                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2001

Tucker v. Fischbein
Precedential or Non-Precedential:

Docket 99-1139




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"Tucker v. Fischbein" (2001). 2001 Decisions. Paper 4.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/4


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed January 9, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1139

C. DELORES TUCKER;
WILLIAM TUCKER, her husband

v.

RICHARD FISCHBEIN;
BELINDA LUSCOMBE;
NEWSWEEK MAGAZINE;
JOHNNIE L. ROBERTS;
TIME INC.

C. Delores Tucker;
William Tucker,

       Appellants

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 97-cv-06150)
District Judge: Honorable Ronald L. Buckwalter

Argued October 1, 1999

BEFORE: NYGAARD, ALITO, and ROSENN, Circuit Judges.

(Filed: January 9, 2001)

       Richard C. Angino, Esq. (Argued)
       Angino & Rovner
       4503 North Front Street
       Harrisburg, PA 17110
        Attorney for Appellants
Alan J. Davis, Esq.
Stephen J. Kastenberg, Esq.
Ballard, Spahr, Andrews & Ingersoll
1735 Market Street
51st Floor
Philadelphia, PA 19103

Donald N. David, Esq. (Argued)
Beth W. Fischbein, Esq.
Fischbein, Badillo, Wagner &
 Harding
909 Third Avenue
New York, NY 10022
 Attorneys for Appellee
Richard Fischbein

Laura E. Krabill, Esq.
Wolf, Block, Schorr & Solis-Cohen
22nd Floor
Philadelphia, PA 19103

Paul G. Gardephe, Esq. (Argued)
Milton L. Williams, Jr.
Time, Inc.
Legal Department
1271 Avenue of the Americas
New York, NY 10020
 Attorneys for Appellee
Belinda Luscombe and Time, Inc.

Kevin T. Baine, Esq. (Argued)
1650 Arch Street
Williams & Connolly
725 12th Street, N.W.
Washington, DC 20005
 Attorney for Appellee
Newsweek Magazine and
Johnnie L. Roberts

                        2
OPINION OF THE COURT

ALITO, Circuit Judge:

This case marks the third round of litigation between C.
Delores Tucker, a former state official and a community
leader, and the record companies and performers
responsible for what is known as "gangsta rap."1 Since
1993, C. Delores Tucker has crusaded against gangsta-rap
lyrics, which, she asserts, "grossly malign black women,
degrade the unthinking young black artists who cr eate
[gansta rap], pander pornography to our innocent young
children, hold black people universally up to ridicule and
contempt, and corrupt its vast audience of listeners, white
and black, throughout the world." App. at 2322. Mrs.
Tucker has taken her message to shareholder meetings of
major corporations to pressure them to divest their
holdings in record companies that pr oduce gangsta rap;
she has also addressed Congress to ur ge that steps be
taken to "curb and control the proliferation of vile,
demeaning pornographic and misogynistic music." Id.

Mrs. Tucker's efforts caught the attention of the rap
industry, and in August 1995, Interscope Recor ds, Inc.,
filed suit against her in the United States District Court for
the Central District of California (Tucker I), alleging that she
had induced a breach of contract between Death Row
Records, Inc., and Interscope. Interscope and Death Row
voluntarily withdrew that suit. Then, in July 1997, Mrs.
_________________________________________________________________

1. "Gansta rap" has been described as "a form of hip hop music that
became the genre's dominant style in the 1990s, a reflection and product
of the often violent lifestyle of American inner cities afflicted with
poverty
and the dangers of drug use and drug dealing. The r omanticization of
the outlaw at the centre of much of gangsta rap appealed to rebellious
suburbanites as well as to those who had firsthand experience of the the
harsh realities of the ghetto. Encyclopedia Britannica, "Gangsta Rap"
<http://www.britannica.com/bcom/eb/article/3/
0,5716,128693+1,00.html>. Prominent gangsta rap groups are described
as "present[ing] tales of gangs and violence," "offer[ing] hard-hitting
depictions of crack-cocaine related crime," and featuring "a marriage of
languid beats and murderous gang mentality." Id.

                               3
Tucker and her husband, William Tucker , filed a complaint
in the United States District Court for the Easter n District
of Pennsylvania (Tucker II), alleging that the lyrics in two
songs by deceased rapper Tupac Shakur on an album
called All Eyez On Me had attacked Mrs. Tucker using
"sexually explicit messages, offensively coarse language and
lewd and indecent words" and that she had r eceived death
threats because of her activities. Named as defendants were
Shakur's estate; Interscope, which had produced Shakur's
album; and four other companies, including T ime-Warner,
Inc., which allegedly maintained a financial inter est in
Interscope. Asserting claims for intentional infliction of
emotional distress, slander, and invasion of privacy, Mrs.
Tucker sought damages for medical expenses and mental
injury. In paragraph 50, the Complaint alleged that her
"husband, William Tucker has as a r esult of his wife's
injuries, suffered a loss of advice, companionship and
consortium." Tucker II Compl. P 50 (emphasis added), App.
at 23. Loss of consortium means loss by one spouse of
"whatever of aid, assistance, comfort, and society [one
spouse] would be expected to render or to bestow upon [the
other]." Hopkins v. Blanco, 302 A.2d 855, 856 (Pa. Super.
1973), aff 'd, 320 A.2d 139 (Pa. 1974). Loss of consortium
includes, but is not limited to, "impairment of capacity for
sexual intercourse." Restatement (Second) of Torts S 693(1)
(1977); see also W. Page Keeton, Prosser and Keeton on
Torts 931 (5th ed. 1984).

The filing of the Tuckers' lawsuit spawned numer ous
articles that focused on the "loss of consortium" claim.
Among them was an article printed by the Philadelphia
Daily News on August 2, 1997, in which the lawyer
representing Shakur's estate, Richar d Fischbein, was
quoted as saying: "[I]t is hard for me to conceive how these
lyrics could destroy her sex life . . . but we can only wait for
the proof to be revealed in court." App. at 30. Following the
Philadelphia Daily News article, wire and news services
throughout the country picked up the story, and many of
them quoted or paraphrased Fischbein's comment
interpreting the Tuckers' claim as seeking compensation for
damage to their sex life.

On August 20, 1997, Newsweek reporter Johnnie L.
Roberts telephoned the Tuckers' attorney, Richard C.

