Petition for Writ of Certiorari — Machleder v. CBS Inc.

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. es _ | Supreme Court, U.S,

BG6=9 st) | FiLep

ae DEC 6 1986

JOSEPH F. SPANIOL, JR,

CLERK

—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

IRVING MACHLEDER,

Petitioner,

CBS INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ROBERT A. MACHLEDER

Counsel of Record

MARCIA E. KUSNETZ

& Wien, Malkin & Bettex

60 East 42nd Street

New York, New York 10165

212-687-8700

Attorneys for Petitioner

December 5, 1986

QUESTIONS PRESENTED FOR REVIEW*

1. Did the Court of Appeals violate the private figure

petitioner's Seventh and Fourteenth Amendment rights in

dismissing petitioner's complaint and vacating the judgment

in his favor entered on the jury's verdict that the media

respondent had falsely portrayed him in a televised ambush

interview relating to the illegal dumping of chemical wastes,

and in failing to reconcile a “seeming inconsistency” in the

jury s answers to interrogatories on two separate torts, libel and

false light invasion of privacy, where (a) the Court acknowl-

edged that the two torts are different, (b) the finding of

liability on the libel claim was not a predicate to the finding of

liability on the false light invasion of privacy claim, (c) the

gravamen of the false light claim was broader than that of the

libel claim, and (d) the Court did not cite any evidence in the

record to support its conclusion that the jury had to have

found not substantially false respondent’s portrayal of peti-

tioner as having been involved in the illegal dumping of

chemical wastes, there being no evidence in the record to

support such conclusion and portrayal, and there being

abundant evidence in the record to the contrary?

2. Did the Court of Appeals err in holding in this false light

invasion of privacy suit that any portrayal of an individual

captured by a camera cannot be false as a matter of law?

3. Did the Court of Appeals deprive the petitioner of his

Seventh and Fourteenth Amendment rights in holding that the

District Court erred in permitting to go to the jury the issue of

what is highly offensive to a person of ordinary sensibilities

where the petitioner claimed that respondent’s false portrayal

of him as having been involved in the illegal dumping of

chemical wastes and as being intemperate and evasive was

highly offensive, and where the jury found for petitioner on

that issue?

° Pursuant to Rule 21.1(b), petitioner states that the following

parties appeared in the Court of Appeals for the Second Circuit:

Irving Machleder

Flexcraft Industries, Inc.: a | corporation with no subsidiaries

or affiliates.

CBS Inc.

Arnold Diaz

Thomas Gallagher

Frank Pivalo

Dennis P. Coyne

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .....

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CONSTITUTIONAL PROVISIONS INVOLVED.

STATEMENT OF THE CASE ................

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ebb tic bans e's ancenesene

The Circuit Court’s Conclusions .............

Analysis of the Decision Below ..............

os cake cen scccasccce

Falsity and the Portrayal of Petitioner as

Intemperate and Evasive .................

The Highly Offensive Standard..............

Improper Publicity to Private Facts ..........

reed c a cease secesssesec

Il.

THE COURT OF APPEALS DEPRIVED PE-

TITIONER OF HIS SEVENTH AND FOUR-

TEENTH AMENDMENT RIGHTS IN

ADOPTING A VIEW OF THE CASE, UN-

SUPPORTED BY THE EVIDENCE, WHICH

MADE THE JURY'S SPECIAL VERDICTS

I igo ona a x 6-6 0-'s Wis 00:0 4:0 «

ASSUMING THAT THE COURT OF AP-

PEALS MADE ALL REASONABLE EF-

FORTS TO RECONCILE THE SPECIAL

VERDICTS, BUT FAILED, IT SHOULD

HAVE REMANDED FOR RETRIAL THE

ISSUE OF FALSITY RATHER THAN DIS-

MISS THE PETITIONER’S COMPLAINT ..

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a> UI bho

—

ili

Page(s)

lil THE COURT OF APPEALS DISRE-

GARDED THE SEVENTH AND FOUR-

TEENTH AMENDMENTS AND THE

DECISIONS OF OTHER CIRCUITS IN

DETERMINING THAT THERE WAS IN-

SUFFICIENT EVIDENCE OF A FALSE

PORTRAYAL AND THAT THE POR-

TRAYAL OF MACHLEDER WAS INOF-

FENSIVE AS A MATTER OF LAW ...... 22

BES EE al es eee 23

a ee ee te 27

ee ES i ee ey 29

Appendix A: Judgment of the Court of Appeals . A-1—2

Decision of the Court of Appeals... A-3-—32

Appendix B: Decision of the District Court on

Post-Trial Motions................ B-1—19

Appendix C: Decision of the District Court on

Summary Judgment .............. C-1—20

TABLE OF AUTHORITIES

Cases

Aetna Life Insurance Co. of Hartford,

Connecticut v. Ward, 140 U.S. 76 (1890) .....

Akermanis v. Sea-Land Service, Inc., 688 F.2d

898 (2d Cir. 1982), cert. denied, 461 U.S. 927

6 PP Pere pe ere terre rr pT ee pee

Atlantic & Gulf Stevedores, Inc. v. Ellerman

Lines, Ltd., 369 U.S. 355, reh'g denied, 369

a Nr os han oa cu 60 4A ake eee hee a

Bernardini v. Rederi A/B Saturnus, 512 F.2d

ok: fF AS een re

Bisbee v. John C. Conover Agency, Inc., 186

N.J. Super. 335, 452 A.2d 689 (N.J. Super. Ct.

Rie, TH SE ab Sd was Rak Cede baad

Braun v. Flynt, 726 F.2d 245 (5th Cir.), reh'g

denied, 73] F.2d 1205 (5th Cir.), cert. denied

sub nom., Chic Magazine, Inc. v. Braun, 469

Sha ee CUE isa Ve benkkvee ieee caresses

Cantrell v. Forest City Pub. Co., 419 U.S. 245

LEE a kaa h kc EE EEC KS Oe ee aes 8

Cibenke v. Worth Publishers, Inc., 510 F.Supp.

ht Gt ee

Douglass v. Hustler Magazine, Inc., 769 F.2d

1128 (7th Cir. 1985), cert. denied, __U.S._.,

SGP Dae. Be GED Soci eeecnebhecuaeceeices

Ebker v. Tan Jay International, Ltd., 739 F.2d

ig: Fs a | eer Apr rye

Electro-Miniatures Corp. v. Wendon Co., Inc.,

771 F.2d 23 (24 Cir. 19085) .0.00 0000. cere.

Faber v. Condecor, Inc., 195 N.J. Super. 81, 477

A.2d 1289 (N.J. Super. Ct. App. Div.), certif.

denied, 99 N.J. 178, 491 A.2d 684 (1984).....

Fiacco v. City of Rensselaer, 783 F.2d 319 (2d

| Beer ere rere FF roy Pre ere

Fogel v. Forbes, Inc., 500 F.Supp. 1081 (E.D.Pa.

SE sho awa ns 0 ae ks ee ea

Gallick v. Baltimore and Ohio Railroad Co., 372

Oe Wee CRS oc haces eases elses

21,22

23-24,28

23,29

18,19

18,26

Cases

Henry v. A/S Ocean, 512 F.2d 401 (2d Cir

POUEe cbccavecnsccsendsaeenes senceaearsés

Higginbotham v. Ford Motor Co., 540 F.2d 762

(Sth Cir. 1976), reh'g denied, 561 F.2d 831

> he Ry ) PRR RA ase 3 74- —eee

lacurci v. Lummus Co., 387 U.S. 86 (1967).....

Lavender v. Kurn, 327 U.S. 645 (1946).........

Malm v. United States Lines Co., 269 F.Supp.

731 (S.D.N.Y.), afd, 378 F.2d 941 (2d Cir

tt PPP er eee eee eee en rr eee

Martell v. Boardwalk Enterprises, Inc., 748 F.2d

ro: fe 0 Re eee ore

Martin v. Gulf States Utilities Co., 344 F.2d 34

Cs GO a 5% 00s anansndebeesaeecens se

Mattivi v. South African Marine Corp.,

“Huguenot”, 618 F.2d 163 (2d Cir. 1980) ....

Morgan v. Consolidated Rail Corp., 509 F.Supp.

I fet Pe ee re eee

Neely v. Eby Construction Co., Inc., 386 U.S.

317, reh’g denied, 386 U.S. 1027 (1967) ......

Royal Netherlands Steamship Co. v. Strachan

Shipping Co., 362 F.2d 691 (Sth Cir. 1966),

cert. denied, 385 U.S. 1004 (1967) ...........

Schwimmer v. SONY Corp. of America, 677

F.2d 946 (2d Cir.), cert. denied, 459 U.S. 1007

(1982), reh'g denied, 459 U.S. 1189 (1983)....

Sentilles v. Inter-Caribbean Shipping Corp., 361

US. BGy Chee 0000s esetuniusries isda 2

Smith v. Shell Oil Co., 746 F.2d 1087 (Sth Cir.

| Aree ry sy oe err ee eee

Tennant v. Peoria & P.U.R. Co., 321 U.S. 29,

reh’g denied, 321 U.S. 802 (1944) ...........

Time, Inc. v. Hill, 385 U.S. 374 (1967).........

Turchio v. D/S A/S Den Norske Africa, 509

- P 8 fo 8 |) Barr arrrre

Virgil v. Sports Illustrated, 424 F.Supp. 1286

oats” Gh a Oe

Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir.

1975), cert. denied, 425 U.S. 998 (1976) ......

18,19,26

~-<

Cases

Wood v. Hustler Magazine, Inc., 736 F.2d 1084

(Sth Cir.), reh'g denied, 744 F.2d 94 (5th Cir.

1984), cert. denied, 469 U.S. 1107 (1985) .....

Statutes

United States Constitution, First Amendment... .

United States Constitution, Seventh Amendment .

United States Constitution, Fourteenth

a eos cuwedéeweoen

ee ee I ED oo occ cdésccceccsdect

Se Se ED cc ccccccccccccuctecces

Federal Rule of Civil Procedure 50(d)..........

Treatises and Other Authorities

5A J. Moore & J. Lucas, Moore's Federal

Practice § 49.03 (2d ed. 1986)...............

Note, The Ambush Interview: A False Light

Invasion of Privacy?, 34 Case W. Res.

L. Rev. 72 (1983) ...

Restatement (Second) of Torts §652 D.........

Restatement (Second) of Torts §652 E .........

*“*eeeeeeeeeeeeneeeeneeene

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

IRVING MACHLEDER,

Petitioner,

CBS INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

Petitioner, Irving Machleder, respectfully prays that this

Court grant a writ of certiorari to review the judgment of

the United States Court of Appeals for the Second Circuit

entered in this false light invasion of privacy action on

September 10, 1986.

OPINIONS BELOW

The opinion of the Second Circuit Court of Appeals is

reported at 801 F.2d 46. It is reprinted as Appendix A to this

petition at A-3-32.

Two opinions by the United States District Court for the

Southern District of New York issued in this proceeding.

Respondent's motion for judgment notwithstanding the ver-

dict or, in the alternative for new trial was denied; the motion

was decided on October 4, 1985, and the decision is reported

at 618 F.Supp. 1367. It appears as Appendix B to this petition

at B-1-19.

Respondent's motion for summary judgment was granted in

part and denied in part and petitioner's cross-motion for

summary judgment was denied; the motions were decided on

April 17, 1982, and the decision is reported at 538

F.Supp. 1364. It is reprinted as Appendix C to this petition at

C-1-20.

JURISDICTION

The judgment of the United States Court of Appeals for the

Second Circuit was entered on September 10, 1986. This

petition for certiorari is filed within 90 days of that date. The

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

1. FIRST AMENDMENT, UNITED STATES CONSTI-

TUTION: “Congress shall make no law .. . abridging the free-

dom of speech, or of the press...”

2. SEVENTH AMENDMENT, UNITED STATES CON-

STITUTION: “In suits at common law... the right of trial by

jury shall be preserved, and no fact tried by a jury, shall be

otherwise re-examined in any Court of the United States, than

according to the rules of the common law.”

3. FOURTEENTH AMENDMENT, SECTION 1,

UNITED STATES CONSTITUTION: “[N]or shall any state

deprive any person of life, liberty, or property, without due

process of law...”

STATEMENT OF THE CASE

Irving Machleder, the founder and owner of a small busi-

ness which manufactures and sells glues and adhesives used for

industrial purposes, sued CBS and members of its news staff

for its portrayal of him in a news report which was filmed on

May 22, 1979 and aired that evening on the 6 o'clock news.

The victim of an ambush interview,' in a piece concerning the

'“Ambush interview” is a term used in broadcast journalism to

describe a situation in which a television news crew confronts an

unsuspecting subject on the street who is unwilling to submit to a

televised interview and bombards him with incriminating accusa-

tions ostensibly framed as questions. For a discussion of this tech-

nique and its legal implications, see, Note, The Ambush Interview:

(footnote continued on next page)

illegal dumping of chemical wastes in Newark, New Jersey,

petitioner was the dramatic centerpiece of the broadcast

which he claimed conveyed the impression that he had

dumped hazardous chemicals or had otherwise been involved

in the dumping, that he was being evasive as to his participa-

tion in and knowledge of the dumping, and that he was an

intemperate and hostile person. He sued for invasion of pri-

vacy and libel.’

A federal court jury awarded petitioner $250,000 in com-

pensatory damages and $1 million in punitive damages upon

their finding that the broadcast was a false light portrayal of

petitioner and that there was clear and convincing evidence

that respondent had acted with actual malice in creating and

airing the piece.

The District Court sustained the jury verdict and the

amount of the award. The Second Circuit reversed and dis-

missed the complaint.

The Broadcast

The videotape of the broadcast and the outtakes® (which

were viewed by the District Court and by the jury) and the

circumstances of the filming and the aftermath of the broad-

cast are to some extent described in the District Court’s sum-

mary judgment decision (App. C at 2-6). While a transcript of

the report is published in the decision, the Court took care to

note that a reading of the transcript cannot substitute for the

visual and aural impact of the tape.‘ App. C at 6.

(footnote continued from preceding page)

A False Light Invasion of Privacy?, 34 Case W. Res. L. Rev. 72

(1983).

*Other claims asserted on his own behalf and on behalf of his

company, Flexcraft Industries, Inc., for assault, trespass and slander,

were dismissed at various stages of the litigation and are not here in

issue.

° The term “‘outtakes”’ refers to the portions of the film shot by the

reporter and his camera crew which were edited out of the

broadcast.

*The tape of the broadcast and outtakes was part of the record

below (Pl. Exh. 1 and Dft. Exh. M).

At the time of the incident two years had passed since

petitioner had discovered chemical drums dumped on prop-

erty in the vicinity of his small business. Upon discovering the

dump site he immediately reported it to local, state and

federal authorities and cooperated with them in their investi-

gation. The New Jersey Environmental Protection Agency

rated the site as low priority for remedial action because of the

absence of any appreciable danger.

In 1979, respondent's local station, WCBS-TV, in the course

of a series of reports on the hazards of toxic chemical storage

and disposal in New Jersey, sent its reporter, Arnold Diaz,

with a camera crew to the site.

The ambush interview occurred when Diaz saw petitioner

leave his office to keep a business appointment. Without

introducing himself or stating his purpose, and taking peti-

tioner totally by surprise, Diaz began to question petitioner in

an accusatory manner. Petitioner asked several times that any

discussion proceed off camera, but Diaz ignored him, and with

the camera rolling pressed his attack. Although the camera

captured a portion of petitioner's request—he is seen in a

composed state and heard to say “I don't want to be on

television, I’m sorry, I’m sorry, —that portion of the interview

was edited out of the broadcast. His request unheeded, the

reporter prodding him with loaded questions—“Why are the

barrels dumped in the back?”—and the three-man camera

crew hemming him in, petitioner, who was then 71 years of

age, became disoriented, and with his face flushed with emo-

tion, his arms waving to ward off his interrogator and the

camera, he shouted angrily “Get that damn camera out of

here.” The portion of the ambush interview which aired that

evening began with that outburst and continued as the

reporter persisted with his loadea questions and petitioner

sought to retreat to his office for refuge.

Litigation History

On August 21, 1979, Machleder filed suit in the United

States District Court for the Southern District of New York.

He asserted that the televised report had defamed him and

had violated his privacy by portraying him in a false light, by

intruding upon his seclusion, and by giving improper publicity

to his private life. He further asserted that the report had been

prepared and broadcast with actual malice.

After discovery was completed, respondent filed a motion

for summary judgment. The District Court (Duffy, J.)

rendered its decision on April 17, 1982 holding that the broad-

cast was susceptible of a defamatory meaning and a false light

portrayal of the petitioner. The Court further held that the

record supported petitioner's contention that a jury might

reasonably find that the false light portrayal and defamatory

connotation had been intended by the respondent.*®

In finding that the telecast “could lead a reasonable person

to conclude that plaintiffs dumped the chemicals,” Judge

Duffy underscored three parts of the telecast which could

support that conclusion: “the portrayal of plaintiff Machleder’s

anger as a defensive and guilty response to Diaz's questions

about the dumping rather than an angry response to being

confronted with television cameras;” the implication that the

dumping occurred on petitioner's land; and the fire chief's

statement that the’ contents of the barrels consisted of by-

products of paint and lacquer (products which were manufac-

tured by petitioner’s business). App. C at 9-10.

Further, Judge Duffy noted that “[e]vidence in the record

exists to show that this implication may not have been far

from defendants minds when they edited the program for

presentation,” and specified the portions of the record which

supported petitioner's contention that the respondent had

acted with actual malice.°®

°The Court dismissed petitioner's trespass claim and, treating

petitioner's invasion of privacy claim as three separate claims—

(i) intrusion upon seclusion, (ii) improper publicity to private facts,

and (iii) false light invasion of privacy—dismissed the first two. See

App. C. The Court of Appeals, on petitioner’s cross-appeal, affirmed

so much of the decision as dismissed the trespass and improper

publicity claims. See App. A.

® “Stephen J. Cohen, the News Director of WCBS-TV, described

in part the decision to show Machleder’s agitated response to Diaz’

questions in the program as follows:

‘I have come to believe that a bare denial of complicity in a

situation like this by someone close enough to it geographically or

(footnote continued on next page)

Finally, Judge Duffy ruled that the record permitted a jury

to find that (a) petitioner’s behavior as depicted in the broad-

cast resulted not from his being intemperate or evasive but

from respondent’s provocations—the manner in which the

interrogation was conducted and the presence of cameras—

and (b) respondent had falsely and deliberately depicted peti-

tioner as “intemperate and even guilty of dumping.” App. C

at 17. This portrayal, Judge Duffy held, “car:aot be deemed

inoffensive as a matter of law” and a jury may find respondent

liable for false light invasion of privacy. App. C at 17.

