.Supp. 1362, 1382 (D.Kan.1996); People for the Ethical Treatment of Animals, 895 P.2d at 1281 (“there is, generally speaking, a reduced objective expectation of privacy in the workplace.”); Hart, 947 P.2d at 853 (rejecting employees’ intrusion upon seclusion claims against their employer’s demand that they take a drug test); Cox v. Hatch, 761 P.2d 556, 563 (Utah 1988) (no reasonable expectation of privacy in a “common workplace”). When courts have considered claims in the workplace, they have generally found for the plaintiffs only if the challenged intrusions involved information or activities of a highly intimate nature. Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3rd Cir.1992) (noting that “[i]f the method used [by an employer] to collect [a] urine sample fails to give due regard to the employee’s privacy, it could constitute a substantial and highly offensive intrusion upon seclusion” and that the same principles would apply to an employer’s search of an employee’s personal property “if it is done in such a way as to reveal personal matters unrelated to the workplace ”) (relying on Rest. § 652B) (emphasis added); Doe v. Kohn Nast & Graf, P.C., 862 F.Supp. 1310, 1326 (E.D.Pa.1994) (summary judgment denied on employee’s claim that employer intruded on his seclusion by searching through and reading personal medical documents on an employee’s desk) (relying on Rest. § 652B). Where the intrusions have merely involved unwanted access to data or activities related to the workplace, however, claims of intrusion have failed. See, e.g, Smith v. Colorado Interstate Gas Co., 777 F.Supp. 854, 857 (D.Colo.1991) (“Unreasonable intrusion of seclusion is not implicated because the allegations [that plaintiffs former employer intruded on her seclusion by informing a prospective employer that she had not been laid off, as she claimed on a job application] do not involve invasions of [plaintiffs] personal solitude or personal affairs”) (citing Rest. § 652B); Bratt v. International Business Machines Corp., et al., 785 F.2d 352, 359 (1st Cir.1986) (finding that “no reasonable fact finder could conclude that there had been an unreasonable intrusion” upon the plaintiffs privacy by the limited dissemination of the frequent use by the employee of the employer’s confidential grievance process because “[t]he information itself, although it may have had a negative connotation to some managers, is not of such a personal nature that an intrusion upon privacy results from its disclosure.”); Hastings & Sons Pub. Co. v. City Treasurer, 374 Mass. 812, 375 N.E.2d 299, 303 (Mass.1978) (no breach of privacy in disclosure of payroll records because information did not include “ ‘intimate details’ of a ‘highly personal’ nature”); Al i, 929 F.Supp. at 1382 (plaintiffs could only prevail on intrusion claim against their employer’s monitoring or recording of their telephone conversations at work if such calls were of a “personal nature”).

In the instant ease, Mr. Devaraj invited Ms. Gordon and Mr. Cooke, to his place of business for a meeting. Regardless of whether they were potential future business partners, as Mr. Devaraj thought, Ms. Gordon and Mr. Cooke were strangers who chose Mr. Devaraj from relative obscurity and called him. The conversation and office tour took place in a laboratory that was at least partially open to the public and was accessible to employees. Mr. Devaraj did not communicate to the Defendants that he expected the conversation would not be disclosed to others, nor did he take any precautions to ensure that the contents of the discussion remained confidential. Furthermore, *1189 over the course of the roughly two hours, the topics of conversation were restricted to discussions of the industry as a whole and to the general practices at Medical Lab. For instance, Mr. Devaraj told Ms. Gordon and Mr. Cooke that he paid his cytoteehnologists more than other labs so they preferred to work for him, that he had better turnaround time than other labs, and that he made only a minimal profit on the pap smear testing. (Devaraj Deck at ¶ 9, attached to Pls.[’] Statement of Facts (“PSOF”) as Exh. 8.) Mr. Devaraj freely shared this information with Ms. Gordon and Mr. Cooke and may not have if he knew they were recording his conversation for publication. The information, however, hardly constituted matters involving “intimate personal facts.” Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1353 (7th Cir.1995). Thus, Mr. Devaraj can claim no reasonable expectation of privacy in the location or contents of the conversation. Shulman, 74 Cal.Rptr.2d at 864, 955 P.2d 469.

B. The Level of Offensiveness of the Intrusion

The second element of a claim of intrusion upon seclusion is that the intrusion must be found to be “highly offensive to a reasonable person.” Rest. § 652B. Arizona cases offer little guidance regarding the type of conduct that would constitute a “highly offensive” intrusion. 7 In 1989, the Arizona Supreme Court considered the “extreme and outrageous conduct” standard that had defined the level of offensiveness then required for an intrusion or other invasion of privacy claim: Godbehere, 783 P.2d at 785. Noting that the existing standard required plaintiffs to prove the elements of intentional infliction of emotional distress in addition to proving invasion of privacy, the Court rejected the “extreme and outrageous conduct” standard in favor of the “highly offensive” standard set forth in the Restatement and adopted by most jurisdictions. Id. In the decade since Godbehere, there has been only one reported case involving an intrusion claim in Arizona and it fails to discuss the “highly offensive” standard. Hart, 947 P.2d at 853 (rejecting claim of intrusion based on an employer’s demand that employees submit to a drug test). Thus, while it is clear that the level of injury required for intrusion in Arizona falls short of what would be required to state a claim for intentional infliction of emotional distress, Arizona eases do not illuminate the precise standard.

