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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 1088

## Text

. 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

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .....
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CONSTITUTIONAL PROVISIONS INVOLVED.
STATEMENT OF THE CASE ................

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

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

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Falsity and the Portrayal of Petitioner as
Intemperate and Evasive .................

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

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

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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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17

21

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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

iv

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
26

19

23,29
18,19
27

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) ......

19

18,19,26

99
~-<

26

19

26

vi

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,

v.
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)

eT

3

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

ee

o

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.

~l

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.

%

9

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.

10

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.

1]

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.

12

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

14

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

ae

15

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

16

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.

17

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).

18

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

19

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

20

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— ———————

21

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

22

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).

23

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.

24

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

7

25

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).

26

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.

28

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

29

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

:
)
Z
4
4
3
4
4

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

me

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.

‘
i
:
;
:
:
:
;

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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2472%3A1. Public record. Not legal advice.