Arnold G. Dorsey, A.K.A. Engelbert Humperdinck v. National Enquirer, Inc.

PREGERSON, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority’s view that there is no merit to Dorsey’s argument that California Civil Code § 47(4) does not apply to family court proceedings from which the general public is excluded.

But I disagree with the majority’s view that in the circumstances of this case the “fair and true” issue is one of law which a court can decide on summary judgment.

We all recognize certain basic rules governing summary judgment. District courts may properly grant summary judgment where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In reviewing a grant of summary judgment, we [are required to] draw all inferences of fact in favor of the party opposing the motion.” Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 138 (9th Cir.1981). Moreover, where divergent ultimate inferences may reasonably be drawn from the undisputed facts, the moving party is not entitled to judgment as a matter of law and summary judgment is improper. Id. at 140 .

Cases decided by California state courts under California Civil Code § 47(4) have not created an exception to this basic rule. No California case has required courts to *1439 decide the “fair and true” issue as a matter of law where reasonable minds could disagree about the appropriate conclusion to be drawn from undisputed facts. Only one reported opinion,. a decision of a federal district court applying California law in a diversity ease, has held that the fairness and truth issue is one of law. See Crane v. Arizona Republic, 729 F.Supp. 698, 702 (C.D.Cal.1989). 1 Crane, however, inaccurately stated the rule applied by California state courts.

California appellate courts have affirmed summary judgments or demurrers granted in favor of media defendants. See Kilgore v. Younger, 30 Cal.3d 770 , 180 Cal.Rptr. 657 , 640 P.2d 793 (1982); Jennings v. Telegram-Tribune Co., 164 Cal.App.3d 119 , 210 Cal.Rptr. 485 (1985); McClatchy Newspapers v. Superior Court, 189 Cal.App.3d 961 , 234 Cal.Rptr. 702 (1987). None of these California cases, however, has held that the “fair and true” issue is always one of law for the court to decide. Rather, California courts did no more than hold that the fairness and truth requirement is satisfied as a matter of law when the undisputed facts support only the conclusion that the defendant’s account is “fair and true.” See, e.g., Kilgore, 30 Cal.3d at 777 , 180 Cal.Rptr. at 661 , 640 P.2d at 797 . At most, these California cases display a strong tendency “to dispose of defamation actions at the earliest possible stage of the proceedings where the facts as alleged are insufficient as a matter of law to support a judgment for the plaintiff” Jennings, 164 Cal.App.3d at 128 , 210 Cal.Rptr. at 490 (1985) (emphasis added). In McClatchy, the court stated that “case law indicates this [“fair and true”] decision is one of law when, as here, there is no dispute as to [the facts]_” 189 Cal.App.3d at 976 , 234 Cal.Rptr. at 711 . In McClatchy, reasonable minds could not have disagreed on the result; therefore, the court properly found a “word-for-word” account to be “fair and true” as a matter of law. Id. at 976 , 234 Cal.Rptr. at 711 .

In short, California case law does not hold that the “fair and true” issue is invariably one of law. California cases establish only that a court may decide the “fair and true” issue as a matter of law when there is only one reasonable conclusion to be drawn from the undisputed facts. When reasonable minds could disagree about whether or not a report in a public journal is “fair and true,” summary, judgment is improper. See also Schiavone Construction Co. v. Time, Inc., 735 F.2d 94, 98 (3d Cir.1984) (applying New Jersey’s common law “fair and accurate” privilege); Hanish v. Westinghouse Broadcasting Co., 487 F.Supp. 397, 402 (E.D.Pa.1980) (applying Pennsylvania’s common law -‘fair and accurate” privilege).

I conclude that summary judgment was improper because reasonable minds could differ as to whether the National Enquirer’s story is a “fair and true” account of Kathy Jetter’s affidavit.

Some flexibility is tolerated in deciding what is a fair report. McClatchy Newspapers, 189 Cal.App.3d at 976 , 234 Cal.Rptr. at 711 . A report is “fair and true” if, to the average reader, the report captures the “gist” or “sting” of the proceedings being reported, upon. Kilgore v. Younger, 30 Cal.3d 770, 777 , 180 Cal.Rptr. 657, 661 (1982). The sole basis of the National Enquirer article was Jetter’s single statement that “[u]pon information and belief, the respondent [Dorsey] has AIDS related syndrome and has been treated at Sloan Kettering in New York.” In the present context, in which the newspaper report conveys more information than, the information conveyed in the reported official proceeding, namely, Jetter’s affidavit, the report is not “fair and true” if its “gist” or “sting” goes beyond the “gist” or “sting” of the allegations made in the official proceeding. See Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 271 (7th Cir.1983) (applying Illinois’ common law “fair and accurate report” privilege to *1440 a television broadcast of a Federal Trade Commission report).