However, the Restatement’s examples of intrusion offer some insight into the parameters of the “highly offensive” standard. In one example, a reporter asks a woman hospitalized with a “rare disease that arouses public curiosity” for an interview. Rest. § 652B, cmt b., illus. 1. Ignoring her refusal, the reporter goes to the hospital and takes her photograph over her objection. Id. In another, a private detective uses a telescope to look into someone’s upstairs bedroom window for two weeks and takes “intimate pictures” with a telescopic lens. Id. at illus. 2. These examples suggest that, while the “highly offensive” standard may require less than “extreme and outrageous conduct,” it is reserved for truly exceptional cases of intrusion.

Cases from other states also address the “highly offensive” standard of the Restatement. Offensiveness is determined by considering “ ‘the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.’ ” Deteresa v. American Broadcasting Companies, Inc., 121 F.3d 460, 465 (9th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 1840, 140 L.Ed.2d 1090 (1998) (quoting Hill v. Nation *1190 al Collegiate Athletic Ass’n, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Cal.1994)); see also, Shulman, 74 Cal.Rptr.2d at 867, 955 P.2d 469; Wolfson v. Lewis, 924 F.Supp. 1413, 1421 (E.D.Pa.1996); People for the Ethical Treatment of Animals, 895 P.2d at 1281. The California Supreme Court recently considered these factors in a ease involving an intrusion claim brought by an accident victim who was filmed without her permission at the accident scene and in the helicopter that transported her to the hospital. Shulman, 74 Cal.Rptr.2d at 863, 955 P.2d 469. The court noted that the motivation behind an intrusion “becomes particularly important when the intrusion is by a member of the print and broadcast press in the pursuit of news material.” Id. at 867. Citing Cohen v. Cowles Media Co., 501 U.S. 663, 669, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991), the California Supreme Court noted the necessity of balancing privacy rights with freedom of the press:

Although ... the First Amendment does not immunize the press from liability for torts or crimes committed in an effort to gather news, the constitutional protection of the press does reflect the strong societal interest in effective and complete reporting of events, an interest that may — as a matter of tort law — justify an intrusion that would otherwise be considered offensive. While refusing to recognize a broad privilege in newsgathering against application of generally applicable laws, the United States Supreme Court has also observed that “without some protection for seeking out the news, freedom of the press could be eviscerated.’

Shulman, 74 Cal.Rptr.2d at 867, 955 P.2d 469, quoting Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Thus, the public’s interest in the news and the absence of less invasive methods of reporting the story may mitigate the offensiveness of the intrusion. “Information collecting techniques that may be highly offensive when done for socially unprotected reasons — for purposes of harassment, blackmail, or prurient curiosity, for example — may not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story.” Shulman, 74 Cal.Rptr.2d at 867, 955 P.2d 469.

It is worth emphasizing that this balancing test does not protect all newsgathering activities. As Shulman noted, the constitutional protection afforded newsgathering “if any, is far narrower than the protection surrounding the publication of truthful material.” Shulman, 74 Cal.Rptr.2d at 870, 955 P.2d 469. Where the intrusion is gratuitous, threatens the safety of anyone involved, or unnecessarily intrudes on a target of the news in his private capacity, the offensiveness may be deemed greater. See, e.g, Id. (concluding that a jury could reasonably find that the presence of a cameraperson and hidden microphone in a helicopter ambulance was highly offensive); Miller v. National Broadcasting Co., 187 Cal.App.3d 1463, 232 Cal.Rptr. 668 (Cal.App.1986) (unauthorized entry of a television camera crew in a heart attack victim’s bedroom could be classified as “highly offensive”); KOVR-TV, Inc. v. Superior Court 31 Cal.App.4th 1023, 37 Cal.Rptr.2d 431 (Cal.App.1995) (no newsgathering defense to claim of intentional infliction of emotional harm for television reporter who told small children that their neighbors had been killed so he could film their shocked reaction); Wolfson, 924 F.Supp. 1413, 1432 (“ambush” tactics of reporters, including “conduct apparently designed to hound, harass, intimidate and frighten” news targets was likely to constitute intrusion).

In the instant case, it is undisputed that Defendants were reporting on potential laboratory errors in testing of pap smears, information that was clearly in the public interest because the results of the tests involve vital health issues. See infra note 11 and accompanying text. As part of their newsgather-ing activities, they conducted a hidden camera interview with an owner of a laboratory that profits from conducting such tests. They did not jeopardize the safety of anyone, nor did they intrude on Mr. Devaraj’s home or aspects of his private life. 8 While Mr. Devaraj may have preferred that the inter *1191 view not be broadcast, the intrusion was not highly offensive as a matter of law. Because Defendants did not “intentionally intrude upon the seclusion of another or his private affairs or concerns,” Rest. § 652B, and because the alleged intrusion was not “highly offensive,” they are entitled to summary judgment on Plaintiffs’ intrusion claim.

