Clark v. American Broadcasting Companies, Inc., 80-1476

• Decision Date: 03 November 1982
• Docket Number: No. 80-1476,80-1476
• Citation: 684 F.2d 1208
• Parties: 8 Media L. Rep. 2049 Ruby CLARK, Plaintiff-Appellant, v. AMERICAN BROADCASTING COMPANIES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1208

684 F.2d 1208

8 Media L. Rep. 2049

Ruby CLARK, Plaintiff-Appellant, v. AMERICAN BROADCASTING COMPANIES, INC., Defendant-Appellee.

No. 80-1476.

United States Court of Appeals,

Sixth Circuit.

Argued Dec. 3, 1981.

Decided July 29, 1982.

Order of Oct. 22, 1982.

Rehearing Denied Nov. 3, 1982.

Victoria C. Heldman, Schaden & Heldman, Detroit, Mich., for plaintiff-appellant.

Richard E. Rassel, Butzel, Long, Gust, Klein and Van Zile, Detroit, Mich., for defendant-appellee.

Before KEITH and JONES, Circuit Judges, and BROWN, Senior Circuit Judge.

KEITH, Circuit Judge.

This appeal raises the question of whether summary judgment was providently granted in this defamation action. A judge of the United States District Court for the Eastern District of Michigan granted summary judgment for the American Broadcasting Companies, Inc. ("ABC"), the defendant-appellee. The court held that an ABC broadcast which pictured Ruby Clark, the plaintiff-appellant ("Plaintiff"), was not libelous. We reverse and remand for proceedings consistent with this opinion.

FACTS

This defamation action arises from an ABC broadcast which aired on April 22, 1977. The broadcast was an hour long "ABC News Closeup" entitled: "Sex for Sale: The Urban Battleground" ("Broadcast"). The Broadcast addressed the effects of the proliferation of commercialized Act III focused on street prostitution in these cities. One segment of Act III focused on the devastating effect of street prostitution on a middle class neighborhood in Detroit. Residents of the neighborhood were interviewed, and several women were photographed as they walked down a public street.

sex: 1) the damage that sex-related businesses have on America's cities, towns, and neighborhoods; 2) the resurgence of street prostitution caused by these sex businesses; and 3) how the sex businesses flourish from prostitution. The Broadcast featured interviews which focused on various cities, including Boston, New York, and Detroit.

The first woman was white. She was obese, and approximately fifty years old. She wore a hat, and carried a shopping bag in each hand. The second woman carried a grocery bag. She was black. The camera followed her a few minutes as she exited a grocery store and walked down the street. She was slightly obese, wore large-framed glasses, and appeared to be at least forty years old. The following comments were made while these two women appeared on the screen:

According to residents, and Detroit police records, most of the prostitutes' customers or johns were white; the street prostitutes were often black. This integrated middle class neighborhood became a safe meeting place for prostitutes and 'johns'.

The plaintiff, a black woman, was the third woman photographed walking down the street. The photographs were frontal close-ups. Plaintiff's face was clearly visible. The plaintiff appeared to be in her early to mid-twenties. She was attractive, slim, and stylishly dressed. She wore large earrings and had long hair which was pulled up above her head. Apparently, Plaintiff was unaware that she was being photographed. As Plaintiff appeared, the narrator made the following remarks:

But for black women whose homes were there, the cruising white customers were an especially humiliating experience.

Sheri Madison, a black female resident of the neighborhood plagued by prostitution, appeared on the screen seconds after Plaintiff. She stated:

Almost any woman who was black and on the street was considered to be a prostitute herself. And was treated like a prostitute.

Subsequently, Plaintiff initiated an action in the Wayne County Circuit Court against ABC claiming defamation and invasion of privacy. She claimed that the Broadcast depicted her as a "common street prostitute". It is uncontroverted that Plaintiff has never been a prostitute. In fact, Plaintiff is married and has one son. ABC removed the case to federal district court pursuant to the court's diversity jurisdiction.

In a deposition, Plaintiff testified concerning her reactions as she, her husband, and 2 year old son viewed the Broadcast. The Broadcast shocked her. Plaintiff believed that she had been portrayed as a prostitute. She also testified that several friends, acquaintances, and relatives phoned Plaintiff during and following the Broadcast. Each of these persons thought that the Broadcast portrayed her as a street prostitute.

