Street v. National Broadcasting Co.

• Decision Date: 11 August 1977
• Docket Number: No. CIV-4-76-31.,CIV-4-76-31.
• Citation: Street v. National Broadcasting Co., 512 F.Supp. 398 (E.D. Tenn. 1977)
• Parties: Victoria Price STREET, Plaintiff, v. NATIONAL BROADCASTING COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

512 F. Supp. 398

Victoria Price STREET, Plaintiff, v. NATIONAL BROADCASTING COMPANY, Defendant.

No. CIV-4-76-31.

United States District Court, E. D. Tennessee, Winchester Division.

July 8, 1977.

On Motion for Directed Verdict July 11, 1977.

On Motion for Directed Verdict After All Evidence August 11, 1977.

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Don Wyatt and Raymond W. Fraley, Jr., Fayetteville, Tenn., for plaintiff.

John W. Wheeler and Robert R. Campbell, Knoxville, Tenn., and Arthur E. Simms, Jr., Fayetteville, Tenn., for defendant.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

The jurisdiction of this Court was invoked properly herein on the basis of the diverse citizenship of the adversary parties and the requisite amount. 28 U.S.C. § 1332(a)(1), (c). The plaintiff claims inter alia that the defendant invaded her privacy. The defendant moved for a dismissal of the plaintiff's action, in so far as it asserts a claim of invasion of privacy, on the ground that it fails to state a claim upon which relief can be granted, Rule 12(b)(6), Federal Rules of Civil Procedure, in that Tennessee gives the plaintiff no right of action for privacy-invasion.

A federal court must apply in a civil action in which its jurisdiction is invoked on the basis of diversity of citizenship and required amount the substantive law of the state in which such federal court sits. 28 U.S.C. § 1652.¹ The rules of decision established by judicial decisions of the highest state courts constitute the "law" of a state as well as those prescribed by statute. Erie Railroad Co. v. Tompkins (1938), 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188.

Tennessee gives no right of action for invasion of privacy by statute. Neither has its highest court recognized specifically the existence of a common law right of action for invasion of privacy.

This Court anticipated that, when confronted directly with the issue, the Tennessee Supreme Court would follow the prevailing authorities and recognize a right of action for invasion of privacy. Cordell v. Detective Publications, Inc., D.C.Tenn. (1968), 307 F.Supp. 1212, 12151, 2, affirmed C.A. 6th (1969), 419 F.2d 989 (see esp., at 9901). This conclusion became unsettled subsequently when the intermediate civil appellate court of Tennessee stated pointedly: "* * * the tort of `invasion of privacy' has not been recognized in this State. * * *" Ruth Ann Nichols, Et Al., appellants, v. Memphis Publishing Company, appellee, C.A.Tenn., western section, opinion filed October 6, 1976. "* * * A state is not without law save as its highest court has declared it. There are many rules of decision commonly accepted and acted upon by the bar and inferior courts which are nevertheless laws of the state although the highest court of the state has never passed upon them. In those circumstances a federal court is not free to reject the state rule merely because it has not received the sanction of the highest court, even though it thinks the rule is unsound in principle or that another is preferable. State law is to be applied in the federal as well as the state courts and it is the duty of the former in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule * * *.

"* * * Where an intermediate appellate court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced that the highest court would decide otherwise. * * *" West v. American Telephone & Telegraph Co. (1940), 311 U.S. 223, 232, 237, 61 S.Ct. 179, 1834, 5, 6, 85 L.Ed. 139.

Some five weeks after the intermediate Court of Appeals of Tennessee asserted that the tort of invasion of privacy had not been recognized in Tennessee, the Tennessee Supreme Court, its highest court, in commenting upon its earlier decision in Martin v. Senators, Inc. (1967), 220 Tenn. 465, 418 S.W.2d 660, reiterated that Martin had "* * * assumed the existence of the common law right of action for invasion of privacy. * * *" Swallows v. Western Elec. Cp., Inc. (Tenn., 1976), 543 S.W.2d 581, 5831. Thus, this Court remains convinced that, when and if confronted directly with the issue, the highest court of Tennessee would decide that there is a right of action in Tennessee for the tort of invasion of privacy.²

For such reason, the aforementioned motion of the defendant hereby is

OVERRULED.

ON MOTION FOR DIRECTED VERDICT

The defendant moved at the conclusion of the plaintiff's proof for a directed verdict, Rule 50(a), Federal Rules of Civil Procedure. The principal ground of the motion was that the plaintiff had produced insufficient evidence to permit the jury to find the defendant guilty of negligence or some greater fault in the publication of statements concerning her which she claims were defamatory.

