dissenting.
I respectfully dissent. In the first place, after viewing the relevant parts of the documentary several times, I believe that, contrary to the majority opinion, the district court was correct in its determination that the portrayal of Mrs. Clark could not reasonably be construed as defamatory. In the second place, and in any event, I believe that American Broadcasting Companies, Inc. (ABC) enjoyed a qualified privilege under Michigan law.
I.
Act III of ABC’s documentary focused on the devastating impact of street prostitution on the neighborhoods bordering Detroit’s Woodward Avenue “when sex businesses first proliferated on Woodward Avenue in the early 1970s” and the subsequent struggle that occurred “between the quiet, orderly, middle class people who live here, and some street prostitutes and pimps who tried to move in.” App. 70. Act III featured interviews of Woodward Avenue area residents, who described their anguish in witnessing blatant public pandering. These residents described how men would be “accosted” by prostitutes as they walked in the neighborhood with their families, how “the pimps were matching the johns and the prostitutes,” and how “[tjhose who lived in the neighborhood were subject to conduct they considered inconceivable. The rules they lived by no longer applied.” App. 71. The focus of the dialogue then turned to the mortifying experiences' suffered by neighborhood women who were mistaken for prostitutes:
MRS. CARR:
Whether you’re 15 or 45, constantly being approached — it’s degrading — feels terrible.
SUE CARR:
You want to, you know, just kill ’em . . . cause it makes you so angry to be placed down to a hooker’s level.
*1220HOWARD K. SMITH [Commentator]:
According to residents, and Detroit police records, most of the prostitute’s customers or johns were white; the street prostitutes were often black.
This integrated middle class neighborhood became a safe meeting place for prostitutes and “johns.”
But for black women whose homes were there, the cruising white customers were an especially humiliating experience.
SHERI MADISON [a black woman]: Almost any woman who was black and on the street was considered to be a prostitute herself. And was treated like a prostitute.
PAM HILL:
How did that make you feel then?
SHERI MADISON:
Outraged ... outraged.
Young girls in some cases, high school students were actually approached physically assaulted. Intolerable, absolutely intolerable situations.
App. 72-73.
During this dialogue, three women were photographed in rapid succession as they walked down a street, the last of which was the plaintiff, Mrs. Ruby Clark. The first two women appeared as the commentator, Howard K. Smith, commented: “This integrated middle class neighborhood became a safe meeting place for prostitutes and ‘johns.’ ”
District Judge Julian Abele Cook, Jr., who granted summary judgment for ABC, described these two women:
The first woman was white, elderly with two bags; presumably shopping bags, one in each hand, walking along the street. It was a full length view. The second picture was of a [black] woman who appeared to be in her middle age with a package in her arm, coming out of what appeared to be a store.
App. 398. The appearance of Mrs. Clark came while the commentator next remarked: “But for black women whose homes were there, the cruising white customer's were an especially humiliating experience.” Mrs. Clark appeared on the screen for three to five seconds, and only her head and shoulders were shown. The district judge then described Mrs. Clark’s appearance:
The third picture was that of Mrs. Clark, the plaintiff, who appeared to be walking on a public street without any visible evidence of anything within her hands and, by contrast to the earlier two women, had earrings and what I may describe, though it may not be accurate, as a reasonably fancy or stylish hair style.
App. 398. Judge Cook also noted that Mrs. Clark “appeared to be fairly well dressed, though not excessively.” App. 399.
After Mrs. Clark’s libel suit against ABC had progressed through extensive discovery, the parties filed cross-motions for summary judgment. Judge Cook, after viewing the documentary several times, concluded that “[t]here is nothing in [Mrs. Clark’s] appearance which would suggest, I think, to the reasonable mind that her activity would, in any way, parallel that of the act of prostitution, as varied as those acts may be,” and granted ABC’s motion for summary judgment. App. 399-400.
