Parnell v. Booth Newspapers, Inc.
| Decision Date | 31 January 1983 |
| Docket Number | No. G82-722.,G82-722. |
| Citation | 572 F. Supp. 909 |
| Parties | Teresa PARNELL, Plaintiff, v. BOOTH NEWSPAPERS, INC., Defendant. |
| Court | U.S. District Court — Western District of Michigan |
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Paul M. Ladas, Muskegon, Mich., for plaintiff.
William M. Newman, Landman, Luyendyk, Latimer, Clink & Robb, Muskegon, Mich., for defendant.
Plaintiff in this diversity action alleges that photographs of her were published in connection with two newspaper articles on the subject of prostitution in Muskegon Heights, Michigan. The articles and accompanying photographs appeared on page 1B of the September 20, 1981 edition of The Muskegon Chronicle, a newspaper owned and published by Defendant. Plaintiff claims that as a result of the publication, in which she was allegedly recognizable to relatives, friends and acquaintances, she was falsely imputed to be a prostitute, and has consequently suffered damages. Specifically, Plaintiff's Complaint alleges four counts of liability against Defendant: defamation, negligent infliction of emotional distress, intentional infliction of emotional distress, and invasion of privacy.
Presently before the Court is Defendant's Motion to Dismiss as to negligent infliction of emotional distress, and for summary judgment on the other counts. Plaintiff makes a cross Motion for Summary Judgment on all counts. Several affidavits, as well as the articles, photographs, and retouch work on the photographs, have been submitted for the Court's consideration, and are discussed below.
Defendant first argues that no jury could conclude that Plaintiff was recognizable in the photographs which appeared with the articles, and that the Defendant must therefore prevail on this count. In support of this claim, Defendant has submitted prints of the original photographs taken, prints showing "retouching" done on the photographs, and the newspaper page which contains the articles and photographs. These materials are verified as genuine by the affidavit of John Stephenson, Assistant Metro Editor of The Muskegon Chronicle. Stephenson further states in his affidavit that the original photographs were retouched by the newspaper's graphics department in order to conceal the identity of the woman and the vehicles which appeared in the photographs.
Plaintiff argues that, to the contrary, she is obviously recognizable in the photographs, that Defendant's motion must therefore be denied, and Plaintiff's Motion for Summary Judgment further considered. In support of her argument, Plaintiff has submitted a photograph of herself, and states in an affidavit that after the publication, she was identified as the woman in the photographs by friends, acquaintances, her parents, her landlady and by her father's co-workers. Plaintiff attests that her identification was possible because of her hairstyle, height and stance; and that her facial features in the photographs are clear when examined with a magnifying glass. She further states that she lives very close to the location at which she was photographed, and often frequents that area on foot, as she does not own a car. Plaintiff's mother has also submitted an affidavit, to the effect that upon reading the articles on September 20, 1981, she immediately recognized the woman in the photographs as her daughter.
Defamation has been generally defined as a communication which:
... 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 with or dealing with him. Nuyen v. Slater, 372 Mich. 654, 662, 127 N.W.2d 369 (1964).
Recognition of the Plaintiff is of course an inherent element of Plaintiff's claim for defamation. However, the fact that both parties have moved for summary judgment on this issue does not require a finding that there are no issues of material fact and that summary judgment is appropriate. Wright and Miller, Federal Practice and Procedure: Civil, § 2720, p. 459; Begnaud v. White, 170 F.2d 323 (CA 6 1948). As the Plaintiff observes, the fact that the Defendant took steps to obscure Plaintiff's identity does not inevitably lead to the conclusion that the steps taken were effective. Furthermore, a review of the original photographs and the newspaper publication of them, does not indicate that identification of Plaintiff would be impossible, especially considering facts Plaintiff has suggested which could, taken together, lead to her identification. At the same time, the affidavits of Plaintiff and her mother are not sufficient to convince the Court that a jury must find that Plaintiff is recognizable. Defendant should have an opportunity to probe the credibility of such testimony at trial, by such means as cross examination of Plaintiff's witnesses, or by demonstrating to the jury the steps taken to conceal Plaintiff's identity. The Court finds that the question of whether or not Plaintiff is recognizable as the woman in the photographs as they appeared in the newspaper is a contested issue of material fact, and that summary judgment is therefore not appropriate on this ground.1
Defendant argues that regardless of whether or not Plaintiff is recognizable in the photographs, Plaintiff must show actual malice on the part of Defendant in publishing the photographs, and that Plaintiff has produced no evidence indicative of such malice. Defendant assumes that a qualified privilege attaches to the use of the photographs, because the subject matter of the articles is one of public interest. Defendant further assumes that Plaintiff must prove actual malice in order to defeat that qualified privilege. Defendant relies upon Peisner v. Detroit Free Press, 82 Mich. App. 153, 266 N.W.2d 693 (1978), as the basis for both of these assumptions.