No appeal was taken by respondent at that time from the

District Court’s denial of summary judgment on the defama-

tion and false light invasion of privacy claims. Three years

after the decision was rendered, in May 1985, the case was

reached for trial. The jury trial, presided over by District

Judge Peter K. Leisure, lasted four weeks; at respondent’s

request it was bifurcated as to liability and damages.

The jury found CBS liable on petitioner’s false light claim.

Specifically, it found in its special verdict that Machleder had

proved by clear and convincing evidence that (i) he had been

portrayed in a false light by the broadcast, (ii) the false light

portrayal would be highly offensive to persons of ordinary

(footnote continued from preceding page)

situationally to logically have had the opportunity to have infor-

mation about it, is simply not a sufficient response to reporter’s

questions.’

(Cohen Affidavit {1 19)

Thus, Cohen may have shown Machleder’s angry response in order

to create the very impression which plaintiffs argue is defamatory,

to wit, that because the president of the company whose land is

situated next to a chemical dump site does not wish to answer the

reporter's questions and becomes agitated when asked these

apparently accusatory questions, he must be in some way responsible

for the presence of the chemical wastes. The video tape of the news

program could be interpreted to show Machleder as evasive, guilty,

and the anonymous dumping culprit. The fact that the defendants

excised from their broadcast statements by Chief McLaughlin that

the situation presented no hazard and that the dumping did not

originate locally indicate that the defendants may have deliberately

created this false impression of the plaintiff Machleder. ° ° °”

App. C at 12-13.

sensibilities, and (iii) respondent had acted with actual malice

(as defined by this Court in First Amendment cases). On each

and every element of the tort, applying the highest standards

of proof and fault, it found for petitioner.

On the defamation claim, the jury found respondent not

liable. It answered all of the questions on the verdict sheet in

favor of petitioner, save one:

Do you find that plaintiff Irving Machleder has proved by a

preponderance of the evidence that any defamatory state-

ments of fact concerning him in the May 22, 1979 broadcast

were substantially false? No.

App. A at 26 n.l.

This finding is the fulcrum on which the Court of Appeals’

decision turns.

Significantly, and as argued to the Court of Appeals, peti-

tioner had objected at trial to the use in the jury charge and in

the verdict sheet of the formulation “defamatory statements of

fact.” Trial Record at 1622-1627. Petitioner contended that

such formulation was erroneous and misleading in the context

of a telecast; that “statement(s)” suggests the need to find

actual words which are false and defamatory rather than to

find false and defamatory meaning in the message fashioned

by all of the elements of the broadcast taken together such as

physical gestures, facial expressions, voice inflections, juxtapo-

sition of words and pictures, and all of the other multi-sensory

elements which give television its unique and potent impact.

The basis for petitioner’s objection was apparently validated

by the jury's request during its deliberations to review a

transcript of the broadcast, although no transcript had been

introduced in evidence (and, consequently, the request was

denied). Trial Record at 1838-1844. Thus, while CBS argued

to the trial court and to the Court of Appeals that the false

light claim could not stand because it was inconsistent with the

jury finding on the defamation claim, petitioner argued to

both Courts that ali of the findings on the false light claim

were internally consistent, that the findings necessary to sus-

tain the two torts were different, that the jury correctly

applied the law as charged, and that if a comparison of the

jury s findings on the two separate torts appeared to be incon-

sistent it was because the jury had been misled by the focus of

the libel charge on the literal truth or falsity of the words in

the broadcast. Arguing that the applicable standard of review

required the District Court to reconcile the inconsistency in its

favor as the verdict winner, petitioner also maintained,

alternatively, that it was entitled to have the libel claim

remanded.’

The trial judge sustained the jury verdicts on liability and

damages, denying respondent’s motion for judgment n.o.v., or

in the alternative for a new trial. An appeal to the Court of

Appeals ensued. The Court of Appeals reversed and dismissed

outright petitioner's complaint.

The Appellate Court’s reversal is underpinned by three

conclusions which are stated in the Opinion written for the

Court by Judge Cardamone.

The Circuit Court’s Conclusions

First, said Judge Cardamone, “Because the jury found in

plaintiff’s libel action that the defamatory statements, i.e., of

illegal dumping, were not substantially false, the illegal dump-

ing portrayal will not support a false light verdict.’’ Second, he

continued, “[a]s a matter of law, we conclude that the por-

trayal of Irving Machleder as intemperate and evasive is not

false’; and third, that as a matter of law such portrayal “‘is not

highly offensive to a reasonable person.” App. A at 32. Thus,

Judge Cardamone disposed of each of the essential ingredients

of the tort, reversing each of the jury findings for petitioner

and rejecting the conclusions of Judges Duffy and Leisure.

As we will show, the Appellate Court’s conclusions are

unfounded; further, they advance legal propositions affecting

important rights of private citizens which conflict with estab-

lished precedents and which are presented without analysis or

rationale; finally, they evince a scope and process of appellate

review which exceed the limits established by this Court and

"No appeal was taken from the judgment dismissing the libel

claim since no additional damages to those awarded on the false

light claim could be awarded petitioner to compensate him for

injury to his reputation.

fall short of the requirements imposed by the Seventh and

Fourteenth Amendments.

Analysis of the Decision Below

Beginning with a discussion of the elements of the tort of

false light invasion of privacy and the relationship of that tort

to defamation, the Court hewed closely to established prece-

dents and to the Restatement (Second) of Torts, § 652 E. The

Court established that truth is a defense to a false light claim

(not only must the portrayal be false, but it must be highly

offensive to a reasonable person) and that false light and

defamation are distinct torts. These propositions having been

noted—propositions with which petitioner is in agreement—

the Court purported to examine this case in their light and

announced at the outset that “as will be shown, there was no

evidence on which a reasonable jury could find that the

broadcast portrayed the plaintiff in a false light.” App. A

at 20.

If the Court did in fact search the record to find eviden-

tiary support for the verdict as it was required to do under the

applicable standard of appellate review, it is not apparent

from the Opinion. The Court's promise of an evidentiary

review was left unfulfilled. Instead, detecting a “seeming

inconsistency’ in the verdict between the defamation findings

and the invasion of privacy findings, the Court purported to

attempt a reconciliation, but failed. In its attempt, the Court

ignored the evidence adduced in petitioner's favor and all

favorable inferences drawn therefrom by the jury, and

negated the verdict.

The False Portrayal

On the false light claim petitioner contended that the

broadcast had falsely portrayed him as intemperate, evasive

and as having been involved in the illegal dumping of chemi-

cal wastes. The jury had been charged that petitioner could

not recover “if ... the broadcast portrayed only what was

substantially accurate,” and that falsity was an essential ele-

ment of the tort. Trial Record at 1812. The jury found such

falsity.

Troublesome to the Appellate Court was the finding on the

independent libel claim that petitioner had not shown that

“defamatory statements of fact concerning him in the ...

broadcast were substantially false.” App. A at 26 n.1.

By a leap of logic, the Court arrived at its first conclusion

and the underlying premise of its Opinion. “There is,” said

Judge Cardamone, “one theory for reconciling the jury’s ver-

dict as to the false light claim and the libel claim,” that is, “the

jury could have found* that the plaintiff was an illegal

dumper, but was not, as portrayed, intemperate and evasive.

App. A at 27. In other words, the jury that awarded $1.25

million in damages did so after finding that petitioner was a

chemical dumper and had accurately been portrayed as such;

and although this environmental polluter had been exposed in

a substantially accurate portrayal, he was neither an intemper-

ate nor evasive person by nature and the portrayal of him as

such was false and sufficient to warrant a substantial award of

compensatory damages as well as the imposition of punitive

damages against the broadcaster. Simply to state the proposi-

tion is to expose its implausibility.°

In labeling the petitioner a dumper, Judge Cardamone

resorted to groundless supposition as to what the jury had

done. He ruled out every possibility except the one least

logical. Sub silentio, he ruled out the possibility that the jury

had been confused by the complicated defamation charge. He

ruled out the possibility that the jury had conducted a vain

search for an explicit sentence or word in the broadcast accus-

ing petitioner of complicity in the dumping (and thus declined

to find libel), but had been amply convinced that the clear

message of the report in its entirety was just such a deliberate

accusation (and thus found false light invasion). He ruled out

*This should read “must have found,” since the Second Circuit

admitted to no other possibility and rested its decision on this

conclusion.

*The trial judge, who in a stongly worded opinion sustained the

verdict (and in so doing called upon his own observations of the

testimony, the demeanor and credibility of witnesses, and his “feel”

of the case), did not accept this theory of reconciliation—that the

jury had found that a chemical polluter should be rewarded. App. B

at 6-7.

the possibility that the jury did not find the broadcast to have

accused petitioner of having dumped the chemicals himself

(the gravamen of petitioner's libel claim) but did find it to

have accused him of complicity in the illegal activity and of

trying to conceal his role and his knowledge of the event.

Further, Judge Cardamone totally ignored the evidence in

the record regarding the truth or falsity of the portrayal of

petitioner as a participant in the dumping. He did not cite any

evidence which would support the portrayal of petitioner as a

dumper as, indeed, there was none in the record. Totally

ignored was the overwhelming evidence that petitioner had

nothing to do with the dumping. Thus, the record showed that

on a Monday morning upon arriving at work petitioner dis-

covered the dump site on property two lots removed from his

own. Trial Record at 1104. It was he who promptly reported

the condition to the authorities. Trial Record at 1105, 1107-

1109. A Coast Guard officer testified at trial that petitioner had

“acted as a good citizen.’’ Trial Record at 984. The record

showed that petitioner's own use of chemicals was in a blend-

ing operation which produced neither wastes nor by-products

and that ali chemicals purchased by petitioner were used

completely. Trial Record at 1088. The outtakes revealed that

the fire chief interviewed by reporter Diaz had stated on

camera that the dumping had not originated locally. '°

Respondent had not introduced any evidence that petitioner

was the dumper or that he was an accessory. Nor, indeed, had

respondent argued at trial that he was. In short, the only way

the jury could have reached the conclusion advanced by Judge

Cardamone—that petitioner was the dumper—was to have

disbelieved petitioner’s testimony and to have rejected all of

the other affirmative evidence that petitioner had no complic-

ity in the act, for there was absolutely no evidence to the

contrary or evidence sufficient even to raise any doubt as to his

role.

Although the Appellate Court’s duty was to seek to reconcile

the seeming inconsistency so as to preserve the verdict, it did

One of several comments edited out of the broadcast which

would have exonerated petitioner had it been aired, and which gave

respondent reason to know that its portrayal of petitioner was false.

the opposite. Although its duty was to view the evidence in the

light most favorable to the verdict winner, it did not. In fact,

the Court’s Opinion makes no attempt to explain the process

of its analysis.

Adopting the least plausible view of the verdict and the one

most hostile to the verdict winner, and ignoring the relevant

evidence, the Court dispensed with any further need for it to

examine that aspect of petitioner's claim which had to do with

illegal dumping. The Court had whittled down petitioner's

complaint by an act of ledgerdemain. From that point on, the

Court's discussion assumed that chemical dumping was out of

the case and there was no further mention of dumping in the

decision. The analysis proceeded on the premise that peti-

tioner could only argue that the jury had found that he had

been falsely portrayed as intemperate and evasive.

Falsity and the Portrayal of

Petitioner as Intemperate and Evasive

The Court, examining the now truncated version of peti-

tioner’s claim, adverted for the first time to the standard of

review on a motion for judgment n.o.v.. “[W]e must view the

evidence in the light most favorable to the plaintiff to deter-

mine whether the evidence was sufficient to allow a reasonable

juror to conclude that there was falsity in the portrayal of the

plaintiff as intemperate and evasive.” App. A at 27. Having

noted the standard, the Court simply ignored it.

Judge Cardamone ruled as a matter of law that because the

portrayal was “based on [petitioner's] own conduct which was

accurately captured by the cameras,” it could not be false.

App. A at 27-28. In other words, every photographic record of

an individual is, per se, a truthful portrayal of that person: the

camera does not lie. The fallacy of that analysis—which, not

incidentally, ignored the precedents in other Circuits sus-

taining false light claims based upon photographic por-

trayals—is that it refused to acknowledge the catalyst which

caused petitioner's behavior.

The record reflects the provocative and hostile context in

which the interview was conducted which caused petitioner's

disorientation and anger. The reporter refused to abide by

| .

petitioner's request that the interview not be filmed, and

pressed his questions which insinuated that the petitioner was

involved in the dumping of wastes or knew why the wastes

had been dumped, how they got there and who dumped them.

The reporter as provocateur, precipitated the reaction which

when filmed, edited, and placed in an artfully contrived

context, portrayed the petitioner in a false and highly offen-

sive way.

The record reflects that the suddenness of the incident and

petitioner's surprise and lack of preparedness contributed to

his reaction. Without any forewarning, while leaving his office

to keep a business appointment, petitioner found himself the

target of a television news team with a reporter who, to him,

seemed evidently bent on ascribing the dumping to him and

his company.

The record reflects that the portrayal was not accurate and

complete but was controlled and fashioned by respondent.

The interview was not telecast live but was filmed and then

edited by CBS. Petitioner had every reason to be apprehen-

sive, given the tenor of the reporter's questions, that any

filmed interview to which he submitted would be distorted in

the editing process to show him in the most unfavorable light.

And it was. CBS was in total control of the manner in which

petitioner would be portrayed to the public. Its reporter, film

editor, and news director were highly experienced in the art of

communication. The segment of the interview most favorable

to petitioner was omitted—a deliberate decision by the CBS

staff. Moreover, the reporter's on camera comments describing

the interview with the petitioner were filmed after the

interview had been conducted and then inserted before it,

thus further tainting the portrayal.

The record reflects that CBS’ own expert had conceded that

the television audience watching the report could get the

impression that petitioner had been involved in chemical

dumping, that an interviewee could be shown in a bad light if

taken by surprise by a television reporter and camera crew,

that a reporter's use of loaded questions could distort the truth,

that the truth could be distorted in the case where an

interviewee is placed under pressure, and that an unwilling

tiene

interviewee taken by surprise could be made to look foolish,

guilty and evasive. CBS’ expert testified that “the ambush

technique could put an individual in an unnecessary bad light

or false light that could make it unacceptable.” Trial Record

at 1328, 1388, 1395-1397.

The record reflects that not only was the petitioner depicted

in his private persona as being intemperate, hostile, and

inclined to irrational behavior, but that he was also perceived

in that light in his business persona and made to look foolish,

undignified and somehow involved in the illegal dumping of

chemical wastes.

Furthermore, petitioner's claim that he had been falsely

portrayed as “evasive,” employed that term not in an abstract

or general sense (that is, “evasiveness” as a constant or recur-

rent trait in petitioner's personality) but—as it was argued to

the jury—in the particular and concrete context of petitioner

being implicated in the illegal disposal of dangerous chemi-

cals. Judge Cardamone simply failed to deal with the fact that

the jury had found that petitioner had been shown as evasive

in a specific criminal context. In the Court’s approach, the

two words “intemperate and evasive,” repeated in tandem,

merged, so that “evasive” lost the full and independent mean-

ing which it had throughout the lawsuit.

The final point in the Court's “falsity” analysis was Judge

Cardamone’s only discussion of the existence and weight of

any of the evidence in the case. Singling out for discussion the

testimony of only one trial witness, a business associate of

petitioner, Judge Cardamone dismissed as insufficient all evi-

dence that petitioner's usual temperament had been distorted

by the broadcast. App. A at 28. Exactly why the testimony of

that particular witness was deemed insufficient, was not stated.

More importantly, the Court ignored all of the following,

which under its own articulation of the applicable standard of

review, it was required to marshal and examine in the light

most favorable to petitioner: the jury (and trial judge) heard

and observed petitioner testify in his own behalf, and had an

opportunity to observe his demeanor in the courtroom over a

period of four weeks. Respondent's reporter, Diaz, had testi-

fied that petitioner's demeanor changed; that petitioner had

been calm when first approached and did not become agitated

until after his requests to turn off the camera were refused.

Trial Record at 429. A Coast Guard officer had testified as to

petitioner's cooperativeness. Trial Record at 984. Fire Chief

Miller testified that petitioner had been cooperative with him

on the date of the incident, but had shown anxiety because he

thought CBS was blaming him for the dumping of the barrels.

Trial Record at 1051-1052. Respondent's staff counsel,

Mr. Jaeckel, testified that when he received petitioner's call on

the day of the broadcast petitioner was “agitated” and

sounded concerned because he feared the broadcast would be

accusatory. Trial Record at 850. Finally, petitioner's business

acquaintance, Mr. Kulpa, testified as to his knowledge of

petitioner's temperament and behavior based upon observa-

tions over a long period of years. Trial Record at 1020, 1026.

There was absolutely no evidence that petitioner was known

or reputed to be intemperate. The jury and Judge Leisure

clearly believed that petitioner's temperament had been

grossly and purposely distorted by the respondent. In sum, the

Appellate Court made no attempt to examine the record in

respect of the falsity of the portrayal of the petitioner's

temperament, and failed entirely to deal with the false por-

trayal of petitioner as evasive in the context of the story on

illegal dumping.

The Highly Offensive Standard

Judge Cardamone’s analysis of the false light claim con-

cluded with a consideration of whether his truncated version

of that claim was highly offensive to a reasonable person.

Although establishing offensiveness in a false light case is

quintessentially a matter for the trier of fact Judge Carda-

mone ruled as a matter of law that the portrayal was

inoffensive.

There is no clear rationale for Judge Cardamone’s conclu-

sion: he discussed neither the particular facts of the case nor

the effect of the portrayal on the petitioner. He rested his

result on the statement that courts have “narrowly construed

the highly offensive standard” in cases in which First Amend-

ment rights are implicated, but he neither developed that

thought nor provided guidance as to how any such altered

standard is to be applied. App. A at 29-30.

Thus, the Court of Appeals expanded the penumbra of the

First Amendment in this case to further immunize the media

from liability.