                               4
Angino, regarding an upcoming Newsweek story about the
lawsuit. According to Angino, he informed Roberts that,
although loss of consortium could mean loss of sex in some
cases, it did not mean that in this case. See App. at 645.
Roberts disputes Angino's account of this conversation.

On August 26, 1997, Roberts interviewed Fischbein in
connection with the story. Roberts's notes show that
Fischbein told him that one of the claims in the Tuckers'
complaint involved interference with sexual relations. In
addition to speaking with Fischbein and Angino, Roberts
read the complaint and looked up the definition of
consortium before writing his article. On September 1,
1997, Newsweek printed an article written by Roberts and
entitled "Grabbing at a Dead Star." The article stated: "Even
C. Delores Tucker, the gangsta rap foe, wants a chunk [of
Tupac Shakur's estate]. She and her husband claim that a
lyrical attack by Tupac iced their sex life." App. at 90.
Although the article did not mention the conversation
between Roberts and Angino, it did quote Fischbein as
commenting as follows regarding the loss-of-consortium
claim: "I can't wait to hear the testimony on that subject."
Id.

The next day, the Tuckers filed an amended complaint in
Tucker II (the "First Amended Complaint"), which included
an additional claim against Fischbein for making"false and
misleading statements regarding the claim herein, through
published statements that C. Delores Tuckerfiled suit
because of a `loss of her sex life.' " App. at 1711. The
amended complaint was served on Fischbein and the other
defendants, including Time-Warner , Inc.

On September 12, after he was served with the First
Amended Complaint, Fischbein gave an interview to Time
reporter Belinda Luscombe concerning the Tuckers' case.
Luscombe stated in deposition that Fischbein had told her
that "this was a lawsuit about emotional distr ess and one
of the things affected were [sic] her sexual relationship with
her husband." See App. at 2197. T ime printed Luscombe's
article, entitled "Shakur Booty," on September 15, 1997.
See App. at 34. Although the article did not quote
Fischbein, Luscombe admitted in her deposition that she
based the article solely on her interview with Fischbein and

                                5
on other articles, most of which appear to be derived from
Fischbein's initial comments to the press in early August.

On October 1, 1997, the Tuckers filed the complaint that
is the subject of this action (Tucker III). The complaint
alleges that Fischbein, Time, Inc. ("T ime"), and Newsweek,
Inc. ("Newsweek") defamed the Tuckers by characterizing
their loss of consortium claim in Tucker II as a claim for
loss of sexual relations. Specifically, the Tuckers maintain
that Mrs. Tucker's reputation as a moral leader was
compromised when Time and Newsweek printed Fischbein's
characterization of her suit as one to recover for the lyrics'
effect on her sex life.

Time, Newsweek, and Fischbein each moved for summary
judgment, and the District Court granted their motions,
holding that the statements in question were not capable of
a defamatory meaning and, alternatively, that the Tuckers,
who conceded that they were "public figur es," could not
adequately prove that the defendants acted with"actual
malice." Although the defendants had also contended that
the Tuckers could not prove that the statements were false,
the Court made no explicit holding on that question. This
appeal followed.

I.

"[A]lthough a defamation suit has profound First
Amendment implications, it is fundamentally a state cause
of action." McDowell v. Paiewonsky, 769 F .2d 942, 945 (3d
Cir. 1985). In this appeal, our first duty is to resolve a
question of state law, i.e., whether the Tuckers adduced
sufficient evidence to show that the statements in question
were defamatory under Pennsylvania law. If the plaintiffs
satisfied that burden, we must then deter mine if the First
Amendment precludes recovery. See Steaks Unlimited, Inc.
v. Deaner, 623 F.2d 264, 270 (3d Cir . 1980).

Under Pennsylvania law, a defamation plaintif f bears the
burden to show:

       (1) The defamatory character of the communication.

       (2) Its publication by the defendant.

                                6
       (3) Its application to the plaintiff.

       (4) The understanding by the recipient of its
       defamatory meaning.

       (5) The understanding by the recipient of it as
       intended to be applied to the plaintiff.

42 Pa. Cons. Stat. Ann. S 8343(a) (1998). Under
Pennsylvania law, the court must decide at the outset
whether a statement is capable of defamatory meaning. See
Thomas Merton Ctr. v. Rockwell Int'l Corp. , 442 A.2d 213,
215-16 (Pa. 1981). If the court determines that the
statement is capable of a defamatory meaning, the jury
must then decide whether the recipient actually understood
the statement to be defamatory. See Corabi v. Curtis Publ'g
Co., 273 A.2d 899, 904 (Pa. 1971).

A statement is defamatory if "it tends so to har m the
reputation of another as to lower him in the estimation of
the community or to deter third persons fr om associating or
dealing with him." Id. (citing Birl v. Philadelphia Elec. Co.,
167 A.2d 472, 476 (Pa. 1960)). Accord Restatement (Second)
of Torts S 559. A court must examine the meaning of the
allegedly defamatory statement in context, see Beckman v.
Dunn, 419 A.2d 583, 586 (Pa. Super. 1981), and must
evaluate "the effect [it] is fairly calculated to produce, the
impression it would naturally engender, in the minds of the
average persons among whom it is intended to cir culate."
Corabi, 273 A.2d at 907. While it is not enough that a
statement is embarrassing or annoying, see Bogash v.
Elkins, 176 A.2d 677, 678 (Pa. 1962), a court should not
dismiss a complaint unless it is "clear that the publication
is incapable of a defamatory meaning." V itteck v.
Washington Broad. Co., 389 A.2d 1197, 1200-01 (Pa. Super.
1978).

The statements at issue here were the following:

       (1) The statement in Time's September 22, 1997,
       article, "Shakur Booty," that "[t]he prize for the most
       bizarre suit . . . goes to anti-rap warrior C. Delores
       Tucker, who claims that remarks made about her on
       Shakur's Album All Eyez on Me caused her so much
       distress that she and her husband have not been

                               7
       able to have sex. She wants $10 million." App. at
       1634.

       (2) The statement in Newsweek's September 1, 1997,
       article, "Grabbing at a Dead Star," that "[Mrs. Tucker]
       and her husband claim that a lyrical attack by
       Tupac iced their sex life." App. at 90.

       (3) Fischbein's comment, quoted in an August 2, 1997,
       Philadelphia Daily News article, that "[i]t's hard for
       me to conceive how these lyrics could destroy her
       sex life . . . but we can only wait for the pr oof to be
       revealed at trial." App. at 29.