On one hand, the National Enquirer article contains elements that could reasonably support a jury decision that the article is a “fair and true” report of Jetter’s affidavit. The front-page headline says: “Mother of His Child Claims in Court ... Engelbert Has AIDS Virus.” The heading of the one-page article says: “Mom of Superstar Singer’s Love Child Claims in Court ... Engelbert Has AIDS Virus.” A photo of Humperdinck appears with a caption that says “ENGELBERT DENIES he has the AIDS virus.” The article also states: “Humperdinck’s attorney Samuel Tannen-baum said there was no truth whatsoever to the charge that the singer has the AIDS virus and called it an ‘utter fabrication.’ ” Looking at these elements, a reasonable jury could conclude that the article is a “fair and true” account and that its “gist” or “sting” merely captures and does not go beyond the “gist” or “sting” of the allegations made in Jetter’s affidavit.

On the other hand, the article contains elements that could reasonably support a jury decision that the “gist” or “sting” of the article goes beyond the “gist” or “sting” of Jetter’s affidavit. The article quotes Jetter as saying that she is 100 percent sure Dorsey has the AIDS virus. The article quotes Jetter’s private investigator, Jordan Stevens, as saying Dorsey actually “tested positive for AIDS in early 1985” and that “the disease remains.” Stevens based this information on “an intensive investigation of the singer during the past five years.” The article reports the opinion of a medical expert that “[pjeople with ARC [Aids Related Complex] are infected with the AIDS virus, show some symptoms of AIDS — and almost surely will go on to develop full-blown AIDS.” Jet-ter’s affidavit, however, did not say that. Dorsey actually tested positive for AIDS, or that he will develop a full-blown case of AIDS, or that Jetter’s “belief” he had AIDS was based on a five-year “intensive” investigation. Keeping this in mind, a reasonable jury could conclude that the “gist” or “sting” of the article, and of Jordan Stevens’ statements in particular, goes beyond the “gist” or “sting” of Jetter’s mere “belief” that Dorsey has AIDS.

“Where, as here, reasonable minds could disagree on what is fair, the issue is a question of fact to be determined by the jury.” Pierce v. San Jose Mercury News, 214 Cal.App.3d 1626, 1633 , 263 Cal.Rptr. 410, 415 ; see also Baxter v. MCA, Inc., 812 F.2d 421, 424 (9th Cir.1987) (summary judgment improper where reasonable minds could disagree as to whether one musical composition is strikingly similar to another.) Because reasonable minds could differ on the “fair and true” issue, I conclude that the district court erred in granting summary judgment for the National Enquirer.

As an alternative ground for summary judgment, the district court applied the Florida Star doctrine, which provides First Amendment protection to truthful reporting of judicial proceedings. See Florida Star v. B.J.F., 491 U.S. 524 , 109 S.Ct. 2603 , 105 L.Ed.2d 443 (1989). The district court held that because the National Enquirer article was “fair and true” as a matter of law, the article was protected by the Florida Star doctrine as well as by California Civil Code § 47(4). As stated above, however, I believe that the district court erred in holding that the National Enquirer article was “fair and true” as a matter of law. Accordingly, I conclude that the district court also erred in applying the Florida Star doctrine as an alternative ground for granting summary judgment.

Finally, I believe that the “incremental harm” doctrine is not available as an alternative ground for summary judgment. First, the Supreme Court recently “rejected) any suggestion that the incremental harm doctrine is compelled as a matter of First Amendment protection for speech.” Masson v. New Yorker Magazine, — U.S. -, -, 111 S.Ct. 2419, 2436 , 115 L.Ed.2d 447 (1991). Second, no California cases suggest that California applies this doctrine. Thus, the “incremental harm” doctrine was erroneously invoked as an alternative ground for summary judgment.

*1441 I would reverse the judgment of the district court.

. Crane v. Arizona Republic held that "whether a report meets the ‘fair and true' standard is a matter of law, not fact, which is properly determined by the court where there is no dispute about the content of the official documents or proceedings upon which the report is based." Crane v. Arizona Republic, 729 F.Supp. 698, 720 (C.D.Cal.1989).