Brown v. Hearst Corporation

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-1836

                                WILLIS N. BROWN, JR.,

                                Plaintiff, Appellant,

                                          v.

                                 HEARST CORPORATION,
                               d/b/a WCVB-TV CHANNEL 5,

                                 Defendant, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                            Cyr and Boudin, Circuit Judges,
                                            ______________

                             and Keeton,* District Judge.
                                          ______________

                                 ____________________

            Edwin M. Sigel for appellant.
            ______________
            Steven J. Comen with whom Patricia  A. Lipoma and Goodwin, Procter
            _______________           ___________________     ________________
        & Hoar were on brief for appellee.
        ______

____________________

                                     May 11, 1995
                                 ____________________

__________

        *Of the District of Massachusetts, sitting by designation.



BOUDIN, Circuit Judge.  In March 1987, Regina Brown, the
                         _____________

            then-wife  of  appellant Willis  Brown  and  mother of  three

            children,  disappeared.  At the time Regina was employed as a

            flight  attendant,  and  Willis  as  a  pilot,  for  American

            Airlines;  the   couple  had   lived  together  in   Newtown,

            Connecticut, but had been separated for four months  and were

            living apart.   The police investigated the disappearance and

            found Regina's car abandoned in New York but no trace of her.

            The investigation  remains open.   It  is  not known  whether

            Regina is alive or dead.      Later  in  the  same  year  the

            Browns  were  divorced  in  a Connecticut  state  court,  the

            contested  proceedings being  completed in  Regina's absence.

            The state court  trial was prolonged  and a detailed  opinion

            was  written by  the trial  judge pertaining  to custody  and

            support.   The  opinion,  dated April  22,  1988, found  that

            Willis believed deeply  but without basis  that his wife  was

            unfaithful  to  him,  that  his charges  against  her  echoed

            charges that he  had made  against his first  wife, that  "he

            [had] physically  and mentally abused [Regina],"  and that he

            had threatened to kill her and the children.

                 The  trial  was  widely   reported  in  the  press,  and

            publicity continued  even after  the  decree.   This was  due

            partly  to  further  litigation  and  the  continuing  police

            investigation, but also to a freakish coincidence.  About six

            months before Regina's disappearance, another woman who lived

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in Newtown, a Pan  Am flight attendant married to  an Eastern

            pilot,  had disappeared.  Fragments of her bone were found in

            a  nearby river, and her  pilot husband was  convicted in the

            so-called woodchipper murder.

                 In  November  1990,  appellee  Hearst  Corporation d/b/a

            WCVB-TV Channel  5 in  Boston ("Channel 5")  broadcasted from

            Massachusetts a segment entitled  "The Other Pilot's Wife" as

            a part of the station's  regular "newsmagazine" program.   It

            was  prepared  by  Mary  Richardson, a  journalist  with  the

            station, who conducted a substantial amount of research and a

            number of interviews in preparing the broadcast.  

                 The  broadcast opens  with  the leitmotif--"Tonight  the

            bizarre  story  of  a  small  New  England  town  where   one

            stewardess is  dead, another  is missing"--and then  offers a

            brief  reprise  of  the 1986  murder  of  the  Pan Am  flight

            attendant.    Next,  turning  to the  Browns,  the  broadcast

            describes and  depicts an apparent  storybook marriage  going

            sour, the divorce petition,  and Regina's disappearance.  "In

            the  days following Regina's disappearance," says Richardson,

            "Willis showed no interest in what had happened to her." 

                 The program  reenacts a last telephone  call from Regina

            to a friend, according to the friend's report:

                 I'm  in danger.   If  my parents  say they  haven't
                 heard from me on Sunday . . . be alarmed.  Wait two
                 days,  call back.  If I'm not there by then, Willis
                 will  have done to me  what he's promised  to do to
                 me.

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The police chief  is then  quoted as saying  that Willis  had

            told him  to look for Regina's car in a drug infested area of

            a big city;  and that in fact the car  was found pretty close

            to such an area.

