Ruby Clark v. American Broadcasting Companies, Inc.

JONES, Before KEITH and Circuit BROWN, Judges, Judge. Circuit Senior KEITH, Judge. Circuit wheth- question This raises the appeal judgment er providently A granted judge in this defamation action. of the United District Court for the States Michigan granted Eastern District of sum- mary judgment for the American Broad- casting (“ABC”), the Companies, Inc. de- fendant-appellee. The court held that an Clark, pictured broadcast which Ruby plaintiff-appellant (“Plaintiff”), was not pro- libelous. We reverse and remand for ceedings opinion. consistent with this

FACTS This defamation action arises from an April which aired on ABC broadcast long 1977. The broadcast was an hour Closeup” “ABC News entitled: “Sex for (“Broad- Battleground” Sale: The Urban cast”). The Broadcast addressed the ef- fects of the proliferation of commercialized But for black women whose homes 1) busi- damage sex: sex-related there, white cities, towns, cruising customers were nesses have on America’s especially humiliating experience. 2) neighborhoods; resurgence businesses; prostitution caused these sex Madison, a black female resident of Sheri 3) how the sex businesses flourish from neighborhood plagued by prostitution, featured inter- prostitution. The Broadcast on the screen seconds after Plain- cities, in- views which focused on various tiff. She stated: Boston, York, cluding New and Detroit. Almost woman who was black and on prosti- the street was considered to be a Act III focused on street tute herself. And was treated like a segment these cities. One of Act III fo- cused devastating on the effect of street

prostitution on a neighborhood middle class Subsequently, Plaintiff initiated an ac- in Detroit. Residents of the Wayne tion in the County Circuit Court interviewed, were and several women were against claiming ABC defamation and inva- photographed as they walked down a privacy. sion of She claimed that street. Broadcast her as a “common depicted street prostitute”. It is uncontroverted The first woman was white. was She prostitute. Plaintiff has never been a In obese, and approximately fifty years old. fact, Plaintiff has is married and one son. hat, wore a and shopping bag She carried a ABC removed the case to federal district in each hand. The second woman carried pursuant juris- court to the court’s diversity grocery bag. was black. The camera She diction. followed her a few minutes as she exited a grocery store and walked down the street. In a deposition, Plaintiff testified con- obese, slightly large-framed She was wore she, husband, cerning her reactions as her glasses, and appeared to be at least forty 2 year and old son viewed the Broadcast. years following old. The comments were The Broadcast shocked her. Plaintiff be- made while these two women on lieved that she had been portrayed as the screen: prostitute. also testified that several She friends, acquaintances, phoned and relatives residents,

According to police and Detroit during following Plaintiff and the Broad- records, prostitutes’ most of the custom- persons thought cast. Each of these white; johns ers or were pros- street her as a portrayed Broadcast titutes were integrated often black. This prostitute. middle class neighborhood became a safe meeting place for ‘johns’. and Plaintiff also that she prop- testified was ositioned, that church members shunned The plaintiff, woman, a black was the her, acquaintances and that confronted her third woman photographed walking down allegations prostitute. that she was a the street. The photographs frontal Moreover, potential after the Broadcast two close-ups. Plaintiff’s face was clearly visi- employers refused to hire Plaintiff because ble. The plaintiff appeared to they employment feared her would hurt early attractive, to mid-twenties. She their businesses.1 slim, stylishly and dressed. large She wore earrings and had long pulled hair which was moved parties summary judg- Both up above her Apparently, head. Plaintiff motion, ment. In support of its ABC ar- was unaware being photo- that she was 1) gued portions that: the audio and visual graphed. As Plaintiff appeared, clear, the narra- unambiguous of the Broadcast were tor made the following 2) remarks: dispute; pictures and not in deposition, par- Moreover, provided In addition to Plaintiffs cast. Plaintiff ABC with engaged discovery. ties in other forms of the names of at least nine individuals who parties interrogatories thought obtained two sets of viewed the Broadcast and Plaintiff was deposed Hill, However, portrayed each other. po- Plaintiff Pam as a these writer, director, producer deposed. and of the Broad- tential witnesses were never walking argues ABC that courts must be along public street were 3) objectionable; the “context and the allowing juries to decide defa cautious conjunction with the brief

words used cases which involve interest mation references” to the Plaintiff did not visual effect, reporting. suggests ABC claim; 4) the support her “balance of apply rules and considerations different concerning’ was not ‘of and [Broadcast] summary judgment motions defamation ABC attached to its Mo- [the Plaintiff].” However, summary cases. standard for Summary Judgment transcript tion for judgment clearly motions is articulated words used the Broadcast. ABC also 56(c). 56(c) Rule provides Fed.R.Civ.P. provided the with a videotape where summary judgment appropriate Broadcast. genuine there no issue as to material motion, 1) In her Plaintiff asserted that: moving party fact and the is entitled to there question was no factual that the defa- judgment as a matter of law.3 her; concerning” 2) mation was “of and either “There is no rule which favors interest, Broadcast was not in the granting denying motions for therefore, could not assert a qualified judgment in defamation cases.” Schultz v. privilege. Newsweek, Inc., F.2d 911 ABC filed an Answer to Plaintiff’s Cross 1982); Yiamouyiannis See v. Consumers Summary Judgment, arguing Motion for States, (2d Union of United 619 F.2d 932 1) clearly that: the Plaintiff was and unam- denied, Cir.), cert. housewife; biguously depicted 2) as a 66 L.Ed.2d 46 even Broadcast was interest and cases, summary judgment in defamation existed as a matter of proper only genuine if there exists no issue law. any as to material fact. viewing After videotape Broadcast reading accompanying determining whether there ex transcript, the district granted court ABC’s fact, genuine ists a issue as to a material we motion for summary judgment. Plaintiff apply Michigan. the substantive law of See perfected appeal. this Tompkins, Erie R. Co. v. 304 58 82 L.Ed. 1188 The Michi I. DEFAMATION CLAIM Slater, gan Supreme v. Nuyen 372 On appeal, argues Plaintiff the dis- (1964), Mich. 127 N.W.2d 369 defined trict court granting erred in summary judg- defamation as follows: ment for ABC since there existed a factual A defamatory communication is if it question as to whether the broadcast was harm reputation tends so to of anoth- defamatory. agree. We er as to lower him the estimation of In granting motion ABC’s the community persons or to deter third judgment, the district court concluded that associating dealing with him. the Broadcast was not libelous. The court Id. at 127 N.W.2d 369. nothing reasoned that appear- in Plaintiff’s ance suggested that her activity paralleled This definition provides applicable sub- that of prostitute.2 a street stantive law in this case.

