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
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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 ________________ __________________
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(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.
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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. ________
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