I agree with the majority that the proper standard to be used by the district court for its threshold determination whether a defamation action under Michigan law should be dismissed on summary judgment is “whether the Broadcast [of Mrs. Clark walking down the street] was reasonably capable of a defamatory interpretation.” Ante at 1213. This standard is more fully explained in Michigan United Conservation Clubs v. CBS News, 485 F.Supp. 893, 902 (W.D.Mich.1980), aff’d, 665 F.2d 110 (6th Cir. 1981) (applying Michigan law):
It is a well established rule that it is the duty of the court to determine if a communication is capable of bearing a defamatory meaning. Washington Post Co. v. Chaloner, 250 U.S. 290, 293, 39 S.Ct. 448, 63 L.Ed. 987 (1919); Commercial Publishing Co. v. Smith, [6 Cir.], 149 Fed. 704, 706-707 (1907); Van Lonkhuyzen v. Daily News Co., 203 Mich. 570, 587-588, 170 *1221N.W. 93 (1918); Restatement (Second) of Torts, § 614 (1977). In making this decision, the court must decide two questions: first, whether the communication is reasonably capable of conveying the particular meaning, or innuendo, ascribed to it by the plaintiff; and second, whether that meaning is defamatory in character. Restatement (Second) of Torts, § 614, comment b. If the publication is capable of more than one meaning, and one of these is defamatory, then it is for the jury to determine whether the communication was understood as being defamatory. Washington Post Co. v. Chaloner, supra; Restatement (Second) of Torts, § 614(b).
However, the majority, in asserting that “[wjhether the Broadcast was understood as being defamatory was for the jury to decide,” ante at 1213, fails to adequately explain the respective roles of the district court and the jury. “If the publication is capable of more than one meaning,” an initial determination made as a matter of law by the district court, “then it is for the jury to determine whether the communication was understood as being defamatory.” Id., 485 F.Supp. at 902 (emphasis added).
The sequence of events in Michigan United Conservation Clubs well illustrates the operation of these principles. One of the plaintiffs, Mr. Washington, contended that use of his voice from an unrelated interview during a segment of a CBS broadcast about hunting was defamatory. The district court concluded that no reasonable interpretation of the CBS broadcast would convey a defamatory meaning as to Mr. Washington, and therefore there was no issue to be taken to the jury. Our court, affirming the district court, determined:
Finally, we agree with the District Court that use of an unattributed tape of Washington’s voice as background for a scene of Colorado hunters handling deer carcasses, was not defamatory as a matter of law .... Under these circumstances, this segment of the film was incapable of conveying or supporting the innuendo that Washington suggests.
665 F.2d 112 (emphasis added).
Mrs. Clark’s deposition stated that friends, acquaintances and relatives who watched the program concluded that she was portrayed by it as a prostitute. The majority opinion appears to place some credence on their interpretation of the documentary. However, because the determination whether a publication is reasonably capable of a defamatory meaning is a preliminary question of law for the court, it is clear that the hearsay statements in Mrs. Clark’s deposition concerning the interpretation of the broadcast by third parties were irrelevant to the district judge’s deliberations.
I also disagree with the majority’s assertion that Judge Cook “applied an incorrect standard” in granting summary judgment for ABC. The majority complains that Judge Cook “should have granted summary judgment for ABC only if the Broadcast was not reasonably capable of a defamatory meaning.” Ante at 1213. However, the record clearly indicates that that was the standard used by Judge Cook, since he carefully scrutinized “the program to determine if Mrs. Clark, under any reasonable criterion, could be viewed as a prostitute or hooker within the context of the program,” and concluded that it was not reasonably capable of being interpreted as portraying Mrs. Clark as a common street prostitute. App. at 400-01.
The majority opinion adopts an unrealistic standard by claiming that because “the court found it necessary to agonize over the question of whether the Broadcast was defamatory ... the case should have been submitted to the jury.” Ante at 1214. If the majority intends to suggest that summary judgment is precluded anytime a district judge finds it necessary to give sensitive consideration to a plaintiff’s allegations, that is a curious standard indeed to provide direction to the trial courts.