                 In the next portion of  the segment, Willis is described

            as having at  first agreed, and then  refused, to take a  lie

            detector  test.   Evidence offered  at the  divorce  trial is

            recounted or summarized.  The  evidence included descriptions

            of Willis'  accusations against his wife  which are portrayed

            as  virtually  paranoid;  the  trial  judge's  statement that

            Willis had physically and mentally abused Regina; and a vivid

            strangulation scene that one  of the Brown children allegedly

            recounted to Regina's parents.

                 In  the final  few  minutes, there  are interviews  with

            Regina's parents who now  have custody of the children.   Her

            father  says, "I feel like  if Regina's dead, [Willis] killed

            her, or had  her killed."   Her mother  adds, "I don't  think

            Regina  is alive."   The  broadcast also includes  the police

            discovery of a hand  drawn map of Block Island,  depicting an

            area where Willis  had rented a house trailer  shortly before

            Regina's disappearance and bearing the words "Regina, O God."

            An  extensive   police  search  of  37   acres,  the  program

            concludes, produced no trace of any wrongdoing.

                 There  is other  incriminating information  about Willis

            recounted in  the program,  and the  police are described  as

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having  suspected Willis  and  as believing  still that  "Mr.

            Brown  knows more about the disappearance of his wife than he

            is letting  on."   No evidence  even remotely  exculpatory of

            Willis is described.  On the other hand, Mary Richardson, the

            "voice  over" throughout  the  program,  never  asserts  that

            Willis is guilty or  even says that she thinks he  is guilty.

            Formally,  the  program  describes  the  disappearance  as  a

            mystery or, at worst, a possible murder still unsolved.

                 In February  1993,  Willis brought  the  present  action

            against  Channel 5  in state  court in Texas.   The  case was

            removed to  federal court  and thereafter transferred  to the

            federal  district court  in Massachusetts.    As subsequently

            amended,  Willis' complaint  charged defamation,  invasion of

            privacy  under  Mass. Gen.  L. ch.  214    1B,  "false light"

            invasion of privacy, and intentional  infliction of emotional

            distress.  

                 After discovery,  Channel 5 moved  for summary judgment.

            In a detailed opinion dated July 21, 1994, the district court

            granted  the motion.  As  to the defamation  claim, the court

            relied  in different respects on lack of falsity, the limited

            protection available  for statements  of opinion, the   "fair

            report"  privilege,   and  lack of  fault.   The  privacy and

            intentional  infliction  claims  were  dismissed  on  grounds

            described below.  Willis has now appealed, asserting that all

            of his claims should have been submitted to a jury.  

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On appeal from  a grant of  summary judgment, we  review

            the  decision de  novo, drawing  inferences  in favor  of the
                          ________

            party  opposing the  motion.   Maldonado-Denis  v.  Castillo-
                                           _______________      _________

            Rodriguez, 23 F.3d  576, 581  (1st Cir. 1994).   Because  the
            _________

            case was transferred from Texas, Texas law governs the choice

            of substantive  law  to  be  applied.   Putnam  Resources  v.
                                                    _________________

            Pateman, 958 F.2d  448, 465  (1st Cir. 1992).   The  district
            _______

            court  found  that Texas  would  apply  Massachusetts law  in

            judging  the  broadcast  and, as  this  ruling  has  not been

            challenged on appeal, our discussion assumes this to be so.  

                 Although Willis listed defamation as the fourth and last

            count of his  second amended complaint, this  charge has been

            the  center of the controversy both in the district court and

            on appeal.  As framed on  this appeal, Willis' main attack on

            the broadcast is that it amounts to a charge that he murdered

            his  wife.    Additionally,  he  argues  that  the  broadcast

            suggests that  he did so "in the same  manner" as the earlier

            pilot   (who  had   dismembered  his   wife's  body   with  a

            woodchipper).  

                 Channel  5 does not appear to dispute that the broadcast

            charges Willis with murder  or at least that a  jury would be

            entitled  to find this to be the  import of the program.  The

            broadcast never flatly expresses that accusation.  Indeed, it

            says that the  murder is  unsolved and makes  clear that  the

            police have  nothing  much  in the  way  of  direct  evidence

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against Willis.  But defamation can occur by innuendo as well

            as by  explicit assertion, Mabardi v.  Boston Herald Traveler
                                       _______     ______________________

            Corp., NE.2d 304,  306 (Mass. 1964), and  the suggestion here
            _____

            is a fairly strong one.

