USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1836
WILLIS N. BROWN, JR.,
Plaintiff, Appellant,
v.
HEARST CORPORATION,
d/b/a WCVB-TV CHANNEL 5,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Cyr and Boudin, Circuit Judges,
______________
and Keeton,* District Judge.
______________
____________________

Edwin M. Sigel for appellant.

______________
Steven J. Comen with whom Patricia A. Lipoma and Goodwin, Proc
_______________
___________________
_____________
& Hoar were on brief for appellee.

______
____________________
May 11, 1995
____________________
__________
*Of the District of Massachusetts, sitting by designation.

BOUDIN, Circuit Judge.

_____________
then-wife

of

children,

disappeared.

flight

appellant Willis

attendant,

Airlines;

In March 1987, Regina Brown, the

the

and

couple

Brown

and

mother of

At the time Regina was employed as a

Willis
had

as

lived

pilot,
together

for

American

in

Newtown,

Connecticut, but had been separated for four months

living apart.

three

and were

The police investigated the disappearance and

found Regina's car abandoned in New York but no trace of her.

The investigation

remains open.

Regina is alive or dead.

Later

It

is
in

not known
the

same

whether
year

the

Browns

were

contested

divorced

in

a Connecticut

proceedings being

completed in

The state court

trial was prolonged

was

the trial

written by

support.

The

opinion,

Willis believed deeply

unfaithful

to

him,

charges that he
[had] physically

state

and a detailed

dated April

22,

but without basis

had made

his charges

the

Regina's absence.

judge pertaining

that

court,

opinion

to custody

and

1988, found

that

that his wife

was

against

against his first

her

echoed

wife, that

and mentally abused [Regina],"

"he

and that he

had threatened to kill her and the children.

The

trial

was

widely

reported

in

the

publicity continued

even after

the

decree.

partly

litigation

and

the

to

further

press,

and

This was

due

continuing

investigation, but also to a freakish coincidence.

police

About six

months before Regina's disappearance, another woman who lived

-2-2-

in Newtown, a Pan

Am flight attendant married to

an Eastern

pilot,
a

had disappeared.

nearby river, and her

Fragments of her bone were found in

pilot husband was

convicted in the

so-called woodchipper murder.

In

November

WCVB-TV Channel

1990,
5 in

appellee

Hearst

Corporation d/b/a

Boston ("Channel 5")

Massachusetts a segment entitled

broadcasted from

"The Other Pilot's Wife" as

a part of the station's

regular "newsmagazine" program.

was

Richardson, a

prepared

by

Mary

journalist

with

It
the

station, who conducted a substantial amount of research and a

number of interviews in preparing the broadcast.
The
bizarre

broadcast opens
story

stewardess is
brief

of

describes and

small

dead, another

reprise

attendant.

the leitmotif--"Tonight

New

England

town

where

is missing"--and then

of

the 1986

murder

of

Next,

turning

to the

Browns,

depicts an apparent

sour, the divorce petition,

the

with

the

one

offers a

Pan Am
the

the

flight

broadcast

storybook marriage

and Regina's disappearance.

going
"In

days following Regina's disappearance," says Richardson,

"Willis showed no interest in what had happened to her."

The program

reenacts a last telephone

call from Regina

to a friend, according to the friend's report:

I'm in danger.
If my parents say they haven't
heard from me on Sunday . . . be alarmed. Wait two
days, call back. If I'm not there by then, Willis
will have done to me what he's promised to do to
me.

-3-3-

The police chief

told him

is then

quoted as saying

that Willis

had

to look for Regina's car in a drug infested area of

a big city;

and that in fact the car

was found pretty close

to such an area.
In the next portion of
as having at
detector

first agreed, and then

test.

Evidence offered

recounted or summarized.
of Willis'
as

the segment, Willis is described

The

refused, to take a
at the

paranoid;

the

trial is

evidence included descriptions

accusations against his wife

virtually

divorce

lie

trial

which are portrayed

judge's

statement that

Willis had physically and mentally abused Regina; and a vivid

strangulation scene that one

of the Brown children allegedly

recounted to Regina's parents.

In

the final

few

minutes, there

Regina's parents who now

father

says, "I feel like

her, or had
Regina

her killed."

is alive."

discovery of a hand
area where Willis

The

are interviews

with

have custody of the children.

Her

if Regina's dead, [Willis] killed

Her mother

adds, "I don't

broadcast also includes

drawn map of Block Island,

had rented a house trailer

think

the police
depicting an

shortly before

Regina's disappearance and bearing the words "Regina, O God."

An

extensive

police

search

of

37

acres,

the

program

concludes, produced no trace of any wrongdoing.

There

is other

recounted in

incriminating information

the program,

and the

about Willis

police are described

as

-4-4-

having
Brown

suspected Willis

and

as believing

still that

"Mr.

knows more about the disappearance of his wife than he

is letting

on."