Improper Publicity to Private Facts

The Court of Appeals affirmed the summary judgment

court’s dismissal of petitioner’s claim that his privacy had been

invaded by respondent’s publicizing of a private and embar-

rassing encounter in which the public had no legitimate

concern."

The rationale of the Appellate Court’s reversal had three

prongs: the filmed encounter took place “in a semi-public area

while plaintiff knew the cameras were rolling”; respondent

could not be liable for giving “further publicity” to the peti-

tioner’s public behavior; and as it had noted with respect to

the false light claim, the portrayal was not highly offensive.

App. A at 30-31.

This interpretation of the tort conflicts with the decisions of

other courts and avoids the facts of this case.

The encounter took place on petitioner’s business property

in a secluded industrial area. No one observed the encounter

other than the participants. The reporter and camera crew did

not simply happen upon petitioner and film him while he was

acting in an erratic and intemperate manner; they were, in

fact, the cause of his behavior as it was their provocation

which upset his calm and their persistent goading which

impelled him to behave in a highly uncharacteristic way.

Consequently, the location of the event would in this case

be irrelevant. The fact that petitioner acted while he knew

'' The definition of this theory of liability for invasion of privacy is

set forth in the Restatement (Second) of Torts § 652 D, as follows:

One who gives publicity to a matter concerning the private life of

another is subject to liability to the other for invasion of his

privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

that the cameras were rolling begs the issue: he was an invol-

untary subject placed unexpectedly in a situation from which

he tried to extricate himself; the rolling cameras were the very

cause of his behavior, and the fact that he knew he was being

filmed does not justify the later publication of that film. As for

the Court’s comment that respondent was merely giving “fur-

ther publicity” to petitioner's behavior, there was no prior

publicity of the event; respondent gave it the only publicity.

Significantly, the trial judge had commented in his decision

denying respondent's post-trial motions that “[t]he evidence

suggested that the film [of Diaz encounter with petitioner]

was used in order to lend some excitement to an otherwise

uneventful story.” App. B at 14.

ARGUMENT

I. THE COURT OF APPEALS DEPRIVED

PETITIONER OF HIS SEVENTH AND FOUR-

TEENTH AMENDMENT RIGHTS IN ADOPT-

ING A VIEW OF THE CASE, UNSUPPORTED

BY THE EVIDENCE, WHICH MADE THE

JURY’S SPECIAL VERDICTS INCONSISTENT

Although the District Court reconciled the jury's answers to

two special interrogatories, each within separate verdicts, the

Court of Appeals ignored the mandate of the Seventh and

Fourteenth Amendments, and perceiving a “seeming inconsis-

tency, adopted a view of the case which negated the jury's

verdict in favor of petitioner on false light invasion of privacy.

The Seventh Amendment provides with respect to civil suits

that “no fact tried by a jury, shall be otherwise re-examined in

any Court of the United States, than according to the rules of

the common law.” The Amendment sets “the federal policy

favoring jury decisions of disputed fact questions (cites omit-

ted).”” Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,

Ltd., 369 U.S. 355, 360, reh’g denied, 369 U.S. 882 (1962) (this

Court, noting and heeding the constitutional imperative that it

view a jury's answers to special interrogatories so as to recon-

cile them—that is, to sustain the verdict—suggested a third

possible view of the case not considered by the Court of

Appeals which reconciled the jury’s findings).

Where there is a view of the case that makes the jury's

answers to special interrogatories or special verdicts consistent,

the Seventh Amendment requires that they must be resolved

that way. Gallick v. Baltimore and Ohio Railroad Co., 372

U.S. 108 (1963) (where the Court of Appeals overturned a jury

verdict on grounds of insufficient evidence and an irreconcil-

able inconsistency between two special interrogatories, this

Court held “[w]e therefore must attempt to reconcile the jury's

findings, by exegesis if necessary ...before we are free to

disregard the jury's special verdict and remand the case for a

new trial.”’ Id. at 119. In reconciling the jury’s finding that the

cause of petitioner's injury was not foreseeable, with their

verdict for petitioner on respondent’s negligence, this Court

looked at the seeming inconsistency in the context of the trial

judge’s charge and the total context of the special verdict, and

concluded that the inconsistency was not of sufficient weight

to warrant overturning the jury’s verdict.); Fiacco v. City of

Rensselaer, 783 F.2d 319 (2d Cir. 1986) (the Second Circuit

sustained a verdict that police officers were liable for violating

plaintiff's constitutional rights although the jury found under a

separate claim that the defendant police officers did not mali-

ciously and wantonly assault plaintiff. Reconciling the special

finding and the verdict, the Court considered that the jury

“was entitled to believe parts and disbelieve parts of the

testimony of any given witness’ and, further, that the jury was

asked to find different facts on each claim. “Within the

framework of these instructions and the language of the inter-

rogatories, the jury could have found that the officers had used

excessive force against [plaintiff] in violation of her constitu-

tional rights, and that they should have known that they were

violating those rights, but that their acts were not malicious.

Viewed in this light, the jury's answers to the interrogatories

finding the officers liable to [plaintiff] for violation of her

constitutional rights but not for a malicious assault are not

inconsistent.” Id. at 325-326); see also Martell v. Boardwalk

Enterprises, Inc., 748 F.2d 740, 748-749 (2d Cir. 1984).

A “search for one possible view of the case which will make

the jury's findings inconsistent results in a collision with the

Seventh Amendment.” Atlantic & Gulf Stevedores, 369 U.S.

at 364. The Court of Appeals’ decision in the instant case has

caused such a collision. The Seventh Amendment requires the

appellate court to search ‘or any logical or evidentiary basis in

the record which would reconcile the jury's answers to special

interrogatories which are seemingly in conflict.

The analytic process employed by this Court as well as by

the Second Circuit in Fiacco and Martell, in endeavoring to

reconcile seeming inconsistencies in special interrogatories or

verdicts, requires an examination of the trial court’s charge on

the law and facts attendant to each interrogatory or claim to

see whether the jury could have either misconstrued the

charge or relied on certain nuances of each claim which could

rationalize its answers. Whatever view of the case the review-

ing court determines was adopted by the jury, that view must

be supported by evidence or reasonable inferences drawn

from the evidence. See Morgan v. Consolidated Rail Corp.,

509 F.Supp. 281, 284 (S.D.N.Y. 1980).

Inconsistent jury verdicts upon different counts or claims

are not an anomaly in the law, which at times recognizes a

jury s right to an idiosyncratic position, provided the chal-

lenged verdict is based upon the evidence and the law.

Morgan, 509 F.Supp. at 284 (citing Malm v. United States

Lines Co., 269 F.Supp. 731, 732 [S.D.N.Y.], afd, 378 F.2d 941

[2d Cir. 1967]); Electro-Miniatures Corp. v. Wendon Co.,

Inc., 771 F.2d 23 (2d Cir. 1985); see also Smith v. Shell Oil

Co., 746 F.2d 1087, 1092 (5th Cir. 1985); Henry v. A/S

Ocean, 512 F.2d 401 (2d Cir. 1975).

Here, the Second Circuit failed to carry out its Seventh

Amendment obligation to choose that view of the case which

would sustain the verdict, to search the record for evidence or

any favorable inference from the evidence to reconcile the

jury's findings that Irving Machleder was falsely portrayed as

somehow involved in the illegal dumping of chemical wastes

while also finding that he had not been libeled. In adopting a

view of the case that the fact finding of no substantial falsity

on the libel claim pre-empted the jury’s consideration of

whether Machleder was falsely portrayed as an accessory in

the illegal dumping under the false light claim (and thereby

concluding that the jury perceived Machleder as the dumper),

the Court of Appeals ignored the differences between the two

causes of action (although acknowledging that they are differ-

ent), the differences in the charges to the jury, and the sub-

stantial evidence supporting the jury's special verdict for peti-

tioner on the false light invasion of privacy claim.

The jury was properly instructed to consider different facts

in deciding what was false on each claim. Trial Record at

1819-1820. The libel claim required the jury to find that the

broadcast falsely stated that petitioner was the dumper; the

false light claim required the jury to find that the broacast

falsely portrayed petitioner as having been involved in the

dumping, as seeking to conceal his participation in that activ-

ity, and as intemperate. Moreover, as petitioner argued to the

Court of Appeals, the jury could have misconstrued the defa-

mation charge as it directed them to look for false statements

of fact, rather than focusing on the false impression that a

television broadcast can convey. There is no evidence in the

record that the jury misconstrued the false light charge or

misapplied the law as charged by Judge Leisure.

Further, the Court of Appeals disregarded the substantial

evidence in the record from which the jury could (and

apparently did) reasonably infer that petitioner was made to

appear guilty of complicity in illegal conduct, and that this

false portrayal was contrived by respondent in using the

ambush interview technique, in selecting for the broadcast

only the portions of the footage most calculated to show the

petitioner in the most unfavorable way, in using portions of

the interview with the fire chief which, distorted by editing,

suggested a serious hazzard, and in editing out all exculpatory

material which would have dispelled any inference that peti-

tioner had been involved in the dumping.

hh—w———mEnmhm— ———————

II. ASSUMING THAT THE COURT OF

APPEALS MADE ALL REASONABLE EFFORTS

TO RECONCILE THE SPECIAL VERDICTS,

BUT FAILED, IT SHOULD HAVE REMANDED

FOR RETRIAL THE ISSUE OF FALSITY

RATHER THAN DISMISS THE PETITIONER’S

COMPLAINT

In vacating the verdict for petitioner, the Court of Appeals

failed to reconcile the “seeming inconsistency” upon which

respondent's appeal centered. While the Court had the power

to grant a retrial on the jury's factual findings of “falsity,”

which, to the Court, gave rise to the conflict, it erroneously

reversed the verdict and distnissed petitioner’s complaint. An

appellate court has general authority, upon vacating a judg-

ment, to “require such further proceedings to be had as may

be just under the circumstances.” Akermanis v. Sea-Land

Service, Inc., 688 F.2d 898, 904 (2d Cir. 1982), cert. denied,

461 U.S. 927 (1983), citing 28 U.S.C. § 2106 (1976), (Rule

50{[d] of the Federal Rules of Civil Procedure is a variation on

the general authority of an appellate court to remand an issue

for retrial). ake

“If after a review of the district court’s judgment no recon-

ciliation is possible and the inconsistency is such that the

special verdict will not support the judgment entered below or

any other judgment, then the judgment must be reversed and

the case remanded for a new trial.” 5A J.Moore & J. Lucas,

Moore's Federal Practice § 49.03, at 49-31—49-32 (2d ed.

1986) (emphasis added); Cf. Iacurci v. Lummus Co., 387 U.S.

86 (1967) (this Court held that it was error for the Court of

Appeals to reverse for lack of evidence the trial court’s judg-

ment and direct judgment for respondent instead of remand-

ing the case to the trial judge to pass upon the question of a

new trial.); Higginbotham v. Ford Motor Co., 540 F.2d 762,

772-773 (5th Cir. 1976), reh’g denied, 561 F.2d 831 (5th Cir.

1977); Bernardini v. Rederi A/B Saturnus, 512 F.2d 660, 662

(2d Cir. 1975) (where the jury was charged that a finding of

unseaworthiness was a precondition to a finding of negligence,

and the jury found the vessel seaworthy but the shipowner

negligent, and, further, evidence did not support the jury's

verdict, the Second Circuit held that the proper remedy was to

send the matter back for retrial).

Bernardini summed up the constitutional imperative which

should have determined the Second Circuit's course in the

instant case if it found itself unable to sustain the verdict for

petitioner:

The Supreme Court has said that the Seventh Amendment

requires a court to adopt that view of a case under which a

jury's special verdicts may be seen as consistent. Atlantic &

Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 364, 82

S.Ct. 780, 7 L.Ed.2d 798 (1962). However, when special

verdicts cannot be reconciled, or when a jury’s answers to

interrogatories cannot be reconciled with its verdict, the

court may not enter a judgment. Royal Netherlands S.S. Co.

v. Strachan Shipping Co., 362 F.2d 691 (5 Cir. 1966), cert.

denied, 385 U.S. 1004, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967);

Martin v. Gulf States Utilities Co., 344 F.2d 34 (5 Cir. 1965).

See Turchio v. D/S A/S Den Norske Africa, 509 F.2d 101 (2

Cir. 1974). If judgment has been entered inappropriately,

the proper appellate remedy is to remand for a new trial.

Turchio, supra, at 106.

Id. at 662.

Ill. THE COURT OF APPEALS _ DISRE-

GARDED THE SEVENTH AND FOURTEENTH

AMENDMENTS AND THE DECISIONS OF

OTHER CIRCUITS IN DETERMINING THAT

THERE WAS INSUFFICIENT EVIDENCE OF A

FALSE PORTRAYAL AND THAT THE POR-

TRAYAL OF MACHLEDER WAS INOFFENSIVE

AS A MATTER OF LAW

Though the Court of Appeals stated correctly the common

law standard of appellate review for reviewing the District

Court’s denial of defendant’s motion for judgment notwith-

standing the verdict,’ it failed to abide by that standard and

'? The Court cited to Schwimmer v. SONY Corp. of America, 677

F.2d 946 (2d Cir.), cert. denied, 459 U.S. 1007 (1982), reh’g denied,

459 U.S. 1189 (1983).

intruded upon the jury's function of finding facts and weigh-

ing the credibility of witnesses. Further, in limiting its review

of the false light verdict to whether Machleder was portrayed

as intemperate and evasive and not whether he was portrayed

as somehow involved in the illegal activity of dumping toxic

waste, the Court ignored all of the evidence in the record

which supported the jury’s award in favor of petitioner.'* The

view of the case adopted by the Court of Appeals—that the

jury could have found Machleder to be the dumper—tainted

its entire review of the sufficiency of the evidence, and, there-

fore, its determination is completely erroneous.

Falsity

The Court of Appeals found the evidence of a false por-

trayal of Machleder insufficient “since it was based on his own

conduct which was accurately captured by the cameras.” App.

A at 27-28. In so holding, the Second Circuit posits that a

reaction or response captured on camera is an accurate por-

trayal as a matter of law. This conflicts with other Circuit

holdings that the context in which an accurate photograph is

placed can create a false portrayal sufficient to constitute a

false light invasion of privacy. Douglass v. Hustler Magazine,

Inc., 769 F.2d 1128 (7th Cir. 1985), cert. denied, _U.S._, 106

S.Ct. 1489 (1986); Braun v. Flynt, 726 F.2d 245 (5th Cir.),

reh g denied, 731 F.2d 1205 (5th Cir.), cert. denied sub nom.,

Chic Magazine, Inc. v. Braun, 469 U.S. 883 (1984); Wood v.

Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir.), reh'g

denied, 744 F.2d 94 (5th Cir. 1984), cert. denied, 469 U.S.

1107 (1985); Faber v. Condecor, Inc., 195 N.J. Super. 81, 477

A.2d 1289 (N.J. Super. Ct. App. Div.), certif. denied, 99 N.].

178, 491 A.2d 684 (1984);

In Douglass v. Hustler Magazine, the Fifth Circuit held

that the unauthorized use of a model-actress’ photograph in

Hustler magazine (an accurate photograph posed for by plain-

tiff) was sufficient evidence to sustain the jury's false light

'S[W]e must view the evidence in the light most favorable to the

plaintiff to determine whether the evidence was sufficient to allow a

reasonable juror to conclude that there was falsity in the portrayal of

the plaintiff as intemperate and evasive. (emphasis added).

App. A at 27.

verdict in her favor; that to be depicted as voluntarily associ-

ated with that publication was degrading, and, further, that

plaintiff was portrayed as a lesbian. In reviewing the suf-

ficiency of the evidence, the Court reasoned that since nothing

in the feature (picture and commentary) even suggested that

the nude photographs appeared without the subject's permis-

sion, it was reasonable to perceive that she voluntarily submit-

ted the photographs to the magazine.

Further, while the Court did not think that the plaintiff was

portrayed as a lesbian, it held that the commentary by the

magazine next to a photograph of plaintiff with another

woman could have led a reasonable jury to infer that plaintiff

was being represented to be a lesbian. “And of course the issue

for us is not whether the jury was right but whether a reason-

able jury could have found a false-light tort on the facts of this

case.” Id. at 1137; see also Braun v. Flynt, 726 F.2d at 253

(“In reaching our conclusion [upholding the jury's verdict of

false light invasion of privacy in favor of petitioner], we have

remained ever mindful that we sit as a court reviewing the

verdict of Mrs. Braun’s peers; we do not, cannot, and should

not sit as jurors whose job it is ultimately to determine whether

the publication was false and offensive.”’).

Here, the broadcast concealed the fact that Machleder was

ambushed by Diaz and his crew and provoked to anger by the

conduct of the news team. Respondent deliberately edited out

introductory footage of Machleder’s statement delivered in

relative calm, “I don’t want to be on television, I’m sorry, I'm

sorry.” The false impression conveyed by the broadcast was

that Machleder’s reaction was not provoked by the television

cameras and the reporter, but, rather, by a guilty association

with the dumping of toxic wastes.

In deciding that as a matter of law the portrayal of peti-

tioner was accurate, the Court relied solely on the broadcast

tape and ignored the outtakes, petitioner's own testimony,

CBS expert Jeffrey Rosser’s testimony concerning ambush

interviews, CBS news director Stephen Cohen's testimony con-

cerning “confrontation interviews” and the transcript of CBS’

broadcast “Watching the Watchdog” concerning the potential

for distortion by use of the technique known as the “ambush”

interview. "*

By ignoring the petitioner's testiraony, the Court gave it no

weight—and failed to give deference to the jury's and, indeed,

the trial court’s estimation of petitioner's credibility and

demeanor during the trial. Only the jury can determine the

weight and credibility of the testimony; “[tJhat part of every

case, such as the one at bar, belongs to the jury, who are

presumed to be fitted for it by their natural intelligence and

their practical knowledge of men and the ways of men; and so

long as we have jury trials they should not be disturbed in

their possession of it, except in a case of manifest and extreme

abuse of their function.” Aetna Life Insurance Co. of

Hartford, Connecticut v. Ward, 140 U.S. 76, 88 (1890).

'* “Watching the Watchdog” was an hour-long televised presen-

tation by CBS Inc., which critiqued the value of certain investigative

reporting techniques, including the ambush interview. Pl. Exh. 13.

