Brooks v. American Broadcasting Companies, Inc., C81-706A.

• Decision Date: 28 March 1990
• Docket Number: No. C81-706A.,C81-706A.
• Citation: 737 F. Supp. 431
• Parties: William Gordon BROOKS, Plaintiff, v. AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

737 F. Supp. 431

William Gordon BROOKS, Plaintiff, v. AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants.

No. C81-706A.

United States District Court, N.D. Ohio, E.D.

March 28, 1990.

COPYRIGHT MATERIAL OMITTED

John L. Wolfe, Akron, Ohio, for plaintiff.

Terence J. Clark, Squire Sanders & Dempsey, Cleveland, Ohio, for defendants.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge, sitting by designation.

This matter comes before the court on the motion of plaintiff William Brooks for leave to file an amended complaint, and defendant American Broadcasting Companies' motion for summary judgment. The parties having fully briefed the issues and the court having viewed the videotape of the broadcast in question, as well as the outtakes, the court will rule on these motions without conducting oral argument. See Local Civil Rule 3.01.

I. MOTION TO AMEND THE COMPLAINT

This case arises out of an interview of Brooks by Geraldo Rivera recorded on April 1, 1980,¹ and the subsequent April 17, 1980, broadcast of excerpts of that interview in a report entitled "Injustice for All" on the ABC television program "20/20." The original complaint states that defendants lured Brooks to an Akron hotel on the fictitious premise that Brooks was to meet with his attorney and Rivera for a private meeting. Allegedly, before Brooks was able to enter the hotel, he was confronted on the street by Rivera, cameras, and recording equipment, at which time Rivera began to barrage Brooks with questions concerning Brooks's connection with a local judge, James Barbuto. Judge Barbuto had been indicted for various criminal acts which allegedly occurred while he was a probate judge for Summit County, Ohio. Rivera's questions related to allegations that Brooks was an "enforcer" or "hit man" for Judge Barbuto, and that Brooks had been instructed by Judge Barbuto to intimidate five prostitutes who were going to testify against Judge Barbuto.

In the complaint, Brooks stated two causes of action. Brooks alleged in Count I that defendants invaded his privacy by portraying him in a false light,² this was done intentionally and in reckless disregard of his rights and, as a result, he had been humiliated, subjected to gossip, embarrassed, etc. In Count II, Brooks alleges that defendants maliciously, intentionally and, in reckless disregard of his rights, publicly slandered and libeled him in their 20/20 report by communicating the following defamatory false information:

1. Brooks was a friend of Judge Barbuto;

2. Brooks was employed by Barbuto as a "hit man";

3. Five witnesses testified that Brooks was a "hit man";

4. Brooks was a "pimp";

5. Brooks had been "betrayed";

6. Brooks was a "muscleman";

7. Brooks was a "street knowledgeable jive turkey."

In the complaint, Brooks asked for $20 million in compensatory damages and $20 million in punitive damages.

Brooks seeks to add three new allegations in his motion to amend the complaint. First, he asks to modify Count I to allege that defendants invaded his privacy by "commercially exploiting his identity," as well as placing him in a false light. Second, he asks to add a Count III, alleging that defendants violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510, et seq., by using electronic, mechanical, or other devices to unlawfully intercept his statements to Rivera and by broadcasting the statements at a later date. Finally, Brooks wants to add a Count IV, alleging that defendants invaded his privacy only for the reason that he was a black male alleged to be the associate of a white judge who had sexual relations with black women, that defendants conspired among themselves to deprive Brooks of his constitutional right of privacy, and 42 U.S.C. §§ 1981, 1983, and 1985 were violated as a result.

Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires." However, there are certain circumstances when leave to amend should not be granted, and one such instance is when the amendment would be futile, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) or, put another way, where the proposed amendment could not withstand a motion to dismiss. Neighborhood Development Corp. v. Advisory Council on Historic Preservation, 632 F.2d 21, 23 (6th Cir.1980). A motion to dismiss will be granted only if, treating all well-plead allegations as true, the non-movant will be unable to recover under the pleading in question.

Defendants object to these three proposed changes on the ground that the new claims could not withstand a motion to dismiss. The court will rule on these issues seriatim.

A. Invasion of Privacy: Appropriation of Name or Likeness

Defendants argue that Brooks is foreclosed from making a claim for this type of invasion of privacy because the "invasion" occurred in the context of legitimate newsgathering activities and, in such cases, news organizations have a privilege against suits for invasion of privacy for appropriation of name or likeness. Brooks responds that no such privilege exists, and that this is a valid claim which is entitled to a trial by jury.

One who appropriates for their own use or benefit, the name or likeness of another, is subject to liability to the other for invasion of privacy. Restatement (Second) of Torts § 652C (1977); Sustin v. Fee, 69 Ohio St.2d 143, 431 N.E.2d 992, 993 (Ohio 1982). More than the mere incidental publication of a person's name or likeness is necessary. The defendant must have appropriated for his/her own use or benefit the reputation, prestige, social or commercial standing, public interest, or other values of the person's name or likeness. Jackson v. Playboy Enterprises, Inc., 574 F.Supp. 10, 13 (S.D.Ohio 1983); Fogel v. Forbes, Inc., 500 F.Supp. 1081, 1088-89 (E.D.Pa.1980). Expanding on this concept, the Restatement provides:

The value of the plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or his appearance is brought before the public, since neither is any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness. Thus a newspaper, although it is not a philanthropic institution, does not become liable under the rule stated in this Section to every person whose name or likeness it publishes.

Restatement (Second) of Torts § 652(C), comment d (1977).

Drawing from the above Restatement language, it is clear that this particular type of claim for invasion of privacy is not applicable when a person's name or likeness is used in the context of the general news reporting. Neff v. Time, Inc., 406 F.Supp. 858, 861 (W.D.Pa.1976); Goldman v. Time, Inc., 336 F.Supp. 133, 140 (N.D. Cal.1971); Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485, 488 (N.Y. 1952). As provided in comment d above, the fact that a news organization may operate for a profit does not alter this conclusion, nor is it important whether a particular news program is merely for information or whether it intends to entertain as well. Once the character of a news program is established, "it is neither feasible nor desirable for a court to make a distinction between news for information and news for entertainment." Jenkins v. Dell Publishing Co., 251 F.2d 447, 451 (3d Cir.1958), cert. denied, 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365 (1958).

Applying the above to the instant case, the court agrees with defendants that permitting this amendment to Count I is not called for, as this new claim could not survive a motion to dismiss. The 20/20 broadcast in question was a news broadcast similar in nature to an investigative report that might appear in a newspaper or magazine reporting on newsworthy matters. At the time of the broadcast, both Judge Barbuto and Brooks had been indicted for their alleged misconduct when Barbuto was a judge. The circumstances of Brooks's indictment for obstruction of justice while being involved with Judge Barbuto were the subject of Rivera's questions to Brooks. These matters were of newsworthy or legitimate concern to the public and fell within the responsibility of the press to report the operations of government. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975). Indeed, a viewing of the broadcast in question demonstrates that Brooks was only one part of a larger news story being told and Rivera's interview of Brooks played a very minor role in that broadcast. At the very most, Brooks can only demonstrate that there was the incidental use of his name or likeness in a televised news show, and that simply is not enough to support a claim for this specific type of invasion of privacy.

Brooks argues that according to Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977), there is no federal constitutional privilege which shields news organizations from tort liability and, as such, he should not be prevented from asserting an appropriation claim for invasion of privacy. The court agrees that Zacchini states this proposition, but does not agree that this prevents the court from denying Brooks's motion. The court is not holding the defendants are ...