Bernstein v. National Broadcasting Company

• Decision Date: 17 March 1955
• Docket Number: 5663-52.,Civ. A. No. 3517-52
• Citation: 129 F. Supp. 817
• Parties: Charles S. BERNSTEIN, Plaintiff, v. NATIONAL BROADCASTING COMPANY, Defendant.
• Court: U.S. District Court — District of Columbia

129 F. Supp. 817

Charles S. BERNSTEIN, Plaintiff, v. NATIONAL BROADCASTING COMPANY, Defendant.

Civ. A. Nos. 3517-52, 5663-52.

United States District Court, District of Columbia.

March 17, 1955.

Harry P. Warner, Washington, D. C., for plaintiff.

Percy A. Shay, Sidney H. Willner, Washington, D. C., for defendant.

KEECH, District Judge.

This case is before the court on the defendant's motion for summary judgment in two consolidated actions for invasion of privacy.

Both actions arise from the same undisputed facts. In 1919 plaintiff, Charles S. Bernstein, was convicted of bank robbery in Minnesota and sentenced to imprisonment for forty years. After serving nine years, he was paroled and pardoned. In 1933 in the District of Columbia, plaintiff, under the name Charles Harris, was tried and convicted of first-degree murder and sentenced to death by electrocution. In 1934 the conviction was affirmed, Harris v. U. S., 63 App.D.C. 232, 71 F.2d 532, and a petition for certiorari denied by the Supreme Court, 293 U.S. 581, 55 S.Ct. 94, 79 L.Ed. 678. Through the efforts of a number of interested persons and committees working in plaintiff's behalf,¹ and partly as the result of the work of Martha Strayer,² a reporter on the Washington Daily News, in 1935 the death sentence was commuted to life imprisonment. In 1940, after plaintiff had served five years at various federal institutions, he received a conditional release from his life sentence, and in 1945 a Presidential pardon.

Plaintiff alleges that, "Commencing in 1940, and thereafter, * * * he was no longer in the public eye; * * * lived an exemplary, virtuous, honorable, righteous, quiet and private life, free from the prying curiosity which accompanies either fame or notoriety; * * * shunned and avoided notoriety and publicity; * * * never exhibited or sought to exploit his name, personality or the incidents of his past life for money, profit, or commercial gain; * * assumed a place in society, knew many people and made many friends who were not aware of the incidents of his earlier life."

Plaintiff's deposition shows that from the time of the trial until 1940, when plaintiff secured conditional release, his story was given much publicity by the newspapers and others working on his behalf. Subsequent to his release in 1940, he obtained government employment in the District of Columbia, holding various positions and attaining Civil Service Grade CAF-11. In 1945, this employment ended, and thereafter, from 1945 to 1951, he lived in Front Royal, Virginia, operating a "resort lodge." In February, 1953, some time after the filing of these actions, plaintiff again secured government employment in the District, rooming in Washington but still maintaining his family home in Front Royal, Virginia.

In 1936 or 1937 a detective story magazine carried an article on plaintiff's case.³ In 1948 a radio program told plaintiff's story, using Martha Strayer's name, in a fictionalized version, but so similar to the facts that plaintiff and several others identified the story as his.⁴

On January 18, 1952, the defendant NBC telecast "live" over 39 stations in its network a television program prepared by Prockter Television Enterprises, Inc., sponsored by American Cigarette & Cigar Company⁵ and advertising Pall Mall cigarets, entitled "The Big Story." This program, classified by the Federal Communications Commission as a network commercial entertainment program, was a fictionalized dramatization based on the plaintiff's conviction and pardon, and lauding the efforts of Miss Strayer, the Daily News reporter, toward securing commutation of plaintiff's sentence. The same program was telecast over twelve other NBC network stations by means of a kineoscope recording on January 29, 31, February 1, 2, 3, and 8, 1952. The only true names used were those of Martha Strayer, the Washington Daily News, the President of the United States, and the District of Columbia. Over forty-three of the NBC stations telecasting "The Big Story," it was announced a week prior to the telecast here involved, that the following week's program would tell the true story of how Martha Strayer fought to save the life of an innocent man convicted of murder.⁶ On January 7, 1952, NBC issued a press release concerning the program.⁷ Neither the television announcement nor press release mentioned plaintiff's name.