Furthermore, I disagree with the majority’s conclusion that “[t]he Broadcast was reasonably capable of two meanings, one *1222defamatory and the other non-defamatory.” Ante at 1214. In Washington Post Co. v. Chaloner, 250 U.S. 290, 39 S.Ct. 448, 63 L.Ed. 987 (1919), the Supreme Court explained the role of a judge in reviewing an allegedly defamatory publication: “ ‘A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it.... When thus read, if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not.’ ” Id. at 293, 39 S.Ct. at 448, quoting Commercial Pub. Co. v. Smith, 149 F. 704, 706-07 (6th Cir. 1907). I believe that when examined in its proper context, Mrs. Clark’s appearance on the ABC broadcast unambiguously portrayed her as a middle-class resident of the neighborhood affected by the invasion of the prostitutes, not as one of the prostitutes.
The majority opinion inaccurately contends that the particular segment of the broadcast in which Mrs. Clark appeared had its “focus on street prostitution.” Ante at 1213. Therefore, because the audio portion of the broadcast had earlier noted that “[t]he street prostitutes were often black,” the majority takes the unusual position that the appearance of Mrs. Clark, a “slim, attractive, stylishly dressed” black woman wearing large earrings and appearing to be in her early to mid-twenties suggested the possibility that she was a street prostitute.
On the contrary, the theme of this part of ABC’s documentary was the invasion by sex-related businesses of this middle-class, integrated Detroit neighborhood and its impact on women in the area who were not street prostitutes. Throughout the broadcast, whenever a prostitute was shown, ABC took great pains to convey the message that a prostitute was being portrayed. Such things as suggestive clothing, suggestive walking, or overt acts of solicitation, which the district court correctly determined were not present in the case of Mrs. Clark’s appearance, were utilized to pinpoint the portrayal of streetwalkers in the earlier segment of the documentary. But the particular segment focusing on the anguish suffered by Woodward Avenue area residents from the influx of prostitution showed no obvious prostitutes. Instead, the women who appeared during this segment of the program were either being interviewed about the problems facing the neighborhood or were shown, as was Mrs. Clark and the other two women, walking in broad daylight on the street. The other two women, who appeared just prior to Mrs. Clark, admittedly were not portrayed by the broadcast as prostitutes. However, the majority opines that the striking contrast between Mrs. Clark and the other two women, whom the majority opinion characterizes as “matrons,” makes it unclear “whether [Mrs. Clark] is a resident of this middle class neighborhood or one of the street prostitutes who plagued this community.” Ante at 1213.
Plaintiff, for obvious reasons, is not contending that her appearance alone, in isolation from the broadcast, could reasonably be construed as giving viewers the impression she is a prostitute.1 Indeed, after viewing the film, I am in total agreement with Judge Cook that there is nothing about Mrs. Clark’s appearance that would convey to the reasonable mind the impression that she was a common street prostitute. It is obvious from viewing the film that Mrs. Clark was one of the “quiet, orderly, middle class people” who lived in the neighborhood, not one of the “street prostitutes” trying to move in. Nor is it contended that Mrs. Clark’s race reasonably led to the innuendo that she was a prostitute, because although the commentator had remarked that the “street prostitutes were often black,” he had also noted the dilemmas faced by non-prostitute black women in the neighborhood facing harassment from the “cruising white customers.” The woman immediately preceding Mrs. Clark’s appearance was also black; however, all are *1223in agreement that she was not portrayed as a prostitute.
The majority concludes that the erroneous impression that Mrs. Clark was a prostitute arises when her appearance was juxtaposed with the appearance of the two “matrons.” However, Mrs. Clark’s appearance was entirely consistent with a middle class background, and her age in comparison with the two women preceding her appearance was not a reasonable distinguishing basis for concluding she was a prostitute while the other two women were middle class residents of the neighborhood.
The majority contends that the defamatory impression that Mrs. Clark was a prostitute was amplified by the audio comments of the documentary at the time of Mrs. Clark’s brief appearance on the screen and the comments immediately following her appearance by Sheri Madison, a black female resident of the neighborhood who was interviewed concerning the “invasion.” Those comments were as follows:
But for the black women whose home were there, the cruising white customers were an especially humiliating experience. [Sheri Madison’s remarks:] Almost any woman who was black and on the street was considered to be a prostitute herself and was treated like a prostitute.
