Brown v. Hearst Corp., WCVB-TV

• Decision Date: 11 January 1995
• Docket Number: WCVB-TV,No. 94-1836,94-1836
• Citation: 54 F.3d 21
• Parties: 23 Media L. Rep. 1984 Willis N. BROWN, Jr., Plaintiff, Appellant, v. HEARST CORPORATION, d/b/aChannel 5, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 21

54 F.3d 21

23 Media L. Rep. 1984

Willis N. BROWN, Jr., Plaintiff, Appellant, v. HEARST CORPORATION, d/b/a WCVB-TV Channel 5, Defendant, Appellee.

No. 94-1836.

United States Court of Appeals First Circuit.

Heard Jan. 11, 1995.

Decided May 11, 1995.

Edwin M. Sigel, Dallas, TX, for appellant.

Steven J. Comen with whom Patricia A. Lipoma and Goodwin, Procter & Hoar, Boston, MA, were on brief, for appellee.

Before CYR and BOUDIN, Circuit Judges, and KEETON, ^* District Judge.

BOUDIN, Circuit Judge.

In March 1987, Regina Brown, the then-wife of appellant Willis Brown and mother of three children, disappeared. At the time Regina was employed as a flight attendant, and Willis as a pilot, for American Airlines; the couple had lived together in Newtown, Connecticut, but had been separated for four months and were living apart. The police investigated the disappearance and found Regina's car abandoned in New York but no trace of her. The investigation remains open. It is not known whether Regina is alive or dead.

Later in the same year the Browns were divorced in a Connecticut state court, the contested proceedings being completed in Regina's absence. The state court trial was prolonged and a detailed opinion was written by the trial judge pertaining to custody and support. The opinion, dated April 22, 1988, found that Willis believed deeply but without basis that his wife was unfaithful to him, that his charges against her echoed charges that he had made against his first wife, that "he [had] physically and mentally abused [Regina]," and that he had threatened to kill her and the children.

The trial was widely reported in the press, and publicity continued even after the decree. This was due partly to further litigation and the continuing police investigation, but also to a freakish coincidence. About six months before Regina's disappearance, another woman who lived in Newtown, a Pan Am flight attendant married to an Eastern pilot, had disappeared. Fragments of her bone were found in a nearby river, and her pilot husband was convicted in the so-called woodchipper murder.

In November 1990, appellee Hearst Corporation d/b/a WCVB-TV Channel 5 in Boston ("Channel 5") broadcasted from Massachusetts a segment entitled "The Other Pilot's Wife" as a part of the station's regular "newsmagazine" program. It was prepared by Mary Richardson, a journalist with the station, who conducted a substantial amount of research and a number of interviews in preparing the broadcast.

The broadcast opens with the leitmotif--"Tonight the bizarre story of a small New England town where one stewardess is dead, another is missing"--and then offers a brief reprise of the 1986 murder of the Pan Am flight attendant. Next, turning to the Browns, the broadcast describes and depicts an apparent storybook marriage going sour, the divorce petition, and Regina's disappearance. "In the days following Regina's disappearance," says Richardson, "Willis showed no interest in what had happened to her."

The program reenacts a last telephone call from Regina to a friend, according to the friend's report:

I'm in danger. If my parents say they haven't heard from me on Sunday ... be alarmed. Wait two days, call back. If I'm not there by then, Willis will have done to me what he's promised to do to me.

The police chief is then quoted as saying that Willis had told him to look for Regina's car in a drug infested area of a big city; and that in fact the car was found pretty close to such an area.

In the next portion of the segment, Willis is described as having at first agreed, and then refused, to take a lie detector test. Evidence offered at the divorce trial is recounted or summarized. The evidence included descriptions of Willis' accusations against his wife which are portrayed as virtually paranoid; the trial judge's statement that Willis had physically and mentally abused Regina; and a vivid strangulation scene that one of the Brown children allegedly recounted to Regina's parents.

