Brown v. Hearst Corporation

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1836

WILLIS N. BROWN, JR.,

Plaintiff, Appellant,

v.

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

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Cyr and Boudin, Circuit Judges,

and Keeton,* District Judge.

Edwin M. Sigel for appellant.

Steven J. Comen with whom Patricia A. Lipoma and Goodwin, Procter

& Hoar were on brief for appellee.

May 11, 1995

*Of the District of Massachusetts, sitting by designation.

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

then-wife of appellant Willis Brown and mother of three

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

flight attendant, and Willis as a pilot, for American

Airlines; the couple had lived together in Newtown,

Connecticut, but had been separated for four months and were

living apart. The police investigated the disappearance and

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

The investigation remains open. It is not known whether

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

Browns were divorced in a Connecticut state court, the

contested proceedings being completed in Regina's absence.

The state court trial was prolonged and a detailed opinion

was written by the trial judge pertaining to custody and

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

Willis believed deeply but without basis that his wife was

unfaithful to him, that his charges against her echoed

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

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

had threatened to kill her and the children.

The trial was widely reported in the press, and

publicity continued even after the decree. This was due

partly to further litigation and the continuing police

investigation, but also to a freakish coincidence. About six

months before Regina's disappearance, another woman who lived

-2-
-2-

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

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

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

so-called woodchipper murder.

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

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

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

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

was prepared by Mary Richardson, a journalist with the

station, who conducted a substantial amount of research and a

number of interviews in preparing the broadcast.

The broadcast opens with the leitmotif--"Tonight the

bizarre story of a small New England town where one

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

brief reprise of the 1986 murder of the Pan Am flight

attendant. Next, turning to the Browns, the broadcast

describes and depicts an apparent storybook marriage going

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

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

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

The program reenacts a last telephone call from Regina

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

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

-3-
-3-

The police chief is then quoted as saying that Willis had

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

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

to such an area.

In the next portion of the segment, Willis is described

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

detector test. Evidence offered at the divorce trial is

recounted or summarized. The evidence included descriptions

of Willis' accusations against his wife which are portrayed

as virtually paranoid; the trial judge's statement that

Willis had physically and mentally abused Regina; and a vivid

strangulation scene that one of the Brown children allegedly

recounted to Regina's parents.

In the final few minutes, there are interviews with

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

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

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

Regina is alive." The broadcast also includes the police

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

area where Willis had rented a house trailer shortly before

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

An extensive police search of 37 acres, the program

concludes, produced no trace of any wrongdoing.

There is other incriminating information about Willis

recounted in the program, and the police are described as

-4-
-4-

having suspected Willis and as believing still that "Mr.

Brown knows more about the disappearance of his wife than he

is letting on." No evidence even remotely exculpatory of

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

"voice over" throughout the program, never asserts that

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

Formally, the program describes the disappearance as a

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

In February 1993, Willis brought the present action

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

removed to federal court and thereafter transferred to the

federal district court in Massachusetts. As subsequently

amended, Willis' complaint charged defamation, invasion of

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

invasion of privacy, and intentional infliction of emotional

distress.

After discovery, Channel 5 moved for summary judgment.

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

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

relied in different respects on lack of falsity, the limited

protection available for statements of opinion, the "fair

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

intentional infliction claims were dismissed on grounds

described below. Willis has now appealed, asserting that all

of his claims should have been submitted to a jury.

-5-
-5-

On appeal from a grant of summary judgment, we review

the decision de novo, drawing inferences in favor of the

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

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

case was transferred from Texas, Texas law governs the choice

of substantive law to be applied. Putnam Resources v.

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

court found that Texas would apply Massachusetts law in

judging the broadcast and, as this ruling has not been

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

Although Willis listed defamation as the fourth and last

count of his second amended complaint, this charge has been

the center of the controversy both in the district court and

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

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

his wife. Additionally, he argues that the broadcast

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

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

woodchipper).

Channel 5 does not appear to dispute that the broadcast

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

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

broadcast never flatly expresses that accusation. Indeed, it

says that the murder is unsolved and makes clear that the

police have nothing much in the way of direct evidence

-6-
-6-

against Willis. But defamation can occur by innuendo as well

as by explicit assertion, Mabardi v. Boston Herald Traveler

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

is a fairly strong one.

The materials presented include--we stress that some are

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

paranoid accusations against her; his threats to kill her and

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

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

disappearance and Willis' disinterest; his visit to the house

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

be found. The notion that Regina would have left her

children voluntarily is scotched and there is no hint of

another motive, or perpetrator.

The broadcast makes clear that the police suspect

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

statements of suspicion. Material from the divorce trial is

used to establish or buttress doubts about Willis' character

and history. The suggestion of murder runs through the

program like a gold thread. The broadcast opens with the

dramatic footage relating to the woodchipper murder and

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

get away with murder?