                 The materials presented include--we stress that some are

            merely allegations--the  rift between Willis and  Regina; his

            paranoid accusations against her; his threats to kill her and

            the  children; her  statement (to  a girlfriend)  that Willis

            might  be   planning  to  do  "what  he  had  promised";  her

            disappearance and Willis' disinterest; his visit to the house

            on the same  night; and his knowledge of where  her car might

            be  found.    The notion  that  Regina  would  have left  her

            children voluntarily  is scotched  and  there is  no hint  of

            another motive, or perpetrator.

                 The  broadcast  makes  clear  that  the  police  suspect

            Willis, and Regina's parents  are filmed making even stronger

            statements of suspicion.  Material from the  divorce trial is

            used to establish or  buttress doubts about Willis' character

            and  history.   The  suggestion  of murder  runs  through the

            program like a  gold thread.   The broadcast  opens with  the

            dramatic  footage  relating  to the  woodchipper  murder  and

            closes with Richardson's rhetorical question, could "someone"

            get away with murder?  

                 A  common defense to a charge  of defamation is "truth."

            The  Supreme Court  tells us  that in  a suit  like this  one

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against the media the burden is upon the defamed plaintiff to

            show  that  the  statements   are  not  true.    Philadelphia
                                                             ____________

            Newspapers,  Inc. v. Hepp, 475 U.S. 767 (1986).  Neither side
            _________________    ____

            addresses this issue.  Perhaps each assumes that to carry his

            burden  of proof, Willis could  testify at trial  that he did

            not murder  his wife and  a jury might  believe him.   In all

            events, we  take the case as  one in which a  jury might find

            that murder had been charged and that the charge was false.

                 Channel  5's primary  response  is that  "[m]uch of  the

            [b]roadcast,  and the  entirety  of its  allegedly defamatory

            sting, is in essence  a `fair report' of the  Browns' divorce

            trial in Connecticut" and  thus falls under the Massachusetts

            privilege  allowed   for  media   coverage  of   an  official

            proceeding.     Such   a   privilege   certainly  exists   in

            Massachusetts,  e.g., Jones  v. Taibbi,  512 N.E.2d  260, 266
                            ____  _____     ______

            (Mass.  1987), and  there is  little doubt  that much  of the

            material in the broadcast is  drawn from, and attributed  to,

            the divorce proceeding.

                 For present purposes, we  will assume that the privilege

            extends to non-contemporaneous reports and that the program--

            so  far as  it  related to  the  divorce proceeding  and  the

            information  developed  there--conveyed a  fair  and accurate

            report  of the  proceeding.    But  only  a  portion  of  the

            broadcast purported  to be drawn  from the proceeding.   And,

            while that  portion may  be privileged,  we are skeptical  of

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Channel 5's claim that the entire "sting" of the broadcast is

            privileged material.

                 The "sting"  or "gist" notion  comes from Massachusetts'

            cases  involving  such  questions  as  whether  a  reporter's

            "rough-and- ready  summary" of a proceeding is "substantially

            correct."   MiGi, Inc.  v. Gannett Mass.  Broadcasters, Inc.,
                        __________     _________________________________

            519  N.E.2d 283, 285 (Mass. App. Ct.  1988).  It is not clear

            to us that these concepts apply in quite the same way when we

            are  dealing  with a  broadcast that  is  not by  any stretch

            merely  a report  of  the much  earlier official  proceeding.

            Rather, Channel 5 has used the  earlier material as part of a
                                                                ____

            larger and more comprehensive structure.

                 This  structure differed  in two  ways from  the divorce

            proceeding.    It  included  evidence  in  addition  to  that

            presented in the proceeding (e.g., police interviews; the map

            found on Block Island).  And it used techniques (voice overs,

            filmed interviews, recreations) and  rhetoric--especially the

            doubtful  analogy of the woodchipper murder--that sharpen the

            cutting edge of the  implicit charge.  Where the  evidence is

            thus enlarged and the charge  cast in a more lurid light,  it

            is  not   clear  to  us   that  the  fair   report  privilege

            automatically shields the larger whole.  

