460 F.2d 712 (5th Cir. 1972), 71-1887, Firestone v. Time, Inc.

Docket Nº:71-1887.
Citation:460 F.2d 712
Party Name:Mary Alice FIRESTONE, Plaintiff-Appellee-Cross Appellant, v. TIME, INC., Defendant-Appellant-Cross Appellee.
Case Date:April 20, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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460 F.2d 712 (5th Cir. 1972)

Mary Alice FIRESTONE, Plaintiff-Appellee-Cross Appellant,


TIME, INC., Defendant-Appellant-Cross Appellee.

No. 71-1887.

United States Court of Appeals, Fifth Circuit.

April 20, 1972

Page 713

Larry S. Stewart, William S. Frates, Miami, Fla., Harold R. Medina, Jr., New York City, Frates, Floyd, Pearson & Stewart, Miami, Fla., for appellant; W. Dennis Cross, New York City, of counsel.

Joseph D. Farish, Jr., Farish & Farish, West Palm Beach, Fla., for appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

AINSWORTH, Circuit Judge:

In this libel action against a publisher of a national magazine, we are called upon again to apply the principles of New York Times Company v. Sullivan 1 and its progeny, to determine if the constitutional guarantees of the First and Fourteenth Amendments confer immunity from claims for damages, under the facts and circumstances of the case.

Mary Alice Firestone filed this Florida diversity suit for compensatory and punitive damages based on alleged libel and invasion of privacy against Time, Inc., growing out of the publication of an article in Life Magazine, owned by defendant. The matter is before us for the second time. (See Firestone v. Time, Inc., 5 Cir., 1969, 414 F.2d 790, for our prior opinion.) When this case was first appealed, Mrs. Firestone's complaint had been dismissed by the District Court on motion to dismiss. However, we reversed and remanded for further disposition, since it did not appear to a certainty that plaintiff would be entitled to no relief under any set of facts which could be proved in support of her claim. Id., 414 F.2d 790. 2 See also Arthur H. Richland Company v. Harper, 5 Cir., 1962, 302 F.2d 324, 325;

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Shell v. Hensley, 5 Cir., 1970, 430 F.2d 819, 826; Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

The publication complained of appeared in Life Magazine on May 20, 1966, in a lengthy feature story about electronic eavesdropping. Highlighted on the cover of the magazine the article was entitled "THE BIG SNOOP," "Electronic Snooping Insidious Invasion of Privacy." The cover showed a young lady partially undraped with a tiny transmitter taped to her back where her dress in place would conceal it. On the first page of the article was a photograph of a "bugged martini" with a plastic olive containing a built-in sending device and toothpick antenna which it was said could transmit a cocktail party conversation 100 feet. The article referred to eavesdropping as a "multimillion dollar industry"; and said that bugging is "shockingly widespread" and "increasingly insidious." In ten full pages "LIFE reveals in detail this electronic assault on privacy . . . ." There are photographs and text pertaining to all types of electronic eavesdropping devices and "bugs." On one page of the story a photograph is captioned "Divorce Spy." Pictured is Jack Harwood of Palm Beach, Florida, apparently the "divorce spy". Immediately beneath his photograph is another of Russell Firestone and his estranged wife Mary Alice Firestone, plaintiff in this case. The magazine's text concerning the photographs of Harwood and Russell and Mary Alice Firestone is the specific subject matter of this suit and reads as follows:

"TWO-WAY SNOOP. In Florida, where electronic eavesdropping is frequently employed in divorce suits, private eyes like Jack Harwood of Palm Beach, shown above with some of his gear, do a thriving business. Harwood, who boasts, 'I'm a fantastic wire man,' was hired by tire heir Russell Firestone to keep tabs on his estranged wife, Mary Alice. She in turn got one of Harwood's assistants to sell out and work for her and, says Harwood, 'He plays just as rough with the bugs as I do.' A court recently ordered Russell and Mary Alice to stop spying on each other."

The Firestones were then engaged in marital litigation in a Florida State Court. The record discloses that the Harwood assistant referred to and about which there is considerable testimony was one Carl Geisler.