Prior to this point in the documentary, the focus had switched from the street prostitutes themselves to the incidental effects of the street prostitution invasion. Mrs. Clark’s appearance can only be reasonably capable of the interpretation that she was a member of that group of middle class black women in the neighborhood who were subject to being accosted by “johns” looking for prostitutes among the women in the neighborhood. It is unrealistic to conclude that, because ABC indicated that Mrs. Clark’s presence on the street could subject her to the humiliating experience of being mistaken for a prostitute, viewers of the program could also reasonably mistake Mrs. Clark’s portrayal as being that of a common street prostitute.
II.
Although I would affirm the district court solely on the basis that the ABC broadcast was not reasonably capable of a defamatory interpretation, I am constrained to comment on the majority’s statements concerning the application of Michigan law with respect to qualified privilege. If the Michigan qualified privilege, which assumes that the broadcast was defamatory, applies to the documentary, there would be no liability for the broadcast because there was no showing that ABC knowingly or recklessly defamed Mrs. Clark. Indeed, there has been no contention that ABC ever intended for Mrs. Clark’s appearance to be given the interpretation that she is a prostitute.
The majority has correctly noted that the applicability of the Michigan qualified privilege to publish allegedly defamatory statements is a question of law for the courts to determine, as is the proper scope of the qualified privilege. However, the majority opinion takes the stance that ABC did not properly limit the scope of its documentary to the purpose of communicating the concerns of Woodward Avenue area residents about the distressing invasion of street prostitution when it included Mrs. Clark in the broadcast. Consequently, the majority concludes that the Michigan qualified privilege does not apply because “the scope of Michigan’s qualified privilege does not encompass publications or broadcasts where the plaintiff is not the focus of the public interest publication.” Ante at 1216. However, Michigan law does not countenance such a narrow view of the qualified privilege. A fair reading of Michigan law indicates that the appearance of an individual in a public interest documentary is within the scope of a qualified privilege attaching to that documentary as long as the individual has a reasonable connection with the subject matter of the documentary. The ABC documentary illustrated the impact on the women in an entire neighborhood from the invasion of the sex-related businesses. Because Mrs. Clark was part of this broad category of neighborhood women who were subject to the humiliation of misidentification as a prostitute, her appearance was within the scope of the qualified privilege.
In Timmis v. Bennett, 352 Mich. 355, 89 N.W.2d 748 (1958), the plaintiff, a policewoman, alleged that she had been defamed by an attorney’s letter inquiring about plaintiff’s efforts to have the attorney’s client declared mentally incompetent. The Michigan Supreme Court determined that a communication is privileged if made by a party having “a moral or social duty” to make the communication and directed to a “person having a corresponding interest or duty.” The Court then held:
The essential elements of a conditionally privileged communication may according*1224ly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits.
89 N.W.2d at 755. In addressing the scope of the privilege, the Court first determined that the purpose of the letter was to inquire about the activities of Kalamazoo law enforcement officials. Since the Court assumed that the public welfare embraced concerns about law enforcement, it determined that “the doctrine of qualified privilege may properly be regarded as including statements made in good faith by a citizen of a community having, or claiming to have, special knowledge or information bearing on such matter of public concern and communicated to others concerned or interested.” Id. See also, Nuyen v. Slater, 372 Mich. 654, 127 N.W.2d 369 (1964); and Bu-falino v. Maxon Brothers, Inc., 368 Mich. 140, 117 N.W.2d 150 (1962).
It is not disputed that ABC has an “interest” or “duty” to communicate to its viewers the concerns about the effects of street prostitution on the residents of surrounding residential areas in Detroit, nor is it disputed that ABC’s viewers have a corresponding “interest” in receiving that information. Orr v. Argus-Press Co., 586 F.2d 1108, 1113 (6th Cir. 1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979) (applying Michigan law) (“Everyone, citizen or reporter, has the right to comment on matters of public importance .... ”). There is no contention that ABC broadcast its documentary in bad faith, or that its publication of the broadcast was in any way improper.
