
USCA1 Opinion

	




                            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-