2. The pleadings, depositions, district court did reach not the issue of forthwith if the answers protected by qualified priv- whether interrogatories, file, ABC was and admissions on to- ilege. hold, however, The court did gether affidavits, any, with the if show that Broadcast inwas interest. genuine any there is no issue as to material fact moving party judg- and that the is entitled to a 56(c), provides: 3. Rule Fed.R.Civ.P. summary judg- ment as a matter of law. A ment, character, Proceedings interlocutory may Motion and Thereon. The motion be ren- days liability shall be served although at least 10 before the time dered on the issue of alone hearing. party prior fixed for the genuine The adverse there ais issue as to the amount of day hearing may opposing to the damages. serve affi- judgment sought davits. The shall be rendered

1213 “[wearing] suggestive duty clothing, suggestive The district court had a to de solicitation, walking, termine as a matter of law whether the overt acts of and the like.” 399. Plaintiff reasonably capable App. engaged was of a de was Broadcast of these actions. interpretation. Consequently, v. Read famatory Schultz appearance court concluded that Plaintiff’s Association, Digest F.Supp. er’s in the Broadcast was not libelous. (E.D.Mich.1979); Michigan United Conser News, F.Supp. vation Clubs v. CBS participation Plaintiff’s in the Broadcast (W.D.Mich.1980), aff’d, 665 F.2d 110 reasonably capable defamatory is also of a 1981). Whether the Broadcast was un meaning. The district court should also being defamatory derstood as was for the have viewed Plaintiff’s jury Digest, to decide. Schultz Reader’s prostitution. context of the focus on street 554; at F.Supp. Michigan United Con manner, Viewed in this Plaintiff was either Clubs, F.Supp. servation at 902. portrayed prostitute or could reason- ably be mistaken for noted, As the district court granted earlier, As noted photo- was summary judgment in favor of ABC be graphed as she walked down the street. the court cause concluded that the broad appearance, Prior to Plaintiff’s the com- cast was not libelous. The district court mentator noted that the street applied an incorrect standard. district were often while their customers black granted summary judg should have Moreover, white. often the commen- ment for if the Broadcast was not tator noted that was a capable defamatory mean meeting place pros- safe for the black street ing. Digest, F.Supp. Schultz Readers titutes their white customers. As the 554; Michigan United Conservation spoke pic- commentator two women were Clubs, F.Supp. at 902. tured. The first woman was white. She The portrayal pros of Plaintiff as a obese, old, fifty least years titute clearly defamatory would under carried a shopping bag each hand. This Michigan law. Prostitutes are considered woman be one of residents immoral and socially undesirable. More neighborhood. the middleclass over, indicated, pres as the Broadcast black, second woman was slightly shown prostitution ence of street neighbor a obese, large-framed glasses, wore hood devastating problems. causes social exited a bag groceries carried a as she There is often significant a increase in the black, Although store. this woman was she number of assaults App. and robberies. appeared also to be one of the residents of accompanied Street is also neighborhood. the middle class Plaintiff’s presence illegal drug App. traffic. picture appeared immediately following the Therefore, portrayal of an individu appearance of these two matrons. al as prostitute damage a would reputa her appear- The contrast between Plaintiff’s tion and persons tend to cause third not to ance and that of two matrons strik- associate with that individual. ing. Plaintiff is black and to be case, In this appearance slim, Plaintiff’s early to mid-twenties. was She in the Broadcast was capable attractive, dressed, at least two stylishly large and wore interpretations, one defamatory and the earrings. appearance juxta- When her other matrons, non-defamatory. posed That the Broadcast with that of the two is not is reasonably capable of a non-defamatory clear a whether she is resident of this mid- meaning is clear from the district court’s dle class or one of the street reasoning. The district court focused solely prostitutes plagued who this community. on whether during Plaintiff’s behavior the Arguably, ambiguity this is clarified Broadcast was similar to the stereotypical presence commentator’s statement that the actions commonly prostitu associated with cruising white customers was hu- tion. This stereotypical miliating experience behavior includes for the black women improvidently neighborhood. judgment How- resided