       (4) Fischbein's August 20, 1997, statement to
       Newsweek columnist Johnnie L. Roberts that Mrs.
       Tucker was bringing suit, in part, to recover for
       damage to her sex life, and his statement, quoted in
       the Newsweek article, that "I can't wait to hear her
       testimony on that subject." App. at 31.

       (5) Fischbein's statement to Belinda Luscombe of Time
       that Tucker II "was brought for emotional distress
       and that part of that was that . . . her sexual
       relationship with her husband was affected." App. at
       2197.

The District Court held that none of these statements
could have a defamatory meaning. The Court concluded
that, although the statements might be annoying or
embarrassing, they could not support a cause of action for
defamation. The Court stated: "There is a vast difference
between being annoyed and/or embarrassed on the one
hand, and being disgraced and ridiculed to the extent that
one's reputation is harmed and lower ed in the estimation of
the community, on the other." Dist. Ct. Op. at 6.

We cannot agree with the District Court's analysis.
Statements considerably milder than or comparable to
those at issue here have been held by the Pennsylvania
Supreme Court to be capable of a defamatory meaning. For
example, in Birl v. Philadelphia Elec. Co., 167 A.2d 472 (Pa.
1960), the Pennsylvania Supreme Court held that a
statement that an employee quit without notice was
capable of a defamatory meaning because recipients could

                               8
conclude that the employee lacked honor and integrity "and
was not a person to be relied upon insofar as his business
dealings were concerned." Id. at 476. In Cosgrove Studio &
Camera Shop v. Pane, 182 A.2d 751 (Pa. 1962), the
Pennsylvania Supreme Court held that an advertisement
was capable of a defamatory meaning because it implied
that a competitor had bad business practices and might
lead a recipient to question the competitor's integrity. Id. at
754.

Reading the statements at issue in this case in context
and looking at the impression that they wer e likely to
engender in the minds of the average reader , we conclude
that each is capable of a defamatory meaning. Mrs. Tucker
has led a campaign against the immorality of gangsta rap
and those who profit from it. The statements made by the
defendants--to the effect that Mrs. Tucker and her
husband brought a $10 million lawsuit because Shakur's
lyrics damaged their sex life--carry numer ous disparaging
implications. Because of the inherent implausibility of the
idea that lyrics alone could cause millions of dollars of
damage to a couple's sexual relationship, the statements
were capable of making the Tuckers look insincere,
excessively litigious, avaricious, and perhaps unstable.
Furthermore, the statements tended to suggest that the
Tuckers are hypocritical, that after condemning the gangsta
rap industry for profiting from por nography, the Tuckers
were only too willing to open up their own sex life for public
inspection in order to reap a pecuniary gain. In the more
colloquial language used by the defendants themselves, the
statements suggested that the Tuckers were"[g]rabbing [a]t
a [d]ead [s]tar['s]" "[b]ooty" and were willing to take the
witness stand at trial and publicly provide the testimony
about their sex lives that Fischbein "[couldn't] wait to hear."
Such statements were capable of lowering the Tuckers'
reputation in the eyes of the community and of causing
others to avoid associating with them.

It is worth noting that, not only were the defendants'
statements capable of a defamatory meaning, but the
Tuckers adduced evidence that their reputations were in
fact adversely affected. See 42 Pa. Cons. Stat. Ann.
S 8343(a)(4) (requiring plaintiff to prove that the recipient

                               9
understood the statement as defamatory). In a Philadelphia
Daily News article dated August 6, 1997, the author stated:
"I also appreciate how some people felt betrayed when she
filed a $10 million suit that has trivialized her and her
movement. For a week now, even some of her most
consistent supporters have been questioning her motives
and snickering over the suit's allegation that her sex life
has been ruined by a couple of Tupac Shakur raps." App.
at 2143. An August 17, 1997, Chicago Sun-T imes article
noted: "[I]n my eyes Tucker has suffer ed a self-inflicted
blow to her credibility. . . . Seems to me the real
humiliation comes when a woman who has fought har d
against gangsta rap makes the very personal and
embarrassing claim that a couple of those very songs
ruined her love life." App. at 265-66.

In short, the District Court erred when it held that the
defendants' statements were not capable of a defamatory
meaning under Pennsylvania law. The statements had the
tendency to lower the Tuckers in the estimation of the
community and to deter third persons fr om associating
with them. We must therefore examine whether the First
Amendment poses a bar to the Tuckers' claim.

II.

When a public official or public figure sues for
defamation, the First Amendment demands that the
plaintiff prove both that the statement was false and that it
was made with "actual malice." Hustler Magazine v. Falwell,
485 U.S. 46, 52 (1988) (emphasis in original omitted); New
York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964);
Curtis Publ'g Co. v. Butts, 388 U.S. 130, 162-65 (1967)
(Warren, C.J., concurring) (applying the New York Times
standard to public figures); U.S. Healthcare v. Blue Cross of
Greater Philadelphia, 898 F.2d 914, 931 (3d Cir. 1990).

A. Actual malice

Under New York Times v. Sullivan and its progeny, actual
malice means "knowledge that [the statement] was false or
. . . reckless disregard of whether it was false or not." New
York Times, 376 U.S. at 279-80. A public figure must

                               10
adduce "sufficient evidence to permit the conclusion that
the defendant entertained serious doubts as to the truth of
his publication." St. Amant v. Thompson, 390 U.S. 727, 731
(1967). "[A] court ruling on a motion for summary judgment
must be guided by the New York Times `clear and
convincing' evidentiary standard in deter mining whether a
genuine issue of actual malice exists--that is, whether the
evidence presented is such that a reasonable jury might
find that actual malice has been shown with convincing
clarity." Anderson v. Liberty Lobby, 477 U.S. 242, 257
(1986).

1. Fischbein

The Tuckers assert two grounds for holding that
Fischbein acted with actual malice. First, the Tuckers argue
that Fischbein, as a lawyer, should have known that a
claim for loss of consortium may not have anything to do
with damage to sexual relations. It follows, the Tuckers
contend, that Fischbein was at least reckless when he told
the press that Mrs. Tucker was trying to r ecover for injury
to her sex life.