CBS described an “ambush” interview as a technique

used most often after someone has indicated he will not

talk...and the ambush interview provides dramatic pic-

tures... Suddenly the camera is moving and that provides a

sense of excitement—especially when the confrontation is

near... The danger, of course, is that it is designed for drama,

not to elicit the truth. . . it runs the risk of making an innocent

man look guilty, and it may miss an important side of the story.

(emphasis added).

Fred Friendly, former president of CBS News, dean of the

Columbia School of Journalism, and one of the most widely

respected authorities on electronic journalism, described the ambush

interview on “Watching the Watchdog” as “the dirtiest trick” in

broadcasting.

Stephen Cohen, CBS’ news director in May, 1979, described Diaz’

encounter with Machleder as a “confrontation” interview, and

defined a “confrontation” interview as “outside the normal range of

the interview process,” “where the respondent in an interview is

either not responsive or in some way upset with the reporter's

questions, (Trial Record at 622) or where the participant in the

interview “was less than cooperative, totally uncooperative, or

downright hostile.” Trial Record at 625. See also Note, The

Ambush Interview: A False Light Invasion of Privacy?, 34 Case W.

Res. L. Rev. 72 (1983).

An appellate court is admonished to review the evidence

(1) as tending to support the jury's verdict; (2) in a light most

favorable to the findings of the jury; and (3) as giving the

party having the verdict the benefit of every favorable infer-

ence reasonably justified by the evidence. Gallick v. Baltimore

and Ohio Railroad Co., 372 U.S. 108 (1963); Sentilles v. Inter-

Caribbean Shipping Corp., 361 U.S. 107, (1959); Tennant v.

Peoria & P.U.R. Co., 321 U.S. 29, reh'g denied, 321 U.S. 802

(1944); Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740,

747 (2d Cir. 1984); Ebker v. Tan Jay International, Ltd., 739

F.2d 812 (2d Cir. 1984). Moreover, the appellate court cannot

1) weigh the evidence factually as a jury does or 2) substitute

its judgment of the facts for that of the jury. Gallick, 372 U.S.

at 115; Mattivi v. South African Marine Corp., “Huguenot”,

618 F.2d 163, 167-168 (2d Cir. 1980).

The Second Circuit went beyond the permissible scope of

appellate review in weighing the testimony of James Kulpa, a

long-time business associate of petitioner, by holding that “the

only evidence on plaintiff's temperament came from a busi-

ness associate who, though he had done business with the

plaintiff, saw Machleder only for fifteen minutes every three

months.” App. A at 28. This is a clear example of the Court's

refusal to view the evidence in a light most favorable to the

findings of the jury since the witness testified that he knew

petitioner in 1979 for sixteen years. The jury may have given

great weight to Mr. Kulpa’s testimony about petitioner's char-

acter and that Kulpa, having seen the broadcast, called peti-

tioner the day after and asked him whether it was true that he

“was dumping barrels around.” Trial Record at 1028. Only

when there is a complete absence of probative facts to support

the conclusion reached by the jury, does a reversible error

appear. Lavender v. Kurn, 327 U.S. 645 (1946)."°

Instead of dismissing petitioner's complaint on the ground of

insufficient evidence the Second Circuit should have remanded the

case for a new trial. Neely v. Eby Construction Co., Inc., 386 U.S.

317, 327, 329, reh’g denied, 386 U.S. 1027 (1967).

Oe ee eee ee e « “

Offensiveness

In determining that “no reasonable juror could have con-

cluded that the alleged portrayal was highly offensive”

(App. A at 29), the Second Circuit lost sight of the essence of

false light invasion of privacy.

The interest protected by this Section [652 E] is the interest

of the individual in not being made to appear before the

public in an objectionable false light or false position, or in

other words, otherwise than he is.

Fogel v. Forbes, Inc., 500 F.Supp. 1081, 1088 (E.D. Pa. 1980).

The Second Circuit went far beyond the scope of appellate

review in substituting its own judgment for that of the jury.

The cases cited by the Second Circuit to support its finding

that as a matter of law the portrayal was inoffensive and

should not have reached the jury, Cibenko v. Worth Pub-

lishers, Inc., 510 F.Supp. 761 (D.N.J. 1981) and Bisbee v. John

C. Conover Agency, Inc., 186 N4. Super. 335, 452 A.2d 689

(N.J. Super. Ct. App. Div. 1982), are distinguishable from the

instant case.

In Cibenko and Bisbee, causes of action for false light

invasion of privacy were dismissed on summary judgment

since the communications were not capable of bearing the

meaning or innuendo alleged by the plaintiffs; in Bisbee, there

was no dispute about the truth of the communication. Where

the communication is capable of bearing the meaning which is

highly offensive to a reasonable person, it is for the jury to

determine whether that meaning was conveyed. Here, the

Second Circuit never questioned whether the broadcast was

susceptible of the meaning or impression alleged by petitioner;

rather, it held that the meaning was neither false nor offensive.

The Second Circuit stated as a general proposition that

“courts have narrowly construed the highly offensive stan-

dard.” App. A at 29. That general principle is not borne out by

"Again, the Second Circuit's analysis is deficient since it

improperly restricted its review to whether the portrayal of peti-

tioner as intemperate and evasive was offensive; and not whether

the portrayal that he seemed somehow involved in the illegal activ-

ity of dumping was highly offensive.

any of the cases cited by the Court; furthermore, it is clear

that the offensiveness determination is a factual one. In the

majority of cases cited by the Second Circuit," the issue of

offensiveness went to the jury and the jury found for the

plaintiff. See Time, Inc. v. Hill, 385 U.S. 374 (1967) (case

remanded); Cantrell v. Forest City Pub. Co., 419 U.S. 245

(1974); Douglass v. Hustler Magazine, 769 F.2d at 1128.

Contrary to the Second Circuit's appraisal of the above

cases, the Courts did not take a narrow view of whether the

particular communication or portrayal was offensive. In each

case, the Court held that the plaintiff was made to seem

pathetic or ridiculous, causing plaintiff to suffer mental dis-

tress. Time, Inc. v. Hill (family falsely portrayed as victims of

certain indignities); Cantrell v. Forest City Pub. Co. (family

falsely portrayed as being poor and living in dilapidated

housing); Douglass v. Hustler Magazine, (actress—model who

posed for nude photographs for Playboy falsely portrayed as

voluntarily associated with vulgar magazine).

Indeed, none of the cases cited by the Second Circuit

reached the level of offensiveness created by CBS’ portrayal of

Irving Machleder in the May 22, 1979 broadcast—here,

whether or not respondent accused Machleder of being the

dumper, the impression deliberately created was that he was

somehow involved in the illegal activity and was irrational in

his behavior. Other cases which demonstrate that the Courts

do not take a particularly narrow view of what is offensive—

and where the jury's verdict was upheld are Braun v. Flynt,

726 F.2d at 252 (unauthorized use of entertainer’s picture in

Chic Magazine implied that plaintiff approved of the opinions

contained therein or that plaintiff consented to having her

picture in an explicit sex magazine); Wood v. Hustler Maga-

zine, 736 F.2d at 1084 (unauthorized publication of nude

photographs of plaintiff in Hustler Magazine portrayed plain-

tiff as consenting to the submission of her photograph in sex

“The Second Circuit cited Virgil v. Sports Illustrated, 424

F.Supp. 1286 (S.D. Cal. 1976) which is clearly inapposite to this case

since the plaintiff in Virgil did not dispute that the publication was

true; indeed, plaintiff abandoned his false light claim. Virgil v.

Time, Inc., 527 F.2d 1122 (9th Cir. 1975), cert. denied, 425 U.S. 998

(1976).

6 oe Se” yee eee

ee a

Oe ee ee

magazine, and attributed lewd fantasies to her); and Fabe: v.

Condecor, 195 N.J. Super. at 81 (unauthorized use of farni!y's

photograph gave false impression that plaintiff was endorsing

competitor's product).

CONCLUSION

The decision below manifests a process of appellate review

and a formulation of legal principles which virtually

immunize the electronic media from liability for broadcasts

which efface the rights of private citizens. The implications of

the review procedure employed and legal conclusions reached

by the Second Circuit transcend the immediate facts and

parties in this case. For all of the foregoing reasons, a writ of

certiorari should issue to review the judgment and opinion of

the United States Court of Appeals for the Second Circuit.

Respectfully submitted,

ROBERT A. MACHLEDER

Counsel of Record

MARCIA E. KUSNETZ

Wien, Malkin & Bettex

60 East 42nd Street

New York, New York 10165

(212) 687-8700

Attorneys for Petitioner

December 5, 1986

APPENDIX A

A-1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At astated Term of the United States Court of Appeals for the Se-

cond Circuit, held at the United States Courthouse in the City of

New York, on the tenth day of September one thousand nine hun-

dred and eighty-six

Present:

Hon. AMALYA L. KEARSE,

Hon. Ricuarp J. CARDAMONE,

Hon. MixTon Po..ack, District Judge. *

Circuit Judges,

85-7917

85-7943

IRVING MACHLEDER and

FLEXCRAFT INDUSTRIES, INC. ,

Plaintiffs,

IRVING MACHLEDER,

Plaintiff-Appellee, Cross-Appellant,

—-V.—

ARNOLD DIAZ, CBS INC., WCBS-TV, ANN SORKOWITZ,

FRANK PIVALO, THOMAS GALLAGHER

and DENNIS P. COYNE,

Defendants,

CBS INC.,

Defendant-Appellant, Cross-Appellee.

*Hon. Milton Pollack, Senior United States District Court Judge, Southern

District of New York, sitting by designation.

A-2

IRVING MACHLEDER and FLEXCRAFT

INDUSTRIES, INC.,

Plaintiffs-Appellants,

on Y, aw

ARNOLD DIAZ, CBS INC., WCBS-TV, ANN SORKOWITZ,

FRANK PIVALO, THOMAS GALLAGHER

and DENNIS P. COYNE,

Defendants,

ARNOLD DIAZ, CBS INC., WCBS-TV, FRANK PIVALO,

THOMAS GALLAGHER and DENNIS P. COYNE,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

This cause came on to be heard on the transcript of record from

the United States District Court for the Southern District of New

York, and was argued by counsel.

ON CONSIDERATION WHEREOPF, it is now hereby ordered,

adjudged and decreed that the judgment of said District Court be

and it hereby is reversed and the complaint is dismissed in ac-

cordance with the opinion of this court. Further ordered that the

cross-appeal be and it hereby is affirmed in accordance with this

court’s opinion.

ELAINE B. GOLDSMITH,

CLERK

s/Edward J. Guardaro

EDWARD J. GUARDARO,

DEPUTY CLERK

)

EL ge yO eg eee ae oe ae cee ae 7

A-3

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 864, 1006—August Term 1985

(Argued March 10, 1986 Decided September 10, 1986)

Docket Nos. 85-7917, 85-7943

IRVING MACHLEDER and FLEXCRAFT

INDUSTRIES, INC.,

Plaintiffs,

IRVING MACHLEDER,

Plaintiff-Appellee,

Cress-A npellant,

—_—V—

ARNOLD DIAZ, CBS INC., WCBS-TV, ANN SORKOWITZ,

FRANK PIVALO, THOMAS GALLAGHER and DENNIS

P. COYNE,

Defendants,

CBS INC.,

Defendant-Appellant,

Cross-A ppellee.

A-4

IRVING MACHLEDER and FLEXCRAFT

INDUSTRIES, INC.,

Plaintiffs-Appellants,

—_—V—

ARNOLD DIAZ, CBS INC., WCBS-TV, ANN SORKOWITZ,

FRANK PIVALO, THOMAS GALLAGHER and DENNIS

P. COYNE,

Defendants,

ARNOLD DIAZ, CBS INC., WCBS-TV, FRANK PIVALO,

THOMAS GALLAGHER and DENNIS P. COYNE,

Defendants-Appellees.

Before:

KEARSE and CARDAMONE, Circuit Judges

and POLLACK, District Judge*

= os

Arnold Diaz, CBS Inc., WCBS-TV ef. a/., defendants-

appellants, appeal from a judgment entered in the

Southern District of New York (Leisure, J.) in favor of

Irving Machleder and Flexcraft Industries, Inc., plain-

tiffs-appellees-cross-appellants that awarded the individ-

ual plaintiff Machleder $250,000 in compensatory

damages and $1 million in punitive damages for false

light invasion of his privacy.

Hon. Milton Pollack, Senior United States District Court Judge,

Southern District of New York, sitting by designation.

Daieeirthe 6 ee ltd Ae:

iinet Sie li Sma a Eick bt

A-5

Reversed and complaint dismissed.

Cross-appeal affirmed.

—-

HAROLD R. TYLER, JR., New York, New

York (Paul G. Gardephe, Patterson Bei-

knap Webb & Tyler, New York, New

York; Pamela G. Ostrager, Laura R.

Handman, Coudert Brothers, New York,

New York, of counsel), for Defendant-

Appellant, Cross-Appellee CBS Inc.

ROBERT A. MACHLEDER, New York, New

York (Marcia E. Kusnetz, Wien, Malkin

& Bettex, New York, New York, of

counsel), for Plaintiff-A ppellee, Cross-

Appellant Irving Machleder and Plain-

tiff-Cross-Appellant Flexcraft Industries,

Inc.

MICHAEL P. MCDONALD, American Legal

Foundation, Washington, D.C., filed a

brief Amicus Curiae.

CAHILL GORDON & REINDEL, New York,

New York (Dean Ringel, Floyd Abrams,

Ellen H. Woodbury, New York, New

York; Paula Jameson, New York, New

York; Slade Metcalf, Squadron, Ellenoff,

Plesent & Lehrer, New York, New York;

Katharine P. Darrow, George Freeman,

New York, New York; Ralph P. Huber,

Sabin, Bermant & Blau, New York, New

A-6

York; Harry M. Johnston, III, New

York, New York; Sandra S. Baron, New

York, New York; Sam Antar, New York,

New York; Milford Fenster, Hall, Dickler,

Lawler, Kent & Friedman, New York,

New York; Muriel Henle Reis, New York,

New York, all of counsel), filed a brief

for Amici Curiae, Dow Jones & Com-

pany, Inc., News America Publishing

Incorporated, The New York Times

Company, Newark Morning Ledger Co.,

Time Incorporated, National Broadcast-

ing Company, Inc., Capital Cities/ABC,

Inc., and Metromedia, Inc.

CARDAMONE, Circuit Judge:

Plaintiffs brought defamation and false light invasion

of privacy actions against CBS and several of its employ-

ees. After plaintiffs were awarded jury verdicts totaling

over a million dollars in compensatory and punitive

damages, this appeal ensued. Arrayed on either side of

the issues to be decided are the competing concerns of the

privacy rights of individuals on the one hand, and the

constitutional guarantee of freedom of the press on the

other. The private individual plaintiff claims that defen-

dants made him the subject of a public news report that

portrayed him in a false light and thereby infringed on his

right to be left alone. The defendant responds that its

report concerning plaintiff was not in fact false, and

further urges that to hold the media liable for reporting

A-7

which is not factually untrue will stifle freedom of the

press by denying it the breathing space it needs to survive.

History suggests that individual rights to privacy are

actionable when the media portrays an individual falsely,

but not otherwise. Although Madison acknowledged in

his day that the press was checquered with abuse of

individual rights, he still spoke eloquently of its triumphs

over error and oppression. L. Brant, James Madison

Father of the Constitution 1787-1800, 469 (1950). And

Jefferson also wrote from Paris: “Our liberty depends on

freedom of the press, and that cannot be limited without

being lost.” Letter to Thomas Currie, (January 28, 1786),

reprinted in 9 The Papers of Thomas Jefferson 215 (Boyd

ed. 1954). Jefferson perceptively observed in a letter to

Madison on July 31, 1788 that freedom of the press “will

not take away the liability of the printers for false facts

printed.” 13 Jd. at 442. First Amendment guarantees are

not for the press alone, but for the benefit of all; to that

end a “broadly defined freedom of the press [helps

assure] the maintenance of our political system and an

open society.” Time, Inc. v. Hill, 385 U.S. 374, 389

(1967). Hence, it would unjustifiably contradict the

theory underlying that guaranteed freedom were the law

to limit accurate reporting. In consequence, we hold that

to sustain a false light invasion of privacy claim, such

portrayal must be substantially false and offensive to an

ordinary person. Here, because the portrayal of plaintiff

as intemperate and evasive was neither actionable nor

false, and further because the charge that he was falsely

portrayed as an illegal dumper was not sustained by the

jury on the defamation claim, this verdict cannot stand.

A-8

I BACKGROUND

A. Facts

On May 22, 1979 WCBS-TV, a Manhattan television

station owned and operated by CBS, Inc. (CBS), aired a

report on its 6 o’clock news dealing with the dumping of

toxic chemicals at a site in Newark, New Jersey. The

broadcast highlighted the investigation of CBS reporter

Arnold Diaz, then WCBS-TV’s New Jersey investigative

correspondent, and focused on his interview with plain-

tiff, Irving Machleder, the owner of a company that uses

hazardous chemicals in its blending operations. As a

result of this broadcast, Machleder brought a diversity

action in the United States District Court for the

Southern District of New York (Duffy, J.) alleging libel,

false light invasion of privacy, assault and battery, and

trespass. A district court jury awarded the plaintiff

$250,000 in compensatory damages and $1,000,000 in

punitive damages on his false light privacy claim.

The invasion of Machleder’s privacy that he claims cast

him in a false light arose from what plaintiff alleges was

Diaz’ “ambush” or “confrontational” interview. Ambush

interview is a derogatory descriptive term for a controver-

Sial investigative reporting technique in which a reporter

and his news crew intercept an “unsuspecting newsworthy

subject on the street and [bombard] him with incriminat-

ing accusations ostensibly framed as questions.” Note,

The Ambush Interview: A False Light Invasion of

Privacy?, 34 Case W. Res. L. Rev. 72, 72 (1983). The

events leading up to the broadcast of this particular news

report began on May 21, 1979 when Diaz received a

telephone tip from Michael Rosenberg, a then confiden-

tial source within the New Jersey Department of Environ-

epunnientetete

dead,

ee ee ee

A-9

mental Protection, informing him of a hazardous

dumpsite on Avenue P in Newark. Rosenberg had pre-

viously provided Diaz with reliable information concern-

ing such sites. From January to May 22, 1979 Diaz had

aired an award-winning series of 18 television reports on

chemical waste dumping in New Jersey.