who ever, granted. this state- assuming arguendo ambiguity, clarify tends to

ment negated by an inter- clarification partial QUALIFIED PRIVILEGE UNDER II. appearance. followed Plaintiff’s view which LAW MICHIGAN Immediately following appear- Plaintiff’s qualified privilege that a ABC contends Madison, ance, a resident of this capa- Sheri if the Broadcast was protects it even the screen neighborhood, appears on defamatory meaning. Michigan’s ble “Almost black woman on the states: a defendant qualified privilege protects to be prostitute streets was considered liability even where the statements herself, prostitute.” was treated as a published defamatory. A defendant Thus, it App. 73. is unclear whether Plain- qualified privi- protection loses the however, of those middle class women tiff is one lege, if it acts with actual malice erroneously prostitute considered to be a Sullivan, defined in New York Times v. is, fact, 11 L.Ed.2d 686 S.Ct. Newsweek, v. 668 F.2d at Schultz The ambiguity created when Plaintiff’s 918; Fox, 357 Mich. Lawrence is viewed within the context (1950) In New York Times N.W.2d prosti- Act Ill’s focus on the effect of street Sullivan, Supreme held that a neighbor- tution on a Detroit middle class malice where defendant acts with actual susceptible hood renders Broadcast knowledge statement is made with that it is a defamatory non-defamatory both and a disregard or with reckless of whether false meaning. it was false or not. Id. Given the district analysis court’s own at 726. The in the instant record case question of whether the broadcast was not indicate that acted with actu- does defamatory, the court’s to grant decision al Michigan’s quali- malice. if summary judgment for ABC is difficult to case, privilege applies fied in this we could reconcile. The district court noted that it grant sustain the district court’s of summa- “agonized had over the broadcast [whether ry judgment for ABC. App. defamed 400. The fact Plaintiff].” that the necessary agonize court found it argues Michigan’s question over the of whether the Broadcast apply does not in this case, was defamatory therefore, demonstrates that the case required prove she is should have been jury. submitted to the negligent.4 ABC was Broadcast was capable parties’ raise contentions difficult is two meanings, defamatory one and the oth- sues of state and law. constitutional State er non-defamatory. Consequently, it was defamation law is affected First Amend jury to decide Newsweek, whether Broad- ment v. principles. See Schultz 916; cast being defamatory. Co., was understood as Argus 668 F.2d at v. Press 586 Orr Digest, Schultz v. Readers F.Supp. (6th 1978), denied, 468 at cert. F.2d 1108 Cir. 440 554; Michigan Club, 960, 1502, United Conservation 99 S.Ct. 59 L.Ed.2d 773 F.Supp. 485 at (1979). Moreover, 902. We therefore legal practical conclude as a and argues that the New York Times v. appropriate 4. Plaintiff define for themselves the standard Sullivan standard is not applicable liability publisher in this case for a or broadcaster “public figure”. defamatory injurious private because she is not a The Su- falsehoods to a preme 347, Id at Court has held that the constitutional individual.” 94 S.Ct. privilege embodied in the New York Times v. Inc., Newsweek, In Schultz v. 668 F.2d 911 Sullivan standard is not applicable private to 1982), Michigan’s held that this Court “public figures”. individuals who are not privilege applies though plaintiff “even is a Welch, Inc., Gertz v. Robert 323, private qualified individual”. if the 2997, (1974). 41 L.Ed.2d 789 The Court privilege applies, private even a individual must in Gertz also held that “so long they do not prove “actual malice” as defined in New York impose liability fault, may without the States Times v. Sullivan. within ry scope statement matter, law and the consti the state issues Bowerman v. Detroit qualified privilege. intertwined in some may tutional issues Press, 443, 447, 287 Mich. 283 N.W. 642 Free Orr, at 1112. We 586 F.2d situations. See (1939). pub- The defendant in Bowerman Michi arising the issues under will address newspaper concerning ju- article a lished a first, will the constitu gan law reach The article was inaccu- proceeding. dicial required if to do so. Cf. tional issues rate, language. contained libelous Newsweek, 668 F.2d at 916. v. Schultz Nevertheless, argued that the defendant recog Michigan Supreme Court report there was a privilege publish nized a defam qualified The court first held judicial proceedings. atory statements in the seminal decision of that the “extrinsic circumstances the in- Co., Michigan Bacon v. R. 66 Mich. Central newspaper stant case are that defendant’s Bacon, 166, (1887). 33 N.W. 181 In reporting judicial proceeding a which qualified privilege: court held that the 447, a Id. at qualified privilege.” created extends to all made bona communications also 283 N.W. 642. The Bowerman court upon any subject fide matter in which the newspaper held that article was not interest, or party communicating has scope qualified privilege. within the of the in reference to which a to a duty, he has privilege did The court reasoned person having corresponding interest or re- justify published inaccuracies duty. And the cases privilege embraces port. one, duty legal where the is not a but Bennett, 355, In Timmis v. 352 Mich. where it is a moral character of or social (1958), Michigan Supreme N.W.2d imperfect obligation. adopted following statement 170, Id. at 33 N.W. 181. Am.Jur., Slander, from 33 Libel and 126: § Whether the qualified privilege applies is conditionally The essential elements of a question Fortney Stephan, of law. v. privileged may according- communication 603, Mich. 213 N.W. 172 “The court faith, an inter- ly good be enumerated as must decide as a matter of law whether limited in upheld, est to be a statement recognized public private there is a inter- occasion, scope purpose, proper to this justify est which would the utterance of publication proper in a manner and Newsweek, publication”. Schultz v. proper parties only. F.2d at 918. added.) (Emphasis Id. at 89 N.W.2d 748 One privileged occasion involves officer, Timmis, plaintiff police publications or which are in broadcasts concerning claimed statements made privilege interest. The upon “rests performance official duties were considerations of public policy.” Lawrence defamatory. The court held that the state- Mich, Fox, 97 N.W.2d 719. scope quali- ments were within The privilege “varies with the situation privilege public’s fied because of the inter- regarded impor with what is as the [and] est in law enforcement matters and the tance of the social issues at stake.” Id. at police depart- actions of members of the privilege applies 97 N.W.2d 719. The ment. plaintiffs’ as a matter of law where the Judge Lively’s opinion in Schultz v. opinions activities or are inter Newsweek, instructive. 668 F.2d is also 918; Newsweek, est. 668 F.2d at Schultz Schultz, scope that the this Court held 1108; Press, Argus Orr v. 586 F.2d at Fort Michigan’s qualified privilege ques- is not a 603, Stephan, ney v. 237 Mich. 213 N.W. con- tion of fact. In a Newsweek article 172; Co., 547, Bostetter v. Kirsch 319 Mich. Hoffa, cerning disappearance Jimmy the of 30 N.W.2d 276 to as a “Detroit plaintiff the was referred articles which figure.” that the Four

Once a court determines underworld also discussed court must next in the Detroit privileged, occasion is the News these articles con- plaintiff. the Three of allegedly determine whether the defamato- apply do not The same considerations Jimmy of Hoffa. disappearance the cerned tenu- has the most plaintiff the a un- where “longtime was to as referred Schultz interest sub- public with the ous connection of two figure” and one the last derworld A or television ject newspaper matter. towas have met Jimmy men that Hoffa plain- concerning this incidental broadcast The fourth arti- disappearance. before his The socie- public tiff is in the interest. not problems discussed encountered cle the protects which the privilege tal interests attempt to obtain a sons in their Schultz’s scope the of by expanding are not furthered that This article stated liquor license. the to include such individuals. privilege investiga- in the key figure was a Schultz Michigan’s quali- scope the of Consequently, disappearance. tion of Hoffa’s Jimmy encompass publica- fied not privilege does action he brought a libel in which Schultz is plaintiff tions broadcasts where the or a disappearance was conceded that Hoffa’s public publica- the interest not the focus of Nevertheless, public of interest. matter tion. argued he inci- that because was an Schultz case, Act on the In this III focused figure of scope dental in these articles the prostitution effects of street devastating jury Michigan’s qualified privilege was The activities neighborhood. middle-class question. publishers argued The defendant would opinions or the street prostitutes of that the in each report entire contained Moreover, public interest. clearly be in that no privileged article was there was pros of residents to the street reactions “pe- was scope issue of since Schultz public in the interest. titutes is also ripheral” figure. or “incidental” The court Broadcast, participation in Plaintiff’s rejected argument scope Schultz’s however, interest. public not in was the privilege is a matter of fact. The plaintiff a nexus between the There was court relied Free upon Bowerman Detroit 911, Newsweek, 668 F.2d and the Schultz v. Press, N.W. Mich. and held subject disap- of the matter articles: scope that the the privilege question is a contrast, pearance Jimmy By Hoffa. of law. We agree holding with the court’s Broadcast had Plaintiff’s the scope privilege of the is to be absolutely no connection with decided question the court as a law. Broadcast, i.e., prosti- matter street privilege ex qualified does not neighbor- tution its effect on a Detroit tend, however, plaintiffs who are not was at hood. It is undeniable that Plaintiff focus of the alleged public publica interest figure best an incidental in the discussion plaintiff tion. A merely who is an inciden was not a prostitution.5 tal figure not, in the broadcast is as a prostitute segment when this of the Broad- law, matter of scope privi within the of the filmed, cast nor was one when was she lege. Timmis, See 352 Mich. at fact, ear- was aired. as noted Broadcast N.W.2d 748. policy underlying Michi lier, has uncontroverted that Plaintiff is gan’s qualified privilege is to re promote never or sex-re- engaged porting comment about matters which Moreover, lated Plaintiff was not business. are in the public interest. Lawrence the Detroit dis- resident of Fox, 357 Mich. 97 N.W.2d an Instead, 719. If Act III. she resided during cussed individual is involved in some activity Femdale, or Michigan, she was filmed when proffers an opinion which Al- and when the broadcast was aired. interest, story then a news concerning neigh- though she was not a resident of this individual’s activity opinions borhood, also in prosti- her reaction to the street interest. tutes interest. may have been plaintiff merely figure complains concerning 5. That incidental were not of and her.” Second, plead- App. judgment Broadcast is also evident in its mo- ABC’s First, ings Answer, tion, in this in its case. ABC claimed balance “[t]he documentary concerning’ claimed as an affirmative defense that news not ‘of and “[T]he portions report plaintiff App. news which [t]he Plaintiff.”