The case of Lawrence v. Fox, 357 Mich. 134, 97 N.W.2d 719 (1959), is also highly instructive. Lawrence indicates that the threat of libel, which could “chill” the vigilance of the press, led to Michigan’s adoption of the defense of privilege for certain publications. However, the privilege is not a constant, but operates on a continuum from “no privilege” for loose gossip to “absolute privilege” for judicial and legislative utterances. Public policy considerations “of lesser intensity” than those for absolute privilege would cause a limited, qualified privilege to be applied. 97 N.W.2d at 721. Lawrence, citing Bowerman v. Detroit Free Press, 287 Mich. 443, 283 N.W. 642 (1939), determined that the external circumstances or occasion of the communication, not the actual words used, would determine the scope of the privilege. The Michigan Supreme Court concluded: “[I]t is for the court to determine whether or not the external circumstances surrounding the publication are such as to give rise to a privileged occasion.” 97 N.W.2d at 722.
This court in Schultz v. Newsweek, Inc., 668 F.2d 911 (6th Cir. 1982) (applying Michigan law) concluded:
The court must decide as a matter of law whether there is a recognized public or private interest which would justify the utterance or publication. The privilege attaches to reports on matters of general public interest even though the plaintiff is a private individual.
Id. at 918. Similarly, the district court opinion that was affirmed in Schultz v. Newsweek, Inc., reported at 481 F.Supp. 881 (E.D.Mich.1979) and authored by now Circuit Judge Kennedy, stated that “[ujnder Michigan law, there is a qualified privilege to publish information which is in the public interest,” id. at 884, and implied that the entire article comprising the communication is within the scope of the privilege as long as the communication does not stray into discussing areas of concern not within the reasonable limits of the public interest.
In Schultz v. Reader’s Digest Ass’n, 468 F.Supp. 551 (E.D.Mich.1979) (Freeman, J.) (applying Michigan law),2 plaintiff argued that the qualified privilege did not apply because he was an incidental figure in news stories concerning the disappearance of Jimmy Hoffa. Again, the court indicated that the “scope” of the qualified privilege is *1225determined by the subject matter of the communication, in this case “the question of who Hoffa was to meet on the day he disappeared,” and not necessarily the persons discussed in the articles themselves:
[T]he Court is of the opinion that an article involving a matter of public concern is subject to a qualified privilege under Michigan law. Although there can be no dispute that the article in question involved a matter of public concern, the plaintiff contends that the qualified privilege should not be applied to him because he was not a central figure in the Hoffa disappearance. Whatever role Schultz played in this matter, it is clear to the Court that the question of who Hoffa was to meet on the day he disappeared was and is an important matter of public concern.
Id. at 562.
The majority opinion seems to concede that the impact of street prostitution on surrounding residential neighborhoods is in the public interest.3 Therefore, the majority apparently would concur that the examination of this dilemma by ABC’s documentary was in the public interest and subject to a qualified privilege as a general proposition. However, the majority opinion contends that Mrs. Clark’s particular appearance on the program is not within the public interest focus of the documentary because “plaintiff has only the most tenuous connection with the public interest subject matter.” Ante at 1216. The majority concludes that “plaintiff is not the focus of the public interest publication” because plaintiff has never been a prostitute, she was not a resident of the neighborhood being invaded by the sex-related businesses and she was not interviewed about her reactions to the street prostitution; accordingly, “her picture as she walked down a public street has absolutely no connection with the subject matter of the Broadcast.” Ante at 1217.
However, as previously noted, Michigan case law focuses on the general subject matter of a communication in determining if the qualified privilege applies. In this connection, it is undeniable that the subject matter of this portion of the ABC documentary was the impact of the invasion of sex-related businesses on the female residents of this integrated middle class Detroit neighborhood who were forced to run the risk of being mistaken for prostitutes and possible solicitation by using the public sidewalks in their neighborhoods. It defies reality to contend that Mrs. Clark’s appearance in the neighborhood of the sex businesses on Woodward Avenue, which would potentially subject her to the same abuse and harassment that the documentary was addressing, was so unrelated to the subject matter of the broadcast as to make her an “incidental figure” with “no connection” with the broadcast. See ante at 1216.
