Jenkins v. KYW, a Div. of Group W, Westinghouse Broadcasting & Cable, Inc.

• Decision Date: 21 September 1987
• Docket Number: No. 87-1005,87-1005
• Citation: 829 F.2d 403
• Parties: 14 Media L. Rep. 1718 JENKINS, Norman A. and Jenkins, Ella, his wife v. KYW, A DIVISION OF GROUP W, WESTINGHOUSE BROADCASTING & CABLE, INC. Appeal of Norman A. JENKINS and Ella Jenkins.
• Court: U.S. Court of Appeals — Third Circuit

Page 403

829 F.2d 403

14 Media L. Rep. 1718

JENKINS, Norman A. and Jenkins, Ella, his wife v. KYW, A DIVISION OF GROUP W, WESTINGHOUSE BROADCASTING & CABLE, INC.

Appeal of Norman A. JENKINS and Ella Jenkins.

No. 87-1005.

United States Court of Appeals, Third Circuit.

Argued June 19, 1987.

Decided Sept. 21, 1987.

Paul R. Rosen, Niels Korup (argued), Spector, Cohen, Gadon & Rosen, P.C., Philadelphia, Pa., for appellants.

Alan M. Lieberman (argued), Joyce S. Meyers, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Stephen A. Hildebrandt, Westinghouse Broadcasting Co., Inc., Washington, D.C., of counsel), for appellee.

Before: SEITZ and MANSMANN, Circuit Judges, and BISSELL, District Judge. ^*

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal, the Honorable Norman A. Jenkins, of the Court of Common Pleas of Philadelphia County, Pennsylvania, and his wife, Ella Jenkins, ¹ contest the district court's grant of summary judgment for KYW, a division of Group W, Westinghouse Broadcasting and Cable, Inc. ("KYW") in this diversity suit brought pursuant to Pennsylvania law. Jenkins claimed that KYW defamed him in a television broadcast aired in the Philadelphia area. For the reasons set forth below, we will affirm the judgment of the district court.

I.

In his complaint Judge Jenkins alleged that KYW, a Philadelphia television station, defamed him in a television broadcast entitled "Hard Crime/Soft Time (The Case of Clayton Hewlett)" which aired on February 1, 1984. The broadcast, prepared by KYW reporters Sheryl Stein and Anthony Lame and narrated by Willie Monroe, traced the history of Clayton Hewlett ("Hewlett") through the criminal justice system from 1962, when Hewlett was first committed to a correctional institution for a juvenile offense, until August 1, 1981, when he murdered nine-year-old Olivia Lorray Rice in Pittsburgh, Pennsylvania. The plaintiff claimed that the broadcast defamed him by implying that because he had sentenced Hewlett to probation and Hewlett therefore was at large instead of in prison at the time of the girl's death, Judge Jenkins was directly responsible for the death.

KYW asserted its First Amendment privilege to express opinions and moved for summary judgment, maintaining that there were no material issues of fact, since the factual statements in the broadcast were supported by official court records.

The district court, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Anderson "), found that in deciding whether there is a factual dispute for submission to a jury in a defamation case involving a public figure, the test of actual malice must be met by a "clear and convincing" evidentiary standard. The district court found that the statements in the broadcast were substantially true and concluded that there was no evidence of actual malice to support an actionable claim for defamation. This appeal followed.

II.

On review of a grant of summary judgment, an appellate court is required to apply the same test the district court should have utilized initially. Inferences to be drawn from the underlying facts contained in the evidential sources must be viewed in the light most favorable to the party opposing the motion. Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). We are cognizant, as well, of the standards set forth in Anderson v. Liberty Lobby regarding summary judgment in a libel action by a public figure.

Judge Jenkins primarily raises the issue of the substantive evidentiary standard of proof on motions for summary judgment. This question was recently addressed by the Supreme Court in Anderson v. Liberty Lobby, Inc. Anderson involved a defamation suit by a public figure, to which the New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), standard applies. That standard requires the plaintiff to show, with "convincing clarity," that the defendant acted with knowledge that the defamatory statements were false or with reckless disregard of their truth or falsity. New York Times, 376 U.S. at 285-86, 84 S.Ct. at 728-29.