Plaintiff also testified that she was propositioned, that church members shunned her, and that acquaintances confronted her with allegations that she was a prostitute. Moreover, after the Broadcast two potential employers refused to hire Plaintiff because they feared her employment would hurt their businesses. ¹

Both parties moved for summary judgment. In support of its motion, ABC argued that: 1) the audio and visual portions of the Broadcast were clear, unambiguous and not in dispute; 2) the pictures of the In her motion, Plaintiff asserted that: 1) there was no factual question that the defamation was "of and concerning" her; and 2) the Broadcast was not in the public interest, therefore, ABC could not assert a qualified privilege.

Plaintiff walking along a public street were not objectionable; 3) the "context and the words used in conjunction with the brief visual references" to the Plaintiff did not support her claim; and 4) the "balance of the (Broadcast) was not 'of and concerning' (the Plaintiff)." ABC attached to its Motion for Summary Judgment a transcript of the words used in the Broadcast. ABC also provided the court with a videotape of the Broadcast.

ABC filed an Answer to Plaintiff's Cross Motion for Summary Judgment, arguing that: 1) the Plaintiff was clearly and unambiguously depicted as a housewife; and 2) the Broadcast was in the public interest and a qualified privilege existed as a matter of law.

After viewing the videotape of the Broadcast and reading the accompanying transcript, the district court granted ABC's motion for summary judgment. Plaintiff perfected this appeal.

I. DEFAMATION CLAIM

On appeal, Plaintiff argues that the district court erred in granting summary judgment for ABC since there existed a factual question as to whether the broadcast was defamatory. We agree.

In granting ABC's motion for summary judgment, the district court concluded that the Broadcast was not libelous. The court reasoned that nothing in Plaintiff's appearance suggested that her activity paralleled that of a street prostitute. ²

ABC argues that courts must be cautious in allowing juries to decide defamation cases which involve public interest reporting. In effect, ABC suggests that different rules and considerations apply to summary judgment motions in defamation cases. However, the standard for summary judgment motions is articulated clearly in Fed.R.Civ.P. 56(c). Rule 56(c) provides that summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. ³

"There is no rule which favors either granting or denying motions for summary judgment in defamation cases." Schultz v. Newsweek, Inc., 668 F.2d 911 (6th Cir. 1982); See Yiamouyiannis v. Consumers Union of United States, 619 F.2d 932 (2d Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d 46 (1980). Therefore, even in defamation cases, summary judgment is proper only if there exists no genuine issue as to any material fact.

In determining whether there exists a genuine issue as to a material fact, we apply the substantive law of Michigan. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Michigan Supreme Court in Nuyen v. Slater, 372 Mich. 654, 127 N.W.2d 369 (1964), defined defamation as follows:

A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

Id. at 662, 127 N.W.2d 369.

This definition provides the applicable substantive law in this case.

The district court had a duty to determine as a matter of law whether the Broadcast was reasonably capable of a defamatory interpretation. Schultz v. Reader's Digest Association, 468 F.Supp. 551, 554 (E.D.Mich.1979); Michigan United Conservation Clubs v. CBS News, 485 F.Supp. 893 (W.D.Mich.1980), aff'd, 665 F.2d 110 (6th Cir. 1981). Whether the Broadcast was understood as being defamatory was for the jury to decide. Schultz v. Reader's Digest, 468 F.Supp. at 554; Michigan United Conservation Clubs, 485 F.Supp. at 902.

As noted, the district court granted summary judgment in favor of ABC because the court concluded that the broadcast was not libelous. The district court applied an incorrect standard. The district court should have granted summary judgment for ABC only if the Broadcast was not reasonably capable of a defamatory meaning. Schultz v. Readers Digest, 468 F.Supp. at 554; Michigan United Conservation Clubs, 485 F.Supp. at 902.

The portrayal of Plaintiff as a prostitute would clearly be defamatory under Michigan law. Prostitutes are considered immoral and socially undesirable. Moreover, as the Broadcast indicated, the presence of street prostitution in a neighborhood causes devastating social problems. There is often a significant increase in the number of assaults and robberies. App. 28. Street prostitution is also accompanied by the presence of illegal drug traffic. App. 30. Therefore, the portrayal of an individual as a prostitute would damage her reputation and tend to cause third persons not to associate with that individual.

In this case, Plaintiff's appearance in the Broadcast was capable of at least two interpretations, one defamatory and the other non-defamatory. That the Broadcast is reasonably capable of a non-defamatory meaning is clear from the district court's reasoning. The district court focused solely on whether Plaintiff's behavior during the Broadcast was similar to the...