Arnold Diaz, CBS Inc., WCBS-TV et al., defendants-appellants, appeal from a judgment entered in the Southern District of New York (Leisure, J.) in favor of Irving Machleder and Flexcraft Industries, Inc., plaintiffs-appellees-cross-appellants that awarded the individual plaintiff Machleder $250,000 in compensatory damages and $1 million in punitive damages for false light invasion of his privacy. Reversed and complaint dismissed. Cross-appeal affirmed.
Before: KEARSE and CARDAMONE, Circuit Judges and POLLACK, District Judge ro*fn*
CARDAMONE, Circuit Judge:
Plaintiffs brought defamation and false light invasion of privacy actions against CBS and several of its employees. After plaintiffs were awarded jury verdicts totaling over a million dollars in compensatory and punitive damages, this appeal ensued. Arrayed on either side of the issues to be decided are the competing concerns of the privacy rights of individuals on the one hand, and the constitutional guarantee of freedom of the press on the other. The private individual plaintiff claims that defendants made him the subject of a public news report that portrayed him in a false light and thereby infringed on his right to be left alone. The defendant responds that its report concerning plaintiff was not in fact false, and further urges that to hold the media liable for reporting which is not factually untrue will stifle freedom of the press by denying it the breathing space it needs to survive.
History suggests that individual rights to privacy are actionable when the media portrays an individual falsely, but not otherwise. Although Madison acknowledged in his day that the press was checquered with abuse of individual rights, he still spoke eloquently of its triumphs over error and oppression. L. Brant, James Madison Father of the Constitution 1787-1800, 469 (1950). And Jefferson also wrote from Paris: "Our liberty depends on freedom of the press, and that cannot be limited without being lost." Letter to Thomas Currie, (January 28, 1786), reprinted in 9 The Papers of Thomas Jefferson 215 (Boyd ed. 1954). Jefferson perceptively observed in a letter to Madison on July 31, 1788 that freedom of the press "will not take away the liability of the printers for false facts printed." 13 Id. at 442. First Amendment guarantees are not for the press alone, but for the benefit of all; to that end a "broadly defined freedom of the press [helps assure] the maintenance of our political system and an open society." Time, Inc. v. Hill, 385 U.S. 374, 389, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967). Hence, it would unjustifiably contradict the theory underlying that guaranteed freedom were the law to limit accurate reporting. In consequence, we hold that to sustain a false light invasion of privacy claim, such portrayal must be substantially false and offensive to an ordinary person. Here, because the portrayal of plaintiff as intemperate and evasive was neither actionable nor false, and further because the charge that he was falsely portrayed as an illegal dumper was not sustained by the jury on the defamation claim, this verdict cannot stand.
On May 22, 1979 WCBS-TV, a Manhattan television station owned and operated by CBS, Inc. (CBS), aired a report on its 6 o'clock news dealing with the dumping of toxic chemicals at a site in Newark, New Jersey. The broadcast highlighted the investigation of CBS reporter Arnold Diaz, then WCBS-TV's New Jersey investigative correspondent, and focused on his interview with plaintiff, Irving Machleder, the owner of a company that uses hazardous chemicals in its blending operations. As a result of this broadcast, Machleder brought a diversity action in the United States District Court for the Southern District of New York (Duffy, J.) alleging libel, false light invasion of privacy, assault and battery, and trespass. A district court jury awarded the plaintiff $250,000 in compensatory damages and $1,000,000 in punitive damages on his false light privacy claim.
The invasion of Machleder's privacy that he claims cast him in a false light arose from what plaintiff alleges was Diaz' "ambush" or "confrontational" interview. Ambush interview is a derogatory descriptive term for a controversial investigative reporting technique in which a reporter and his news crew intercept an "unsuspecting newsworthy subject on the street and [bombard] him with incriminating accusations ostensibly framed as questions." Note, The Ambush Interview: A False Light Invasion of Privacy?, 34 Case W. Res. L. Rev. 72, 72 (1983). The events leading up to the broadcast of this particular news report began on May 21, 1979 when Diaz received a telephone tip from Michael Rosenberg, a then confidential source within the New Jersey Department of Environmental Protection, informing him of a hazardous dumpsite on Avenue P in Newark. Rosenberg had previously provided Diaz with reliable information concerning such sites. From January to May 22, 1979 Diaz had aired an award-winning series of 18 television reports on chemical waste dumping in New Jersey.
On May 22nd Diaz and a film crew went to Avenue P and there found a large, open area that was overgrown with weeds and strewn with hundreds of rusting 55-gallon drums. Many of the drums were labeled "hazardous" and "flammable." Some of them were leaking and their contents were trickling into a nearby waterway. A noxious odor pervaded the whole area. After surveying the site, Diaz and the film crew walked about 25 feet to a nearby building that was occupied by Flexcraft, a manufacturer of paints, adhesives and coatings. Diaz approached the building under the mistaken belief that the abandoned drums he had viewed a few moments earlier were on Flexcraft property. He later learned that the drums were on land owned by the Newark Housing Authority. As he approached the Flexcraft plant Diaz encountered Bruce Machleder, the manager of Flexcraft, who told Diaz "to go to the office" at the front of the building.