The majority has made the unsupported contention that, since Mrs. Clark was a resident of Ferndale, Michigan, she was not a resident of the neighborhoods blighted by the invasion of the sex businesses, and consequently the abuse suffered by women in those neighborhoods was not a problem peculiar to her. However, the majority opinion neglects to note that Woodward Avenue intersects Ferndale, Michigan, which is a suburb bordering the city of Detroit. The record adequately demonstrates that, although Mrs. Clark claims she did not frequent the immediate vicinity of the sex businesses, their location was not far from her home.
Mrs. Clark’s appearance in the ABC documentary should be subject to the Michigan qualified privilege because the subject matter of the documentary was in the public interest and her appearance bore a reasonable relationship to that general subject matter.
CONCLUSION
In conclusion, I am persuaded that Judge Cook did not err in determining that Mrs. Clark’s appearance in the broadcast could not reasonably be construed as portraying her as a common street prostitute. I also conclude that in any event, even assuming that Mrs. Clark’s appearance could be interpreted as defamatory, Michigan’s qualified privilege should be applied to this portion of the documentary, which did not exceed the bounds of the public interest subject matter of the documentary. While under current precedents it appears that the First Amendment is not implicated, it appears to me that the majority’s disposition of this case will make the filming of television doeu-*1226mentaries unduly risky and therefore the majority’s disposition is not in the public interest.
ORDER
On September 21, 1982 by order of the Chief Judge of the Circuit you were advised that the motion for rehearing en banc in the above-styled case had been granted. The Chief Judge has now directed me to advise that his ruling was made in error and that in fact the 5-4 vote (one active judge being disqualified) failed to attain the 6 affirmative votes required to constitute “a majority of the [10] circuit judges who [were] in regular active service” within the meaning of Rule 35(a) of the Federal Rules of Appellate Procedure. See also Zahn v. International, 469 F.2d 1033 (2d Cir. 1972) , aff’d. on the merits, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Boraas v. Village of Bell Terre, 476 F.2d 806 (2d Cir. 1973) , rev’d on the merits, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (rehearing en bane denied though four judges of the eight member court favored it); International Business Machine Corp. v. United States, 480 F.2d 293 (2d Cir. 1973); Boyd v. Lefrak Organization, 517 F.2d 918 (2d Cir. 1975); United States v. Martorano, 620 F.2d 912 (1st Cir.), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980).
The briefing schedule is therefore can-celled and the motion for rehearing is referred to the panel which originally heard the appeal.
ORDER DENYING PETITION FOR REHEARING
A majority of the judges of the Court having not favored rehearing en banc, the petition for rehearing has been referred to the hearing panel for disposition.
Judge Brown would grant the petition to rehear for the reasons set out in his dissent to the majority opinion.
Upon consideration, the Court concludes that the petition for rehearing is without merit. Accordingly, it is ORDERED that rehearing be and hereby is denied.
Circuit Judge Brown retired from regular active service under the provisions of 28 U.S.C. § 371(b) on June 16, 1982, and became a Senior Circuit Judge.
. Indeed, it would be anomalous to hold ABC liable for the impression of its viewers that Mrs. Clark was a prostitute if that interpretation were directly attributable to the way that she appeared while being photographed.
. There are two cases from the United States District Court for the Eastern District of Michigan involving Leonard Schultz. The Newsweek litigation, Schultz v. Newsweek, Inc., 481 F.Supp. 881 (E.D.Mich.1979) (Kennedy, J.), aff’d, 668 F.2d 911 (6th Cir. 1982), addressed news articles about Schultz’s involvement in attempts by his sons to obtain a state liquor license as well as Schultz’s alleged connection with the disappearance of Jimmy Hoffa. The Reader’s Digest case, Schultz v. Reader’s Digest Ass’n, 468 F.Supp. 551 (E.D.Mich.1979) (Freeman, J.) was concerned only with a publication about the Hoffa controversy.
. Judge Cook, although he did not reach the qualified privilege issue in granting summary judgment, did conclude “that the broadcast was of public interest.” App. 396.