On May 22nd Diaz and a film crew went to Avenue P

and there found a large, open area that was overgrown

with weeds and strewn with hundreds of rusting 55-gallon

drums. Many of the drums were labeled “hazardous” and

“flammable.” Some of them were leaking and their con-

tents were trickling into a nearby waterway. A noxious

odor pervaded the whole area. After surveying the site,

Diaz and the film crew walked about 25 feet to a nearby

building that was occupied by Flexcraft, a manufacturer

of paints, adhesives and coatings. Diaz approached the

building under the mistaken belief that the abandoned

drums he had viewed a few moments earlier were on

Flexcraft property. He later learned that the drums were

on land owned by the Newark Housing Authority. As he

approached the Flexcraft plant Diaz encountered Bruce

Machleder, the manager of Flexcraft, who told Diaz “to

go to the office” at the front of the building.

Diaz proceeded with his crew to the front of the

Flexcraft building where he came upon Irving Machleder.

Although the parties’ accounts differ as to what tran-

spired next, the substance of the testimony reveals that

Diaz approached Irving Machleder—with audio and video

cameras rolling—and asked him if he knew anything

about the chemical barrels dumped next to his building.

Machleder replied that he did not want to be filmed for

television and began to move away. Diaz and his crew

followed. Machleder became agitated, shouting “get that

A-10

damn camera out of here. . . I don’t want, I don’t need,

I don’t need any publicity.” When Machleder reached the

door of his office he said to Diaz, “We don’t . . . we

didn’t dump ‘em;” Diaz asked, “Who did?” and Mach-

leder responded, “You call the Housing Department.

They have all the information.” According to Diaz, he

was then invited into the office by Bruce Machleder, who

told him that the presence of the barrels had previously

been reported to the United States Coast Guard, the New

Jersey Turnpike Authority, and the Newark Housing

Authority.

After Diaz left the Flexcraft premises he immediately

contacted Ann Sorkowitz, a CBS research assistant, ask-

ing her to verify Machieder’s statements and to dig up

any additional information about the barrels that she

could. Meanwhile he went to Newark City Hall to make

inquiries at the Mayor’s office and the Fire Department.

Later Diaz returned to the dumpsite and conducted an

on-camera interview of a Newark Deputy Fire Chief, who

confirmed that this was a hazardous chemical waste site.

The reporter then returned with his crew to the WCBS-

TV news studio in Manhattan, where he learned from

Sorkowitz that two years earlier in 1977 Flexcraft had

reported the existence of the $5-gallon drums to the Coast

Guard and the Turnpike Authority.

At 4:30 p.m. on the afternoon of the interview, Irving

Machleder telephoned CBS and spoke with CBS’s coun-

sel. Claiming that he was quite disturbed about his

confrontation with Diaz, Machleder asked CBS to delay

the broadcast. Counsel told Machleder that he could not

stop the program, but that he would forward Machleder’s

request to the news desk. That evening Diaz’ report, as

ht ae

A-11

noted, was televised on WCBS-TV’s 6 o’clock Report.

The following excerpts are relevant to our analysis.

ARNOLD DIAZ: “Now, just who owns these bar-

rels, what’s inside of them and how they got there I

1eally don’t know. But I do know there is a small

business on the property over there, and I went inside

to try to get some answers. So I went to the office of

Flexicraft [sic], a company that uses chemicals to

make art supplies, and found the manager outside.”

FLEXICRAFT [sic} MANAGER: “Get that damn

camera out of here.”

ARNOLD DIAZ: “Just tell me why—why are those

chemicals dumped in the back. . .”

FLEXICRAFT [sic] MANAGER: “I don’t want. . .

I don’t need. . . I don’t need any publicity. . . .”

ARNOLD DIAZ: “Why are the chemicals dumped

in the back?”

FLEXICRAFT [sic] MANAGER: “We don’t. . . we

didn’t dump ’em.”

ARNOLD DIAZ: “Who did?”

FLEXICRAFT [sic] MANAGER: “You call the Hous-

ing Department. They have all the information.”

ARNOLD DIAZ: “The manager told me off camera

that for years the city has known all about the

problem of chemical dumping on the land. So I went

to City Hall, where the Mayor’s Assistant said the

Fire Department would check out the problem imme-

diately.”

* * *

A-12

ARNOLD DIAZ: “Late this afternoon I was able to

confirm that the owner of Flexicraft [sic] had told

state and local authorities about the illegal dumping

two years ago, and nothing’ been done [sic]. The

City of Newark says the State should clean it up. The

State says they’re investigating, but it’s not necessar-

ily their responsibility, because the Newark Housing

Authority owns the lands. So the drums still sit

there—still leaking.”

On May 29, 1979 Machleder’s attorney sent a letter to

CBS demanding a retraction of the Diaz Report and,

when CBS refused to retract any part of it, the present

litigation was commenced. After service of the complaint,

CBS moved for summary judgment dismissing it.

B. Proceedings Below

In Machleder v. Diaz, 538 F. Supp. 1364 (S.D.N-Y.

1982) (Duffy, J.), the district court applied New Jersey

law and—in ruling on several motions—held that sum-

mary judgment was precluded by genuine issues of fact

with respect to whether: (1) a reasonable person could

conclude that plaintiffs Machleder and Flexcraft dumped

the chemicals; (2) CBS acted with the requisite degree of

fault in its news broadcast; (3) communication between a

CBS employee and public officials was conditionally

privileged; (4) CBS may have been liable for false light

invasion of privacy; (5) one of the cameraman’s alleged

touching of Irving Machleder constituted assault. Judge

Duffy also held that (6) CBS was not liable for intruding

upon the seclusion of Irving Machleder or for giving

improper publicity to his private life, and (7) implied

consent for Diaz and his crew to be on Machleder’s

ALN SE bE NB ADT ae Cabcabesea 3

1 Nd La ory i RR

A-13

property precluded CBS’ liability for trespass. Ruling on

post-trial motions several years later, the district court

held in Machleder v. Diaz, 618 F. Supp. 1367 (S.D.N.Y.

1985) (Leisure, J.), that the jury’s compensatory award of

$250,000 on the false light invasion of privacy claim was

neither excessive nor outrageous, that CBS acted with

actual malice in broadcasting the report, and that the

punitive damage award of $1,000,000 was not excessive.

CBS appeals from the compensatory and punitive dam-

ages verdict awarded by the jury for the false light

invasion of privacy claim. CBS also appeals from each of

the following orders: (1) the earlier denial of CBS’s

motion for summary judgment with respect to the false

light claim; (2) the denial of CBS’s motion in limine

seeking to exclude prejudicial and irrelevant evidence

regarding a broadcast by a network other than CBS; (3)

the denial of certain requests to charge; (4) the denial of

CBS’s motion for a directed verdict; and (5) the denial of

CBS’s post-trial motions for judgment notwithstanding

the verdict or for a new trial and for remittitur. Irving

Machleder cross-appeals from the dismissal of his inva-

sion of privacy claim on a theory of improper publicity

given to private facts and Flexcraft cross-appeals from

the dismissal of its trespass claim. No appeal has been

taken from the district court’s dismissal of Machleder’s

libel claim after the jury rendered a verdict in favor of

CBS or his assault and battery claim.

II CHOICE OF LAW

As a threshold matter it is necessary to decide what law

Should govern. CBS argues that the district court erred

when it applied New Jersey law. We disagree. Because

A-14

New York was the forum state, the motions judge prop-

erly locked to its choice of law rules to determine which

State’s substantive law to apply. Klaxon Co. v. Stentor

Electric Manufacturing Co., 313 U.S. 487, 496-97 (1941);

Mattox v. News Syndicate Co., 176 F.2d 897, 900 900 (2d

Cir.), cert. denied, 338 U.S. 858 (1949). Under New York

law a court must apply the substantive tort law of the

State that has the most significant relationship with the

occurrence and with the parties. Babcock v. Jackson, 12

N.Y.2d 473, 482, 240 N.Y.S.2d 743, 752 (1963).

CBS accurately asserts that New York has a strong

interest in this litigation, because WCBS-TV is located

there, the subject broadcast emanated in Manhattan, and

the day-to-day professional activities of CBS are con-

ducted in New York. Yet New Jersey has superior con-

tacts. Irving Machleder was interviewed in New Jersey;

the news report was part of a series prepared by CBS’s

New Jersey reporter; the report aired throughout

Northern New Jersey and the tri-state New York City

metropolitan area; Irving Machleder is a resident of New

Jersey, and Flexcraft is incorporated in New Jersey where

it also -maintains its principal place of business. Judge

Duffy correctly concluded:

[D]espite the interest of New York in establishing a

standard of fault for its news media, New Jersey also

has an important competing interest in protecting its

citizens from defamation. Coupled with New Jer-

sey’s additional interest in governing the fault of

those who come within its boundaries to investigate

the news and later broadcast it there, these factors

call for the application of New Jersey law.

538 F. Supp. at 1370.

‘

;

A-15

III FALSE LIGHT PRIVACY

In order to resolve the issues presented by this appeal,

it is helpful to discuss briefly several broad questions

before focusing our analysis on the case at hand. Since

this appeal concerns a false light invasion of privacy

claim, we examine first that tort’s elements and defenses,

particularly focusing upon whether truth is a defense to a

false light claim. Second, we discuss whether—if truth is

such a defense—the false light privacy tort has been

swallowed-up by and is now synonymous with defama-

tion leaving behind no distinctive identity of its own.

A. Common Law Approach to Privacy

Invasion of privacy was first discussed by American

legal scholars 96 years ago when two distinguished Bos-

tonians authored an article that recognized as an action-

able tort the invasion of a person’s privacy. Warren &

Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193

(1890). Rumored to be inspired by Warren’s indignant

reaction to a gossip column reporting on a family mem-

ber’s wedding breakfast, this influential article has left a

permanent imprint on our tort law jurisprudence. See

Zimmerman, Requiem For a Heavyweight: A Farewell to

Warren and Brandeis’s Privacy Tort, 68 Cornell L. Rev.

291, 295-96 (1983). Seventy years later Dean Prosser

surveyed the impact of the new “right to privacy” tort on

the law and found that it had been accepted by the

overwhelming majority of American courts. Most signifi-

cant was his conclusion that the invasion of privacy did

not give rise to a single tort claim, but rather made

actionable the invasion of four distinct privacy interests,

which he described as: (1) intrusion upon solitude; (2)

A-16

public disclosure of embarrassing facts; (3) publicly cast-

ing plaintiff in a false light; and (4) appropriation of

plaintiff’s name or likeness. Prosser, Privacy, 48 Calif. L.

Rev. 383, 389 (1960).

Because Warren and Brandeis were primarily concerned

that the press was “overstepping in every direction the

obvious bounds of propriety and decency” and publishing

“column upon column [that] is filled with idle gossip,

which can only be procured by intrusion upon the domes-

tic circle,” Warren & Brandeis, supra, at 196, it is clear

that the generalized right to privacy they had formu-

lated—without defining it—conforms to the second cate-

gory identified by Dean Prosser, that is to say, the public

disclosure of private facts. Zimmerman, supra, at 295.

Warren and Brandeis concluded that the truth of the

matter published does not afford a defense. “Obviously

this branch of the law should have no concerns with the

truth or falsehood of the matters published.” Warren &

Brandeis, supra, at 218. This statement, of course, had

application only to the tort that the authors intended to

remedy. Thus, as conceived, this second type of invasion

of privacy—the public disclosure of private facts—did

not require falsity to state a cause of action. Prosser, Law

of Torts 814 (4th ed. 1971).

Yet, in Dean Prosser’s third category—false light, with

which we are here concerned—a different rule has

evolved in the common law. To establish a false light

cause of action the published matter must be false—and,

in addition, it must be highly offensive to a reasonable

person.

The first requirement is that the published material

contain a false portrayal. The very name of this tort,

ee nT Pee ete

Aas, ht aS AOLU NATED

BAL ee eee Mads eet cant

A-17

“false light”, indicates that something false must be

demonstrated, and the commentators agree that falsity

must be shown to state a false light cause of action.

* Prosser, On Torts, supra, at 814; Restatement (Second) of

Torts § 652E comment b (1977). For 150 years the com-

mon law of England recognized the tort of false light

invasion of a person’s privacy and required a showing of

falsity before an injunction would issue. In Byron v.

Johnston, 35 Eng. Rep. 851 (1816), a publisher advertised

for sale certain poems that he represented as being the

work of the famous English poet, Lord Byron who, as

plaintiff, succeeded in obtaining an injunction restraining

their publication because the poems were falsely held out

to be his works. Moreover, we recently held that “[iJn a

false light case . . . the gravamen of the tort is falsity

. . .” Lerman v. Flynt Distributing Co., Inc., 745 F.2d

123, 135 (2d Cir. 1984), cert. denied, 105 S. Ct. 2114

(1985). 7

It follows logically that if falsity is required to state a

false light claim, truth must be a defense. It is at this

pivotal juncture that a false light claim parts from the

other three invasions of an individual’s right to privacy—

intrusion, public exposure of private facts and appropria-

tion—and moves closer to the common law tort of

defamation. Warren and Brandeis themselves recognized

that the “right to privacy does not prohibit the communi-

cation of any matter, though in its nature private, when

the publication is made under circumstances which would

render it a privileged communication according to the law

of slander and libel. Warren & Brandeis, supra, at 216.

Truth is now considered one of those privileges. Prosser,

On Torts, supra, at 814. In consequence, truth—as it is in

defamation—is a complete defense to a false light inva-

A-18

sion of privacy cause of action. See Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 499 (1975) (Powell, J.,

concurring).

B. New Jersey’s Falsity Requirement

New Jersey has adopted the common law approach set

forth in the Restatement (Second) of Torts, § 652E which

requires falsity to sustain a cause of action for false light

invasion of privacy. Cibenko v. Worth Publishers, Inc.,

510 F. Supp. 761, 766 (D. N.J. 1981) (applying New

Jersey law); Bisbee v. John C. Conover Agency Inc., 186

N.J. Super. 335, 341-42, 452 A.2d 689, 692 (App. Div.

1982). Section 652E of the Restatement provides:

One who gives publicity to a matter concerning

another that places the other before the public in a

. false light is subject to liability to the other for

invasion of his privacy, if

(a) the false light in which the other was placed

would be highly offensive to a reasonable person,

and

(b) the actor had knowledge of or acted in reckless

disregard as to the falsity of the publicized matter

and the false light in which the other would be

placed. (emphasis added).

For liability to attach under Section 652E the published

matter must be false, though not necessarily defamatory.

Cibenko, 510 F. Supp. at 766; accord Rinsley v. Brandt,

700 F.2d 1304, 1307 (10th Cir. 1983). Comment A to

§ 652E states, “[I]t is essential to the rules stated in this

Section that the matter published concerning the plaintiff

is not true.” See Bisbee, 186 N.J. Super. at 342, 452 A.2d

at 692 (“This tort form of invasion of privacy is analo-

Br ath aa: er alla ect:

A-19

gous to defamation, in that the statement which gives rise

to the cause of action must be untrue.”); Cibenko, 510 F.

Supp. at 766.

C. First Amendment Limitations on False Light Claims

1. Such Claims Require Falsity and Requisite Fault

In order for a plaintiff to succeed on a false light claim

without unduly impinging on the First Amendment

guarantees of freedom of the press, falsity and the requi-

site level of fault must be demonstrated. In Time, Inc. v.

Hill, 385 U.S. at 374, the Supreme Court considered a

false light invasion of privacy action involving a New

York statute which provided a cause of action to a person

whose name or picture was used by another without

consent for purposes of trade or advertising. It ruled that

“the constitutional protections for speech and press pre-

clude the application of the New York statute to redress

false reports of matters of public interest in the absence

of proof that the defendant published the report with

knowledge of its falsity or in reckless disregard of the

truth.” Jd. at 387-88 (emphasis added). Because the New

York courts had construed the relevant statute to allow

truth as a complete defense when the publication involved

a matter of public interest, the Court did not address

whether the First Amendment would be violated if truth

were not a defense to this kind of privacy claim. 7d. at

383-84. Yet, because the fault standard devised by the

Court requires knowledge of or reckless disregard of

falsity, the logic seems inescapable that the First Amend-

ment also requires a plaintiff to prove falsity.

Again, in Cantrell v. Forest City Publishing Co., 419

U.S. 245, 248 (1974), the Court addressed a false light

A-20

claim in which it was conceded that the offending news-

paper article contained a number of false statements and

inaccuracies. It stated that the subject article contained

“ ‘calculated falsehoods,’ and the jury was plainly justi-

fied in finding that [a news reporter] had portrayed the

Cantrells in a false light through knowing or reckless

untruth.” Jd. at 253 (emphasis added). In Gertz v. Robert

Welch, Inc., 418 U.S. 323, 347 (1974), it was held that

when the plaintiff is a private individual the states could

define for themselves the appropriate standard of liability

for a publisher of defamatory falsehoods, so long as the

states did not impose liability without fault. Gertz raised

without deciding whether in subsequent cases an actual

malice or a negligence standard should be applied in a

false light action commenced by a private individual

against a media defendant. As in Cantrell, the jury here

found that the more stringent actual malice standard had

been satisfied. We need not decide this issue because, as

will be shown, there was no evidence on which a reason-

able jury could find that the broadcast portrayed the

plaintiff in a false light. It may be tnat in future privacy

cases courts will apply the less stringent “negligence”

standard used in defamation cases brought by private

figures. See Hill, Defamation and Privacy Under the First

Amendment, 76 Colum. L. Rev. 1205, 1274 (1976).

Regardless of the particular fault standard to be ap-

plied, it is clear that when publishing or broadcasting a>

newsworthy matter of public interest a media defendant

may not be held liable for the tort of false light invasion

of a person’s privacy without proof of falsity and some

level of fault. Cf. Philadelphia Newspapers, Inc. v.

Hepps, _._. U.S. ___, 54 U.S.L.W. 4373 (April 21,

1986) (First Amendment requires a plaintiff to prove

A-21

falsity in defamation cases. Falsity may never be pre-

sumed nor may defendant be required to prove truth.).