1217 However, pro- she was not filmed The Court extended the New York during Times against presence test march of street malice requirement Sullivan to libel suits prostitutes, being nor was she harassed brought public figures. Curtis Publish cruising the street or the cus- Butts, 130, ing 1975, Co. v. 388 87 U.S. S.Ct. Also, tomers. she was not interviewed con- (1967). 18 L.Ed.2d 1094 figures] “[Public cerning prostitution. her reactions to street may recover from injury reputation only picture as she walked down on clear convincing proof the de a public absolutely street has no connection famatory falsehood was made with knowl matter of the Broadcast. edge of its or with falsity disregard reckless We therefore conclude that Plaintiff’s Gertz, 342, for the truth.” 418 at 94 U.S. participation in the Broadcast was neither at 3008. S.Ct. See Street National scope interest nor within the Co., Broadcasting 1227, (6th 645 F.2d 1233 Michigan’s qualified privilege as mat- Cir.), 815, 454 granted, cert. U.S. 102 S.Ct. ter of law. 91, 83, 70 L.Ed.2d dismissed, cert. 454 U.S. 1095, 667, 102 S.Ct. 70 (1981); L.Ed.2d 636 III. AMENDMENT FIRST PRINCIPLES Cahalan, 681, Walker v. 542 F.2d 684 though Even Michigan’s qualified privi- 1976), denied, 966, cert. 430 U.S. 97 lege case, does apply not in this we must 1647, (1977). S.Ct. 52 L.Ed.2d 357 prin- determine whether constitutional “public figures” Gertz defined ciple requires prove Plaintiff to that ABC purposes of the First and Fourth Amend acted with actual malice as defined in New ment as follows: Sullivan, 254, York Times v. 376 U.S. 84 710, 11 For the part S.Ct. L.Ed.2d 686. For the most those who attain this reasons below, we hold that no princi- constitutional status have especial assumed roles of ple requires that Plaintiff prove actual mal- prominence society. in the affairs of ice. occupy positions persuasive Some of such power they and influence that are

The Broadcast raises the factual public figures purposes. deemed for all question of whether Plaintiff depicted More those commonly, as a classed as prostitute or could have been mistaken for a figures An editori have thrust themselves to opinion ABC, al held no matter how forefront of particular public controver- pernicious, would be entitled to First sies in order to influence the resolution of protection. Amendment Gertz v. Robert event, In they issues involved. either Welch, Inc., 323, 339, 2997, 418 U.S. 94 S.Ct. Gertz, invite attention and comment. 418 (1974). L.Ed.2d 789 345, at 94 U.S. S.Ct. at 3009. Amendment, however, The First does not public figure is not a for all afford ABC the same protection absolute purposes. gener- “Absent clear evidence of for misstatements of fact. is no “[T]here al fame or notoriety community, constitutional value in false statements of pervasive involvement in the affairs of soci- 340, fact.” Id. at 94 S.Ct. at 3007. Never- ety, individual should not be deemed theless, the Supreme Court has afforded public personality aspects for all of [her] publishers and protec- broadcasters limited 352, life”. at Id. S.Ct. at 3013. Plaintiff tion from liability in defamation actions. general has no notoriety. fame or Wol- See Sullivan, New York Times v. Association, Inc., ston v. Digest Reader’s 254, 710, 686, 84 S.Ct. 11 L.Ed.2d the Su- 157, U.S. S.Ct. 61 L.Ed.2d 450 preme Court held publishers (1979). any pervasive She also lacks in- broadcasters could not be liable in defama- volvement in the affairs society. tion actions See Id. brought by public officials un- 2705; publisher Time, less the or broadcaster Inc. v. Fire- acted with stone, actual malice. It is clear that Plaintiff is 96 S.Ct. L.Ed.2d official. 1218 second, which the extent voluntary; be re- also cannot

Plaintiff com Gertz of effective public figure. limited access to channels a there is garded as to deter- analysis two-pronged a false establishes in order to counteract munication public limited individual is a mine if an statements; third, prominence must First, controversy” “public figure. controversy. in the played the role 345, Gertz, at 418 at 94 S.Ct. exist. U.S. 3009; 344-345, Gertz, at at 94 S.Ct. of the Second, and extent the nature 165-168, Wolston, 99 S.Ct. at 443 at U.S. particular in participation individual’s Proxmire, 2706-2707; 443 U.S. Hutchison Id. must be ascertained. controversy 111, 2675, L.Ed.2d 411 61 99 S.Ct. at 3013. S.Ct. Broadcasting Scripps-Howard Wilson v. See clearly has not Supreme Court (6th Cir.), granted, cert. Co., 371 642 F.2d controver- elements of defined the 500, L.Ed.2d 962, 70 454 102 S.Ct. U.S. however, Firestone, Time, Inc. v. sy. In - -, 377, dismissed, 102 U.S. cert. de- rejected the Supreme explicitly (1981); 984, 71 L.Ed.2d 119 Street S.Ct. “public that a argument publisher’s fendant Co., at 1234. 645 F.2d Broadcasting National with all equated should be controversy” the instant factors to Applying these three public. to the controversies of interest case, Plaintiff is not we conclude that the wife of a plaintiff in Firestone was public figure. limited family. of a industrial She wealthy scion divorce, but the and her husband obtained voluntarily First, did not inaccurately defendant described controversy sur participate in the grounds for the divorce in an article. The prostitution of street rounding the effects Court held: in Detroit. neighborhood on a middleclass through judi- marriage Dissolution of a Co., Broadcasting v. National In Street “public the sort of proceedings cial is not 1227, plaintiff, held that the F.2d this Court Gertz, even controversy” referred witness in the prosecutrix and main difficulties of ex- though the marital trial, public figure rape was a Scottsboro wealthy may individuals be of tremely concerning play in a when she reading portion interest to some gave press inter plaintiff trial. The Firestone, 424 U.S. at public. her extra proffered aggressively views and S.Ct. at 965. In v. Ar judicial version of the case. Orr case, In the effects sex-related plaintiff that the gus-Press, this Court held general, particular businesses in and the because, inter public figure was a limited prostitution effects of street on a middlec- alia, sought publicity. voluntarily he neighborhood, lass Detroit be the kind may distinguishable The instant case is “public referred to in controversies” sought to Plaintiff never and Orr. Street interest in the effects public’s Gertz. The opinions. actions or publicity obtain for her in a Detroit Wolston, fact, plaintiff like the arguably greater pro- are than the divorce ceedings unwillingly Fire- into wealthy couple. dragged Cf. “[Plaintiff] stone, Wolston, 47 L.Ed.2d U.S. S.Ct. controversy.” was never a at 2707. Plaintiff sex- prostitute, engaged nor was she though Even matter Moreover, she was not a related business. type “public may Broadcast neigh- Detroit middleclass resident Gertz, controversy” the na recognized III. during Finally, Act borhood focused participation ture and extent of Plaintiff’s was unaware that that Plaintiff appears public controversy in this must still be ex ABC never being photographed. she was an indi amined. The nature and extent of to film permission received requested nor participation vidual’s is determined con first, picture Plaintiff or include sidering the extent three factors: controversy participation which Broadcast. Street,

