Street v. National Broadcasting Co.
| Decision Date | 13 March 1981 |
| Docket Number | No. 77-1682,77-1682 |
| Citation | 645 F.2d 1227 |
| Parties | 7 Media L. Rep. 1001 Victoria Price STREET, Plaintiff-Appellant, v. NATIONAL BROADCASTING CO., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Don Wyatt and Raymond W. Fraley, Jr., Fayetteville, Tenn., for plaintiff-appellant.
Robert R. Campbell, John W. Wheeler, Hodges, Daughty & Carson, Knoxville, Tenn., Arthur E. Simms, Jr., Fayetteville, Tenn., for defendant-appellee.
Before MERRITT and BOYCE F. MARTIN, Jr., Circuit Judges, and PECK, Senior Circuit Judge.
This is a Tennessee diversity case against the National Broadcasting Company for libel and invasion of privacy. The plaintiff-appellant, Victoria Price Street, was the prosecutrix and main witness in the famous rape trials of the Scottsboro boys, which occurred in Alabama more than forty years ago. NBC televised a play or historical drama entitled "Judge Horton and the Scottsboro Boys," dramatizing the role of the local presiding judge in one of those trials.
The movie portrays Judge Horton as a courageous and tragic figure struggling to bring justice in a tense community gripped by racial prejudice and intent on vengeance against nine blacks accused of raping two white women. In the movie Judge Horton sets aside a jury verdict of guilty because he believes that the evidence shows that the prosecutrix plaintiff in this action falsely accused the Scottsboro defendants. The play portrays the plaintiff in the derogatory light that Judge Horton apparently viewed her: as a woman attempting to send nine innocent blacks to the electric chair for a rape they did not commit.
This case presents the question of what tort and First Amendment principles apply to an historical drama that allegedly defames a living person who participated in the historical events portrayed. The plaintiff's case is based on principles of libel law and "false light" invasion of privacy 1 arising from the derogatory portrayal. NBC raises alternative claims and defenses: (1) the claim that the published material is not defamatory; (2) the claim of truth; (3) the common law privilege of fair comment; (4) the common law privilege of fair report on a judicial proceeding; (5) the First Amendment claim that because the plaintiff is a public figure recovery must be based on a showing of malice; and (6) even if the malice standard is inapplicable, the claim that recovery must be based on a showing of negligence.
At the end of all the proof, District Judge Neese directed a verdict for defendant on the ground that even though plaintiff was not a public figure at the time of publication the defamatory matter was not negligently published. We affirm for the reason that the historical events and persons portrayed are "public" as distinguished from "private." A malice standard applies to public figures under the First Amendment, and there is no evidence that the play was published with malice.
In April 1931, nine black youths were accused of raping two young white women while riding a freight train between Chattanooga, Tennessee, and Huntsville, Alabama. The case was widely discussed in the local, national, and foreign press. The youths were quickly tried in Scottsboro, Alabama, and all were found guilty and sentenced to death. The Alabama Supreme Court affirmed the convictions. Weems v. State, 141 So. 215, 224 Ala. 524 (1932); Patterson v. State, 141 So. 195, 224 Ala. 531 (1932); Powell v. State, 141 So. 201, 224 Ala. 540 (1932). The United States Supreme Court reversed all convictions on the ground that the defendants were denied the right to counsel guaranteed by the Sixth Amendment. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The defendants were retried separately after a change of venue from Scottsboro to Decatur, Alabama. Patterson was the first defendant retried, and this trial was the subject of the NBC production. In a jury trial before Judge Horton, he was tried, convicted, and sentenced to death. Judge Horton set the verdict aside on the ground that the evidence was insufficient. Patterson and one other defendant, Norris, were then tried before another judge on essentially the same evidence, convicted, and sentenced to death. The judge let the verdicts stand, and the convictions were affirmed by the Alabama Supreme Court. Patterson v. State, 156 So. 567, 229 Ala. 270 (1934), and Norris v. State, 156 So. 556, 229 Ala. 226 (1934). The United States Supreme Court again reversed, this time because blacks were systematically excluded from grand and petit juries. Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), and Patterson v. Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082 (1935). At his fourth retrial, Patterson was convicted and sentenced to seventy-five years in prison. Patterson v. State, 175 So. 371, 234 Ala. 342, cert. denied, 302 U.S. 733, 58 S.Ct. 121, 82 L.Ed. 567 (1937). Defendants Weems and Andrew Wright were also convicted on retrial and sentenced to a term of years. Defendant Norris was convicted and his death sentence was commuted to life imprisonment by the Alabama governor. Defendants Montgomery, Roberson, Williams, and Leroy Wright were released without retrial. Powell pled guilty to assault allegedly committed during an attempted escape. The last Scottsboro defendant was paroled in 1950.
