U.S. Court Rejects Church Employee Suit in TV 'Cult' Story

Fulton County Daily Report/July 31, 2000
By R. Robin McDonald

The newcomer was invited to the bedroom of the Atlanta International Church of Christ's campus ministry leader at Georgia State University for a private "sin and repentance study."

Once there, Pippa McCue -- who said she had moved to Atlanta to be with her boyfriend and was thinking of attending GSU -- was asked by ministry leader Esmeralda M. Lucas to "confess every last detail" of her sex life, according to records at U.S. District Court in Atlanta.

But "McCue" was not who she claimed to be. She was actually Pippa Bark, a television news reporter with the Fox News Network in New York. She was working undercover on an investigation of the campus activities of the International Church of Christ.

And she was carrying a hidden camera in her book bag.

The resulting video -- broadcast Jan. 21, 1999 on Fox as part of a news segment titled "Cults on Campus" -- prompted Lucas and her husband, Jonathan Lucas, to sue Fox and Bark. They claimed that Bark's hidden camera and her undercover reporting were an invasion of Lucas' privacy.

Suit Dismissed

On June 27, in Lucas v. Fox News Network, No. 1:99-cv-2638 (N.D. Ga. June 27, 2000), U.S. District Court Senior Judge Charles A. Moye Jr. dismissed the Lucases' suit, explaining that Lucas' proselytizing was a public activity. "The surreptitious recording and broadcast of the Bible study session," Moye said, "cannot amount to an invasion of any of plaintiffs' privacy interests."

"The court found that under Georgia's 'one-party consent rule,' there is no invasion of privacy when a person who is participating in a conversation records and then subsequently broadcasts that conversation," says Robert L. Rothman, a partner with Atlanta-based Arnall Golden & Gregory who is defending Fox and Bark.

Says Rothman, "In this case, the court found that because all the activities that were the subject of the news report involved [Lucas'] duties as a campus ministry leader, they were therefore public activities and not subject to the invasion of privacy claim."

Food Lion Case

The use of a hidden camera was also central to the celebrated Food Lion lawsuit against ABC, and Moye referred to the case in his order.

In that case, ABC reporters working undercover as grocery employees used hidden cameras to expose unsanitary food handling by the supermarket chain. Food Lion never contested the accuracy of the story but accused the network of fraud and trespass.

A lower court jury sided with Food Lion, but Moye noted in his ruling that the 4th U.S. Circuit Court of Appeals threw out the fraud claims. The appeals court ruled that ABC remained liable because its reporters, working as Food Lion employees, violated their duties of loyalty to the company by making the videotape.

In both cases, plaintiffs challenged the conduct of journalists, rather than the accuracy of their reporting. In Food Lion, the grocery chain alleged fraud. In the Fox suit, Lucas made no fraud claims but, rather, accused the reporter of invading her privacy.

The Lucases are appealing the case, says their Savannah attorney, Mark A. Tate, a partner at Middleton, Mathis, Adams & Tate.

"This case, we think, is really a story about outrageous conduct by the media," Tate says. "We think that Georgia law does not allow any media organization to gain entry to a private citizen's house, secretly audio- and videotape supposedly private conversations and then air these private conversations. We think that is an invasion of our client's reasonable expectation of privacy.

"We think that Judge Moye's order is one that should be reviewed by the 11th Circuit. ... We deserve to have Ms. Lucas's case heard by a jury."

Employee of Church

During the fall of 1998, Lucas was the women's campus ministry leader at GSU for the Atlanta International Church of Christ, according to court records. She was, and remains, a church employee involved with the church's campus outreach division, Tate says.

"I don't believe there was any restriction to them being there on campus," he says.

Lucas was not a student and didn't have any official status on campus.

Fox had embarked on the reporting project after the International Church of Christ -- founded in Boston in 1979 as a breakaway branch of the Church of Christ -- was banned from recruiting on some other campuses across the country, among them Boston University and Vanderbilt University.

The church has been criticized for high-pressure recruitment tactics. Some news reports have said the church encourages students to drop out of college, sever relations with their families, and pay huge sums of money to the organization.