Diaz proceeded with his crew to the front of the Flexcraft building where he came upon Irving Machleder. Although the parties' accounts differ as to what transpired next, the substance of the testimony reveals that Diaz approached Irving Machleder - with audio and video camera rolling - and asked him if he knew anything about the chemical barrels dumped next to his building. Machleder replied that he did not want to be filmed for television and began to move away. Diaz and his crew followed. Machleder became agitated, shouting "get that damn camera out of here . . . I don't want, I don't need, I don't need any publicity." When Machleder reached the door of his office he said to Diaz, "We don't . . . we didn't dump 'em;" Diaz asked, "Who did?" and Machleder responded, "You call the Housing Department. They have all the information." According to Diaz, he was then invited into the office by Bruce Machleder, who told him that the presence of the barrels had previously been reported to the United States Coast Guard, the New Jersey Turnpike Authority, and the Newark Housing Authority.
After Diaz left the Flexcraft premises he immediately contacted Ann Sorkowitz, a CBS research assistant, asking her to verify Machleder's statements and to dig up any additional information about the barrels that she could. Meanwhile he went to Newark City Hall to make inquiries at the Mayor's office and the Fire Department. Later Diaz returned to the dumpsite and conducted an on-camera interview of a Newark Deputy Fire Chief, who confirmed that this was a hazardous chemical waste site. The reporter then returned with his crew to the WCBS-TV news studio in Manhattan, where he learned from Sorkowitz that two years earlier in 1977 Flexcraft had reported the existence of the 55-gallon drums to the Coast Guard and the Turnpike Authority.
At 4:30 p.m. on the afternoon of the interview, Irving Machleder telephoned CBS and spoke with CBS's counsel. Claiming that he was quite disturbed about his confrontation with Diaz, Machleder asked CBS to delay the broadcast. Counsel told Machleder that he could not stop the program, but that he would forward Machleder's request to the news desk. That evening Diaz' report, as noted, was televised on WCBS-TV's 6 o'clock Report. The following excerpts are relevant to our analysis.
ARNOLD DIAZ: "Now, just who owns these barrels, what's inside of them and how they got there I really don't know. But I do know there is a small business on the property over there, and I went inside to try to get some answers. So I went to the office of Flexicraft [sic], a company that uses chemicals to make art supplies, and found the manager outside."
FLEXICRAFT [sic] MANAGER: "Get that damn camera out of here."
ARNOLD DIAZ: "Just tell me why - why are those chemicals dumped in the back . . . "
FLEXICRAFT [sic] MANAGER: "I don't want . . . I don't need . . . I don't need any publicity . . . "
ARNOLD DIAZ: "Why are the chemicals dumped in the back?"
FLEXICRAFT [sic] MANAGER: "We don't . . . we didn't dump 'em."
FLEXICRAFT [sic] MANAGER: "You call the Housing Department. They have all the information."
ARNOLD DIAZ: "The manager told me off camera that for years the city has known all about the problem of chemical dumping on the land. So I went to City Hall, where the Mayor's Assistant said the Fire Department would check out the problem immediately."
ARNOLD DIAZ: "Late this afternoon I was able to confirm that the owner of Flexicraft [sic] had told state and local authorities about the illegal dumping two years ago, and nothing' been done [sic]. The City of Newark says the State should clean it up. The State says they're investigating, but it's not necessarily their responsibility, because the Newark Housing Authority owns the lands. So the drums still sit there - still leaking."
On May 29, 1979 Machleder's attorney sent a letter to CBS demanding a retraction of the Diaz Report and, when CBS refused to retract any part of it, the present litigation was commenced. After service of the complaint, CBS moved for summary judgment dismissing it.
In Machleder v. Diaz, 538 F. Supp. 1364 (S.D.N.Y. 1982) (Duffy, J.), the district court applied New Jersey law and - in ruling on several motions - held that summary judgment was precluded by genuine issues of fact with respect to whether: (1) a reasonable person could conclude that plaintiffs Machleder and Flexcraft dumped the chemicals; (2) CBS acted with the requisite degree of fault in its news broadcast; (3) communication between a CBS employee and public officials was conditionally privileged; (4) CBS may have been liable for false light invasion of privacy; (5) one of the cameraman's alleged touching of Irving Machleder constituted assault. Judge Duffy also held that (6) CBS was not liable for intruding upon the seclusion of Irving Machleder or for giving improper publicity to his private life, and (7) implied consent for Diaz and his crew to be on Machleder's property precluded CBS' liability for trespass. Ruling on post-trial motions several years later, the district court held in Machleder v. Diaz, 618 F. Supp. 1367 (S.D.N.Y. 1985) ...