It was conceded at the outset by the defendant that the proof thus far had not shown that the plaintiff was a "public figure" as that term is applied to allegedly libeling broadcasters and publishers. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789; Time, Inc. v. Firestone (1976), 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154. Thus, as to her libel claim, the plaintiff was not required to prove malice on the part of the defendant. Such malice is required proof to support the plaintiff's claim for invasion of her privacy, however. Cantrell v. Forest City Publishing Co. (1974), 419 U.S. 245, 251, 95 S.Ct. 465, 469, 42 L.Ed.2d 419; Time, Inc. v. Hill (1967), 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456.

The defendant is correct in its assertion that the constitutional guarantees of freedoms of speech and the press required the plaintiff to prove negligence on the part of the defendant in publishing the allegedly libelous matter concerning her. The plaintiff claimed she has produced evidence that the defendant was thusly negligent, infra.

It was stipulated pretrial that the defendant broadcast on nationwide television the program, Judge Horton and the Scottsboro Boys, on April 22, 1976 and again on January 3, 1977, in which a person named "Victoria Price" was portrayed, and that the plaintiff Ms. Victoria Price Street is the "Victoria Price" thus portrayed. There was evidence presented by the plaintiff that the portrayed "Victoria Price" was, inter alia, described therein as "* * * a whore, * *" that the crime of perjury was imputed to her, and that she was described by another character in the portrayal as "* * * a bum. * * *" The defendant conceded the program published included "* * * inaccuracies. * * *"

The problem was, even if libelous inaccuracies were shown by the evidence, it still remained for the plaintiff to show proximate fault on the part of the defendant in publishing those statements before a question for the jury was presented. The plaintiff appeared to be laboring under the misapprehension that, if she had shown she has been defamed she is entitled to an award by the jury of damages without any showing by her of fault on the part of the defendant. The state of Tennessee was free to design for itself the appropriate standard of liability of a publisher or broadcaster of defamatory falsehood injurious to a private individual, but our state may not impose liability without a showing of specific fault. Gertz v. Robert Welch, Inc., supra, 418 U.S. at 437-438, 94 S.Ct. at 30106.

An intermediate civil appellate court of Tennessee has established as the appropriate standard in our state of such liability the negligence of the publisher or broadcaster. Ruth Ann Nichols, Et Al., appellants, v. Memphis Publishing Company, appellee, C.A.Tenn., western section, opinion filed October 6, 1976. The datum provided by this decision is not to be disregarded by this federal court sitting in Tennessee, unless it is convinced that the Tennessee Supreme Court would decide otherwise. West v. American Telephone & Telegraph Co. (1940), 311 U.S. 223, 237, 61 S.Ct. 179, 1836, 85 L.Ed. 139. Although, when confronted directly with the issue, it is anticipated that the Tennessee Supreme Court might include in Tennessee's standard of liability for broadcasters and publishers for defamatory falsehood injurious to a private individual higher elements other than simple negligence, it is anticipated assuredly by this Court that a showing of simple negligence on the part of the publisher would certainly be required.

The aforementioned Tennessee rule appears to be that insofar as private individuals and print publishers or broadcasters are concerned, before a plaintiff can recover for the publication of a libel either in print or by electronic telecommunication, the plaintiff must show (1) that the publication was libelous of the plaintiff and (2) that the publisher or broadcaster did not act with reasonable care under all the circumstances in the publication of the false and defamatory information about the plaintiff. Ruth Ann Nichols, Et Al., appellants, v. Memphis Publishing Company, appellee, supra. It has been suggested further by another section of the Tennessee intermediate civil appellate court that, in lieu of predicating liability of a broadcaster or publisher without a showing of specific fault, "* * * the failure to exercise due care would be a proper standard. * * *" Sherry L. Verran, appellant, v. Press, Inc., Etc., appellee, C.A.Tenn., eastern section, opinion filed April 19, 1977.

Unless the plaintiff shows, therefore, that someone in the NBC organization was negligent in failing to ascertain that the allegedly false and defamatory statements concerning Ms. Street were false and defamatory, i. e., that NBC's personnel acted reasonably in ascertaining the truth or falsity or defamatory nature of the aforementioned statements concerning Ms. Street before publishing them, or that personnel of NBC were guilty of some fault greater than...