The Scottsboro case aroused strong passions and conflicting opinions in the 1930s throughout the nation. Several all white juries convicted the Scottsboro defendants of rape. Two trial judges and the Alabama Supreme Court, at times by divided vote, let these verdicts stand. Judge Horton was the sole trial judge to find the facts in favor of the defendants. Liberal opinion supported Judge Horton's conclusions that the Scottsboro defendants had been falsely accused.
During the lengthy course of the Scottsboro trials, newspapers frequently wrote about Victoria Price. She gave some interviews to the press. Thereafter, she disappeared from public view. The Scottsboro trials and her role in them continued to be the subject of public discussion, but there is no evidence that Mrs. Street sought publicity. NBC incorrectly stated in the movie that she was no longer living. After the first showing of "Judge Horton and the Scottsboro Boys," plaintiff notified NBC that she was living, and shortly thereafter she filed suit. Soon after plaintiff filed suit, NBC rebroadcast the dramatization omitting the statement that plaintiff was no longer living.
The script for "Judge Horton and the Scottsboro Boys" was based on one chapter of a book by Dr. Daniel Carter, an historian, entitled Scottsboro: A Tragedy of the American South (Louisiana State University Press, 1969). The movie is based almost entirely on the information in Dr. Carter's book, which, in turn, was based on Judge Horton's findings at the 1933 trial, the transcript of the trial, contemporaneous newspaper reports of the trial, and interviews with Judge Horton and others. NBC purchased the movie from an independent producer.
Plaintiff's major libel and invasion of privacy claims are based on nine scenes in the movie in which she is portrayed in a derogatory light. The essential facts concerning these claims are as follows:
1. After an opening prologue, black and white youths are shown fighting on a train. The train is halted, and the blacks are arrested. The next scene shows plaintiff standing next to Ruby Bates at the tracks. Plaintiff claims that this scene, in effect, makes her a perjurer because she testified at the 1933 trial and in this case that she fainted while alighting from the train and did not regain consciousness until she was taken to a local grocery store. Judge Horton, in his opinion sustaining the motion for a new trial, found that the observations of other witnesses and the testimony of the examining doctor contradicted her testimony in this respect. Horton concluded that it was unlikely that Victoria Price had fainted. 2
2. As plaintiff and Ruby Bates are led away from the tracks by the sheriff and his men, the sheriff in the play calls the two women a "couple of bums." There is no indication in Judge Horton's opinion, in the 1933 trial transcript, or in Dr. Carter's book that this comment was actually made.
3. In a pretrial conversation between two lawyers representing the defendant, the play portrays one of them as advising restraint in the cross-examination of plaintiff Price. He says to the other defense lawyer: "The Scottsboro transcripts are really clear The defense at the last trial made one thing very clear, Victoria was a whore, and they got it in the neck for it " (Emphasis added.) There is no evidence that this specific conversation between the two defense lawyers actually occurred. Dr. Carter does state in his book that one of the purposes of the defense in cross-examining plaintiff was to discredit her testimony by introducing evidence that she was a common prostitute. Scottsboro at 206.
4. Plaintiff in this action contends that the movie falsely portrays her as defensive and evasive during her direct and cross-examination. Judge Horton found in his 1933 opinion granting a new trial that plaintiff was not a cooperative witness:
5. Plaintiff claims that the last question put to her on cross-examination in the play is inaccurate. In the movie the defense attorney asks: "One more question: have you ever heard of a white woman being arrested for perjury when she was the complaining witness against Negroes in the entire history of the state of Alabama?" According to the 1933 trial transcript, the actual question was, "I want to ask you if you have ever heard of any single white...
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