2. Falsity Requirement Safeguards Editorial Freedom

It is a truism that effective news reporting involves

editing and that the editing process obviously entails

professional judgment. In this process material that is

flattering or critical of a particular person may be in-

cluded or eliminated. In Pittsburgh Press Co. v. Human

Rel. Comm’n., 413 U.S. 376 (1973), the Supreme

Court—approving a bar against employment advertising

specifying “male” or “female”’—emphasized the impor-

tance of independent editorial judgment. It prohibited

“any restriction whatever, whether of context or layout,

On stories Or commentary originated by [the newspaper],

its columnists, or its contributors.” The Court reaffirmed

“unequivocally the protection afforded to editorial judg-

ment and to the free expression of views on these and

other issues, however controversial.” Jd. at 391.

Irving Machleder asserts that CBS deliberately created

a false light portrayal of him in order to sensationalize an

“otherwise uneventful story.” He argues that, in fur-

therance of this goal, CBS selectively chose those parts of

the interview that tended to portray him as intemperate

and evasive or as an illegal dumper, and excised those

portions that would explain his behavior. For example,

Machleder pointed out that CBS cut from the news report

his statement, “I don’t want to be on television, I’m

sorry, I’m sorry,” preferring the subsequent more hostile

and incriminating statement, “Get that damn camera out

of here.” He maintains that had the broadcast included

the earlier statement, the viewing audience would have

understood the later statement to be the result of intimi-

A-22

dation and pressure rather than an implied admission of

guilt.

Although plaintiff’s argument has superficial merit,

recovery for a false light tort may not be predicated on a

~ rule that holds a media defendant liable for broadcasting

truthful statements and actions because it failed to in-

clude additional facts which might have cast the plaintiff

in a more favorable or balanced light. To permit recovery

in such circumstances violates the First Amendment since

“[t]he choice of material to go into a newspaper, and the

decisions made as to limitations on the size and content of

the paper, and treatment of public issues and public

officials—whether fair or unfair—constitute the exercise

of editorial control and judgment.” Miami Herald Pub-

lishing Co. v. Tornillo, 418 U.S. 241, 258 (1974); see

Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975);

Goodrich v. Waterbury Republican-American, Inc., 188

Conn. 107, 132, 448 A.2d 1317, 1331 (1982). (“As long as

the matter published is sub ‘antially true, the defendant

was conditionally protected from liability for a false light

invasion of privacy, regardless of its decision to omit facts

that may place the plaintiff under less harsh public

scrutiny.”).

In Miami Herald, the Court examined whether a

Florida statute requiring newspapers to grant political

candidates equal access to reply to criticism violated the

First Amendment. A candidate for the Florida House of

Representatives demanded that the Miami Herald print

verbatim his replies to two editorials critical of his candi-

dacy. Upon the newspaper’s refusal, the candidate

brought suit under the Florida statute. The issue was

framed in terms of “[c]ompelling editors or publishers to

publish that which ‘reason’ tells them should not be

A-23

published ....” Jd. at 256. Acknowledging that a

“responsible press is an undoubtedly desirable goal,” id.,

the Supreme Court ruled that “the Florida statute fails to

clear the barriers of the First Amendment because of its

intrusion into the function of editors.” Jd. at 258.

A court cannot substitute its judgment for that of the

press by requiring the press to present an article or

broadcast in what the court believes is a balanced manner.

It may only assess liability when the press so oversteps its

editorial freedom that it contains falsity and does so with

the requisite degree of fault.

3. False Light and Defamation are Separate Torts

Having established that principle, we turn to examine

whether any vitality remains in the false light privacy tort

when injury to reputation is at stake. Because both the

defamation and false light privacy torts share the com-

mon elements of publication and falsity, a good deal of

overlapping exists between them. But important distinc-

tions remain so that the answer to the question of whether

the older tort claim has swallowed whole the newer is

“no”. Yet, in many cases a successful false light claim

might also give rise to liability for defamation. For

example, while a false light claim may be defamatory, it

need not be. Cibenko, 510 F. Supp. at 766; Fogel v.

Forbes, Inc., 500 F. Supp. 1081, 1088 (E.D. Pa. 1980);

Wade, Defamation and the Right of Privacy, 15 Vand. L.

Rev. 1093, 1107-08 (1962). Further, false light law makes

no distinction between oral or written words as defama-

tion does. Nor is there a distinction in privacy invasion

false light cases between slander per se and slander

requiring proof of special damages. Wade, supra, at

1111-12. In addition to these substantive distinctions,

A-24

there are procedural differences. For instance, the burden

of proof in a defamation case is preponderance of the

evidence, while in false light litigation it takes clear and

convincing evidence to establish the claim.

IV FALSE LIGHT CLAIM IN THIS CASE

A. Jury Instructions

With the above principles in mind we turn to the facts

of this case. The first issue to be addressed is whether the

news account giving rise to the claim was false. In order

to answer this question, we begin by examining the trial

court’s charge to the jury on defamation and false light,

and then scrutinizing the jury verdict sheet.

Irving Machleder alleges that CBS’s broadcast was

defamatory—depicting him and Flexcraft as being re-

sponsible for the illegal dumping. Machleder asserts that

the news report did this by certain false statements, such

as identifying the dump site as “527 Avenue P,” which is

Flexcraft’s address, and by presenting the information in

a manner that would cause a reasonable person to infer—

considering the broadcast as a whole—that plaintiffs

dumped the hazardous chemical drums on the overgrown

adjacent site.

With respect to plaintiff’s defamation claim, the dis-

trict court judge charged the jury:

For you to award either Irving Machleder or Flex-

craft Industries your verdict, you must find that (1)

the defendants broadcast a statement of fact that the

average viewer would reasonably understand as a

defamatory statement about plaintiffs Irving Mach-

leder and/or Flexcraft Industries; (2) that the state-

A-25

ment of fact concerning Irving Machleder and/or

Flexcraft Industries was substantially false. . . false

in some material respect; and (3) that the report was

broadcast with the requisite degree of fault [negli-

gence]... .

On its verdict sheet the jury found that though the CBS

broadcast contained defamatory statements of fact con-

cerning Irving Machleder, he failed to prove that any of

the defamatory statements was substantially false. Based

on this finding the district court properly dismissed plain-

tiff’s defamation claim.

In the second count of his complaint Machleder alleges

that the May 22, 1979 broadcast cast him in a false light

by portraying him as being “intemperate and evasive” or

as an illegal dumper of chemical wastes. The district court

instructed the jury:

For you to find for plaintiff Machleder on his false

light claim, plaintiff must first establish that the

broadcast, viewed as a whole, portrayed him as

intemperate and evasive or as an illegal dumper of

chemical wastes; and, second, that those portrayals

would be highly offensive to a reasonable person.

The court went on to explain that if these two preliminary

requirements were met, plaintiff then must establish that

such portrayal or portrayals was substantially false.

Finally, in order for Machleder to succeed, the court

instructed the jury that he must prove by clear and

convincing evidence that CBS broadcast the story with

actual malice.

The district court charged the jury that “if you find the

broadcast portrayed only what was substantially accurate,

A-26

the fact that such substantially accurate statements of fact

may have embarrassed plaintiff Machleder is not a basis

for a verdict for plaintiff Machleder on his ‘false light’

claim.” An examination of the jury verdict sheet’ reveals

a seeming inconsistency. Specifically, the jury found on

the false

light claim that the plaintiff proved by clear and

convincing evidence that he was portrayed in a false light

by the broadcast and that the defendants knew that the

l A comparison of jury findings on the defamation claim with its

findings on the false light claim reveals this.

aE.

12.

13.

Findings on Libel Claim

. Do you find that plaintiff Irving Machleder has proved by a

preponderance of the evidence that the May 22, 1979 broadcast

would be understood by the average viewer to contain defama-

tory statements of fact concerning plaintiff Machleder? Yes.

Do you find that plaintiff Irving Machleder has proved by a

preponderance of the evidence that any defamatory statements

of-fact concerning him in the May 22, 1979 broadcast were

substantially false? No.

. Do you find that plaintiff Flexcraft Industries, Inc. has proved

by a preponderance of the evidence that the May 22, 1979

broadcast would be understood by the average viewer to contain

defamatory statements of fact concerning plaintiff Flex-

craft? Yes.

. Do you find that plaintiff Flexcraft Industries has proved by a

preponderance of the evidence that any defamatory statements

of fact concerning the company in the May 22, 1979 broadcast

were substantially false? No.

Findings on False Light Claim

Do you find that plaintiff Irving Machleder has proved by clear

and convincing evidence that he was portrayed in a false light

by the May 22, 1979 broadcast? Yes.

Do you find that plaintiff Irving Machleder has proved by clear

and convincing evidence that such false light portrayal would

be highly offensive to persons of ordinary sensibilities? Yes.

Do you find that plaintiff Irving Machleder has proved by clear

and convincing evidence that defendants Arnold Diaz and CBS,

Inc. knew that the May 22, 1979 broadcast portraved plaintiff

Machleder in a false light highly offensive to persons of

ordinary sensibilities or had reckless disregard as to the truth of

the portrayal? Yes.

A-27

broadcast portrayed him in a false light or had reckless

disregard as to the truth of the portrayal. These findings

are apparently irreconcilable with the jury’s findings on

the defamation claim that the defamatory statements of

fact were not substantially false. A broadcast cannot cast

the plaintiff in a false light unless it is substantially false.

See Lerman v. Flynt Distributing Co., Inc., 745 F.2d at

135. The role of the appellate court is to adopt a view of

the case—if there is one—that resolves any seeming in-

consistency in the jury’s verdict. See Atlantic & Gulf

Stevedores, Inc. v. Ellerman Lines Ltd., 369 U.S. 355,

364 (1962); Martell v. Boardwalk Enterprises, Inc., 748

F.2d 740, 748 (2d Cir. 1984).

There is one theory for reconciling the jury’s verdict as

to the false light claim and the libel claim. In support of

his false light claim, the plaintiff alleged that the broad-

cast portrayed him as intemperate and evasive or as an

illegal dumper. In contrast, his defamation claim was

based on the allegation that he was portrayed as an illegal

dumper. Thus, the jury could have found that the plain-

tiff was an illegal dumper, but was not, as portrayed,

intemperate and evasive.

In reviewing the denial of plaintiff’s motion for judg-

ment notwithstanding the verdict, we must view the

evidence in the light most favorable to the plaintiff to

determine whether the evidence was sufficient to allow a

reasonable juror to conclude that there was falsity in the

portrayal of the plaintiff as intemperate and evasive. See

Schwimmer v. Sony Corp. of America, 677 F.2d 946,

951-52 (2d Cir.), cert. denied, 459 U.S. 1007 (1982).

Here we find that the evidence was insufficient. Any

portrayal of plaintiff as intemperate and evasive could

A-28

not be false since it was based on his own conduct which

was accurately captured by the cameras. Further, the only

evidence on plaintiff's temperment came from a business

associate who, though he had done business with the

plaintiff, saw Machleder only for 15 minutes every three

months. This was clearly insufficient evidence to establish

that the film showing plaintiff’s actions depicted him in a

false light. Since proof of falsity was required, and the

film footage (virtually unedited except for omission from

the interview of plaintiff’s statement, “I don’t want to be

on television, I’m sorry, I’m sorry,” according to CBS’s

uncontroverted allegation) was accurate, the false light

claim must fail.

B. Highly Offenive Standard

Having found that the district court erred in not grant-

ing defendant’s judgment notwithstanding the verdict, we

discuss briefly whether the published matter was highly

offensive to a reasonable person, merely to indicate that a

portrayal of this type—even had it been false—would not

give rise to liability on a false light claim.

Comment C to the Restatement of Torts § 652E makes

clear that “[i]Jt is only when there is such a major

misrepresentation of his character, history, activities or

beliefs that serious offense may reasonably be expected to

be taken by a reasonable man in his position, that there is

a cause of action for invasion of privacy.” See Devlin v.

Greiner, 147 N.J. Super. 446, 462, 371 A.2d 380, 390

(Law Div. 1977); Prosser, Privacy, supra, at 396-97.

We hold hat the district court that ruled on the

motions erred in concluding that the “alleged portrayal of

Machleder as intemperate and evasive in response to

; A-29

Diaz’s questions [could not] be deemed inoffensive as a

matter of law,” Machleder v. Diaz, 538 F. Supp. at 1375,

and in denying summary judgment on the false light claim

on that basis. By the same token, the trial court erred in

denying CBS’ motions for a directed verdict and judg-

ment notwithstanding the verdict since no reasonable

juror could have concluded that the alleged portrayal was

“nighly offensive. Under New Jersey law a court may

determine as a matter of law that a publication is “not

reasonably capable of conveying the offensive meaning or

the innuendo ascribed by plaintiff as the basis for his

invasion of privacy claim.” Cibenko, 510 F. Supp. at 767;

Bisbee, 186 N.J. Super. 335, 342, 452 A.2d at 692.

In order to avoid a head-on collision with First Amend-

ment rights, courts have narrowly construed the highly

offensive standard. A brief review of several cases illus-

trates that the alleged portrayal of Irving Machleder as

intemperate and evasive fails to meet such standard.

Those decisions that have found false light portrayals

offensive to a reasonable person are considerably more

insulting than CBS’s portrayal of Irving Machleder. Can-

trell, 419 U.S. at 247-48 (false portrayal of private indi-

vidual and her family as destitute exposed them to

ridicule and pity); Time, Inc. v. Hill, 385 U.S. at 378

(false portrayal of family held hostage, depicting violence

and verbal sexual insult); Dougiass v. Hustler Magazine,

Inc., 769 F.2d 1128 (7th Cir. 1985) (unauthorized use of

model’s nude photograph in Hustler Magazine falsely

portrayed her as a iesbian and willing to be associated

with Hustler magazine). Again, courts have declined to

recognize portrayals as highly offensive in cases more

egregious than Machleder’s. See Virgil v. Sports Illus-

trated, 424 F. Supp. 1286, 1289 (S.D. Cal. 1976) (article

A-30

reporting plaintiff’s exploits, including putting out ciga-

rettes in his mouth, diving off stairs to impress women,

hurting himself in order to qualify for unemployment

insurance so as to have time for body surfing, and

' participating in gang fights and eating insects was not

offensive enough to preclude being considered news-

worthy); Arrington v. NY Times Co., 55 N.Y.2d 433,

441-42, 449 N.Y.S.2d 941 (1982) (even if New York were

to recognize a false light claim, unauthorized use of

private individual’s photograph to illustrate “ ‘materialis-

tic, status-conscious’” black middle class, does not

measure up to the highly offensive standard).

V CROSS APPEALS

Machleder cross-appeals from the district court’s dis-

missal of his invasion of privacy claim on the theory of

improper publicity given to private facts and Flexcraft

cross-appeals the dismissal! of its trespass claszm. Both of

these appeals are without merit. We examine the publica-

tion of private facts claim first.

The definition of this theory of liability for invasion of

privacy is set forth in the Restatement (Second) of Torts

§ 652D.

One who gives publicity to a matter concerning the

private life of another is subject to liability to the

other for invasion of his privacy, if the matter publi-

cized is of a kind that (a) would be highly offensive

to a reasonable person, and (b) is not of legitimate

concern to the public.

The district court dismissed this claim because the en-

counter between Diaz and Machleder “took place in a

A-31

semi-public area while plaintiff knew the cameras were

rolling. Defendant is subject to no liability for giving

further publicity to that which plaintiff leaves open to the

public eye.” Machleder v. Diaz, 538 F. Supp. at 1374

(citing Restatement (Second) Torts, § 652D, Comment b).

Thus, for this reason, and because the published matter

was not highly offensive, this claim was properly dis-

missed.

Second, plaintiffs assert that the district court erred

when it granted summary judgment dismissing the tres-

pass claim. Diaz and the camera crew entered the Flex-

craft premises peacefully; there were no signs warning

them to keep off the property. Neither of the Machleders

asked Diaz and his crew to leave. See Martin v. Struthers,

319 U.S. 141, 147 (1943) (“Traditionally the American

law punishes persons who enter onto the property of

another after having been warned by the owner to keep

off”); Cooley, On Torts, § 248 at 239 (one may visit

another’s place of business without incurring liability,

unless he is warned away by placard or otherwise.);

Snyder v. I. Jay Realty Co., 30 N.J. 303, 153 A.2d 1

(1959) (guests of factory employees were not trespassers

where factory owner had not posted sign).

When Diaz met Bruce Machleder at the side door of the

Flexcraft plant, Machleder told him to go around to the

front office. This express invitation to come on to the

property converted Diaz’ status to that of invitee. Even if

only a licensee, Diaz was certainly not a trespasser.

Restatement (Second) of Torts § 332, comment b. AIl-

though Irving Machleder expressed anger at being filmed

and questioned, this did not negate consent. Hence, the

district court correctly dismissed the trespass claim.

A-32

VI CONCLUSION

Because the jury found in plaintiff’s libel action that

the defamatory statements, i.e., of illegal dumping, were

not substantially false, the illegal dumping portrayal will

not support a false light verdict. As a matter of law, we

conclude that the portrayal of Irving Machleder as intem-

perate and evasive is not false and is not highly offensive

to a reasonable person. Thus, on either ground a finding

of liability for false light invasion of privacy must be

reversed and the action dismissed. Reversing the false

light verdict also makes unnecessary an examination of

defendant’s other related challenges.

The judgment of the district court awarding compensa-

tory and punitive damages for a false light invasion of

privacy is reversed and plaintiff’s complaint dismissed.

The dismissal by the district court of the causes of action

for improper publicity given to private facts and for

trespass is affirmed.

APPENDIX B

B-1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

79 Civ. 4373 (PKL)

IRVING MACHLEDER and

FLEXCRAFT INDUSTRIES, INC.,

Plaintiffs,

— against —

ARNOLD D1az, CBS INc., WCBS-TV,

ANN SORKOWITZ, FRANK PIVALO,

THOMAS GALLAGHER and Dennis P. Coyne,

Defendants.

DECISION

LEISURE, District Judge:

The complaint in this diversity action asserted claims for com-

pensatory and punitive damages for libel, slander, invasion of

privacy, trespass and assault and battery. The claims arose out of

the May 22, 1979 broadcast by WCBS-TV of a report about the

dumping of chemical wastes on a certain lot adjacent to Avenue P

in Newark, New Jersey. The report was prepared by Arnold Diaz,

the station’s New Jersey reporter.

Applying New Jersey law, Judge Duffy dismissed two of the

three invasion of privacy claims and the trespass clain. upon de-

fendants’ summary judgment motion. Machleder v. Diaz, 538 F.