In a letter posted on the Internet in response to the Fox broadcast, church spokesman Al Baird suggested that the church was being persecuted "now that God is blessing our renewed efforts on college campuses."

Several of the Fox broadcast's allegations "are outright lies," he says, including any suggestion that the church encourages students to drop out of school or tries to divide families.

Cult Reference Denied

Tate says the church is not a cult. "It is one of the most ethnically and racially diverse religious groups in the country," he says. "The beliefs they hold are based on a literal reading of the Bible. They believe that because they hold these devout positions, they are sometimes persecuted."

Bark's report never identified Lucas by name, although she was shown talking about a sexual practice she found distasteful.

"At best, the only information that it reveals concerning her [Lucas] is that she is a member of the church, and that, in her role as a church member, she inquires into the sexual history of prospective new church members," said one pleading filed with the court on Fox's behalf.

But Lucas and her husband sued, first in a Fulton State Court complaint alleging libel, slander and invasion of privacy. Later, they dropped the state suit and sued in U.S. District Court.

In addition to invasion of privacy claims, the federal complaint included allegations that "Cults on Campus" portrayed Lucas in a false public light and publicly disclosed private facts about her religious beliefs. Lucas's husband, Jonathan, complained of a loss of consortium as a result of the broadcast.

"In my opinion, it's frightening if the law in the state of Georgia is that any news group can gain entry into a house by telling you something that's not true, videotape you, audiotape you and then publish it," Tate says.

What Bark filmed in Lucas's bedroom was a confession of sins, one of the many steps Tate says recruits must take before becoming a church member.

'It's a Private Thing'

"It's supposed to be an intensely personal cleansing by confession," he says. "It's a private thing. The only way for Bark to gain entry was by stating she wanted to become a member of the church, which clearly she didn't."

But Moye rejected Lucas's claims that Bark's reporting was an invasion of privacy.

"The focus and extent of defendants' investigative reporting was Lucas' activities as a member of the Church seeking the patronage of members of the public or community, in this case, college students on the campus of a state university," he wrote in his order dismissing the case.

"Those facts about Lucas that the 'Cults on Campus' report may have revealed -- that she is a member of the Church and that in her role as a Church member she inquires into the sexual history of state university students who are prospective church members -- are most certainly public or community activities, not private affairs. Plaintiffs do not suggest that the report revealed any private individual or marital conduct typically associated with a bedroom."

Moye also noted in his order that under Georgia law the right to privacy is not absolute. "One implicitly waives her right to privacy to the extent that she holds herself out to, and seeks the patronage of, the public," he wrote.

Lucas, the judge said, was openly soliciting people to join the church. "Hence, there has been no invasion of privacy."

Moye also affirmed that, as a journalist exploring a topic of public interest, Bark had a right to run Lucas's image, with or without her consent. "The incidental publication of a person's likeness in the course of reporting on a subject of legitimate public interest cannot amount to invasion of privacy," he wrote.

He also dismissed Lucas's argument that the private bedroom session was akin to a Catholic confession, and, in fact, was "one step more removed from the public than even the Catholic practice of confessing sins."

"Even if Lucas's admitted church-membership solicitation practices on a state university campus could be analogized to the Catholic priest-penitent relationship," Moye wrote, "the restriction on disclosure of any religious communication applies to members of the clergy, not to the person seeking spiritual guidance or counseling. The privacy interest belongs to the penitent, who is free to disclose the communication if he or she so desires."

Moye also dismissed the claims that targeted Bark's undercover reporting and her use of a hidden camera. Citing the 4th Circuit's appellate ruling that rejected fraud claims in Food Lion v. Capital Cities/ABC, Inc., Moye said, "Misrepresentation of purpose or concealment of an intent to record a conversation does not constitute fraud sufficient to negate consent as applied here."

The fact that the secretly recorded Bible study session occurred in Lucas' bedroom, and the reporter may have promised to keep all matters discussed in the Bible study confidential, "provides no basis for any legitimate expectation of privacy, particularly when ... no facts concerning Lucas's private life were revealed," Moye wrote.

Bark was invited to the Bible study, he noted. The choice of the session's location was entirely Lucas's, he said.

"There was no invasion of privacy as a matter of law."