No evidence

Willis is described.
"voice

Formally,

the

exculpatory of

On the other hand, Mary Richardson, the

over" throughout

Willis is guilty or

even remotely

the

program,

never

asserts

even says that she thinks he

program

describes

the

that

is guilty.

disappearance

as

mystery or, at worst, a possible murder still unsolved.

In February
against

Channel 5

removed to

1993,

Willis brought

in state

federal court

the

court in Texas.

present
The

and thereafter transferred

action
case was
to the

federal

district court

amended,

in Massachusetts.

Willis' complaint

privacy

under

Mass. Gen.

As subsequently

charged defamation,
L. ch.

214

invasion of privacy, and intentional

1B,

invasion of
"false light"

infliction of emotional

distress.
After discovery,

Channel 5 moved

for summary judgment.

In a detailed opinion dated July 21, 1994, the district court

granted
relied

the motion.

As

to the defamation

claim, the court

in different respects on lack of falsity, the limited

protection available

for statements

report"

and

privilege,

intentional

infliction

described below.

lack of
claims

of opinion, the
fault.

were

The

dismissed

"fair

privacy and
on

grounds

Willis has now appealed, asserting that all

of his claims should have been submitted to a jury.

-5-5-

On appeal from
the

a grant of

decision de novo, drawing

________

summary judgment, we

review

inferences

of the

in favor

party

opposing the

Rodriguez, 23 F.3d
_________

motion.

Maldonado-Denis
_______________

576, 581

(1st Cir. 1994).

v.

Castillo_________

Because

the

case was transferred from Texas, Texas law governs the choice
of substantive

law

Pateman, 958 F.2d

_______
court

found

judging

the

to

be

448, 465

applied.

Putnam Resources
_________________

(1st Cir. 1992).

that Texas

would

apply

broadcast

and, as

this

The

v.

district

Massachusetts law
ruling

has

in

not been

challenged on appeal, our discussion assumes this to be so.

Although Willis listed defamation as the fourth and last
count of his
the

second amended complaint, this

charge has been

center of the controversy both in the district court and

on appeal.

As framed on

this appeal, Willis' main attack on

the broadcast is that it amounts to a charge that he murdered

his

wife.

Additionally,

suggests that
pilot

(who

he

argues

he did so "in the same

had

dismembered

his

that

the

broadcast

manner" as the earlier

wife's

body

with

woodchipper).
Channel

5 does not appear to dispute that the broadcast

charges Willis with murder

entitled

or at least that a

to find this to be the

jury would be

import of the program.

broadcast never flatly expresses that accusation.

says that the
police have

murder is
nothing

much

unsolved and makes

in the

-6-6-

way

of

Indeed, it

clear that
direct

The

the

evidence

against Willis.
as by

But defamation can occur by innuendo as well

explicit assertion, Mabardi v.

_______

Corp., NE.2d 304,

_____

Boston Herald Traveler

______________________

306 (Mass. 1964), and

the suggestion here

is a fairly strong one.

The materials presented include--we stress that some are
merely allegations--the

rift between Willis and

Regina; his

paranoid accusations against her; his threats to kill her and

the

children; her

might

be

planning

statement (to
to

do

"what

a girlfriend)
he

had

that Willis

promised";

her

disappearance and Willis' disinterest; his visit to the house

on the same
be

found.

night; and his knowledge of where

The notion

children voluntarily

that

Regina

is scotched

and

would

her car might

have left

there is

no hint

her
of

another motive, or perpetrator.

The

broadcast

makes

clear

Willis, and Regina's parents

statements of suspicion.
used to establish or

that

the

police

suspect

are filmed making even stronger

Material from the

divorce trial is

buttress doubts about Willis' character

and

history.

program like a
dramatic

The

suggestion

gold thread.

footage

relating

of murder

runs

The broadcast
to the

through the

opens with

woodchipper

murder

the
and

closes with Richardson's rhetorical question, could "someone"

get away with murder?
A
The

common defense to a charge

Supreme Court

tells us

of defamation is "truth."

that in

a suit

like this

one

-7-7-

against the media the burden is upon the defamed plaintiff to

show

that

the

statements

are

not

true.

Philadelphia
____________

Newspapers, Inc. v. Hepp, 475 U.S. 767 (1986).

_________________
____
addresses this issue.
burden

Neither side

Perhaps each assumes that to carry his

of proof, Willis could

not murder

his wife and

events, we

take the case as

testify at trial

a jury might

that he did

believe him.

one in which a

In all

jury might find

that murder had been charged and that the charge was false.

Channel

5's primary

[b]roadcast,

and the

response

entirety

sting, is in essence

allowed

for

media

Such

Massachusetts,

e.g., Jones
____ _____

1987), and

the

allegedly defamatory
Browns' divorce

thus falls under the Massachusetts

proceeding.