Supp. 1364 (S.D.N.Y. 1982). Pursuant to defendants’ application,

the trial of this case was bifurcated between the issues of liability

and damages. After the close of evidence on the liability issues, the

Court granted defendants’ motion to dismiss the assault and battery

claims pursuant to Fed. R. Civ. P. 50(a). Following the completion

of the trial on both the liability and damages issues, the jury re-

turned a verdict in favor of all defendants on the libel and slander

claims but with respect to plaintiff Irving Machleder’s false light in-

vasion of privacy claim, it awarded him $250,000 in compensatory

damages and $1,000,000 in punitive damages against defendant

CBS, Inc. (“CBS”) only.

CBS has now moved for an order granting judgment not-

withstanding the verdict under Fed. R. Civ. P. 50(b), or in the

alternative, an order granting a new trial under Rule 59(b). Plain-

tiffs have cross-moved under Fed. R. Civ. P. 11, 16(f), 26(g),

37(b)(2)(D) and 56(g) for an order imposing sanctions and

reasonable costs and attorney’s fees against CBS and its counsel in

connection with the discovery of the videotape of the on-air broad-

cast of the May 22, 1979 report, and the affidavit signed by Mr.

Diaz and submitted to the Court in connection with defendants’

summary judgment motion.

Defendant’s P ‘st-Trial Motions

Six of the arguments raised by CBS in support of its post-trial

motions were the basi: for objections raised unsuccessfully at

B-3

trial.' The six arguments, summarized in the margin, are hereby

denied for the reasons previously stated by the Court on the record

during the trial, with the exception of the argument that plaintiff

can recover punitive damages only if he proves common law

malice. That subject is treated more fully below.

The thrust of CBS’s post-trial motions is directed to the jury’s

damage awards. CBS alleges that these awards have no foundation

in the law or under the facts of this case. More specifically, CBS

argues that there was insufficient evidence from which the jury

‘In addition to preserving objections previously made as to evidence which it

contends was admitted incorrectly and the sufficiency of proof offered at trial,

as well as objections tu portions of the Court’s jury instructions, CBS reiterated

the following specific arguments:

1. The admission into evidence of a redacted transcript of “Watch-

ing the Watchdog” was erroneous and rendered the trial funda-

mentally unfair.

2. The jury's finding of no falsity with respect to plaintiffs’ libel clai:n

renders the proof of Mr. Machleder’s false light invasion of privacy

claim insufficient as a matter of law.

3. The lack of falsity in the broadcast renders Mr. Machleder’s false

light invasion of privacy claim insufficient as a matter of law.

4. Mr. Machleder’s proof under his false light invasion of privacy

claim falls below that required to establish New: York Times actual

malice.

5. Mr. Machleder’s punitive damages claim should not have been

submitted to the jury because there was no proof supporting a find-

ing of common law malice.

6. The Court’s failure to instruct the jury that there is no right to

avoid being filmed or appearing on television was prejudicial to CBS

in light of the manner in which plaintiffs’ presented their case at

trial.

Memorandum of Law in Support of Post- Verdict Motions by Defendant CBS

Inc., at 1-3.

B-4

could determine that Mr. Machleder suffered actual injury as a

result of the May 22, 1979 broadcast. Next, assuming that plaintiff

Machleder’ proved actual injury, CBS contends that the amount

of the award is excessive. Finally, CBS argues that the punitive

damages award is unsupported by the record and is grossly

excessive.

Compensatory Damages

The standard for determining whether to grant a motion for

judgment notwithstanding the verdict was set forth by the Second

Circuit in Mattivi v. South African Marine Corp., “Huguenot”, 618

F.2d 163 (2d Cir. 1980).

[T]he trial court should grant a judgment n.o.v. only

when (1) there is such a complete absence of evidence

supporting the verdict that the jury’s findings could only

have been the result of sheer surmise and conjecture, or

(2) there is such an overwhelming amount of evidence in

favor of the movant that reasonable and fair minded

men could not arrive at a verdict against him.

Id. at 168. See also Ebker v. Tan Jay International, Ltd. , 739 F.2d

812, 825 (2d Cir. 1984).

In cases such as this where First Amendment considerations

apply, the Supreme Court requires that “compensatory awards ‘be

supported by competent evidence concerning the injury.’ ” Time,

Inc. v. Firestone, 424 U.S. 448, 459, 96S.Ct. 958, 968, 47 L.Ed 2d

154 (1976) quoting Gertz v. Robert Welch, Inc. , 418 U.S. 323, 350,

94 S.Ct. 2997, 3012, 41 L.Ed. 2d 789 (1974). Under New Jersey

law, a plaintiff may recover compensatory damages “if he has met

his burden of proving that he has suffered some loss or injury and

if he has given the jury some information from which to estimate

the amount of damages... . ” Nappe v. Anschelewitz, Barr,

Ansell & Bonello, 97 N.J. 37, 477 A.2d 1224, 1226 n.1 (1984).

* For the sake of convenience, Mr. Machleder is hereinafter referred to as

“plaintiff,” in the singular.

B-5

The false light invasion of privacy tort “is designed to compen-

sate for falsehoods that injure feelings rather than reputation.”

Sack, Libel, Slander and Related Problems, 393 (1980). “The in-

jury is mental and subjective. It impairs the mental peace and com-

fort of the person and may cause suffering much more acute that

that caused by bodily injury.” Clark v. Celeb Publishing, Inc. , 530

F. Supp. 979, 983 (S.D.N.Y. 1981) (California law) (quotation

omitted).

CBS argues that the trial transcript is devoid of evidence sup-

porting the jury’s compensatory damage award. After describing

encounters with five people who told him that they had seen the

broadcast, the following question was asked of Mr. Machleder and

he gave the following answer:

Q: How did you feel when these people mentioned the

broadcast to you?

A: Terribly embarrassed, terribly hurt.

Trial Transcript at 1131-32. CBS contends that this testimony con-

stitutes the only evidence presented by plaintiff which describes the

mental anguish he suffered as a result of the broadcast and does not

amount to adequate proof of injury to feelings. See, e.g., Lerman

v. Flynt Distributing Co. , 745 F.2d 123, 141 (2d Cir. 1984), cert.

denied, ___ U.S. ___., 105 S.Ct. 2114, 85 L.Ed. 2d 479 (1985);

Reveley v. Berg Publications, Inc., 601 F. Supp. 44, 46 (W.D. Tex.

1984); Nekolny v. Painter, 653 F.2d 1164, 1172-73 (7th Cir. 1981),

cert. denied, 455 U.S. 1021, 102 S. Ct. 1719, 72 L.Ed. 2d 139

(1982); Nellis v. Miller, 101 A.D.2d 1002, 477 N.Y.S.2d 72, 73 (4th

Dep't), appeal dismissed, 63 N.Y.2d 952 (1984). In other words,

CBS contends that plaintiff has offered no evidence of the nature,

duration or seriousness of his mental anguish nor what effect, if

any, the broadcast had on the quality of his life. See, Bullard v.

Central Vermont Ry., 565 F.2d 193, 197 (1st Cir. 1977). Conse-

quently, the compensatory award must have been based on “con-

jecture, speculation, surmise or guess.” Knapp v. Phillips Petroleum

Co., 123N.J. Super. 26, 31, 301 A.2d 451, 453 (App. Div.), certif.

denied, 63 N.J. 503, 308 A.2d 668 (1973).

B-6

The argument that the exchange quoted above is the only

evidence of plaintiff's hurt feelings is misleading. CBS ignores plain-

tiffs testimony about his apprehension that the broadcast would

portray him as an illegal dumper, his frantic efforts to prevent the

New Jersey footage from being broadcast and his concern that the

story would damage the careers of his sons who worked in the

chemical industry. In addition, it is self-evident from a viewing of

the broadcast tape itself that Mr. Machleder was very upset at even

the suggestion that he was somehow responsible for the barrels

strewn about the lot next to the Flexcraft Industries, Inc. factory.

Further, the CBS legal counsel who spoke to Mr. Machleder when

plaintiff asked that the report not be broadcast testified that plain-

tiff was “rather agitated” at that time. While it is true that some of

this testimony related to events which occurred before the report

was broadcast, there is no evidence in the record to indicate that

Mr. Machleder’s mental state improved after the broadcast. In-

deed, it is a fair inference that his fears, apprehension and anguish

intensified once people started telling him that they had seen the

report, as reflected in his testimony at trial.

More important, however, CBS has ignored the demeanor

aspect of Mr. Machleder’s testimony. The testimony that is coldly

recorded in the trial transcript is stripped of the dramatic emotional

manner in which it was delivered. Plaintiff's testimony was

emotion-filled and more than once his voice wavered and he broke

into tears. This aspect of his testimony undoubtedly impressed the

jury and certainly impressed the Court that defendant’s broadcast

had had a genuine and profound impact on Mr. Machleder’s men-

tal condition. The fact that his torment has persisted over the in-

tervening six years is evidence of the depth and scope of his hurt

feelings.

CBS has cited several cases for the proposition that substantial

compensatory awards for mental distress are improper where the

only evidence is subjective. This argument is unavailing, not only

because there was objective evidence to prove plaintiff's injuries,

but plaintiff's conduct was competent evidence to prove such

damage. “Although essentially subjective, genuine injury in this

respect may be evidenced by one’s conduct and observed by others.”

Carey v. Piphus, 435 U.S. 247, 264 n.20, 98 S.Ct. 1042, 1052 n.20,

B-7

55 L.Ed. 2d 252 (1978). The jury’s ability “to hear and see the

witnesses and to have the ‘feel’ of the case” is a significant factor for

the Court to consider on this motion. Cf. State v. Johnson, 42N.]J.

146, 199 A.2d 809, 817 (1964). In addition, evidence that plaintiff

had anxiety over the effect the broadcast might have on his sons is

“competent evidence . . . to permit the jury to assess the amount

of injury.” Time, Inc. v. Firestone, 424 U.S. 448, 460-61, 96 S.Ct.

958, 968-69, 47 L.Ed. 2d 154 (1976) (plaintiff testified that she

feared her son would be adversely affected by the story). Moreover,

medical evidence is not required to demonstrate mental anguish

sufficient to permit the recovery of damages. Cf. Wiskotoni v.

Michigan National Bank- West, 716 F.2d 378, 389 (6th Cir. 1983);

Burnett ov. National Enquirer, Inc., 7 Media L. Rep. (BNA) 1321,

1323 (Cal. Super. 1981), aff'd in relevant part, 144 Cal.App.3d

991, 193 Cal. Rptr. 206 (1983), appeal dismissed, ___ U.S. ___.,

104 S. Ct. 1260, 79 L.Ed. 2d 668 (1984).

CBS has failed to demonstrate that the jury’s verdict could on-

ly have been the result of “sheer surmise and conjecture” or that

there was such overwhelming evidence in favor of CBS that

reasonable men could not arrive at a verdict against CBS. Mattivi,

618 F.2d at 168. Defendant’s motion to set aside the verdict or for

a new trial on the basis that plaintiff failed to prove that he suffered

actual injury is denied.

CBS argues next that, even assuming plaintiff has proved an ac-

tual injury, the jury’s compensatory award was grossly excessive.

On such a motion, the Court should not disturb the jury’s damages

verdict unless there is reason to believe the verdict was the result of

passion, bias or prejudice or that it is so excessive or shocking to the

court's conscience “that it would be a denial of justice to permit it

to stand.” Mileski v. Long Island Railroad Co., 499 F.2d 1169, 1173

(2d Cir. 1974); Morgan v. Consolidated Rail Corp., 509 F. Supp.

281, 286 (S.D.N.Y. 1980); Bevevino v. Saydjari, 76 F.R.D. 88,

94-95 (S.D.N.Y. 1977), aff'd, 574 F.2d 676 (2d Cir. 1978).

The first criterion is not met here. There is no indication the jury

acted out of prejudice or passion. First, the trial was bifurcated so

the jury would deliberate on the issues of liability and damages

separately. The jury deliberated three days on the liability issues

and devoted an additional half-day to the damages deliberations.

B-8

It requested and received copies of selected portions of the trial

transcript and received a copy of the Court’s instructions on liability

and damages. The jury rejected two of the theories of liability al-

leged by plaintiffs. The jury’s conduct in this regard demonstrates

that it carefully and deliberately followed the Court’s instructions

and was not influenced by passion or prejudice. Porss v. Maritime

Overseas Corp., 531 F.2d 667, 669 (2d Cir. 1976) (testimony read

and two of plaintiff's claims rejected); La France v. New York, New

Haven & Hartford Railroad Co., 191 F. Supp. 164 (D. Conn.),

aff'd, 292 F.2d 649 (2d Cir. 1961).

When considering a claim of excessive ee the Court must

accord the jury’s verdict “substantial deference.” Martell v. Board-

walk Enterprises, Inc. , 748 F.2d 740, 750 (2d Cir. 1984). In order

to determine whether an award is so excessive as to shock the

judicial conscience, the Court should look to other cases involving

awards for mental anguish which were reviewed by higher courts.

Id. CBS has referred the Court to several decisions where compen-

satory damage awards in excess of $50,000 were reduced by means

of remittitur or reversed altogether.’

A review of these cases, while they do make the Court aware of

judicial attitudes in general, “is not particularly helpful since the

facts of each case vary significantly.” Burnett v. National Enquirer,

7 Med. L. Rep. (BNA) at 1323. See also Dagnello v. Long Island

Railroad, 193 F. Supp. 552, 554 (S.D.N.Y. 1960) (Weinfeld, J.)

(review of cases “emphasize[s] contrariety of individual views”),

aff'd, 289 F.2d 797 (2d Cir. 1961). In addition, there are cases

* Pirrev. Printing Develop., Inc., 468 F. Supp. 1028, 1038 (S.D.N.Y.), aff'd,

614 F.2d 1290 (2d Cir. 1979) ($325,000 jury award reduced to $45,000); Nellis

v. Miller, 101 A.D.2d 1002, 477 N.Y.S.2d 72, 73 (4th Dep’t), appeal dismissed,

63 N.Y.2d 952 (1984) ($150,000 jury award reduced to $5,000); Lerman v. Flynt

Distrib. Co., 745 F.2d 123, 141 (2d Cir. 1984), cert. denied, U.S. , 105

S. Ct. 2114, 85 L.Ed. 2d 479 (1985) ($7,000,000 jury award reversed); Nev. In-

dep. Broad. Corp. v. Allen, 99 Nev. 404, 664 P.2d 337, 347 (1983) ($675,000 jury

award reduced to $50,000); Burnett v. Natl Enquirer, Inc., 7 Media L. Rep.

(BNA) 1321, 1323-24 (Cal. Super. 1981) ($300,000 jury award reduced to

$50,000), aff‘ in relevant part, 144 Cal.App.3d 991, 1016, 193 Cal. Reptr. 206,

222 (1983), appeal dismissed, U.S. ___., 104. Ct. 1260, 79 L.Ed. 2d 668

(1984); Douglass v. Hustler Mag., Inc. , 769 F.2d 1128, 1144-45 (7th Cir. 1985)

($300,000 jury award reversed).

B-9

where jury verdicts in excess of $50,000 have been left undisturbed.

Time, Inc. v. Firestone, 424 U.S. at 460-61, 96S. Ct. at 968-69

($100,000 jury award); Wood v. Hustler Magazine, Inc. , 736 F.2d

1084, 1093-94 (5th Cir. 1984) ($150,000 jury award for false light

invasion of privacy), cert. denied, U.S. , 105S. Ct. 783,

83 L.Ed. 777 (1985); cf. Alioto v. Cowles Communications, Inc.,

430 F. Supp. 1363, 1372 (N.D. Cal. 1977) ($350,000 jury award

based in part upon plaintiffs uncontradicted testimony “to the ap-

prehension and severe mental and emotional distress. . . caused”),

aff d, 623 F.2d 616 (9th Cir. 1980), cert. denied, 449 U.S. 1102, 101

S.Ct. 897, 66 L.Ed. 2d 827 (1981). Based upon a careful review of

these cases and those cited by CBS, as well as the facts and cir-

cumstances of this case, the jury’s compensatory damages award of

$250,000 is neither excessive nor outrageous. CBS’ motion to reduce

the jury’s compensatory damage verdict is denied.

Punitive Damages

CBS asks the Court to set aside the punitive damage verdict

because the amount of the award is so excessive that it shocks the

judicial conscience. In addition, CBS has renewed its motion that

plaintiff is not entitled to a punitive damage award because he

failed to prove that CBS acted with spite or ill will.

Common Law or Actual Malice?

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 348-50, 94S.Ct.

2997, 3011-12, 41 L.Ed. 2d 789 (1974), the Supreme Court held

that that the First Amendment prohibited punitive damage awards

against the publisher of a libel that involved a matter of public con-

cern unless plaintiff proved “actual malice,” that is knowledge of

falsity or reckless disregard for the truth. Dun & Bradstreet, Inc. v.

Greenmoss Builders, Inc.., US. , 105S. Ct. 2939, 2941,

86 L.Ed. 2d 593 (1985). Although the Gertz decision did not bar

states from imposing further restrictions on the imposition of

punitive damages, most state and federal courts have adopted the

actual malice standard as the only requirement in this regard for a

punitive damage award. Note, Punitive Damages and Libel Law,

98 Harv. L. Rev. 847, 847, 854 & n.42 (1985). See, e.g., Goldwater

v. Ginzburg, 414 F.2d 324, 343 (2d Cir. 1969), cert. denied, 396

U.S. 1049, 90 S.Ct. 701, 24 L.Ed. 2d 695 (1970). Defendant’s argu-

ment in this regard raises the question whether under New Jersey

B-10

law proof of New York Times actual malice will support an award

of punitive damages or whether plaintiff also must separately prove

common law malice.*

* Over plaintiffs’ objection, the jury in this case was instructed to apply the New

York Times actual malice standard to the issue of liability for false light invasion

of privacy. This instruction was based on the authority of two opinions of the

Supreme Court in Times, Inc. v. Hill, 385 U.S. 374, 87S.Ct. 534, 17 L.Ed. 2d

456 (1967) and Cantrell v. Forest City Pub. Co., 419 U.S. 245, 95S.Ct. 465, 42

L.Ed. 2d 419 (1974). In Time, Inc. v. Hill, a false light invasion of privacy action,

the Court held that in order to establish liability plaintiff had to prove publica-

tion with knowiedge of falsity or with reckless disregard of the truth. 385 U.S. at

388, 87S. Ct. at 542. In Cantrell, also a false light invasion of privacy action, the

Court declined “to consider whether a State may constitutionally apply a more

relaxed standard of liability” in a false light invasion of privacy action brought

by a private figure or “whether the constitutional standard announced in Time,

Inc. v. Hill, applies to all false-light cases.” 419 U.S. at 250-51, 95S.Ct. at 469-70

citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 94S.Ct. 2997, 41 L.Ed. 2d 789

(1974). See Restatement (Second) of Torts § 652E comment d, at 398-99 (1977).