We reject this argument. A claim for loss of consortium
may concern damage to sexual relations and, with respect
to the period prior to the service of the Tuckers' First
Amended Complaint, there is no evidence that Fischbein
was informed that Mr. Tucker's consortium claim did not
refer to damage to sexual relations. Nor is there evidence
from which a jury could find that Fischbein entertained
serious doubts about the truthfulness of his statements at
any time before the filing of the First Amended Complaint.
Consequently, the record is insufficient to show by clear
and convincing evidence that Fischbein was guilty during
this period of anything more than negligence in jumping to
the conclusion that Mr. Tucker's loss-of-consortium claim
related, at least in part, to sex. See St. Amant, 390 U.S. at
731; Time, Inc. v. Pape, 401 U.S. 279, 290 (1971) ("The
deliberate choice of an interpretation, though arguably
reflecting a misconception, was not enough to create a jury
issue of `malice' under New York T imes."). The Tuckers
point out that Fischbein, as the representative of Shakur's
estate, had a motive for discrediting Mrs. Tucker, but

                               11
circumstantial evidence of Fischbein's motive alone cannot
satisfy the actual malice standard.

The Tuckers' second argument regar ding Fischbein,
however, does have merit. As previously noted, on August
27, 1997, the Tuckers filed their First Amended Complaint,
which added Fischbein as a defendant and sought millions
of dollars in damages. The basis for adding Fischbein was
set out in Paragraph 46, which averred that Fischbein had
"made false and misleading statements regar ding the claim
herein, through published statements that C. Delores Tucker
filed suit because of a `loss of her sex life. ' " App. at 1711-
12 (emphasis added). It is undisputed that Fischbein was
personally served with this complaint before his interview
with Time magazine reporter Belinda Luscombe on
September 12, 1997.2 Nevertheless, according to
Luscombe's deposition, Fischbein told her during this
interview that the Tuckers were attempting to r ecover for
damage to their sexual relationship.

Based on this sequence of events, we are convinced that
a reasonable jury could find by clear and convincing
evidence that, at least as of the date of the service of the
First Amended Complaint, Fischbein had actual knowledge
that the Tuckers were not seeking to recover for damage to
their sexual relationship. Since the First Amended
Complaint alleged that Fischbein had defamed the Tuckers
by stating that they were attempting to r ecover for damage
to their sexual relations, a reasonable jury could certainly
conclude that an attorney who read the complaint would
understand that the Tuckers were not going to attempt to
recover for such damage. (Indeed, it would be hard to
interpret the First Amended Complaint any other way.)
Fischbein states that he did not read the First Amended
Complaint before speaking to Luscombe, but a r easonable
jury could believe that a person who is added as a
defendant in a multi-million dollar lawsuit is very likely to
read the complaint shortly after receiving it in order to see
_________________________________________________________________

2. This argument does not apply to any statements made by Fischbein
prior to August 27, 1997, including the comments published by the
Philadelphia Daily News and the August 26 interview with Roberts of
Newsweek.

                                12
why he or she has been sued. A reasonable jury could
disbelieve Fischbein's story and find by clear and
convincing evidence that Fischbein did read the First
Amended Complaint before the interview. W e must
therefore reverse the judgment of the District Court insofar
as it dismissed the Tuckers' claim against Fischbein with
regard to the statements to Luscombe.

The dissent disagrees with our conclusion on this point
because, in the dissent's view, "[t]he language of the
Amended Complaint, in the context of the Tuckers' pr evious
statements and actions, was insufficient to indicate a
change in their attitude toward alleging a loss of sexual
relations." Dissent at 24. But even if we agreed with the
dissent's characterization of the Tuckers' prior statements,3
the following stark facts remain: (a) the Amended
Complaint added Fischbein as a defendant and was served
upon him; (b) the Amended Complaint asserted that
Fischbein had defamed the Tuckers by stating that"C.
Delores Tucker filed suit because of a `loss of her sex life' "
(App. at 1711-12); and (c) the Amended Complaint sought
millions of dollars in damages. Surely a r easonable jury
could find, by clear and convincing evidence, that Fischbein
knew, after reading the Amended Complaint, that, whether
or not the Tuckers had previously been seeking to recover
for damage to their sexual relationship, they were no longer
doing so.4
_________________________________________________________________

3. The dissent seems at times to make findings of fact. For example, the
dissent opines that "the statements made by the Tuckers and their
attorney were deliberately cagey and equivocal so that they could, if they
wished, introduce evidence of impotence and sexual disfunction at trial."
Dissent at 22. This amounts to a finding of fact r egarding the intent of
the Tuckers and their attorney, and it is the province of the trier of
fact,
to make such a finding.

4. The dissent "find[s] it ironic that [we] believe[ ] there could be
actual
malice in a statement so similar to [the following statement] attributed
to Mr. Tucker in The Philadelphia T ribune" (Dissent at 27):

         Pointedly asked how the lyrics could affect his sex life, he said,
         "That's just a brief reference [in the lawsuit] -- a small part of
it. We
         have to represent the situation as accurately as we can and the
only
         way to experience it is to have it happen to you."

                                 13
2. Roberts and Newsweek

The Tuckers' case against Roberts and Newsweek
includes some evidence from which a reasonable jury could
infer actual malice, but not the clear and convincing
evidence needed to survive summary judgment.
Accordingly, we must affirm the District Court's grant of
summary judgment in favor of Roberts and Newsweek.
Viewing the evidence in the light most favorable to the
Tuckers, their attorney, Richard C. Angino, spoke with
Roberts on August 20, 1997, six days before Roberts wrote
"Grabbing at a Dead Star." Accor ding to Angino, he told
Roberts in the course of this phone call that "consortium
can mean, in some cases, sex. I said most of the time it
doesn't and it doesn't in this case." Angino Dep., App. at
636.

Other statements in Angino's deposition sever ely weaken
the Tuckers' position, however, and make it impossible for
them to satisfy the clear and convincing standar d. For
instance, when asked exactly what he said to put Roberts
on notice that the Tuckers' claim did not involve
impairment of sexual relations, Angino r eplied: "I said only
in the rarest of cases would you have a count that actually
involves sex. I'm under oath, so I cannot say to you that I
said specifically, this case does not involve sex ." App. at
_________________________________________________________________

App. at 1631 (brackets in original).

At most, however, this statement may show Mr . Tucker's intent at the
time of the article, in August 1997. It hardly establishes that the
Tuckers
were seeking to recover for damage to their sexual relations after they
later filed the Amended Complaint.