Second, BROWN,* plaintiff unlike the BAILEY Circuit Judge, Senior Plaintiff has no access to channels effec dissenting. tive communication in order to counteract I respectfully place, dissent. In the first Following the Broad the false statements. viewing parts after the relevant of the doc- cast, press has not to inter clamored times, that, umentary several I believe con- Street, her. Cf.

view 645 F.2d at 1234. trary to the majority opinion, the district Moreover, “regular she have the does not was correct in its determination that continuing and access to the media that is the portrayal of Mrs. Clark could not rea- one of having the accouterments of become sonably defamatory. be construed as In the Hutchinson, public figure.” event, place, any second and in I believe 136, 99 S.Ct. at 2688. Before Plaintiff’s Broadcasting Companies, American Broadcast, appearance in the she lived in (ABC) Inc. enjoyed qualified privilege un- relative obscurity. appearance during Her der Michigan law. Therefore, Act III not change did this fact. she did not have means to effectively contradict the erroneous impression that I. she was a Act III of ABC’s documentary focused on Finally, as noted previously, devastating impact prostitu- street played prominent no role in subject neighborhoods tion on the bordering De- matter which was the focus of Act III. troit’s Woodward “when Avenue sex busi- essence, merely Plaintiff was an incidental nesses proliferated first on Woodward Ave- figure in the prostitu- discussion of street early nue in the 1970s” and the subsequent tion. airing of Plaintiff’s struggle that occurred quiet, “between the picture as she walked down the street was orderly, people here, middle class who live not relevant to any examination of the ef- and some prostitutes pimps and who fects of street prostitution on a Detroit tried to move in.” App. 70. Act III fea- neighborhood. tured interviews of Woodward Avenue area The nature and extent of Plaintiff’s in- residents, anguish who described their volvement subject matter of Act III witnessing public pandering. blatant These leads to the inescapable conclusion that she residents described how men would be “ac- not a limited figure. The Su- costed” by prostitutes they walked in the preme Court has refused to extend the ac- neighborhood families, with their how “the tual malice requirement of New York pimps matching johns were and the Times v. Sullivan plaintiffs who are nei- prostitutes,” “[tjhose and how who lived in ther officials public figures. nor neighborhood were to conduct Gertz, 94 S.Ct. they considered inconceivable. The rules Thus, L.Ed.2d 789. Plaintiff is not required they lived no longer applied.” App. 71.

to prove on remand that ABC acted with dialogue focus of the then turned to actual malice. the mortifying experiences' suffered neighborhood women who mistaken IV. CONCLUSION prostitutes: for We conclude that the Broadcast was ca- MRS. CARR: pable of a defamatory meaning. Because susceptible Broadcast was to two inter- you’re Whether 15 or constantly being pretations, one defamatory and the other approached degrading terrible. —it’s —feels non-defamatory, summary judgment for SUE CARR: ABC was improvidently granted. Accord- to, know, You ingly, you just we reverse want kill and remand the case to ’em . . . the district proceedings court for cause it makes you angry placed consistent so to be with this opinion. down a hooker’s level.

* Judge 371(b) 16, 1982, regular Circuit Brown retired from active on June and § became a Senior provisions Judge. service under of 28 U.S.C. Circuit humiliating expe- especially were an tomer's K.