Several courts have applied a negligence standard in actions involving a private

figure plaintiff. Wood v. Hustler Mag., Inc. , 736 F.2d 1084 (5th Cir. 1984), cert.

denied, ___ U.S. ___, 105 S. Ct. 783, 83 L.Ed. 2d 777 (1985); Dresbach v.

Doubleday ¢ Co., 518 F. Supp. 1285, 1288 (D.D.C. 1981); Fitzgerald v. Pen-

thouse Int1., Ltd., 639 F.2d 1076, 1080 (4th Cir.), on remand, 525 F. Supp. 585,

602-03 (D. Md. 1981), aff'd in relevant part, 691 F.2d 666 (1982), cert. denied,

460 U.S. 1024, 103S.Ct. 1277, 75 L.Ed. 2d 497 (1983); Uhl v. Columbia Broad-

casting Systems, Inc., 476 F. Supp. 1134, 1139-41 (W.D. Pa. 1979); Rinsley v.

Brandt, 446 F. Supp. 850, 856 (D. Kan. 1977). One New Jersey intermediate ap-

pellate court has hinted that in a non-media case with a private figure plaintiff

it may be appropriate to prove liability on a negligence standard. Devlin v.

Greiner, 147 N.J. Super. 446, 371 A.2d 380 389 n.4 (Law Div. 1977). Also, one

court has suggested that because the same considerations apply to claims for

defamation and false light invasion of privacy, when both torts are alleged in one

case, the same standard of fault should apply to both torts. Cibenko v. Worth

Pub. Inc., 510 F. Supp. 761, 766 (D.N.J. 1981). See also Hill, Defamation and

Privacy Under The First Amendment, 76 Col. L. Rev. 1205, 1274 & n.321

(1976). Notwithstanding these considerations, in the absence of an explicit rul-

ing on this issue by either the United States Supreme Court or the New Jersey

Supreme Court, it is this Court’s determination that the actual malice standard

of liability applies to the false light invasion of privacy claim in this action. Ac-

cord McCall v. Courier-Journal & Louisville Times Co. , 623 S.W.2d 882, 888

(Ky. 1981), cert. denied, 456 U.S. 975, 102S.Ct. 2239, 72 L.Ed. 2d 849 (1982);

Dodrill v. Arkansas Democrat Co. , 265 Ark. 628, 590S.W .2d 840, & n.9 (1979),

cert. denied, 444 U.S. 1076, 100 S.Ct. 1024, 62 L.Ed. 2d 759 (1980).

B-11

Constitutional “actual malice” and common law malice address

different concerns. In Maressa v. New Jersey Monthly, 89 N.J. 176,

445 A.2d 376, cert. denied, 459 U.S. 907, 103S.Ct. 211, 74 L.Ed.

2d 169 (1982), the New Jersey Supreme Court stated that “ ‘actual

malice’ does not mean that “the defamatory falsehood was publish-

ed with ill will, but rather that the statement was made ‘with

knowledge that it was false or with reckless disregard of whether it

was false or not.’ ” 445 A.2d at 388 quoting New York Times Co.

v. Sullivan, 376 U.S. 254 at 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.

2d 686.

New Jersey statutory law provides that in a libel action against

a New Jersey media defendant, a plaintiff may recover punitive

damages only if he proves either malice in fact or that, in the face

of a written demand, the defendant refused to publish a retraction

within a reasonable time. N.J. Stat. Ann. § 2A-43-2 (West 1952 &

Supp. 1985). In this regard, the parties stipulated that plaintiffs

demanded a retraction in writing and that defendants did not

retract as requested in the letter. On this basis alone, the evidence

established one of the elements under New Jersey law entitling a

libel plaintiff suing a media defendant to recover punitive damages.

It isnot clear to the Court, however, whether this statute applies

in this case. Neither party has referred to it and application of the

statute by its terms is limited to libel actions against New Jersey

defendants. It does not on its face appear to apply to false light in-

vasion of privacy claims. But, there are other reasons to hold that

plaintiff was entitled to have the jury consider the punitive damages

issue.

It is true, as CBS argues, that under some circumstances New

Jersey courts have required a plaintiff seeking punitive damages in

a libel case to prove some type of spite or ill will. See, e.g., Mar-

chiano v. Sandman, 178 N.J. Super. 171, 428 A.2d 541, 543 (App.

Div.), certif. denied, 87 N.J. 392, 434 A.2d 1073 (1981); Sisler v.

Courier-News Co., 199 N.J. Super. 307, 489 A.2d 704, 715 (App.

Div. 1985) (negligence standard applied in private figure libel suit).

But other decisions indicate that in libel cases an evil motive is not

an absolute requirement. For example, in Bock v. Plainfield

Courier-News, 45 N.J. Super. 302, 132 A.2d 523 (App. Div. 1957)

the court held that a plaintiff may be entitled to punitive damages

B-12

“though the proof fails to disclose a designedly evil intent, it suggests

a calculated disregard of the consequences.” 132 A.2d at 529.

The language used by New Jersey courts to define the type of con-

duct that would justify an award of punitive damages lends

credence to the argument that knowing or reckless falsity may en-

compass elements of ill will. See e.g., Eaton, The American Law

of Defamation Through Gertz v. Robert Welch, Inc. and Beyond:

An Analytical Primer, 61 Va. L. Rev. 1349, 1441 (1975) (here-

inafter “Eaton”) (“Publication of a known lie or publication with

a high degree of awareness of probable falsity does seem to carry all

the indicia of a bad attitude toward the plaintiff's reputational in-

terest.”). In Nappe v. Anschelewitz, Barr, Ansell ¢ Bonello, 97 N.J.

37, 477 A.2d 1224 (1984), the New Jersey Supreme Court decided

whether punitive damages may be awarded in the absence of a

compensatory damage award in an action for legal fraud. Id. at

1226. The court reviewed the New Jersey law concerning punitive

damages and concluded that “punitive damages could be award-

ed for egregious conduct in the absence of compensatory damages.”

Id. at 1231. The court began its analysis by stating that punitive

damages may be awarded if the defendant’s conduct was “wanton-

ly reckless or malicious.” The court defined those terms in several

different ways. It stated that plaintiff must show there was “a wan-

ton and wilful disregard of the rights of another,” id. at 1230, that

“there has been a deliberate act or omission with knowledge of a

high degree of probability of harm and reckless indifference to con-

sequences,” id. , or “such a conscious and deliberate disregard of the

interests of others that his conduct may be called wilful or wanton.”

Id. at 1231 (quotation omitted).

The United State Supreme Court’s use of the term “actual

malice” has spawned confusion among state courts attempting to

reconcile common law definitions of malice with federal constitu-

tional requirements. See Eaton, 61 Va. L. Rev. at 1371. This situa-

tion has led the New Jersey Supreme Court to observe “that

superimposing the federal standard on existing state standards

would add one more complexity to the ‘confusion of libel and

slander law.’ ” Burke v. Deiner, 97 N.J. 465, 479 A.2d 393, 399

(1984) (citation omitted). As a consequence, the court adopted the

B-13

New York Times actual malice standard to determine whether the

qualified immunity that attaches to official speech applied, 479

A.2d at 399.

In addition, because the jury had awarded plaintiff punitive

damages, the Court was constrained to hold further that “[t]he jury

should be instructed to use this [knowledge of falsity or reckless

disregard for the truth] standard as well to assess punitive

damages.” Id. at 400. n.2. This determination was based on United

States Supreme Court cases that had “uniformly emphasized that

the jury is not to look for evidence of spite or ill will to judge the ac-

tor’s speech.” Id. at 399.

The central issue in Burke v. Deiner was whether government of-

ficials had a privilege with respect to an allegedly defamatory of-

ficial statement. The case did not involve a false light invasion of

privacy claim by a private party against a media defendant. Never-

theless, when the Court stated that the jury should be instructed to

use the actual malice standard to assess punitive damages, it cited

as authority Embrey v. Holly, 293 Md. 128, 442 A.2d 966, 972 n.

14 (1982) and Davis v. Schuchat, 510 F.2d 731, 737 (D.C. Cir.

1975), two actions brought by private persons against media defen-

dants. The Court’s reference to these cases, coupled with its discus-

sion of the confusion attendant to superimposing federal standards

on state standards, leads me to conclude that the New Jersey

Supreme Court would require the jury to apply the actual malice

standard when assessing punitive damages in a case such as this. I

therefore hold that in this case, having found that CBS acted with

actual malice, the jury properly considered the issue of punitive

damages.

Was the Award Excessive?

In reviewing the award of $1,000,000 for punitive damages, the

Court must consider the circumstances surrounding the broadcast,

the nature of the wrongdoing, the extent of the harm inflicted, the

intent behind defendant’s acts, defendant’s wealth, “as well as any

mitigating circumstances which may operate to reduce the amount

of the damages.” Nappe, 477 A.2d at 1231. New Jersey law does not

B-14

require that the amount of punitve damages bear a fixed propor-

tional relationship to the amount of actual damages. Id.

The evidence before the Court supports a substantial award of

punitive damages. Defendant’s conduct was shown to be callous

and indifferent to the rights of plaintiff. CBS employees deliberate-

ly decided to broadcast the film of Mr. Machleder, despite a lack of

evidence that he was responsible for the abandoned drums and

despite knowledge that he had in fact reported their presence to

local government agencies two years earlier. The evidence sug-

gested the film was used in order to lend some excitement to an

otherwise uneventful story. Serious questions existed whether

plaintiffs reaction to the reporter and film crew was newsworthy.

One purpose of a punitive damages award is to deter future con-

duct of a similar nature. See, Brink’s Inc. v. City of New York, 546

F. Supp. 403, 413 (S.D.N.Y. 1982) (Weinfeld, J.), aff'd, 717 F.2d

700 (2d Cir. 1983). The evidence presented about the attitude of

CBS employees toward the handling of the broadcast indicates

there is a likelihood that such activity will be repeated as part of a

business policy. See, e.g., Curtis Publishing Co. v. Butts,388 U.S.

130, 159-61, 87 S.Ct. 1975, 1993-95, 18 L.Ed. 2d 1094 (1967); Le

Mistral, Inc. v. Columbia Broadcasting System, 61 A.D.2d 491,

402 N.Y.S.2d 815 (1st Dep’t 1978).

Although there was no evidence presented to the jury proving the

wealth possesssed by CBS, paragraph three of the complaint al-

leged that in 1978 CBS had gross revenue in excess of $3 billion and

net income in excess of $198 million. An award of $1,000,000 is an

amount sufficient to “smart” and serve as notice to others that the

type of practices at issue in this matter are not condoned by the com-

munity. CBS has argued in support of mitigation that it provided

a public service by publicizing the hazard which existed and caused

the drums to be disposed of properly. While these are certainly im-

portant factors in support of mitigation which could operate to

reduce the amount of damages, these arguments were presented to

the jury and necessarily considered by it in fixing the amount of the

punitive damages award. I will not disturb the jury’s verdict in this

regard. The motion for judgment notwithstanding the verdict and

for a new trial is denied.

B-15

Plaintiffs’ Motion for Sanctions

Plaintiffs base their motion for sanctions on two incidents. The first

involved their attempts to obtain a copy of the videotape of the May

22, 1979 broadcast with studio comments. The second involves the

affidavit signed by Mr. Diaz and submitted to the Court in connec-

tion with defendants’ summary judgment motion.

The Videotape With Studio Comments

Plsintiffs’ First Request for Production of Documents, dated Oc-

tober 16, 1979, requested all documents relating to the Diaz report

as actually broadcast on May 22, 1979. Defendants did not object

to the terms of plaintiffs’ document request and they agreed to pro-

duce for plaintiffs’ inspection all documents that related to the Diaz

report. However, the videotape of the complete on-air Diaz report

with studio comments was not produced to plaintiffs’ counsel for

inspection.

By letter dated November 28, 1979, plaintiffs’ counsel informed

defendants’ counsel that the recitation of the broadcast dialogue in

paragraph 34 of the complaint was reproduced from a transcript

that CBS had supplied to him. That transcript apparently had been

prepared by an outside contractor hired by CBS. In response,

Coudert Brothers advised plaintiffs’ counsel that the video tape of

the complete on-air broadcast with studio remarks did not exist.

Plaintiffs’ Supplemental Request for Production, dated

December 19, 1980, repeated verbatim the document request

which encompassed the complete on-air broadcast. The videotape

in question was not produced pursuant to the supplemental re-

quest. At the deposition of Irving Machleder, defendants’ counsel

represented to plaintiff's counsel that “ all of the film that CBS had

available of that incident, whether used or not . . . were supplied

to you.”

The Joint Pretrial Order, so ordered by Judge Duffy on July 30,

1982, provided with regard to trial exhibits that the parties shall ex-

change documents which they reasonably anticipate to offer into

evidence no later than 20 days prior to trial. On the morning of trial

B-16

on May 9, 1985, after the jury had been selected and before open-

ing statements were to begin, defendants’ counsel notified plaintiffs’

counsel that they intended to offer into evidence a videotape of the

on-air report, complete with studio comments by Jim Jensen and

Mr. Diaz. When plaintiffs’ counsel objected and reserved the right

to apply to the Court for sanctions at the end of trial, defendants’

counsel explained in response that there was an “innocent explana-

tion” for why the videotape had not been delivered earlier.‘

In opposition to plaintiffs’ motion for sanctions, defendants

argue that the delay in production of the complete studio videotape

did not prejudice plaintiffs because defendants produced an ac-

curate transcript of the entire broadcast, including studio remarks,

in response to plaintiff's initial discovery request. In addition, it is

argued that defendants and their counsel acted in good faith at all

times. The broadcast tape was not produced because it had been

removed from the CBS Broadcast Center in late October, 1979 by

someone in the employ of Coudert Brothers and inadvertantly

misplaced. Once the tape was recovered by Coudert Brothers on

May 3, 1985, it was immediately delivered to plaintiffs’ counsel.

This good faith, coupled with plaintiffs’ failure to demonstrate any

prejudice is, they argue, fatal to plaintiffs’ motion for sanctions. In

addition, defendants did not violate the terms of the Pretrial Order

since they could not have anticipated use of the tape if they did not

realize the tape existed.

* On February 19, 1981, plaintiffs moved before Magistrate Joel J. Tyler for an

order compelling discovery in connection with defendants’ failure to produce the

original film footage and soundtrack made on May 22, 1979. Plaintiffs’ counsel

had discovered that portions of the filmed out-takes had not been delivered by

defendants. By Order dated April 22, 1981, Magistrate Tyler directed that defen-

dants produce an exact and complete copy of the footage taken on May 22, 1979

to plaintiffs. Apparently, defendants had attributed their “continued failure” to

adhere to Magistrate Tyler's prior orders to an “unfortunate series of mishaps”

or a “circus of innocent errors”. Magistrate Tyler stated “[w Jhat [defendants’ con-

duct] does demonstrate to this court is a marked lack of care, a violation of prior

commitments and a cause of unneccessary effort and expenditure of time by

Machleder and this busy court.” Magistrate Tyler advised defendants’ counsel

that unless the documents were delivered as directed, sanctions, including costs

and attorney’s fees would be imposed upon defendants or their attorneys.

B-17

Defendants’ explanation is unsatisfactory for two reasons. First,

it is not at all clear to the Court that plaintiffs did not suffer pre-

judice as a result of defendants’ belated delivery of the tape. The

claims in this case arose out of a television broadcast. Essential to

plaintiffs’ claims was the reaction the broadcast of the report would

provoke in a viewer. Without a videotape of the complete broad-

cast, it would have been difficult for plaintiffs to gauge the impact

the broadcast would have on an audience of disinterested parties.

This handicap must have affected plaintiffs’ efforts in preparing for

the trial of this case.

Second, on March 6, 1985, the videotape in question was submit-

ted to the Court as an exhibit to defendants’ in limine motion to be

relieved from certain of Judge Duffy’s prior rulings in the case. Ex-

hibit B to that motion, described as “Outtakes and 5/22/79 Broad-

cast”, is a videotape of the entire broadcast including studio com-

ments and is identical to the videotape delivered to plaintiffs’

counsel on or before May 9, 1985 and shown to the jury during

opening statements by counsel. Defendants’ claim that the

videotape was first recovered on May 3, 1985 is refuted by their very

own submission dated March 6, 1985. Defendants may claim that

there is indeed a further “innocent explanation” for the evident con-

fusion on their part, but whatever it may be leaves the Court with

little choice in this instance.

As Magistrate Tyler observed in the context of a previous motion

by plaintiffs’ in connection with defendants’ failure to deliver copies

of film footage, defendants’ conduct in this regard “demonstrate[s]

to this court a marked lack of care . . . and a cause of unneccessary

effort and expenditure of time.” Accordingly, plaintiffs’ motion for

sanctions pursuant to Fed. R. Civ. P. 16(f) and 37(b)(2)(D) is

granted. Defendant CBS shall compensate plaintiffs for the

reasonable costs and attorney’s fees incurred in attempting to ob-

tain a copy of the videotape after defendants’ counsel first

represented that it did not exist, including the costs of bringing this

portion of the motion. Plaintiffs are directed to submit to the Court,

within fifteen days of receipt of a copy of this decision, an accoun-

ting in sworn form, itemizing costs, hours worked by each attorney

and the regular hourly fee charged for such work. Any objection as

B-18

to the propriety of the amount of such expenses shall be made in

writing to the Court within five days after receipt of such accoun-

ting, with answering papers to be served within two days after

receipt of such objection.

The Diaz Affidavit

Plaintiffs’ motion for sanctions under Fed R. Civ. P. 11 and 56(g)

is based upon the testimony of Mr. Diaz during trial with regard to

an affidavit he signed and that defendants submitted in support of

their summary judgment motion. On May 10, 1985, when the af-

fidavit was first shown to Mr. Diaz on direct examination he did not

recall having read it befo

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