C. Alternative Reasoning

Summary judgment is warranted on the intrusion claim on alternative grounds. According to the Restatement, “the intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information.” § 652B. A number, if not most, jurisdictions interpreting § 652B have refused to consider the publication of information obtained during an alleged intrusion as a factor in determining the offensiveness of the act. The result is particularly significant in cases involving hidden cameras, where, as here, the intrusion itself may be minimal and the plaintiffs primary complaint is that the information gained from the intrusion was published. In Russell v. American Broadcasting Company, 1995 WL 330920, *8 (N.D.Ill.), for example, the court considered a claim of intrusion brought by the manager of a seafood retailer against a reporter who secured a job at plaintiffs store and wore a hidden camera to capture film footage that was broadcast on Prime Time Live concerning sanitation problems in the commercial fish industry. Relying, in part, on § 652B of the Restatement, the federal district court of the Northern District of Illinois noted:

‘The basis of the tort [of intrusion] is not publication or publicity. Rather the core of this tort is the offensive prying into the private domain of another.’ In the instant case, plaintiff alleges that defendants secretly recorded a conversation she willingly had with a co-worker at her place of business. This is hardly ‘offensive prying into the private domain of another.’ [Plaintiff] was harmed, if at all, by the publication of her conversations with [the reporter], not by the filming itself. Therefore, she does not state a claim for intrusion upon seclusion.

Id. (citations omitted) (emphasis added). The Seventh Circuit applied similar reasoning to a claim of intrusion by a basketball player whose telephone conversation with a coach from a competing university was secretly recorded by the coach and publicized. Rejecting the basketball player’s claim, the court held:

The tort of intruding upon the seclusion of another is aimed at discomfort caused by the intrusion itself — for example, someone enters your bedroom, opens your mail, or makes repeated and unwanted telephone calls to you. Eavesdropping by wiretapping may itself constitute such an invasion of privacy. In this instance, however, [plaintiff] was harmed if at all not by the telephone calls themselves (since he was a willing party) or even by the recording, but by the publication of what he said in the conversations. And under [Lovgren v. Citizens First National Bank of Princeton, 126 Ill.2d 411, 128 Ill.Dec. 542, 534 N.E.2d 987 (Ill.1989) ], a plaintiff fails to state a claim for invaded seclusion if the harm flows from publication rather than intrusion.

Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir.1993); see also, Reuber v. Food Chemical News, Inc., 925 F.2d 703, 718 (4th Cir.1991) (“The intrusion prong of invasion of privacy requires a positive act by a defendant, aside from publication, that encroaches on a plaintiffs seclusion.”); Beard v. Akzona, Inc., 517 F.Supp. 128, 131 (E.D.Tenn.1981) (“Whether the information gained by reason of the intrusion was ever publicized is irrelevant to this form of invasion of privacy.”) (citing Rest. § 652B); Machleder v. Diaz, 538 F.Supp. 1364, 1374 (S.D.N.Y.1982) (“the intrusion under consideration is not the publicizing of plaintiffs reaction to defendant’s confrontation but rather the defendant’s act of confrontation itself.”). 9

*1192 Thus, regardless of which legal basis is employed, Plaintiffs’ intrusion claim does not survive summary judgment. Accordingly, Defendants’ motion for summary judgment on Plaintiffs’ claim of intrusion will be granted.

II. Interference With Contractual Relations and Prospective Economic Relations

A. The Elements of the Cause of Action

Plaintiffs allege that Defendants’ production of Rush to Read prompted some of Plaintiffs’ customers to take their laboratory business elsewhere, constituting tortious interference with Plaintiffs’ contractual relations and prospective economic relations. Despite Plaintiffs’ effort to claim otherwise, it is clear from the record, including a letter from Plaintiffs’ own lost profits expert, that the injury to contractual relationships was caused, if at all, by the broadcast of Rush to Read rather than activities relating to the creation and preparation of the story. (Stamps Dep. at 50, 53, 71-73, attached to DSOF as Exh. P; Fara Dep. at 4-6, 11, attached to DSOF as Exh. Q; Letter from Pls.[’] expert G. Christopher Davis to Pls.[’] counsel, 8/29/97, attached to DSOF as Exh. S). As Defendants contend, this distinction is crucial. Because the alleged injury stems from a news broadcast, this Court must ensure that the First Amendment’s requirements for constitutionally protected speech have been met. 10 Unelko Corp. v. Rooney, 912 F.2d 1049, 1058 (9th Cir.1990).

In Unelko, the Ninth Circuit considered claims of defamation, product disparagement, and tortious interference with business relationship against 60 M