HOWARD SMITH [Commentator]: the screen appeared on Mrs. Clark rience.” residents, police Detroit According to seconds, only her head five for three to records, customers prostitute’s most of the The district were shown. and shoulders white; prostitutes the street johns were appear- Mrs. then described Clark’s judge were often black. ance: class integrated This middle Clark, Mrs. was that of picture The third place meeting a safe became walking to be who plaintiff, “johns.” any visible street without were whose homes But for black women her hands within anything evidence of were an there, customers cruising white and, the earlier two wom- contrast to humiliating experience. especially describe, en, may and what I earrings had accurate, rea- as a though may black it not be MADISON SHERI woman]: [a stylish style. or hair sonably fancy and on who was black Almost woman that Mrs. Judge Cook also noted App. 398. prostitute to be a the street was considered dressed, fairly well “appeared to be Clark treated like a herself. And was excessively.” App. though PAM HILL: against Mrs. libel suit After Clark’s feel you How did that make then? through discovery, extensive progressed had SHERI MADISON: summary for filed cross-motions parties Cook, viewing the Judge after Outraged judgment. outraged. ... times, documentary several concluded cases, school stu- Young girls high in some appear- nothing Clark’s] [Mrs. “[t]here physically actually approached dents were think, to the suggest, I ance which would Intolerable, intolera- absolutely assaulted. would, activity mind that her reasonable ble situations. prostitu- of the act of any way, parallel that App. 72-73. be,” tion, may acts as varied as those During dialogue, three women judg- summary motion for granted ABC’s photographed rapid they succession as ment. 399-400. App. street, which was walked down a the last of proper that the agree majority I with the plaintiff, The first Ruby Mrs. Clark. by the district court for standard to be used commentator, two women as the whether a defa- threshold determination its Smith, Howard K. “This inte- commented: Michigan action under law should be mation became a grated middle class judgment is “wheth- dismissed on safe meeting place for walking er the Broadcast Mrs. Clark [of ” ‘johns.’ capable down the street] Cook, Jr., Judge District Julian Abele defamatory interpretation.” Ante at ABC, granted summary judgment who for 1213. This standard is fully more ex- described these two women: United plained Michigan Conservation white, elderly The first woman was News, F.Supp. Clubs v. CBS bags; presumably shopping bags, two one aff’d, (W.D.Mich.1980), 665 F.2d 110 hand, walking along in each the street. law): 1981) (applying Michigan length It was a full view. The second it is the It is a well established rule that picture ap- was of a woman who [black] a com- of the court to determine if duty peared age to be in her middle with a capable bearing munication is defam- arm, package coming in her out of what Post atory meaning. Washington Co. v. appeared to be a store. Chaloner, 290, 293, 39 S.Ct. App. (1919); Publish- 398. The of Mrs. Clark 63 L.Ed. 987 Commercial Smith, Cir.], came re- 149 Fed. ing while the commentator next Co. v. [6 (1907); Lonkhuyzen Daily marked: “But Van for black women whose 706-707 570, 587-588, there, Co., cruising homes were white cus- News 203 Mich. (1918); (Second) incapable conveying supporting N.W. 93 Restatement or Washington suggests. Torts, innuendo (1977). making this deci- § sion, questions: the court must decide two (emphasis added). 665 F.2d 112 first, rea- whether the communication is deposition Mrs. Clark’s stated sonably capable conveying particu- friends, acquaintances and relatives who innuendo, meaning, lar to it ascribed program watched the concluded that she second, plaintiff; portrayed by whether was a prostitute. meaning majority opinion appears place some cre- defamatory in character. interpretation dence on their of the docu- Torts, (Second) Restatement § However, mentary. because determina- If publication capable comment b. publication tion is reasonably whether a meaning, more than one and one of capable defamatory meaning is a pre- these is defamatory, then it is court, liminary question of law for the it is jury to determine whether the communi- the hearsay clear that statements in Mrs. cation was being understood as defamato- Clark’s deposition concerning interpre- ry. Washington Chaloner, Post Co. v. tation of the parties broadcast third supra; Torts, (Second) Restatement were irrelevant to the judge’s district delib- 614(b). § erations. However, the majority, asserting disagree I also the majority’s asser- “[wjhether the Broadcast was understood as Judge tion that “applied Cook an incorrect being defamatory was the jury for to de- in granting summary judgment standard” cide,” ante at fails to ex- adequately for The majority complains ABC. plain the respective of roles the district granted Judge Cook “should have court and the jury. publication “If the judgment for ABC if the Broadcast capable more than one meaning,” an reasonably was not capable defamatory initial determination made as a matter of meaning.” However, Ante at 1213. the court, law the district “then it is the clearly record indicates that that was the jury Cook, to determine the standard since he by Judge whether communica- used care- fully program scrutinized “the to tion determine being was understood as defamatory.” Clark, if Id., Mrs. under reasonable criteri- F.Supp. (emphasis added). on, prostitute could be viewed as a hook- sequence The Michigan events in Unit- er within context the program,” the ed Conservation Clubs well illustrates the concluded that it was not capa- operation of these principles. the One of being interpreted ble of as portraying Mrs. plaintiffs, Washington, Mr. contended that Clark as a common street App. use of his voice from an unrelated interview at 400-01. during segment broadcast about CBS majority opinion an adopts unrealis- hunting was defamatory. The district by claiming tic standard that because “the interpre- concluded that no reasonable court found it to over necessary agonize the tation of the CBS convey broadcast would a question of whether the Broadcast was de- defamatory meaning as to Mr. Washington, famatory ... the case should have been and therefore there no was issue to be submitted to the jury.” Ante at 1214. If jury. court, taken to the Our affirming the majority the suggest intends to that sum- court, district determined: mary judgment precluded anytime a dis-

Finally, agree we with the District judge give trict finds it to necessary sensi- Court that use of tive consideration to tape plaintiff’s allega- an unattributed tions, Washington’s is a curious standard indeed to background voice as for a provide direction to the trial courts. scene of Colorado handling hunters deer carcasses, was not defamatory as a mat- Furthermore, majori- disagree I with the ter of law .... Under these circum- ty’s conclusion that Broadcast was “[t]he stances, segment this of the meanings, film of two one reasonably capable pin- appearance, utilized non-defamatory.” Clark’s