Moreover, the dissent's interpretation of the statement attributed to
Mr. Tucker in the article, while certainly r easonable, is not compelled.
Without knowing the exact question posed by the reporter (and the
question is merely paraphrased in the article), it is not possible to rule
out the possibility that Mr. Tucker was simply referring to his claim for
loss of consortium, which need not necessarily have pertained to sex. In
other words, he may have said that the loss of consortium claim was "just
a brief reference [in the lawsuit]-- a small part of it." If evidence of
this
statement is admitted at trial, it will be for the trier of fact to
interpret
it.

                                14
431 (emphasis added). Actual malice requir es a plaintiff to
establish that the defendant had a subjective belief that the
statement was false when made, and Angino's equivocation
about the exact words he used defeats any hope the
Tuckers might have of proving actual malice on the part of
Roberts or Newsweek by clear and convincing evidence.
Therefore, we affirm the District Court's entry of summary
judgment in favor of those parties.

3. Luscombe and Time

The Tuckers set forth 24 theories under which, they
assert, it could be found that Belinda Luscombe and Time
acted with actual malice in connection with the"Shakur
Booty" article of September 15, 1997. Many of these
theories are grounded on allegations of poor journalistic
practices--e.g., that Luscombe had a pr econceived story-
line; that she did not follow Time's editorial guidelines; that
she failed to conduct a thorough investigation; and that she
copied from other stories but changed their language
without a factual basis. As the District Court found, these
theories of actual malice are without support in the case
law. While we will discuss only a few of these theories
below, we have carefully considered and r ejected all of
them.

The Supreme Court has made clear that even an extreme
departure from professional standar ds, without more, will
not support a finding of actual malice. See Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 665
(1989). Likewise, a failure to investigate, standing alone,
does not constitute actual malice. See St. Anant v.
Thompson, 390 U.S. at 730-31; Marcone v. Penthouse Int'l
Magazine for Men, 754 F.2d 1072, 1089 (3d Cir. 1985).

The Tuckers assert that Luscombe avoided the truth by
relying on biased sources while ignoring the Tuckers' news
release, which explained the import of their Complaint.
Although the Supreme Court has held that purposeful
avoidance of the truth may support a claim of actual
malice, the evidence here falls short. In Harte-Hanks, the
Court held that there was sufficient evidence of actual
malice where, among other things, a reporter failed to

                                15
interview a key witness to events being reported in a story,
and the circumstances suggested that this was done for
fear that the witnesses' statement might contradict the
story the paper was committed to running. See 491 U.S. at
682-83. Likewise, in Curtis Publishing Co. v. Butts, 388 U.S.
130 (1967), the Court found actual malice when the
Saturday Evening Post failed to make adequate investigative
efforts in the face of notification that the report they were
about to print was false. Id. at 169-70. The element present
in Harte-Hanks and Butts but lacking here is evidence from
which a reasonable jury could infer that Luscombe doubted
the veracity of her story. See Harte-Hanks, 491 U.S. at 692.

The Tuckers assert that the service of the First Amended
Complaint on Time-Warner, Inc., the parent corporation of
Time, Inc., which publishes Time magazine and employs
Luscombe, should have put Luscombe on notice that the
Tuckers did not seek recovery for injury to their sex life.
This argument is far-fetched. Time-Warner, Inc., a huge
media and entertainment conglomerate, was served
because it was one of the original defendants due to its
alleged connection with Interscope Records. There is no
evidence that Luscombe or anyone else actually involved
with the "Shakur Booty" article was given or r ead the First
Amended Complaint, and unlike Fischbein, neither
Luscombe nor anyone else employed by Time magazine was
named as a defendant in that complaint. The Tuckers have
simply adduced no evidence (let alone clear and convincing
evidence) that Luscombe or anyone else involved with the
"Shakur Booty" article was aware that the Tuckers did not
intend to include injury to their sex life as a component of
the loss of consortium claim.

We likewise see no merit in the Tuckers' ar gument that
Luscombe and Time acted with actual malice because they
copied other stories but then changed their language
without a factual basis. Although the circumstances under
which an article is changed may sometimes be enough to
show actual malice, the present case does not fall into that
category. This case is readily distinguishable from St. Surin
v. Virgin Islands Daily News, Inc., 21 F.3d 1309 (3d Cir.
1994). In St. Surin, a newspaper reporter interviewed an
Assistant United States Attorney who confir med that St.

                               16
Surin was being investigated but refused to comment on
whether charges would be brought. An editor, however,
"changed it to read that the government expected to file
charges against St. Surin the following week." Id. at 1318.
We held that the evidence, viewed in the light most
favorable to St. Surin, showed that the editor was aware of
facts showing that her changes to the article in question
made it false. See id.

In this case, there is no comparable evidence. The
"Shakur Booty" article was clearly derived in large part from
previously published articles and did not change the import
of those articles in any material way. Moreover , as
discussed above, there is no evidence her e from which a
reasonable jury could find that Luscombe was on notice
that the facts related in her story wer e false. Accordingly,
we affirm the District Court's grant of summary judgment
in favor of Time and Luscombe.

B.

Although the District Court based its judgment only on
defamatory meaning and actual malice, it stated:"Counsel
for all defendants have made various other ar guments, not
the least of which is that the statements wer e true. By not
commenting on them, I have not necessarily r ejected them."
Dist. Ct. Op. at 13. On appeal, the defendants ar gue that
the decision of the District Court may be affir med on the
alternative ground that the Tuckers have not adduced
sufficient evidence that any of the challenged statements
were false when made. Although we may affir m a decision
on an alternative ground, see, e.g. , Erie Telecomms., Inc. v.
City of Erie, 853 F.2d 1084, 1089 n.10 (3d Cir. 1988), we
decline to do so here.

Truth is an affirmative defense under Pennsylvania law,
see 42 Pa. Const. Stat. Ann. S 8343(b)(1), but the United
States Supreme Court has held that a publicfigure must
bear the burden of proving falsity. See Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1985)
(holding that "the common law's rule of falsity--that the
defendant must bear the burden or proving truth--must
similarly fall here to a constitutional r equirement that the

                               17
plaintiff bear the burden of showing falsity"); see also
Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 274 n.49
(3d Cir. 1980) (suggesting that Pennsylvania's practice of
placing the burden of proving truth on the defendant is
probably unconstitutional); Dunlap v. Philadelphia
Newspapers, Inc., 448 A.2d 6, 13-14 (Pa. Super . 1982)
(same). Thus, even though Fischbein's comments to
Luscombe are capable of a defamatory meaning, and even
though he may have uttered them with actual malice,
Fischbein cannot be held liable unless the Tuckers can
prove that the comments were false.