(Mass.

of its

"[m]uch of

a `fair report' of the

trial in Connecticut" and

privilege

is that

coverage

privilege

certainly

v. Taibbi,
______

there is

of

official

exists

512 N.E.2d

little doubt

material in the broadcast is

an

in

260, 266

that much

of the

drawn from, and attributed

to,

the divorce proceeding.

For present purposes, we

will assume that the privilege

extends to non-contemporaneous reports and that the program-so

far as

information
report

it

related to

developed

of the

while that

divorce proceeding

there--conveyed a

proceeding.

broadcast purported

the

But

to be drawn

portion may

only

the

and accurate

portion

of

from the proceeding.

be privileged,

-8-8-

fair

and

we are skeptical

the
And,
of

Channel 5's claim that the entire "sting" of the broadcast is

privileged material.
The "sting"
cases

or "gist" notion

involving

such

"rough-and- ready
correct."
519

comes from Massachusetts'

questions

as

whether

reporter's

summary" of a proceeding is "substantially

MiGi, Inc.
__________

v. Gannett Mass. Broadcasters, Inc.,

_________________________________

N.E.2d 283, 285 (Mass. App. Ct.

1988).

It is not clear

to us that these concepts apply in quite the same way when we

are

dealing

merely

with a

a report

broadcast that

of

the much

Rather, Channel 5 has used the

is

not by

any stretch

earlier official

proceeding.

earlier material as part of a

____

larger and more comprehensive structure.

This

structure differed

proceeding.

It

included

in two

ways from

evidence

in

the divorce

addition

to

that

presented in the proceeding (e.g., police interviews; the map

found on Block Island).

And it used techniques (voice overs,

filmed interviews, recreations) and

doubtful

analogy of the woodchipper murder--that sharpen the

cutting edge of the

implicit charge.

thus enlarged and the charge

is

not

rhetoric--especially the

clear

to

us

Where the

evidence is

cast in a more lurid light,

that

the

fair

report

it

privilege

automatically shields the larger whole.

The problem
Court has
demonstrate

for Willis, we

instructed that a state

fault

on

the

part

think, is that

the Supreme

libel-suit plaintiff must

of

the

media;

and

this

-9-9-

requirement applies even where the plaintiff

official
U.S.

or public figure.

323,

347 (1974).

imposed a

260,

In

267

(Mass. 1987).

provided

such cases

been

made,

evidence

to a

jury.

Thus,

even if

it remains

this

has

broadcaster be

Jones v. Taibbi, 512 N.E.2d

_____
______

of negligence
For

Massachusetts

the newspaper or

negligent or worse.

murder has

case

Gertz v. Robert Welch, Inc., 418

_____
__________________

requirement that

shown to be

is not a public

to

a false
see

to justify

purpose, the

charge of

whether

Willis

submitting the
First

Amendment

establishes a minimum standard and we are concerned here with

"negligence"

only

in

this

special

constitutional

sense;

Massachusetts is free to define negligence differently in any

other

context

or

to

require

more

than

constitutionally

defined negligence in a libel case.

So far as the
suggest

murder goes, Willis points to

nothing to

that Channel 5 was negligent in its mustering of the

available

evidence.

journalism;
murder

is

certainly the
largely

innocence is

Some might

think the

broadcast gaudy

interpolation of

the woodchipper

gratuitous.

But

concerned, Willis directs us

inaccuracies in Channel 5's depiction

he point to

so

any counterbalancing

Channel 5 wrongly

far

as guilt

to no significant

of evidence.

Nor does

exculpatory evidence

withheld or that it

or

that

would have discovered

by diligent research.

-10-10-

Willis' brief says tersely that the police admitted that

they had

no evidence against him; and he reasons that it was

thus "negligent

disregard for

the truth"

for Channel

"insinuate" that "[he] murdered his wife and disposed of

body in the same fashion
But

the

short

answer is

evidence pointed to

5 to
her

as did [the woodchipper murderer]."

that

Willis as

substantial

circumstantial

a suspect and--so

far as

we

know--the

only

suspect.

That does

not

mean that

he was

guilty or

even that there was a basis for prosecution--which

is likely what the police meant to say.

A different problem
that the broadcast
body

"in

Patently,
juror

surprising
cautious

fashion"

the broadcast

to

Willis' suggestion

charged him with disposing

the same

could

argument

is presented by

draw

did

such

support

as

an

such

the woodchipper

not so

charge; no

inference.
an

of his wife's
murderer.
reasonable

Willis offers

inference,

and

it

is

no
not

that elsewhere in his brief he retreats to a more

assertion:

that

the

juxtaposition

"conveys

the

message that Brown also murdered his wife and disposed of her
body in some insidious fashion" (emphasis added).
_________________________
Many might

think that

the manner

of disposing

body adds very little

to a charge that someone

frightened

left

wife

and

her

small children

of the

murdered his
motherless.