defamatory and the other streetwalkers the Washington portrayal the point 1214. In Post Co. Ante documentary. But segment of the 448, 63 earlier Chaloner, 39 S.Ct. focusing on an- particular segment ex- Supreme (1919), L.Ed. area by Woodward Avenue guish suffered reviewing judge role of plained the “ from the influx of residents ‘A publication: pub- defamatory allegedly Instead, prostitutes. no obvious showed defamatory must be claimed to lication during segment appeared women who the sense which read and construed being inter- program were either to whom is addressed would the readers facing problems about viewed thus ordinarily understand it.... When shown, as was Mrs. neighborhood or were read, meaning unambiguous its is so as if women, walking and the other two Clark it is interpretation, but one reasonably bear The other daylight broad on the street. significa- whether that judge say for the ” women, just prior to two who defamatory or not.’ Id. at tion is Clark, admittedly portrayed Mrs. were not 448, quoting Commercial Pub. Co. S.Ct. at However, prostitutes. broadcast as 1907). Smith, F. 706-07 striking con- majority opines proper in its I believe that when examined the other two trast Mrs. Clark and between context, Clark’s Mrs. women, opinion charac- majority whom unambiguously portrayed ABC broadcast “matrons,” as makes it unclear terizes neigh- her as a resident of the middle-class of this a resident “whether [Mrs. Clark] borhood affected the invasion neighborhood or one of the middle class prostitutes, prostitutes. one of the plagued who this commu- inaccurately con- majority opinion nity.” Ante at 1213. particular segment tends that Plaintiff, reasons, for obvious con- Mrs. had appeared broadcast in which Clark alone, in tending appearance that her isola- prostitution.” its “focus on street Ante broadcast, reasonably tion from the could portion the audio because giving impres- the be construed as viewers of the broadcast had earlier noted that Indeed, prostitute.1 is a after sion she black,” prostitutes street were often “[t]he film, agreement the I am in total viewing the majority position takes the unusual that Judge nothing with Cook that there is Clark, “slim, the appearance of Mrs. a at- would appearance about Mrs. that Clark’s tractive, stylishly dressed” black woman impres- the convey to the reasonable mind wearing appearing large earrings and to be prosti- sion that she was a common street early suggested her to mid-twenties the tute. from the film viewing It obvious possibility was prostitute. that she a street the “quiet, that Mrs. Clark was one of or- part the contrary, On the theme of this of derly, people” middle class who lived the ABC’s documentary was the invasion neighborhood, prosti- of “street not one the middle-class, sex-related businesses of this trying tutes” to move in. Nor is it contend- integrated Detroit and its im- ed Mrs. race that Clark’s led to pact on women in the area who were not the that a prostitute, innuendo she was prostitutes. street the Throughout broad- although because the commentator had re- cast, shown, prostitute whenever a was marked that the “street were ABC took the great pains convey to mes- black,” often he had also noted the dilem- sage prostitute that a being portrayed. was by non-prostitute mas faced black women in things suggestive Such as clothing, sugges- neighborhood facing the harassment from solicitation, walking, tive or overt acts of the white The “cruising customers.” wom- which correctly preceding the district court deter- an immediately ap- Mrs. Clark’s black; however, present mined were not in the case Mrs. all pearance also are was Indeed, directly way it would be tion to the anomalous hold were attributable that impression being photographed. liable for the its viewers that she while prostitute interpreta- Mrs. Clark was if a agreement that she was not portrayed as which assumes that the broadcast was de- prostitute. famatory, applies to documentary, there liability would be no for the broadcast be- majority concludes errone- cause there was no showing that ABC impression prosti- Mrs. was a ous Clark knowingly or recklessly defamed Mrs. appearance juxta- when her was tute arises Indeed, Clark. there has been no conten- with the two posed appearance “ma- tion that ABC ever intended for Mrs. However, Mrs. appearance trons.” Clark’s appearance given Clark’s interpre- be entirely consistent with a middle class tation that she is a prostitute. background, her age comparison preceding appear- two women her The majority has correctly noted that the distinguishing ance was not a reasonable applicability the Michigan privi- qualified concluding prostitute basis for she was a lege to publish allegedly defamatory state- while the other two women were middle ments a question of law courts to class residents of the neighborhood. determine, as is the proper scope of the majority contends that the defamato- qualified privilege. However, the majority impression ry prosti- that Mrs. was a Clark opinion takes the stance that ABC did not amplified by tute was the audio comments properly limit the scope of its documentary of the documentary at the time of Mrs. purpose to the of communicating the con- Clark’s appearance brief on the screen and cerns of Woodward Avenue area residents immediately the comments following about the distressing invasion of street Madison, appearance by fe- Sheri a black prostitution when it Mrs. included Clark in male resident of the neighborhood who was the broadcast. Consequently, the majority interviewed concerning “invasion.” Michigan concludes lege qualified privi- Those comments were as follows: not apply does because “the scope of But for the black women whose home Michigan’s qualified privilege does not en- there, the cruising white customers compass publications or broadcasts where especially were an humiliating experi- plaintiff is not the focus the public ence. Madison’s Almost [Sheri remarks:] publication.” interest Ante at 1216. How- any woman who was black and on ever, Michigan law does not countenance prostitute street was considered such a narrow view the qualified privi- herself and was like treated lege. A fair reading Michigan law indi- cates that of an individual Prior to this point documentary, a public documentary interest is within the focus had switched pros- street scope attaching titutes themselves to the incidental effects documentary to that long as the individ- invasion. Mrs. ual has a reasonable connection with the Clark’s appearance can reasonably be subject of matter the documentary. The capable of interpretation the that she was a ABC documentary the impact illustrated on member that group of of middle class black the women in an entire from women in the neighborhood who were sub- the the invasion of sex-related businesses. ject being to “johns” by looking accosted Because Mrs. part Clark was of this broad for among the women in the category of neighborhood women who were neighborhood. It is unrealistic to conclude subject to the humiliation of misidentifica- that, because ABC indicated that Mrs. prostitute, tion as a her appearance was presence Clark’s on the street could scope within the qualified the privilege. to humiliating the experience being mistaken for a prostitute, viewers of the Bennett, 355, Timmis v. 352 Mich. 89 program could also reasonably mistake Mrs. (1958), N.W.2d plaintiff, 748 police- the a portrayal Clark’s as that being of a common woman, alleged that she had been defamed street an attorney’s inquiring letter about plaintiff’s efforts to have the attorney’s II. client declared mentally incompetent. The Michigan Supreme Court determined that a Although I would affirm the district communication privileged is if made a court solely on the basis that the ABC party having “a moral or social to duty” broadcast was not a capable of make the communication and to a directed defamatory interpretation, I am con- “person having a corresponding interest or strained to comment on the majority’s duty.” The Court then held: concerning statements the application of Michigan respect law with to The essential qualified conditionally elements of a priv- ilege. If Michigan privileged may the qualified according- communication privilege,