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

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

-7-
-7-

against the media the burden is upon the defamed plaintiff to

show that the statements are not true. Philadelphia

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

addresses this issue. Perhaps each assumes that to carry his

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

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

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

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

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

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

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

trial in Connecticut" and thus falls under the Massachusetts

privilege allowed for media coverage of an official

proceeding. Such a privilege certainly exists in

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

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

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

the divorce proceeding.

For present purposes, we will assume that the privilege

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

so far as it related to the divorce proceeding and the

information developed there--conveyed a fair and accurate

report of the proceeding. But only a portion of the

broadcast purported to be drawn from the proceeding. And,

while that portion may be privileged, we are skeptical of

-8-
-8-

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

privileged material.

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

cases involving such questions as whether a reporter's

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

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

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

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

are dealing with a broadcast that is not by any stretch

merely a report of the much earlier official proceeding.

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

larger and more comprehensive structure.

This structure differed in two ways from the divorce

proceeding. It included evidence in addition to that

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

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

filmed interviews, recreations) and rhetoric--especially the

doubtful analogy of the woodchipper murder--that sharpen the

cutting edge of the implicit charge. Where the evidence is

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

is not clear to us that the fair report privilege

automatically shields the larger whole.

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

Court has instructed that a state libel-suit plaintiff must

demonstrate fault on the part of the media; and this

-9-
-9-

requirement applies even where the plaintiff is not a public

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

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

imposed a requirement that the newspaper or broadcaster be

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

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

murder has been made, it remains to see whether Willis

provided evidence of negligence to justify submitting the

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

establishes a minimum standard and we are concerned here with

"negligence" only in this special constitutional sense;

Massachusetts is free to define negligence differently in any

other context or to require more than constitutionally

defined negligence in a libel case.

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

suggest that Channel 5 was negligent in its mustering of the

available evidence. Some might think the broadcast gaudy

journalism; certainly the interpolation of the woodchipper

murder is largely gratuitous. But so far as guilt or

innocence is concerned, Willis directs us to no significant

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

he point to any counterbalancing exculpatory evidence that

Channel 5 wrongly withheld or that it would have discovered

by diligent research.

-10-
-10-

Willis' brief says tersely that the police admitted that

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

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

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

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

But the short answer is that substantial circumstantial

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

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

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

is likely what the police meant to say.

A different problem is presented by Willis' suggestion

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

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

Patently, the broadcast did not so charge; no reasonable

juror could draw such an inference. Willis offers no

argument to support such an inference, and it is not

surprising that elsewhere in his brief he retreats to a more

cautious assertion: that the juxtaposition "conveys the

message that Brown also murdered his wife and disposed of her

body in some insidious fashion" (emphasis added).

Many might think that the manner of disposing of the

body adds very little to a charge that someone murdered his

frightened wife and left her small children motherless.

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

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

-11-
-11-

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

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

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

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

insidious fashion."

Even if all of these doubts are resolved in Willis'

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

survive summary judgment. About the most one can get from

the woodchipper episode is the suggestion that, if Willis

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

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

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

part of his defense. Perhaps such a concealment could be

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

measurably to the taint of deliberate murder.

By contrast, a brutal destruction of the body might add

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

woodchipper murder was offered as a remarkable coincidence

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

that Willis is arguing that the program implies that he

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

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

the juror could believe that a woodchipper was used in her

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

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

-12-
-12-

whether the defendant's statement is capable of a particular

defamatory reading. William Prosser & Page Keeton, Torts 781

(rev. ed. 1984).

It is quite true that the woodchipper episode at the

start of the broadcast laid the groundwork for the program to

insinuate that Willis had murdered his wife by brutal means.

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

accentuated the charge of murder, virtually nothing tended to

suggest that the body was brutally destroyed. A writing or

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

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

because the woodchipper episode was assertedly about someone

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

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

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

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

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

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

contention that the program places him in a false light by

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

Brown killed Regina and disposed of her body in the same

fashion as did the woodchipper murderer. The district court

thought it sufficient that Massachusetts has never adopted

the false light theory of privacy invasion, see ELM Medical

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

-13-
-13-

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

occasion for federal courts to pioneer in developing new

state law.

We think it worth adding that "false light" privacy

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

restatement of his defamation claim under a different

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

escape the same constitutional constraint as his defamation

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

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

he has offered no evidence of negligence sufficient to get

him to a jury.

Lastly, Willis charged Channel 5 with intentional

infliction of emotional distress. This is a recognized tort

under Massachusetts law requiring intended or foreseeable

infliction of such distress, "extreme and outrageous

conduct," and causation of distress so severe that no

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

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

district court said that Channel 5's conduct was not

negligent and therefore could hardly be "extreme and

outrageous."

In all events, many of the legitimate news stories that

appear in the media involve foreseeable distress for the

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

-14-
-14-

Regina's disappearance and the divorce trial were news

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

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

think that generally accurate coverage in such a case is even

remotely close to conduct "beyond all possible bounds of

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

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

Affirmed.

-15-
-15-