We conclude that the Tuckers have pointed to proof that
is sufficient to show, either by a preponderance or by clear
and convincing evidence,5 that Fischbein's statements to
Luscombe after the filing of the First Amended Complaint
were false.6 The First Amended Complaint alleged that
Fischbein had defamed the Tuckers when he said that they
were trying to recover for damage to their sexual relations.
In light of that allegation, it seems clear--and a reasonable
jury could certainly find--that the First Amended
Complaint itself did not seek to recover for such damage.
(Surely a reasonable jury could find that, if the Tuckers'
case had gone to trial under the Amended Complaint, the
Tuckers did not intend to seek to recover both on the
theory that Mr. Tucker suffered a loss of consortium and
that Fischbein defamed them by asserting that they
intended to recover for a loss of consortium.) Fischbein,
however, supposedly told Luscombe that "this was a lawsuit
_________________________________________________________________

5. The Supreme Court has explicitly declined to decide whether the
plaintiff must prove falsity by a pr eponderance of the evidence or by
clear and convincing evidence. See Harte-Hanks , 491 U.S. at 661 n.2
(declining to resolve the issue, but acknowledging disagreement among
the circuits). Compare Firestone v. Time, Inc., 460 F.2d 712, 722-23 (5th
Cir. 1972) (Bell, C.J., concurring) (ar guing for a clear and convincing
standard) with Goldwater v. Ginzburg, 414 F.2d 324, 341 (2nd Cir. 1969)
(suggesting a preponderance of the evidence standard) and Rattray v.
National City, 51 F.3d 793, 801 (9th Cir . 1995) (adopting Goldwater).

6. Because we have held that there is not sufficient evidence that
Fischbein acted with actual malice prior to that date, we need not and
do not decide whether there was enough evidence to show that the
statements he made during that period were false.

                                18
about emotional distress and one of things af fected were
[sic] her sexual relationship with her husband." App. 2197.
We hold that there was sufficient evidence of falsity to go to
the jury.

III.

Finally, we hold that the District Court corr ectly denied
the Tuckers' motions to depose in-house counsel at Time
and Newsweek. This Court exercises plenary review over a
discovery order regarding claims of attorney-client privilege.
See Livingstone v. North Belle Vernon Borough, 91 F.3d 515,
524 (3d Cir. 1996). The communications with in-house
counsel involved here were clearly for the purpose of
rendering legal advice and therefor e are privileged. The
Tuckers argue that the privilege was waived because in-
house counsel reviewed stories "in the r egular course of
business." This argument is frivolous. That reporters
regularly consult with in-house counsel to discuss potential
liability for libel does not thereby deprive those
communications of the protection of the attor ney-client
privilege. See, e.g., Upjohn Co. v. United States, 449 U.S.
383, 394 (1981) (holding that communications between
corporate counsel and a corporation's employees made for
the purpose of rendering legal advice ar e protected by the
attorney-client privilege); Liberty Lobby, Inc. v. Dow Jones &
Co., 838 F.2d 1287, 1302 (D.C. Cir . 1988) ("Pre-publication
discussions between libel counsel and editors or r eporters
would seem to come squarely within the scope of the
privilege as defined in Upjohn.").

IV.

In sum, we affirm the District Court's grant of summary
judgment as to Time and Newsweek , but reverse in part as
to Fischbein. We also affirm the District Court's denial of
the Tuckers' motion to compel the deposition of the in-
house counsel at Time and Newsweek . The case is
remanded in part for proceedings consistent with this
opinion.

                               19
NYGAARD, Concurring and Dissenting.

I agree with much of what the Majority says in its well-
reasoned opinion for the court. I disagr ee, however, with its
conclusion with respect to defendant Richar d Fischbein and
therefore respectfully dissent. I conclude that the District
Court did not err; that a reasonable jury could not find that
Fischbein acted with actual malice when speaking to Time
magazine reporter Belinda Luscombe; and, that summary
judgment should be affirmed in its entir ety.

I begin with the Majority's conclusion that "prior to the
service of the Tucker's first Amended Complaint, there is no
evidence that Fischbein was informed that Mr . Tucker's
consortium claim did not refer to damages to sexual
relations." I agree, but I believe that the Majority
dramatically understates the point. There is a substantial
amount of uncontradicted evidence suggesting that, prior to
the filing of their Amended Complaint, the Tuckers did
intend to include sexual damages within their loss of
consortium claim. For clarity, I will summarize this
evidence in list form below:

       I. In his deposition, the Tuckers' attorney, Mr. Angino,
       stipulated that at the time the suit was commenced,
       the original complaint itself provided no indication
       that a claim for interference with sexual relations
       was not being pursued, and that someone r eading
       the Tuckers' complaint might assume that it alleged
       damage to sexual relations. (App. 566-70). In my
       opinion, unless otherwise stated, it is axiomatic
       that a loss of consortium claim includes a claim for
       loss of sexual relations.

       II. Mr. Angino also admitted in his deposition that
       when the suit was initiated, he was not sur e
       whether the Tuckers sought recovery for damage to
       their sexual relations. (App. 576). He stated that
       "the purpose of the consortium count was to cover
       everything . . . every way in which Mr. Tucker was
       affected, every way." (App. 575). The r ecord does
       not contain any facts to the contrary.

       III. The Tuckers themselves have failed to state, either
       in their depositions or in affidavits, that they had

                               20
       ruled out any facet of their consortium claim at
       the time they originally filed it.

       IV. The report of Dr. Har old Mignott, Mr. Tucker's
       physician, reveals that Mr. Tucker had"a
       significant amount of difficulty with impotence" at
       the same time that he suffered a "significant
       amount of stress" resulting from the "harassment"
       and "investigation" of both himself and his wife.
       The report was dated approximately one month
       before the Tuckers filed their claim for loss of
       consortium. (App. 583).

       V. On July 31, 1997, the Tuckers issued a news
       release about the Tucker II lawsuit. 7 Nothing in the
       press release disclaimed damages for inter ference
       with sexual relations. (App. 2072-73).

       VI. After observing the media's reaction to the
       consortium claim, Mr. Tucker had the opportunity
       in at least three separate interviews to clarify that
       he and his wife were not seeking compensation for
       injury to their sexual relations. Instead, Mr .
       Tucker confirmed in all three interviews that
       interference with sexual relations was indeed an
       element of their claims. (App. 1630-31; 2142-43;
       2145).

