Judge refuses to stop sale of ‘Undercover Cop Sex’ video

Friday, October 30, 1998

A Connecticut judge has denied a former undercover policewoman's request for a preliminary injunction to stop distribution of a secretly taped video showing her having sex with the man she was investigating.

Cari L. Henderson asked the judge in September to prevent Patrick Baker of Stratford and Ralph Manente of Bridgeport from selling the videotape “Undercover Cop Sex” over the Internet.

The two men, whose Hamden-based Electric Beach tanning salon was the target of a police drug probe in 1994, were represented by a Connecticut Civil Liberties Union attorney who defended their First Amendment right to distribute the “newsworthy commentary.” According to CCLU briefs filed with the court, the legitimate public interest in actually seeing the behavior of the public official outweighs the objectionable subject matter.

On Oct. 15, State Superior Court Judge Patty Jenkins Pittman agreed, saying that although the video may be “badly produced and highly offensive, the First Amendment works the same way for Copflix (the distributing company) as it does for The New York Times.”

Henderson, a Hamden police officer who has since resigned from the force, claimed that the sale of the videotape would violate her rights and cause her great emotional distress. She sought monetary damages and accounting of all profits derived from the sale and promotion of the videotape and story.

Married at the time of the investigation, the officer engaged in sexual relations with Manente. When Baker received a tip that an undercover cop was investigating the salon, he told Manente that he thought his girlfriend, Henderson, was the undercover cop. Baker proposed that he be allowed to make the videotape and then try to confirm the fact. Manente consented. Baker then set up a hidden camera during one of the couple's dates. The video shows the Manente-Henderson liaison, followed by Henderson's admission that she was working undercover.

According to William M. Bloss, Henderson's attorney, the videotaped sexual encounter occurred after she stopped acting in her investigative role. The court “misapplied the law and ignored uncontroverted facts in reaching its decision,” Bloss said in a written statement.

Bloss said: “There was no protected speech on the tape even under the argument of the CCLU. Certainly no case ever provided First Amendment protection to something of this nature absent public interest or protected speech. No one has cited an analogous case to the court.”

The judge disagreed, however, finding that Baker and Manente were engaged in speech. “The fact that what they seek to communicate to the public are the images contained on a videotape does not take it outside the ambit of constitutional protection,” Pittman wrote. “The law is well settled that free speech and free expression, protected under the First Amendment, can take the form of a symbol (literally, a red flag), movies, nude dancing, 'patently offensive' and 'indecent' Internet websites, and certainly a videotape of a public official arguably engaged in misconduct.”

Martin B. Margulies, the CCLU lawyer representing Baker and Manente, told the court that an injunction would be useless because the videotape has been available to the public through the Internet and television talk shows since 1994.

Bloss said the ruling will not impact Henderson's lawsuit. He said that this is just a very small part of the bigger picture. Henderson is suing Baker, Manente and Copflix for more than $15,000 in damages.