Cullen v. Grove Press, Inc.

• Decision Date: 30 November 1967
• Docket Number: No. 67 Civ. 4246.,67 Civ. 4246.
• Citation: 276 F. Supp. 727
• Parties: Charles J. CULLEN, George L. Parent, Carlton G. Shaw, and Edwin F. Spencer, Plaintiffs, v. GROVE PRESS, INC., Titicut Follies Distribution Co., Inc. and F. and A. Theatres, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

276 F. Supp. 727

Charles J. CULLEN, George L. Parent, Carlton G. Shaw, and Edwin F. Spencer, Plaintiffs, v. GROVE PRESS, INC., Titicut Follies Distribution Co., Inc. and F. and A. Theatres, Inc., Defendants.

No. 67 Civ. 4246.

United States District Court S. D. New York.

November 30, 1967.

Robert F. Muse, Boston, Mass., for plaintiffs.

Rembar & Zolotar, New York City, for defendants Grove Press, Inc. and Titicut Follies Distribution Co., Inc.

MANSFIELD, District Judge.

In this diversity action for defamation and invasion of privacy, plaintiffs, four Correction Officers at Massachusetts Correctional Institution, South Bridgewater, Mass. (hereinafter "Bridgewater"), seek a preliminary injunction to prevent the distribution and exhibition by defendants of a motion picture entitled "Titicut Follies" on the ground that the film violates plaintiffs' right of privacy under New York Civil Rights Law, McKinney's Consol.Laws, c. 6, § 51. The facts, as they appear from the moving and opposing papers and affidavits, are as follows:

For a period of about eight weeks in the spring and summer of 1966, Frederick Wiseman and at least two technical assistants were permitted¹ to enter Bridgewater daily, under the supervision and control of a senior Correction Officer, for the purpose of photographing and producing a real-life film documenting the care and treatment of inmates, particularly those incarcerated at the State Hospital Division for the criminally insane, where plaintiffs were employed by the Commonwealth of Massachusetts as Correction Officers. The film was made with portable sound and camera equipment usually located within a few feet of the inmates and guards as they went about their daily routine. The film-making equipment was not hidden and no scenes were staged. Plaintiffs were instructed by their superiors to carry out their duties as usual, and from time to time were subject to the directions of Wiseman for the purpose of making the film. Photographs of plaintiffs appear during the course of the film, particularly in a scene in which they are shown conducting a "skin search" of naked inmates.

Since the more than 80,000 feet of film shot at Bridgewater during the eight-week period far exceeded the normal playing period for a documentary film, Wiseman and his staff cut and edited it to a final product, about 3,200 feet long and requiring 84 minutes running time, which was entitled "Titicut Follies."² The film was then allegedly assigned to defendant Grove Press, Inc., and distributed and exhibited through its subsidiary, defendant Titicut Follies Film Distributing Co., Inc. For a time it was exhibited at a commercial theatre owned by defendant F. & A. Theatres, Inc., which has not been served with the Order to Show Cause bringing on this motion for preliminary injunction.

Defendants argue that even if plaintiffs are able to make out a case under the New York right of privacy statute, the exhibition and distribution of the film is protected by the First Amendment of the United States Constitution, as recently interpreted by the Supreme Court in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), where the Court said:

"We hold that the constitutional protections for speech and press preclude the application of the New York right of privacy statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth." (385 U.S. at 387-388, 87 S.Ct. at 542)

The conditions in public institutions such as Bridgewater for the care of the criminally insane, including the physical facilities, conduct of employees, and type of treatment administered to inmates, are matters which are of great interest to the public generally. Such public interest is both legitimate and healthy. Quite aside from the fact that substantial sums of taxpayers' money are spent annually on such institutions, there is the necessity for keeping the public informed as a means of developing responsible suggestions for improvement and of avoiding abuse of inmates who for the most part are unable intelligently to voice any effective suggestions or protests. Distasteful as the subject matter may often be, it represents an ever-increasing phenomenon in our society that cannot be swept under the rug. Defendants have submitted an imposing array of affidavits from experts in psychiatry, law, sociology, and other fields concerned with the care of the mentally ill, attesting to the importance of the film in contributing to public and professional understanding of current conditions in mental institutions, and have also submitted reviews by critics acclaiming the film's artistic merit.

In view of the legitimate public interest in such matters and because "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments", Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952), and see Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), plaintiffs' motion must be denied unless "Titicut Follies" is a false report of conditions at Bridgewater, made with knowledge of its falsity or in reckless disregard of the truth, Time, Inc. v. Hill, supra, see American Law Institute Restatement of the Law of Torts, 2nd, Tentative Draft No. 13, Apr. 27, 1967, § 652 F. pp. 127-38.

Plaintiffs' complaint and moving papers fail to anticipate or meet the teachings of Time, Inc. v. Hill, supra, being content merely to allege invasion of privacy and defamation. The complaint alleges that Wiseman and his associates assured plaintiffs that the filming of "skin searches" of inmates would reveal only the inmates' upper extremities and that the film would be used and displayed only for the purpose of education in connection with the care of the criminally insane; and that the film was thereafter promoted for exhibition in New York City through inflammatory advertising depicting scenes in which plaintiffs are photographically visible to the viewer and in which some inmates are...