                 The problem  for Willis, we  think, is that  the Supreme

            Court has  instructed that a state  libel-suit plaintiff must

            demonstrate  fault  on  the  part  of  the  media;  and  this

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requirement applies even where the plaintiff  is not a public

            official  or public figure.  Gertz v. Robert Welch, Inc., 418
                                         _____    __________________

            U.S.  323,  347 (1974).    In  such cases  Massachusetts  has

            imposed a  requirement that  the newspaper or  broadcaster be

            shown to be  negligent or worse.  Jones v. Taibbi, 512 N.E.2d
                                              _____    ______

            260,  267  (Mass. 1987).   Thus,  even if  a false  charge of

            murder has  been  made,  it remains  to  see  whether  Willis

            provided  evidence  of negligence  to justify  submitting the

            case  to a  jury.   For  this  purpose, the  First  Amendment

            establishes a minimum standard and we are concerned here with

            "negligence"  only  in  this  special  constitutional  sense;

            Massachusetts is free to define negligence differently in any

            other  context  or  to  require  more  than  constitutionally

            defined negligence in a libel case.

                 So far as the  murder goes, Willis points to  nothing to

            suggest  that Channel 5 was negligent in its mustering of the

            available  evidence.   Some might  think the  broadcast gaudy

            journalism;  certainly the  interpolation of  the woodchipper

            murder  is  largely  gratuitous.   But  so  far  as guilt  or

            innocence is  concerned, Willis directs us  to no significant

            inaccuracies in Channel 5's depiction  of evidence.  Nor does

            he point to  any counterbalancing  exculpatory evidence  that

            Channel 5 wrongly  withheld or that it  would have discovered

            by diligent research.

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Willis' brief says tersely that the police admitted that

            they had  no evidence against him; and he reasons that it was

            thus "negligent  disregard for  the truth"  for Channel  5 to

            "insinuate" that "[he] murdered his wife and disposed of  her

            body in the same fashion  as did [the woodchipper murderer]."

            But  the  short  answer is  that  substantial  circumstantial

            evidence pointed to  Willis as  a suspect and--so  far as  we

            know--the  only  suspect.   That does  not  mean that  he was

            guilty or  even that there was a basis for prosecution--which

            is likely what the police meant to say.

                 A different problem  is presented by  Willis' suggestion

            that the broadcast  charged him with disposing  of his wife's

            body  "in  the same  fashion"  as  the woodchipper  murderer.

            Patently,  the broadcast  did  not so  charge; no  reasonable

            juror  could  draw  such  an  inference.    Willis offers  no

            argument  to  support  such  an  inference,  and  it  is  not

            surprising  that elsewhere in his brief he retreats to a more

            cautious  assertion:  that  the  juxtaposition  "conveys  the

            message that Brown also murdered his wife and disposed of her

            body in some insidious fashion" (emphasis added).
                 _________________________

                 Many might  think that  the manner  of disposing  of the

            body adds very little  to a charge that someone  murdered his

            frightened  wife  and  left  her  small children  motherless.

            Others, perhaps, would think that the destruction of the body

            added  a further  note  of horror  and  that even  a  fiend's

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reputation may be worsened.  Compare Jackson v. Longcope, 476
                                         _______ _______    ________

            N.E.2d  617 (Mass. 1985).  Further, it may also be true--this

            is a  close question--that  the broadcast  could be  taken as

            insinuating  that  Regina's body  was  disposed  of "in  some

            insidious fashion."

                 Even  if all  of  these doubts  are resolved  in Willis'

            favor,  we think this narrow  remaining claim is  too thin to

            survive  summary judgment.  About  the most one  can get from

            the  woodchipper episode  is the  suggestion that,  if Willis

            killed his wife, he  also took steps to assure  that her body

            would not  be found.  But this is about what one would expect

            of a  murderer who intended to  use the absence of  a body as

            part of his  defense.   Perhaps such a  concealment could  be

            fairly  called "insidious"  but it  is not  an act  that adds

            measurably to the taint of deliberate murder.