In Anderson, the defendants' motion for summary judgment on the basis that actual malice was absent as a matter of law was supported by an affidavit of an employee of the defendants attesting to the veracity of the facts, detailing the sources for the statements alleged to be libelous and stating the amount of time he had spent researching. The plaintiffs responded to the motion essentially by charging that the defendants had failed to verify their information adequately before publishing and that inaccuracies existed due to the use of unreliable sources.

The district court held for the defendants, finding that actual malice was precluded as a matter of law due to the thorough research done and reliance on numerous sources. On appeal, the U.S. Court of Appeals for the District of Columbia held that for the purpose of summary judgment the requirement that actual malice be proved by clear and convincing evidence, rather than by a preponderance of the evidence was irrelevant, and that to defeat summary judgment the plaintiffs did not need to show that a jury could find actual malice with convincing clarity. The Supreme Court disagreed.

The Court found first that the substantive law will identify which facts are material. Thus only disputes over facts that would affect the outcome of the suit under the governing law would preclude the entry of summary judgment. The Court then held that summary judgment would not lie if the evidence were such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 106 S.Ct. at 2510. The Court stated clearly that there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. The need for a trial is therefore informed by the threshold determination of whether the factual issues may reasonably be resolved in favor of either party.

Finally, the court announced that the "convincing clarity" requirement was relevant in ruling on a motion for summary judgment.

When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times.... Thus, where the factual dispute concerns actual malice ... the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.

Anderson, 106 S.Ct. at 2513, 2514.

III.

We begin our analysis mindful of our earlier decision in Marcone v. Penthouse International Magazine for Men, 754 F.2d 1072 (3d Cir.1985), wherein we remarked that

[a]lthough replete with First Amendment implications, a defamation suit fundamentally is a state cause of action.... An adjudication of a defamation case involves both state and federal law inquiries. A court must determine: (1) whether the defendants have harmed the plaintiff's reputation within the meaning of state law; and (2) if so, whether the First Amendment nevertheless precludes recovery.

Id. at 1077, quoting Steaks Unlimited v. Deaner, 623 F.2d 264 (3d Cir.1980). Our first determination in this diversity case must therefore be whether the plaintiff has made out a proper claim under state law.

A.

To recover in a libel action under Pennsylvania law, the plaintiff's initial burden is to prove the defamatory character of the communication. See Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971). To this end, we will describe the broadcast in some detail. The broadcast at issue was a 15 to 20 minute portion of the nightly five o'clock KYW news program. The Hewlett segment was the first portion of an eight-part investigative report on Pennsylvania's criminal justice system.

The story began with reportage about Olivia Lorray Rice, the child who was killed, and included interviews with her family, photos of her neighborhood, and a verbal report of her death at Hewlett's hands. Then followed material descriptive of Hewlett's criminal record, including a report of light sentences imposed by several different Common Pleas Court judges. The segment superimposed photographs of those judges. This segment concluded with a description of Hewlett's first encounter with Judge Jenkins, during which Judge Jenkins stated his views as to the heinousness of Hewlett's crimes. The narrator also announced the potential sentence which Judge Jenkins could have imposed upon Hewlett, and the actual sentence imposed. Superimposed upon the screen were drawings of a courtroom scene with Judge Jenkins and Hewlett, and a photograph of Judge Jenkins. The program continued with then-District Attorney Edward Rendell commenting that he did not know "what was in Judge Jenkins' mind" (in regard to sentencing of Hewlett) and otherwise commenting upon the criminal justice system.

The narration of Hewlett's offenses continued, first with information and interviews with a woman whom Hewlett had assaulted, and a detective involved in that particular incident, and then with information about Hewlett's arrest for violating his probation status. The reporter then noted that Hewlett reappeared before Judge Jenkins on the violation of probation charge, and that the judge allowed Hewlett to remain on probation though he knew or was presumed to know of the various violations. The reporter also noted that the notes of testimony for that day could not be found, and no explanation as to their disappearance had been offered. The photographs at this point were those of an empty courtroom and of Judge Jenkins. This segment was also followed by Mr. Rendell's comments, this time that "Judge Jenkins failed again, and as ...