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MARTIN v. MUNICIPAL PUBLS.

March 31, 1981

Joseph MARTIN & Margaret Martin, h/w
v.
MUNICIPAL PUBLICATIONS t/a Philadelphia Magazine



The opinion of the court was delivered by: GREEN

MEMORANDUM

In its January 1, 1979 issue defendant Philadelphia Magazine published a photograph of plaintiff Joseph Martin wearing his Mummer's costume. *fn1" The photograph bore the following caption:

 
Dead animal of the month
 
A New Year's tribute here to all the ostriches who gave their tails to make the world free for closet transvestites from South Philly to get themselves stinking drunk. Have a nice year.

 Mr. Martin has brought this diversity action, alleging that by this publication defendant has libeled him, invaded his privacy by placing him in a false light and intentionally inflicted upon him severe emotional distress. In addition, the other plaintiff, Mrs. Margaret Martin, sues for the loss of her husband's services, society and companionship, allegedly the result of the distress Mr. Martin suffered by the publication of his picture in that manner by defendant. Philadelphia Magazine has moved for summary judgment. For the reasons that follow, I will deny the motion.

 THE LIBEL CLAIM

 Count II of the complaint alleges that defendant has libeled plaintiff Joseph Martin by publishing his photograph in the manner previously described. Determination of the merits of a defamation action under Pennsylvania law involves two inquiries: (1) has the defendant harmed the reputation of plaintiff within the meaning of state law and (2) if so, does the First Amendment preclude recovery nonetheless. *fn2" Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir. 1980). Resolution of the first question, whether or not the plaintiff's reputation has been harmed, also involves a two step inquiry. Under Pennsylvania law, the court first must decide if the challenged communication is capable of a defamatory meaning; that is, does the communication "tend so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him." *fn3" Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971). If the court so finds, it is the task of the jury or factfinder to determine if recipients of the communication have understood it to be defamatory. Id.

 The first argument made by Philadelphia Magazine in support of its request for summary judgment on the libel claim is that the photograph of Mr. Martin and the accompanying statement are incapable of a defamatory meaning. Defendant asserts that "it is abundantly clear that the publication was not intended to be understood in a literal sense" and "was plainly a spoof, satire, and nothing more." (p. 3, defendant's reply memorandum).

 I do not share defendant's view of the publication in question. The caption appearing beneath Mr. Martin's picture includes the statement, "A New Year's tribute here to all the ostriches who gave their tails to make the world free for closet transvestites from South Philly to get themselves stinking drunk." Such a description is clearly derogatory and would tend to lower the person described in the estimation of the community or deter others from associating with him. Further, that description, appearing as it does below a photograph of plaintiff in a Mummer's costume, reasonably could be interpreted as referring specifically to plaintiff as well as generally to all Mummers. *fn4" Since the picture and caption appeared in the "FLASH" section of the magazine, known to readers as potpourri of light humor, satire and parody, defendant urges that no reasonable person would interpret it to be a serious statement. The problem with this argument is that people who were not familiar with the magazine and the nature of the "FLASH" section may have seen this publication of Mr. Martin's photograph. Defendant may be able to convince a jury that the publication was so obviously humorous that no person seeing it would have taken it as defamatory, but I am not persuaded that as a matter of law the challenged publication is incapable of defamatory meaning.

 Philadelphia Magazine further argues that even if the publication were capable of a defamatory meaning, the First Amendment precludes recovery in this case as plaintiff, in his capacity as a Mummer, is a "public figure." Under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) and its progeny, in order to recover a plaintiff who is a "public figure" must show that the defamatory material in question was published by the defendant with knowledge of or reckless disregard of its falsity. However, for at least two reasons, defendant is not entitled to summary judgment on this basis.

 First, Martin is not a "public figure" as defined by the New York Times v. Sullivan line of cases. In Gertz v. Robert Welch, Inc., the Supreme Court described a public figure as follows:

 
Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. 418 U.S. 323, 345, 94 S. Ct. 2997, 3009, 41 L. Ed. 2d 789 (1974)

 It is clear that Mr. Martin, as one of some 15,000 Mummers, does not possess the requisite fame and notoriety to qualify as a public figure for all purposes. Also, there is no evidence that he has thrust himself to the forefront of any controversy which would justify treating him as a public figure for some limited purpose.

 Moreover, even if I were to find that Mr. Martin is a public figure, the defendant would not be entitled to summary judgment on this point. Once it has been determined that a plaintiff bringing a defamation action is a public figure within the New York Times v. Sullivan standard, in order to prevail that plaintiff must show that the defendant published false material knowing of its falsity or with reckless disregard of the truth. In the instant case, as the record now stands, it is not clear that plaintiffs could not prove such knowledge of falsity or reckless disregard of the truth on the part of Philadelphia Magazine. In its briefs filed in support of the motion, defendant repeatedly states that at the time of publication of Mr. Martin's photograph in its "FLASH" section Philadelphia Magazine had no basis to believe that he was a closet transvestite who got stinking drunk. *fn5" Therefore, defendant apparently concedes not only that the information included in the caption ...


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