In the final few minutes, there are interviews with Regina's parents who now have custody of the children. Her father says, "I feel like if Regina's dead, [Willis] killed her, or had her killed." Her mother adds, "I don't think Regina is alive." The broadcast also includes the police discovery of a hand drawn map of Block Island, depicting an area where Willis had rented a house trailer shortly before Regina's disappearance and bearing the words "Regina, O God." An extensive police search of 37 acres, the program concludes, produced no trace of any wrongdoing.

There is other incriminating information about Willis recounted in the program, and the police are described as having suspected Willis and as believing still that "Mr. Brown knows more about the disappearance of his wife than he is letting on." No evidence even remotely exculpatory of Willis is described. On the other hand, Mary Richardson, the "voice over" throughout the program, never asserts that Willis is guilty or even says that she thinks he is guilty. Formally, the program describes the disappearance as a mystery or, at worst, a possible murder still unsolved.

In February 1993, Willis brought the present action against Channel 5 in state court in Texas. The case was removed to federal court and thereafter transferred to the federal district court in Massachusetts. As subsequently amended, Willis' complaint charged defamation, invasion of privacy under Mass.Gen.L. ch. 214 Sec. 1B, "false light" invasion of privacy, and intentional infliction of emotional distress.

After discovery, Channel 5 moved for summary judgment. In a detailed opinion dated July 21, 1994, the district court granted the motion. As to the defamation claim, the court relied in different respects on lack of falsity, the limited protection available for statements of opinion, the "fair report" privilege, and lack of fault. The privacy and intentional infliction claims were dismissed on grounds described below. Willis has now appealed, asserting that all of his claims should have been submitted to a jury.

On appeal from a grant of summary judgment, we review the decision de novo, drawing inferences in favor of the party opposing the motion. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). Because the case was transferred from Texas, Texas law governs the choice of substantive law to be applied. Putnam Resources v. Pateman, 958 F.2d 448, 465 (1st Cir.1992). The district court found that Texas would apply Massachusetts law in judging the broadcast and, as this ruling has not been challenged on appeal, our discussion assumes this to be so.

Although Willis listed defamation as the fourth and last count of his second amended complaint, this charge has been the center of the controversy both in the district court and on appeal. As framed on this appeal, Willis' main attack on the broadcast is that it amounts to a charge that he murdered his wife. Additionally, he argues that the broadcast suggests that he did so "in the same manner" as the earlier pilot (who had dismembered his wife's body with a woodchipper).

Channel 5 does not appear to dispute that the broadcast charges Willis with murder or at least that a jury would be entitled to find this to be the import of the program. The broadcast never flatly expresses that accusation. Indeed, it says that the murder is unsolved and makes clear that the police have nothing much in the way of direct evidence against Willis. But defamation can occur by innuendo as well as by explicit assertion, Mabardi v. Boston Herald-Traveler Corp., 347 Mass. 411, 198 N.E.2d 304, 306 (1964), and the suggestion here is a fairly strong one.

The materials presented include--we stress that some are merely allegations--the rift between Willis and Regina; his paranoid accusations against her; his threats to kill her and the children; her statement (to a girlfriend) that Willis might be planning to do "what he had promised"; her disappearance and Willis' disinterest; his visit to the house on the same night; and his knowledge of where her car might be found. The notion that Regina would have left her children voluntarily is scotched and there is no hint of another motive, or perpetrator.

The broadcast makes clear that the police suspect Willis, and Regina's parents are filmed making even stronger statements of suspicion. Material from the divorce trial is used to establish or buttress doubts about Willis' character and history. The suggestion of murder runs through the program like a gold thread. The broadcast opens with the dramatic footage relating to the woodchipper murder and closes with Richardson's rhetorical question, could "someone" get away with murder?

A common defense to a charge of defamation is "truth." The Supreme Court tells us that in a suit like this one against the media the burden is upon the defamed plaintiff to show that the statements are not true. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). Neither side addresses this issue. Perhaps each assumes that to carry his burden of proof, Willis could testify at trial that he did not murder his wife and a jury might believe him. In all events, we take the case as one in which a jury might find that murder had been charged and that the charge was false.

Channel 5's primary...