       VII. On August 13, 1997, in an interview with
       Philadelphia Weekly, Mr. Angino had a similar
       opportunity to clearly state for the public r ecord
_________________________________________________________________

7. The complaint in Tucker II is itself a confusing farrago of missteps
and
errors. Appellants' attorney never discussed the loss of consortium claim
with the Tuckers. (App. 518). The complaint was drafted by a law
student. It misrepresented one song by taking "snippets of words from
actual lyrics, words that are separated by many, many verses and
run[ning] them together as if they are a continuous statement," creating
what appellants' attorney now admits was "a gross and deliberate
misrepresentation." (App. 534). The appellant's attorney neither listened
to nor read the lyrics of the song that he alleges was defamatory. He
never conducted a fact check of any of the critical allegations in the
complaint. Indeed, he did not even sign it, nor is it clear from the
record
that he even read the final draft. His wife (who is not an attorney)
signed
it for him.

                               21
       that the Tuckers were foregoing any claims
       stemming from interference with sexual relations.
       However, Mr. Angino failed to do so. Instead, he
       stated that loss of consortium "is a standar d
       addition to lawsuits of this type and refers to all
       aspects of the marital relationship, not
       necessarily sex." (App. 2148-49) (my emphasis).

       VIII. On August 21, 1997, the Tuckers issued yet
       another press release. It again failed to disavow
       any claim arising out of Mr. Tucker's impotency
       or injury to the Tuckers' sexual relationship.
       Instead, the release confirmed the existence of
       such a claim and expressed the Tuckers'
       frustration that too much of the media's
       attention was focused on that aspect of the case:
       " `All the media gleefully jumped on the so-called
       sex part in the suit that called attention to loss
       of consortium, which was put in there by my
       husband Bill, not by me,' [Mrs. Tucker] added,
       obviously nettled." (App. 464).

       IX. The Tuckers have admitted that neither they, nor
       Mr. Angino, nor anyone on their behalf, ever called
       Fischbein, at any time, to correct his
       misunderstanding of the Tuckers' loss of
       consortium claim. (App. 571, 1968).

The Tuckers have failed to provide any evidence, other than
the language in their Amended Complaint, to suggest that
they did not intend to claim loss of sexual r elations.
Instead, it is obvious to me that the statements made by
the Tuckers and their attorney were deliberately cagey and
equivocal so that they could, if they wished, intr oduce
evidence of impotence and sexual dysfunction at trial.8

In spite of substantial evidence to the contrary, the
Tuckers still claim that all of Fischbein's statements were
made with actual malice; that is, with the "knowledge that
_________________________________________________________________

8. Another way of approaching this issue is to ask whether at trial, given
the general loss of consortium that the Tuckers originally alleged, it
would have been proper for the District Court to allow introduction of
evidence of Mr. Tucker's sexual dysfunction. The answer clearly is yes.

                               22
[they were] false or with reckless disregard of whether [they
were] false or not." New York Times v. Sullivan, 376 U.S. at
279-80. According to the Majority, the Tuckers present two
independent arguments in support of their position.
Although I remain unconvinced that they clearly articulate
even one, I will, for the sake of discussion, addr ess both
arguments in turn.

First, the Tuckers seem to suggest that Fischbein's legal
training put him on notice that loss of consortium does not
always imply harm to sexual relations. According to their
brief:

       Fischbein, who is a lawyer who knows the definition of
       consortium, knew at the time that he talked to the Los
       Angeles Times and the Philadelphia News and all of the
       other newspapers, including Time and Newsweek, that
       Mrs. Tucker did not claim in the Tucker I complaint
       that her sex life had been destroyed by the lewd lyrics
       of Tupac Shakur . . . Certainly a jury could find that
       Mr. Fischbein's uttering his sexual spin thr oughout
       this period constituted malice as defined by the
       Supreme Court.

(Appellants' Br. at 46-47). The Majority quickly dismisses
this argument, and there is no need to consider it further,
except that I question the Majority's suggestion that
Fischbein may have been negligent during the period prior
to the filing of the Amended Complaint. Again, I emphasize
that all of the evidence before the court indicates that the
Tuckers, at least originally, did intend to pursue damages
for loss of sexual relations. It is har d for me to imagine how
Fischbein may have been negligent in any way.

Until this point, my concerns with the Majority's opinion
have been fairly minor. I strongly disagree, however, with its
disposition of the Tuckers' second main argument.
According to the Majority, the Amended Complaint clearly
disavowed any intent to pursue damages for loss of sexual
relations. As such, a jury could find that Fischbein had
read the complaint, and that his subsequent comments to
Time magazine constituted actual malice.9 Although I
_________________________________________________________________

9. I agree with the Majority that a r easonable jury could find, in light
of
the high stakes surrounding the law suit, that Fischbein had read the

                               23
readily admit that this position is mor e compelling than the
Tuckers' first argument, I still cannot agr ee. The language
of the Amended Complaint, by itself, is simply insufficient
to convince a reasonable jury, under a clear and convincing
evidence standard, that Fischbein had actual knowledge
that the Tuckers were not seeking to recover damages for
loss of sexual relations

Before explaining my position, I want to be absolutely
clear about two points. First, I agree with the Majority that,
other than the Amended Complaint, "there is no evidence"
that Fischbein acted with actual malice.10 Thus, even under
_________________________________________________________________

Amended Complaint prior to his interview with T ime. I disagree, however,
with the Majority's conclusory statement that "it would be hard to
interpret the First Amended Complaint any other way." In light of the
Tucker's previous statements, and their penchant for ambiguity, I do not
believe that a reasonable jury could establish actual malice based solely
upon the Tuckers' five line paragraph.
10. The Tuckers contend that they indicated, thr ough personal
interviews and statements by their attorney, that they did not intend to
allege loss of sexual relations. This is simply not supported by the
record. For example, in their Second Amended Complaint, they claim
that their attorney told a Newsweek Reporter"unequivocally that the
complaint did not allege . . . that the actions of Defendants related in
the
[original] complaint had anything to do with their sex life." (App. 24).
Their attorney's signature appears on this complaint. During his
deposition, however, Mr. Angino admitted that, "I said only in the rarest
of cases would you have a count that actually involves sex. I'm under
oath, so I cannot say to you that I said specifically, this case does not
involve sex." (App. 646). This is but one of many examples where The
Tuckers were vague and ambiguous in their public statements and in
their declarations to this Court. The Tuckers also argue that the
Webster's dictionary definition of consortium supports their case. (App.
25). I did a quick check to verify this claim. Using the Internet (see
www.dictionary.com, accessible via www.websters.com), I obtained the
following definition of consortium:

       3. Law. The right of a spouse to the company of, help of, affection
       of, and sexual relations with his or her mate.