Others, perhaps, would think that the destruction of the body

added

a further

note

of horror

-11-11-

and

that even

fiend's

reputation may be worsened.

N.E.2d
is a

617 (Mass. 1985).

Compare Jackson v. Longcope, 476

_______ _______
________
Further, it may also be true--this

close question--that

insinuating

that

the broadcast

Regina's body

was

could be

disposed

taken as

of "in

some

insidious fashion."
Even

if all

of

these doubts

favor,

we think this narrow

survive

summary judgment.

the

woodchipper episode

killed his wife, he

would not
of a

be found.

fairly

in Willis'

remaining claim is
About

is the

the most one

too thin to
can get from

suggestion that,

also took steps to assure

if Willis

that her body

But this is about what one would expect

murderer who intended to

part of his

are resolved

defense.

use the absence of

Perhaps such a

called "insidious"

but it

a body as

concealment could

is not

an act

be

that adds

measurably to the taint of deliberate murder.

By contrast, a

brutal destruction of the body might add

to the taint, but no such charge is made by the program.

woodchipper
but not as a
that Willis
brutally

murder was

offered as a

arguing that

destroyed Regina's

reasonable juror could draw

the

juror could believe that

death.

Without laying great

that courts

remarkable coincidence

blue-print for Regina's death.

is

often say that

the

To the

program implies

body, we

The

do not

extent
that

think that

he
a

such an inference--any more than

a woodchipper was
weight on this
it is

used in her

point, we note

a question for

the judge

-12-12-

whether the defendant's statement

defamatory reading.

is capable of a particular

William Prosser & Page Keeton, Torts 781

_____

(rev. ed. 1984).

It

is quite

true that the

woodchipper episode

at the

start of the broadcast laid the groundwork for the program to

insinuate that Willis had murdered his wife by

brutal means.

But while much else in the rest of the program developed

and

accentuated the charge of murder, virtually nothing tended to

suggest that the body
program
supra,
_____

is

else,
the

normally viewed

at 781; and

because the

was brutally destroyed.

as a

whole, Prosser

that requirement has

writing or
& Keeton,

special force here

woodchipper episode was assertedly about someone

and its connection to Willis depended upon the rest of

program.

broadcast, taken

We

conclude
as a whole,

as a

matter

of

law that

cannot reasonably be

the

taken to

charge that Willis brutally disposed of his wife's body.

Willis' non-libel claims do not require much discussion.
On appeal,

Willis' has

contention

that the program places

leaving
Brown

the viewer

narrowed his

with

killed Regina

him in a

"a false

and disposed

privacy

of her

the

it sufficient that

false light theory of privacy

Laboratory, Inc.
________________

body in

that

the same

The district

Massachusetts has

the

false light by

impression," i.e.,
____

fashion as did the woodchipper murderer.

thought

claim to

court

never adopted

invasion, see ELM Medical

___ ___________

v. RKO General, Inc.

__________________

532 N.E.2d 675,

681

-13-13-

(Mass. 1989), and that diversity cases

occasion

for federal

courts

are not ordinarily an

to pioneer

in developing

new

state law.
We

think it

claims are

worth

adding that

"false light"

privacy

not all of a piece, but Willis' claim is simply a

restatement
heading.

of

That

Time
____

defamation

claim

being so, it is not

escape the same

claim.

his

under

different

imaginable that it could

constitutional constraint as his

v. Hill, 385 U.S. 374 (1976).

____

defamation

In short Willis

would still have to show not only falsity but negligence, but
he

has offered no

evidence of negligence

sufficient to get

him to a jury.
Lastly,

Willis

charged

Channel

infliction of emotional distress.

under

Massachusetts law

infliction
conduct,"

of
and

reasonable

such

causation

of

"extreme

person could be expected

district

court

negligent

and

said

that

therefore

foreseeable

and

so

outrageous

severe

to endure it.

315, 319 (Mass.

Channel
could

intentional

intended or

distress

Howard Johnson Co., 355 N.E.2d

___________________

with

This is a recognized tort

requiring
distress,

5's

hardly

no

Agis v.
____

1976).

conduct
be

that

The

was

not

"extreme

and

outrageous."
In all events, many of
appear

in the

media

the legitimate news stories that

involve foreseeable

distress for

the

subject of the story, probably severe distress in some cases.

-14-14-

Regina's

disappearance

stories,

and so was her continued absence and the failure of

the police

and

the

to solve the case.

divorce

trial

were

Willis provides no

news

basis to

think that generally accurate coverage in such a case is even

remotely

close to

conduct

"beyond all

decency" and "utterly intolerable

possible bounds

in a civilized community."

Agis, 355 N.E.2d at 319 (quoting other authorities).

____
Affirmed.
________

of

-15-15-