                 By contrast, a  brutal destruction of the body might add

            to the taint, but no such charge is made by the program.  The

            woodchipper  murder was  offered as a  remarkable coincidence

            but not as a  blue-print for Regina's death.   To the  extent

            that Willis  is  arguing that  the  program implies  that  he

            brutally  destroyed Regina's  body, we  do not  think that  a

            reasonable juror could draw  such an inference--any more than

            the  juror could believe that  a woodchipper was  used in her

            death.   Without laying great  weight on this  point, we note

            that courts  often say that  it is  a question for  the judge

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whether the defendant's statement  is capable of a particular

            defamatory reading.  William Prosser & Page Keeton, Torts 781
                                                                _____

            (rev. ed. 1984).

                 It  is quite  true that the  woodchipper episode  at the

            start of the broadcast laid the groundwork for the program to

            insinuate that Willis had murdered his wife by  brutal means.

            But while much else in the rest of the program developed  and

            accentuated the charge of murder, virtually nothing tended to

            suggest that the body  was brutally destroyed.  A  writing or

            program  is  normally viewed  as a  whole, Prosser  & Keeton,

            supra,  at 781; and  that requirement has  special force here
            _____

            because the  woodchipper episode was assertedly about someone

            else,  and its connection to Willis depended upon the rest of

            the  program.   We  conclude  as a  matter  of  law that  the

            broadcast, taken  as a whole,  cannot reasonably be  taken to

            charge that Willis brutally disposed of his wife's body.

                 Willis' non-libel claims do not require much discussion.

            On appeal,  Willis' has  narrowed his  privacy  claim to  the

            contention  that the program places  him in a  false light by

            leaving  the viewer  with  "a false  impression," i.e.,  that
                                                              ____

            Brown  killed Regina  and disposed  of her  body in  the same

            fashion as did the woodchipper murderer.  The district  court

            thought  it sufficient that  Massachusetts has  never adopted

            the  false light theory of privacy  invasion, see ELM Medical
                                                          ___ ___________

            Laboratory, Inc.  v. RKO  General, Inc.  532 N.E.2d 675,  681
            ________________     __________________

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(Mass. 1989), and that diversity cases  are not ordinarily an

            occasion  for federal  courts  to pioneer  in developing  new

            state law.

                 We  think it  worth  adding that  "false light"  privacy

            claims are  not all of a piece, but Willis' claim is simply a

            restatement  of  his  defamation   claim  under  a  different

            heading.  That  being so, it is not  imaginable that it could

            escape the same  constitutional constraint as his  defamation

            claim.  Time  v. Hill, 385 U.S. 374 (1976).   In short Willis
                    ____     ____

            would still have to show not only falsity but negligence, but

            he  has offered no  evidence of negligence  sufficient to get

            him to a jury. 

                 Lastly,   Willis  charged  Channel  5  with  intentional

            infliction of emotional distress.   This is a recognized tort

            under  Massachusetts law  requiring  intended or  foreseeable

            infliction   of  such   distress,  "extreme   and  outrageous

            conduct,"  and  causation  of  distress  so  severe  that  no

            reasonable  person could be expected  to endure it.   Agis v.
                                                                  ____

            Howard  Johnson Co., 355 N.E.2d  315, 319 (Mass.  1976).  The
            ___________________

            district  court  said  that   Channel  5's  conduct  was  not

            negligent  and   therefore  could  hardly  be   "extreme  and

            outrageous."

                 In all events, many of  the legitimate news stories that

            appear  in the  media  involve foreseeable  distress for  the

            subject of the story, probably severe distress in some cases.

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Regina's  disappearance  and  the  divorce  trial  were  news

            stories,  and so was her continued absence and the failure of

            the police  to solve the case.   Willis provides no  basis to

            think that generally accurate coverage in such a case is even

            remotely  close to  conduct  "beyond all  possible bounds  of

            decency" and "utterly intolerable  in a civilized community."

            Agis, 355 N.E.2d at 319 (quoting other authorities).
            ____

                 Affirmed.
                 ________

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