Plaintiff alleges that, although his true name was not used in the telecast, the actor who portrayed him resembled him physically and plaintiff's words and actions were reproduced both visually and aurally, creating a portrayal of plaintiff recognizable to him and to his friends and acquaintances, and clearly identifying plaintiff in the public mind.⁸

Prior to the telecast, Prockter Productions, Inc., obtained a release or waiver of the right of privacy from Martha Strayer to use her name and to portray her in connection with "The Big Story," but no such waiver or release was obtained from plaintiff.

About five days before January 18, 1952, plaintiff learned through his wife's cousin that NBC would carry a television program based upon his past life.⁹ He thereupon called the National Broadcasting Company in Washington and on January 17 and 18, 1952, wrote letters to the Company and its manager in Washington, requesting defendant not to broadcast the program.¹⁰ The program was telecast as scheduled.

Plaintiff alleges that the telecast of this program constituted "a willful and malicious invasion of * * * his right of privacy as recognized by the laws of New York, Ohio, Illinois, California, Connecticut, Massachusetts, Rhode Island, Pennsylvania, Delaware, Maryland, Virginia, Wisconsin, Alabama, Tennesee, Iowa, Minnesota, Washington, Texas, Michigan, Missouri, Florida, Utah, Georgia, West Virginia, Kentucky, Nebraska, New Jersey, and Indiana," and the District of Columbia, and that by reason of the telecasts "plaintiff's personality has been violated by being exposed, exhibited, and sold to the public; plaintiff has been subjected to the inquisitive notice of the general public to the injury of his personality, to the outrage of the finer sentiments of his nature and to the humiliation of his self-respect; and plaintiff, a private personality and having an individual personality, has thus been made notorious and conspicuous to the public and has been singled out for and identified to the public notice and attention, which is utterly obnoxious to plaintiff; and plaintiff has been caused and has suffered great mental pain and personal injury," for which he asks $250,000 actual damages. Plaintiff further alleges that the acts of defendant NBC were "willful, wanton, malicious, and intentional, and perpetrated with a reckless disregard of the rights of plaintiff and without his knowledge, consent and acquiescence," entitling him to punitive damages of $500,000.

The complaint in Civil Action 3517-52 is drafted on a single tort theory, alleging the telecast on January 18, 1952, over Station WNBW, Washington, D. C. Civil Action 5663-52 is drafted on a multiple tort theory, claiming a separate tort in each of twenty-eight states in which the program was telecast by relay of the "live" broadcast in New York or by re-broadcast by means of kineoscope recording, and asks varying amounts of actual and punitive damages for the telecast in each state.

Defendant in its motion for summary judgment contends that neither of the complaints states a cause of action upon which relief may be granted.

Voluminous briefs on the legal points involved have been filed by both parties, the court has had the benefit of very full argument by respective counsel, and in connection with the argument of the motion (by stipulation of the parties) viewed the kineoscope recordings of the program of January 18, 1952, and the announcement of the week before. The facts stated in the complaint and answer are supplemented in detail by many affidavits, stipulations, answers to interrogatories, admissions, and depositions, most illuminating of which is plaintiff's own deposition.

The telecast here involved was one of a series of similar dramatizations, commending the accomplishments of newspaper reporters in bringing criminals to justice or in securing the release of innocent persons convicted of crime. In each of the programs the actual name of the reporter and his paper were used, but the names of other persons portrayed were changed, and the incidents were fictionalized for dramatic effect.

On this particular program, the man convicted of crime was called Dave Crouch and the murdered man Woody Benson. Benson, a gambler running a game in Alexandria, was shot as he walked along the sidewalk in the District of Columbia, by a man riding in a car. Crouch was arrested while asleep on a bench in a bus terminal in Washington. He was inadequately defended at his trial by a Mr. Kendall, an inexperienced court-assigned counsel, who did not call as an alibi witness Crouch's "commonlaw wife," Helen Slezak, with whom Crouch had spent the day of the murder in New York. Mr. Kendall showed lack of confidence in the success of the defense, in view of Crouch's previous conviction in Minnesota of which he was innocent and for which he had been pardoned. At the trial, the court admitted a detective's statement as to Crouch's Minnesota conviction, omitting any reference to the pardon. Kendall did not call Helen as a witness, on the ground that the "blue ribbon jury," "all respectable property owners," might be prejudiced against a common-law wife, although Dave explained to him that were not legally married because Helen's husband would not give her a divorce. Crouch was convicted on the testimony of a Mrs. Hedlund, a garrulous middleaged woman, who positively identified him as the murderer whom she had seen, as he fired the shot, when she looked from the window of her upstairs apartment. After conviction, Crouch was pictured as desperately playing solitaire in...