In Peisner, an attorney sued the Detroit Free Press, which had published articles criticizing court appointments of counsel where the judge was a friend of the attorney appointed. The articles specifically addressed plaintiff's appointment to represent a criminal defendant on appeal by a judge who was a personal friend of plaintiff, and charged that plaintiff had failed to raise on appeal a question of the misconduct of that trial judge. The newspaper asserted a qualified privilege defense, on the grounds that plaintiff was a public figure and that the publication was a matter of widespread public interest. The Court of Appeals found that plaintiff was not a public figure, but held that a qualified privilege did arise because of the public interest in the administration of justice. The court went on to hold that in order to defeat that qualified privilege, plaintiff had to prove "actual malice" as defined by the Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), that is, knowledge of falsity or reckless disregard for the truth.
Plaintiff argues that even though the general subject matter of the articles is one of public interest, Defendant exceeded the scope of any privilege when it used photographs of Plaintiff without any basis for concluding that Plaintiff was in fact engaged in soliciting for prostitution. It is an abuse of the "public interest" qualified privilege, Plaintiff argues, to use it to shield a defamation of a person unconnected with the subject matter of the article. Plaintiff distinguishes the Peisner case on the ground that there the plaintiff was specifically involved in the subject matter of the article. While the Peisner case held that the public interest in legal proceedings justified the application of the qualified privilege, Plaintiff argues that here different interests should be found controlling. Plaintiff points out that the interest of protecting persons from this kind of defamation is deemed so strong that it has been codified. M.S.A. § 27A.2911; M.C.L.A. § 600.2911. Plaintiff further argues that Defendant's affidavits indicate nothing more than a speculation that Plaintiff was engaged in soliciting for prostitution.2
It is clear that apart from considerations of whether or not a privilege has been defeated by malice, the Court must consider whether the "occasion" of the publication gives rise to a qualified privilege. Lawrence v. Fox, 357 Mich. 134, 97 N.W.2d 719 (1959). Lawrence defines "occasion" to mean the extrinsic facts (people, time or place), as opposed to the specific content of the publication. 357 Mich. at 139, 140, 97 N.W.2d 719. Where the scope of the privilege does not cover the publication with regard to the Plaintiff, or when the occasion of the article does not include the questioned material, the privilege may be found inapplicable as to that aspect of the publication. Bowerman v. Detroit Free Press, 287 Mich. 443, 283 N.W. 642 (1939); Clark v. American Broadcasting Companies, Inc., 684 F.2d 1208 (CA 6 1982).
The Clark case presents facts strikingly similar to those of the publication at issue here. The defendant in that case had aired a television documentary on the problem of prostitution in the street and its effect on the neighborhoods in which it occurred. During the course of the documentary, plaintiff Ruby Clark was shown walking down a Detroit street. The Court of Appeals held that the footage of the plaintiff, taken together with the narration, was capable of being interpreted as portraying plaintiff as a prostitute, and that the public interest qualified privilege did not extend to the use of plaintiff in the documentary. The court reasoned that as to the plaintiff, the film exceeded the scope of the qualified privilege, since plaintiff was not a prostitute, had not been interviewed herself in the documentary, and was not clearly involved in the issue in some way aside from being present in the neighborhood when the film was made.
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