Unless this definition has changed radically in the past three years,
Webster's cuts strongly against the Tuckers. In sum, none of this
"evidence" is sufficient to persuade a r easonable jury that any of the
defendants acted with actual malice in "misinterpreting" the Tuckers'
claims.

                               24
the Majority's decision, the Tuckers' entir e claim rests solely
upon the language in the Amended Complaint. As the
Tuckers admit in their brief, only two paragraphs, out of
the seventy-one contained in the complaint, addr ess the
question of sexual relations:

       45. Defendant [Fischbein] has continued to defame
       and harass plaintiff by holding her up in a false
       light even after the complaint in this matter was
       filed on June 21, 1997.

       46. Defendant Fischbein made false and misleading
       statements regarding the claim [asserted in the
       original complaint], through published statements
       that C. Delores Tucker filed suit because of a
       "loss of her sex life." The statement was untrue,
       and defendant Attorney Fischbein should have
       known it was untrue.

(App. 1711-12). Second, the Tuckers filed the Amended
Complaint on August 27, 1997. The only statements made
by Fischbein after that date, and thus the only potentially
actionable comments, were those to T ime magazine reporter
Belinda Luscombe. I agree with the Majority that all other
comments were made without actual malice. Thus, the
question over which the Majority and I disagr ee is a fairly
narrow one, and I would characterize it in the following
manner: After all of the Tuckers' actions and comments to
the contrary, did the language in the Amended Complaint
sufficiently clarify the parameters of the loss of consortium
claim so that a reasonable jury could find that Fischbein's
comments to Time magazine were made with a reckless
disregard for the truth? I strongly believe the answer is no.

The language of the Amended Complaint, in the context
of the Tuckers' previous statements and actions, was
insufficient to indicate a change in their attitude toward
alleging a loss of sexual relations. In spite of all the media
attention, and all the harm that it supposedly caused, the
complaint failed to contain a simple, categorical statement
that the Tuckers were foregoing any claim for interference
with sexual relations. Instead, it continued to allege that
Mr. Tucker had "suffered a loss of . . . consortium," using
the very same language that was contained in the original

                               25
Tucker II complaint. (App. 1713). The only addition was a
short paragraph stating that Mrs. Tucker did not file the
original suit because of a loss of sexual relations. It said
nothing about Mr. Tucker, who had originally filed the loss
of consortium claim. And, as their own attor ney testified,
"when you damage one spouse, you damage the other
spouse in each and every way." (App. 566). My conclusion
is underscored by the fact that one month later , and
simultaneous with the filing of the complaint at issue in
this appeal, the Tuckers filed a Second Amended Complaint
to Tucker II, in which they unequivocally stated, for the first
time, that they were not seeking damages for interference
with sexual relations. This came far too late to serve as an
effective form of notice to Fischbein. 11

Even if the language of the complaint did clearly
communicate the Tuckers' position, as the Majority so
holds, it is not clear to me that this evidence by itself is
enough to support a jury's finding of actual malice. I am
_________________________________________________________________

11. With regard to the gravamen of this Second Amended Complaint,
plaintiffs' attorney responded as follows in his deposition:

        Q. And why did you feel there was a need to have -- to file a
        Second Amended Complaint?

        A. I couldn't believe how dense the defense wer e.

        Q. And in the Second Amended Complaint, you placed a dictionary
        definition of consortium; is that correct?

        A. That was a joke. It was really a joke.

        Q. Well, wait a minute, sir. Ar e you saying that you were
        perpetrating a joke in a Federal Court Complaint; is that what
        you are telling me?

        A. That's what I'm telling you. I said if I had to actually give
you a
        dictionary definition. . .

       Q. So you were -- you were playing ar ound a little bit in a
Federal
       Court Complaint; is that correct?

        A. I was saying look consortium means this.

        Q. So you were playing around a little bit.

        A. You -- you might say that.
App. 829-30.

               26
deeply troubled by the fact that, in spite of intense media
scrutiny and its concomitant pressures, the Tuckers never
publicly clarified the nature of their suit or contacted
Fischbein directly, until they filed the complaint in this
case. In short, they did nothing to curb public scrutiny
other than amend their original complaint to include new
claims. After the numerous public comments and
accusations by the Tuckers, it is simply unr easonable to
require Fischbein to infer solely fr om the language of the
Amended Complaint that the Tuckers had changed their
position.

Finally, even if the Amended Complaint by itself was
enough to support a jury finding of actual malice, I do not
believe that Fischbein's comments were r eckless. As
previously discussed, the only comments made subsequent
to the filing of the Amended Complaint wer e those to Time
magazine on September 12, 1997. According to Luscombe's
uncontradicted notes and testimony, Fischbein stated only
that Tucker II "was brought for emotional distress and that
part of that was that her sexual relationship with her
husband was affected." (App. 2197). T ime magazine did not
quote Fischbein, and Luscombe's article relied heavily upon
seven previous articles, all published in r espected sources
from Rolling Stone to The W ashington Post prior to the filing
of the Amended Complaint. I find it ironic that the Majority
believes there could be actual malice in a statement so
similar to one attributed to Mr. Tucker in The Philadelphia
Tribune (my emphasis):

       Pointedly asked how the lyrics could affect his sex life,
       he said, `That's just a brief reference[in the lawsuit] -
       a small part of it. We have to r epresent the situation as
       accurately as we can and the only way to experience it
       is to have it happen to you.'

As previously discussed, in addition to this statement, there
is a substantial amount of evidence that indicates that the
Tuckers originally did bring their suit, at least in part, to
recover for loss of sexual relations. Regardless of whether
they later changed their position, a literal r eading of
Fischbein's statement to Time r eveals no "reckless
disregard for the truth."

                               27
The record demonstrates that Fischbein, at the time of
his conversation with Time magazine, (1) was not aware
that the Tuckers intended to relinquish their claims for
interference with sexual relations, and (2) even if he was,
his comments were not reckless. As a r esult, I conclude
that the Tuckers cannot meet their burden of
demonstrating facts sufficient to show that Fischbein made
any statements that he suspected were false. As such, I
would affirm the grant of summary judgment in its entirety.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               28