The two-count amended complaint alleged that the Life Magazine article defamed plaintiff where it stated, "She in turn got one of Harwood's assistants to sell out and work for her . . .."; that plaintiff has enjoyed an unblemished reputation but, as a result of the defamatory article, has been severely injured in her personal relations and has suffered severe damage to her reputation in the community; that defendant well knew that the employee [Geisler] said to have sold out to work for plaintiff was a private investigator who was to become a witness in the divorce action and whose credibility was severely damaged by the publication; that the defamatory words were intended to convey the meaning that plaintiff would incite Harwood's employee to commit perjury in violation of Florida Statutes, FSA § 837.04, 3 thus accusing plaintiff of committing a felony; that plaintiff's position in the court where the marital litigation is pending has been irreparably damaged by the article; that the publication

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has invaded the privacy of plaintiff's personal affairs causing her to become subject to disgrace and humiliation; that her private activities and her private divorce litigation were not matters of public concern or interest; that the defamatory language in the publication was false, to the knowledge of defendant, and was made with reckless and utter disregard for its truth or falsity, and with malice toward plaintiff. Defendant denied the allegations of the complaint and averred that the publication complained of was true, consisted of reports on matters of public interest, was made in good faith, pursuant to its duty to inform the public; that the publication was made without malice in a national news magazine of general circulation and is privileged and protected by the First and Fourteenth Amendments of the Constitution of the United States.

The case was tried before the District Judge, sitting without a jury, and resulted in judgment in favor of plaintiff for $15,000 compensatory damages and $15,000 additional punitive damages. Both parties have appealed, defendant contending that suit should have been dismissed in its entirety and plaintiff asserting that the award of punitive damages was inadequate.

The District Judge in written findings of fact and conclusions of law reviewed Florida jurisprudence relative to actions for libel under the law of that state. 4 He held that when Life's article stated that plaintiff caused one of Harwood's assistants [Geisler] to sell out to her, it necessarily charged that she paid him to betray her husband in a marital dispute between them, and that she had caused him to transfer his allegiance and confidentially obtained knowledge to her-in fact, that she "bribed" Harwood's assistant; that the article was actionable per se and libelous. He further held that the article was not constitutionally protected under the doctrine of New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), because plaintiff was not of the class of persons referred to in that decision nor a public character and "[h]er private affairs were not a matter of legitimate public concern." 5 However, the District Judge made alternative findings and conclusions to the effect that even if New York Times were applicable plaintiff had sustained the burden of proof and was entitled to recovery. He held that Life's editorial staff "necessarily had a high degree of awareness of the probable falsity of the statements" attributed

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to Harwood relative to a "sell out," and that the conclusion was "inescapable" that the complained of words "sell out" were written "with reckless and wanton disregard for the truth and necessarily with serious doubts as to the truth" thereof. In his view, plaintiff suffered personal and public humiliation and her reputation was injured. In summary, the Court held that defendant had "falsely libeled" plaintiff, thus entitling her to compensatory and punitive damages. 6 However, the Trial Court held that plaintiff had no action for invasion of privacy because she had given "limited consent" to publication. 7

Our review of this case is written with the principles of the recent decision of the Supreme Court in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), squarely before us. In Metromedia, the Supreme Court reached a new dimension under the First Amendment constitutional protection for freedom of speech and of the press. No longer did the constitutional guarantee apply only to suits of public figures or public officials but in a sweeping decision the plurality opinion of the Court (by Justice Brennan) extended "constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." Id., 403 U.S. at 44, 91 S.Ct. at 1820.

The holding in Metromedia was anticipated by this Circuit in several prior decisions beginning with Time, Inc. v. McLaney, 5 Cir., 1969, 406 F.2d 565, cert. denied, 395 U.S. 922, 89 S.Ct. 1776, 23 L.Ed.2d 239 (1962), where we held that "the constitutional privilege extends to discussions by specific individuals, not associated with any government, if those individuals are involved in matters of important public concern." 406 F.2d at 573. Next, in Bon Air Hotel, Inc. v. Time, Inc., 5 Cir., 1970, 426 F.2d 858, we said, "This Court in Time, Inc. v. McLaney . . . noted that the New York Times actual malice standard is applicable to publications involving matters of great public interest." 426 F.2d at 861. Then in Time, Inc. v. Ragano, 5 Cir., 1970, 427 F.2d 219, we reaffirmed the applicability of the New York Times standard requiring...

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