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JENKINS v. KYW (09/21/87)

filed: September 21, 1987.

JENKINS, NORMAN A. AND JENKINS, ELLA HIS WIFE
v.
KYW, A DIVISION OF GROUP W, WESTINGHOUSE BROADCASTING & CABLE, INC.; NORMAN A. JENKINS AND ELLA JENKINS, APPELLANTS



Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 84-4471.

Seitz and Mansmann, Circuit Judges, and Bissell, District Judge.*fn*

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

In this appeal, the Honorable Norman A. Jenkins, of the Court of Common Pleas of Philadelphia County, Pennsylvania, and his wife, Ella Jenkins,*fn1 contest the district court's grant of summary judgment for KYW, a division of Group W, Westinghouse Broadcasting and Cable, Inc. ("KYW") in this diversity suit brought pursuant to Pennsylvania law. Jenkins claimed that KYW defamed him in a television broadcast aired in the Philadelphia area. For the reasons set forth below, we will affirm the judgment of the district court.

I.

In his complaint Judge Jenkins alleged that KYW, a Philadelphia television station, defamed him in a television broadcast entitled "Hard Crime/Soft Time (The Case of Clayton Hewlett)" which aired on February 1, 1984. The broadcast, prepared by KYW reporters Sheryl Stein and Anthony Lame and narrated by Willie Monroe, traced the history of Clayton Hewlett ("Hewlett") through the criminal justice system from 1962, when Hewlett was first committed to a correctional institution for a juvenile offense, until August 1, 1981, when he murdered nine-year-old Olivia Lorray Rice in Pittsburgh, Pennsylvania. The plaintiff claimed that the broadcast defamed him by implying that because he had sentenced Hewlett to probation and Hewlett therefore was at large instead of in prison at the time of the girl's death, Judge Jenkins was directly responsible for the death.

KYW asserted its First Amendment privilege to express opinions and moved for summary judgment, maintaining that there were no material issues of fact, since the factual statements in the broadcast were supported by official court records.

The district court, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (" Anderson "), found that in deciding whether there is a factual dispute for submission to a jury in a defamation case involving a public figure, the test of actual malice must be met by a "clear and convincing" evidentiary standard. The district court found that the statements in the broadcast were substantially true and concluded that there was no evidence of actual malice to support an actionable claim for defamation. This appeal followed.

II.

Our review of a grant of summary judgment, an appellate court is required to apply the same test the district court should have utilized initially. Inferences to be drawn from the underlying facts contained in the evidentiary sources must be viewed in the light most favorable to the party opposing the motion. Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). We are cognizant, as well, of the standards set forth in Anderson v. Liberty Lobby regarding summary judgment in a libel action by a public figure.

Judge Jenkins primarily raises the issue of the substantive evidentiary standard of proof on motions for summary judgment. This question was recently addressed by the Supreme Court in Anderson v. Liberty Lobby, Inc. Anderson involved a defamation suit by a public figure, to which the New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), standard applies. That standard requires the plaintiff to show, with "convincing clarity," that the defendant acted with knowledge that the defamatory statements were false or with reckless disregard of their truth or falsity. New York Times, 376 U.S. at 285-286.

In Anderson, the defendants' motion for summary judgment on the basis that actual malice was absent as a matter of law was supported by an affidavit of an employee of the defendants attesting to the veracity of the facts, detailing the sources for the statements alleged to be libelous and stating the amount of time he had spent researching. The plaintiff responded to the motion essentially by charging that the defendants had failed to verify their information adequately before publishing and that inaccuracies existed due to the use of unreliable sources.

The district court held for the defendants, finding that actual malice was precluded as a matter of law due to the thorough research done and reliance on numerous sources. On appeal, the U.S. Court of Appeals for the District of Columbia held that for the purpose of summary judgment the requirement that actual malice be proved by clear and convincing evidence, rather than by a preponderance of the evidence was irrelevant, and that to defeat summary judgment the ...


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