1224 constant, faith, operates on a inter- but lege is not a good as ly enumerated be for loose privilege” “no limited continuum from a statement upheld, est to judicial privilege” occa- to proper gossip “absolute purpose, scope its to policy utterances. Public legislative manner proper in a and sion, publication and intensity” than “of lesser considerations privilege The parties only. proper to and would cause privilege for absolute unre- those limited, necessity full and the arises applied. to be mat- concerning a communication stricted Lawrence, citing Bower 97 N.W.2d at interest have an parties the in which ter 443, Press, 287 Mich. v. Free man Detroit any within is restricted not duty, or that the (1939), determined 283 N.W. 642 limits. narrow occasion of the circumstances or external scope addressing the 755. In 89 N.W.2d used, communication, words actual determined first the Court privilege, of that the scope privilege. of the would determine inquire letter was to purpose Supreme Court concluded: Michigan en- law of Kalamazoo the activities about to whether is for the court determine “[I]t or not the external as- Since forcement officials. circumstances surround embraced public welfare sumed give rise are such as to ing publication enforcement, deter- it law about concerns 97 N.W.2d privileged to a occasion.” qualified privi- doctrine of that “the mined including as regarded lege may properly be by a citizen good Newsweek, Inc., faith made statements v. This court in Schultz have, claiming or to community having, (6th 1982)(applying Michi- 668 F.2d 911 Cir. bearing knowledge or information special law) gan concluded: com- public concern on such matter of law must decide as matter The court or interest- others concerned to municated or recognized public there is a whether Slater, also, v. 372 Nuyen ed.” Id. See justify which would private interest 654, and Bu- (1964); N.W.2d 369 Mich. 127 publication. privilege utterance Brothers, Inc., Mich. v. falino Maxon general reports to on matters attaches 140, 117 N.W.2d though plaintiff interest even public private individual. “inter that ABC has an disputed It is not Similarly, Id. the district court at 918. to its view “duty” est” or communicate opinion affirmed that was Schultz about effects of ers the concerns Inc., Newsweek, reported F.Supp. at 481 surrounding residents (E.D.Mich.1979) and authored now Detroit, disput nor residential areas Judge Kennedy, stated corresponding Circuit viewers have a ed that ABC’s law, Michigan qualified is a “[ujnder there receiving information. “interest” Co., which privilege publish F.2d information Argus-Press Orr interest,” implied denied, id. at 1978), cert. comprising the com- (1979) (applying the entire article 59 L.Ed.2d privi- report scope is within the law) (“Everyone, citizen or munication Michigan er, matters of does not right lege long comment on as the communication has ”). discussing is no con into areas of concern not importance stray .... There of the documenta reasonable limits that ABC broadcast its within the tention faith, publication or that its interest. ry in bad way improper. broadcast was in Ass’n, Digest v. Reader’s In Schultz (Freeman, J.) Fox, (E.D.Mich.1979) F.Supp. 551 case Lawrence v. 357 Mich. The argued Michigan law),2 plaintiff (1959), (applying is highly 97 N.W.2d 719 also apply not privilege the did qualified that instructive. Lawrence that the indicates figure an incidental news he was libel, because vigi- threat of which could “chill” the disappearance of the concerning stories press, Michigan’s led to lance the indicated Jimmy Again, Hoffa. the adoption the defense of privilege is qualified privilege the However, “scope” that the privi- publications. certain the liquor attempts by 2. There are two United to a state cases the States his sons obtain alleged District Court for the Eastern District of Michi as connection license as well Schultz’s gan Jimmy involving disappearance Hoffa. The Leonard Schultz. The News with the Inc., case, litigation, Newsweek, Digest Di- v. Reader’s week Schultz Reader’s Schultz (E.D.Mich.1979) F.Supp. (Kennedy, J.), gest Ass’n, F.Supp. (E.D.Mich.1979) publi- aff’d, (Freeman, only 1982), J.) a with was concerned F.2d 911 addressed controversy. the Hoffa news involvement cation about articles about Schultz’s by subject matter of the integrated the dents of this determined communication, middle class Detroit question of neighborhood this case “the who forced to run the day on the he of being who Hoffa was to meet risk mistaken for necessarily per- and not possible solicitation disappeared,” by using public side- themselves: walks in neighborhoods. sons discussed the articles their It defies re- ality to contend that Mrs. Clark’s appear- opinion that an Court is of [T]he ance in the neighborhood of the sex busi- public involving a matter of con- article Avenue, nesses on Woodward which would subject privilege a qualified cern to potentially subject to the same abuse Michigan Although law. there can under and harassment that the documentary was in question that the dispute no article addressing, sowas unrelated to the subject concern, public involved a matter matter of the broadcast as make her an plaintiff privi- that qualified contends figure” “incidental “no connection” applied not be to him because lege should with the broadcast. See ante at 1216. he the Hoffa was not central figure The majority has the unsupported made Whatever role disappearance. Schultz that, contention since Mrs. Clark was a resi- matter, is clear to the played this Ferndale, dent of Michigan, she was not a question that of who Hoffa resident of the neighborhoods blighted by day disappeared to meet on the he the invasion businesses, sex and con- public matter of important was and sequently the abuse suffered women in concern. neighborhoods those problem was not a pe- Id. However, culiar to her. the majority opin- majority opinion to concede seems ion neglects to note that Woodward Avenue impact of street Ferndale, intersects Michigan, which is a surrounding neighborhoods is residential in suburb bordering city of Detroit. The majori- interest.3 public record adequately that, demonstrates al- ty would that the exami- apparently concur though Mrs. Clark claims she did not fre- nation of this dilemma ABC’s documen- quent the immediate vicinity of the sex tary subject public was in the interest and businesses, their location was not far from qualified general to a privilege proposi- as a her home. However, majority opinion tion. con- Mrs. Clark’s appearance in the ABC docu- that Mrs. appear- tends Clark’s particular mentary subject should be to the Michigan program pub- ance on the within the subject because the mat- documentary lic interest focus of the be- ter of the documentary was in “plaintiff has the most cause tenuous interest and her appearance bore a reasona- subject connection with the interest ble relationship general subject mat- matter.” Ante at 1216. con- majority ter. “plaintiff cludes that is not the focus of the publication” interest because plain- prostitute, tiff never has been a she was not CONCLUSION a resident of the being invad- conclusion, I am persuaded Judge ed the sex-related businesses and she Cook did not err in determining that Mrs. was not interviewed about her reactions to Clark’s in the broadcast could prostitution; accordingly, street “her not reasonably be construed as portraying picture as she walked a public down street her as a common I also has no absolutely connection with the sub- conclude event, in any even assuming ject matter of the Broadcast.” Ante that Mrs. Clark’s appearance could be inter- preted as Michigan’s defamatory, qualified However, noted, previously Michigan privilege should be applied portion case law matter of a general focuses on the subject the documentary, which did not exceed the in determining communication bounds of the public interest matter if the qualified privilege applies. In this of the documentary. While under current connection, it is undeniable that the precedents it appears that the First Amend- portion matter of this of the documen- ment is not implicated, appears to me tary impact was the of the invasion of that the majority’s disposition of this case sex-related businesses on the female resi- will make the filming television doeu- Judge Cook, although 3. judgment, he did not reach the did conclude “that the broadcast granting summary issue in was of App. interest.” 396.

1226 the unduly and therefore risky mentaries is not in the majority’s disposition CORPORA- SPRAY-RITE SERVICE interest. TION, corporation, an Iowa Plaintiff-Appellee, ORDER that the 6 judge tute advise Chief Rules who [were] The Chief en bane Zahn eight member S.Ct. Lefrak 1975); United States S.Ct. States, 1973) rev’d on 1972), aff’d. on tional Village of Bell On (1st meaning above-styled “a , the motion Judge v. September affirmative being Business 480 F.2d Organization, International, majority Cir.), cert. denied in fact 38 L.Ed.2d Appellate Judge his L.Ed.2d disqualified) regular L.Ed.2d the Circuit Terre, though ruling Rule Machine for 21, of the case has now directed votes denied, merits, (2d merits, Procedure. rehearing 1982 favored 511 active service” 469 5-4 vote 476 797 35(a) Martorano, 620 F.2d was made had been four Cir. required to consti- ^[10] F.2d 1033 (1973); Boraas you F.2d F.2d 806 (1974) Corp. failed 414 416 1973); judges circuit were advised it); order of the Federal U.S. (one active en banc (rehearing v. to attain See granted. in error Interna (2d (2d Cir. Boyd (2d Cir. judges United within tome 1, 94 also 94 v. MONSANTO Rehearing and Corporation, Defendant-Appellant. United States Court Nos. Decided June Argued May Denied 80-1621, 80-2232, 80-2233 Seventh Circuit. and 80-2624. COMPANY, a Delaware Sept. Rehearing En Banc v. 15, 28, 8, 1981. Appeals, can- is therefore schedule briefing rehearing re- motion for and the celled originally heard panel which to the ferred appeal. DENYING PETITION ORDER

FOR REHEARING Court judges majority A banc, en rehearing

having not favored referred has been petition rehearing for disposition. panel for hearing petition grant Judge Brown would in his dissent set out for the reasons

rehear opinion. majority consideration, the concludes Upon rehearing is without petition Accordingly, it ORDERED merit. rehearing hereby denied.

Case Details

Case Name: Ruby Clark v. American Broadcasting Companies, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 3, 1982

Citation: 684 F.2d 1208

Docket Number: 80-1476

Court Abbreviation: 6th Cir.