978 F.2d 1065 (8th Cir. 1992), 92-1522, Peoples Bank and Trust Co. of Mountain Home v. Globe Intern. Pub., Inc.

Docket Nº:92-1522.
Citation:978 F.2d 1065
Party Name:PEOPLES BANK AND TRUST COMPANY OF MOUNTAIN HOME, Conservator of the Estate of Nellie Mitchell, an Aged Person, Appellee, v. GLOBE INTERNATIONAL PUBLISHING, INC., doing business as
Case Date:November 04, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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978 F.2d 1065 (8th Cir. 1992)


of the Estate of Nellie Mitchell, an Aged Person, Appellee,



"Sun," Appellant.

No. 92-1522.

United States Court of Appeals, Eighth Circuit

November 4, 1992

Submitted Sept. 17, 1992.

Rehearing and Rehearing En Banc Denied Dec. 11, 1992.

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Philip S. Anderson, Little Rock, Ark., argued (John E. Tull, III, Paul M. Levy, Michael B. Kahane and Phillip J. Zisook, on the brief), for appellant.

Phillip H. McMath and Sandy S. McMath, Little Rock, Ark., argued (Roy Danuser, Mountain Home, Ark., on the brief), for appellee.

Before BOWMAN, Circuit Judge, and HEANEY and ROSS, Senior Circuit Judges.

HEANEY, Senior Circuit Judge.

Globe International, Inc., published archive photographs of Nellie Mitchell to illustrate an unflattering and fictional story in one of Globe's supermarket tabloids. Mitchell sued Globe for defamation, invasion of privacy, and intentional infliction of emotional distress. The jury found for Globe on defamation, but returned a verdict for Mitchell on the remaining claims, awarding $650,000 in compensatory and $850,000 in punitive damages. Globe appeals, contending there was insufficient evidence to support the verdict as a matter of law. We affirm as to liability and punitive damages, and remand for a substantial remittitur of compensatory damages.

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Plaintiff Mitchell is a ninety-seven-year-old woman from the city of Mountain Home, in Baxter County, Arkansas. After having operated a newsstand and delivered newspapers in Mountain Home for almost fifty years, Mitchell has become a well-recognized figure in her community and something of a local legend. She was recognized for her long service in 1980 when major newspapers ran human interest stories about her and she appeared for interviews on television talk shows.

Defendant Globe publishes several supermarket tabloids, including the National Examiner and the Sun. Globe published a fairly accurate account of Mitchell in the November 25, 1980, issue of the National Examiner. A photograph of Mitchell, purchased from the Baxter County News, accompanied that story.

The same photograph appeared again on the cover page of the October 2, 1990, edition of the Sun with the headline "Pregnancy forces granny to quit work at age 101." Customers at supermarket checkout lines in Baxter County who scanned the cover page of the Sun saw only that Nellie Mitchell was featured next to a headline about a "granny" forced to quit work because of pregnancy. Purchasers of the tabloid who turned to the story on page eleven also would have seen a second photograph of Mitchell next to a fictitious story about a woman named "Audrey Wiles," living in Australia, who quit her paper route at the age of 101 because an extramarital affair with a millionaire client on her route had left her pregnant.

Word spread quickly in Mountain Home that Nellie Mitchell, "the paper lady," was featured in the offending edition of the Sun. This edition of the Sun was a "sell-out" in the northern region of Arkansas where Mitchell lives.

Mitchell filed suit against Globe in Arkansas state court for libel. After removal to federal district court, and denial of Globe's motion for summary judgment, the district court allowed Peoples Bank and Trust Company of Mountain Home, as conservator of Mitchell's estate, to file an amended complaint against Globe for defamation, false light invasion of privacy, and outrage (intentional infliction of emotional distress). The parties tried the case before a jury on December 2-4, 1991. The eight-person jury returned a unanimous verdict awarding Mitchell $650,000 in compensatory and $850,000 in punitive damages for invasion of privacy and outrage. The jury found for Globe on the defamation claim. Judgment was entered against Globe on the jury verdict.

After the trial, Globe moved the district court for judgment as a matter of law, and alternately for remittitur and a new trial. The district court denied the post-trial motion. 1 Globe now appeals from the order denying the motion, arguing that Mitchell cannot prevail as a matter of law, and that the evidence does not support an invasion of privacy claim or the tort of outrage.


Because the instant case raises First Amendment issues, we are obligated to make an independent examination of the whole record to be certain the judgment does not constitute a forbidden intrusion on the field of free expression. Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502, 515 (1984). We have exercised independent judgment on that issue and find that the judgment entered on the jury verdict in this case does not violate the relevant constitutional norms.

The law of this case, to which Globe takes no exception, is framed in the district court's instructions to the jury. Those instructions, discussed below, provide the highest threshold of constitutional free speech protection and require no modification. 2 Despite the evidentiary burden, the

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jury reached a verdict that Globe now asserts the evidence could not support. Globe further contends the case should not have been submitted to the jury because it is appropriate for resolution as a matter of law. We disagree.

I. False Light Invasion of Privacy

The district court gave the following instruction regarding "false light" invasion of privacy:

to prevail on this claim, the plaintiff has the burden of proving by clear and convincing evidence the following: one, that the false light in which she was placed by the publicity would be highly offensive to a reasonable person; and two, that the defendant acted with actual malice in publishing the statements at issue in this case. Actual malice means that Globe International intended, or recklessly failed to anticipate, that readers would construe the publicized matter as conveying actual facts or events concerning Mrs. Mitchell. A finding of actual malice requires a showing of more than mere negligence.

District Court Jury Instruction No. 12. 3

Globe does not dispute that the published story was false; indeed, its principal defense is that the story was "pure fiction." Nor does Globe dispute that the story would be highly offensive to a reasonable person, or that it was in fact highly offensive to Mitchell. The central issue on appeal is the existence of actual malice: whether Globe intended, or recklessly failed to anticipate, that readers would construe the story as conveying actual facts or events concerning Mitchell. Globe contends that, as a matter of law, no reader reasonably could construe the story as conveying actual facts about Mitchell, and that no evidence supports a finding that Globe intended that result.

A. Reasonable Believability

Globe argues that readers could not reasonably believe the story represented true facts or events concerning Mitchell. It asserts it is biologically impossible for a woman of either 101 or 95 years of age to become pregnant, and therefore, as a matter of law, no reasonable reader could have believed the story represented true facts about Mitchell.

In Greenbelt Coop. Pub. Ass'n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), the Supreme Court found that actual malice did not exist in a defamation claim against a publisher-defendant, "as a matter of constitutional law," because the newspaper's use of the word "blackmail," in the circumstances of that case, could not have been believed to refer to the actual crime of blackmail. According to the Court, "[i]t is simply impossible to believe that a reader who reached the word 'blackmail' in either article would not have understood exactly what was meant.... [E]ven the most careless reader must have perceived that the word was no more than rhetorical hyperbole...." Id. at 14, 90 S.Ct. at 1542.

Similarly, in Pring v. Penthouse Int'l, Ltd., 695 F.2d 438 (10th Cir.1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3112, 77 L.Ed.2d 1367 (1983), the Tenth Circuit noted that the central issue was "this requirement that the story must reasonably be understood to describe actual facts about the plaintiff." Id. at 440. The court stated that the test

is not whether the story is or is not characterized as "fiction," "humor," or anything else in the publication, but whether the charged portions in context could be reasonably understood as describing actual facts about the plaintiff

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or actual events in which she participated. If it could not be so understood, the charged portions could not be taken literally.

Id. at 442. The Pring court concluded that...

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