Thursday, March 4, 2021

Transparency update 3

A state appeals court Wednesday upheld a decision requiring CNN to provide copies of emails and text messages as the network fights a lawsuit filed by a physician who contends he was defamed in news reports about a pediatric heart-surgery program at St. Mary’s Medical Center in West Palm Beach. 

A three-judge panel of the 4th District Court of Appeal rejected arguments that CNN should be shielded from turning over the documents because of a state law that protects journalists from having to provide information related to sources. The ruling said the law offers “qualified privilege” and agreed that physician Michael Black was entitled to see copies of communications between CNN journalists and Kelly Robinson, a source in the coverage of the hospital. 

Black, who was the head of the pediatric heart-surgery program, filed the defamation lawsuit in 2016 against CNN, individual journalists --- including star anchor Anderson Cooper --- and Robinson. CNN published and broadcast reports in June 2015, saying, in part, that the surgery program had a high infant-mortality rate. The hospital disputed the reports, and Black alleges in the lawsuit that he was the target of “false and defamatory” statements.

A Palm Beach County circuit judge in May ordered CNN to turn over the emails and text messages, and the appeals court said Wednesday that the judge “found a compelling interest for disclosure because of the unique circumstances of the case.” Among those circumstances was the need for Black to prove malice in the lawsuit and the fact that Robinson, who is not a journalist, had deleted her copies of the communications. 

“While the journalist privilege must be protected, it is a qualified privilege,” said the six-page ruling, written appeals-court Judge Martha Warner and joined by Chief Judge Spencer Levine and Judge Burton Conner. “(A section of state law) provides the procedure to overcome that privilege when the facts and circumstances of a case require it. The trial court concluded that respondent (Black) overcame the privilege in this case. The trial court did not depart from any clearly established principle of law.” 

The CNN reports about the St. Mary’s program drew widespread attention, with Black’s lawsuit and the appeals court ruling describing Kennedy as a “key source” of information for the network. The Palm Beach Post reported in 2015 that Kennedy’s son had heart surgery at the rival Nicklaus Children’s Hospital in Miami and that she was highly critical of St. Mary’s and Black. 

The appeals court found that the emails and text messages between CNN journalists and Robinson were relevant to the case. 

“We reject CNN’s argument that the communications are irrelevant given its claim that Robinson was not the source of any specific defamatory statement contained in CNN’s reporting,” the ruling said. “Even if Robinson was not the source of the calculations of mortality rates, it is clear that there were communications between Robinson and CNN about those rates and the respondent. Also, Robinson remained a key source and connection in the case. Thus, those communications would show what CNN ‘knew or did not know at the time of publication,’ both on behalf of CNN and also Robinson, who is also a defendant in the case.”



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