Francis Cheney, II v. Daily News LP
654 F. App'x 578 (2016)
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Rule of Law:
A defamatory publication is 'of and concerning' the plaintiff for purposes of defamation and false light invasion of privacy claims if a reasonable reader could understand that the defamatory material, including accompanying photographs and captions, was intended to refer to the plaintiff, even if the main text does not explicitly name them. However, merely suggesting involvement in a sex scandal, while unfortunate, typically does not meet Pennsylvania's high 'extreme and outrageous' standard for intentional infliction of emotional distress.
Facts:
- On January 29, 2015, the Daily News published an article on its website titled, “Heated Sex Scandal Surrounds Philadelphia Fire Department: ‘It’s Bad Stuff.’”
- The article described an investigation into a sex scandal within the Philadelphia Fire Department, which reportedly implicated dozens of city employees, including firefighters, and suggested possible criminal charges.
- The online article consisted of two columns: the left column contained pictures, and the right column contained the text of the article.
- One of the photographs displayed in the left column was of Francis X. Cheney, II, captioned, “Philadelphia firefighter Francis Cheney holds a flag at a 9/11 ceremony in 2006.”
- Francis X. Cheney, II, had no part in the sex scandal described in the article.
- After the article and his photograph were published, Cheney was flooded with messages from his colleagues at the Philadelphia Fire Department, family, friends, and strangers.
Procedural Posture:
- Francis X. Cheney, II, filed suit against Daily News L.P. in the Philadelphia County Court of Common Pleas, alleging claims of defamation, false light invasion of privacy, and intentional infliction of emotional distress.
- The Daily News timely removed the case to the United States District Court for the Eastern District of Pennsylvania.
- The Daily News moved to dismiss Cheney’s complaint under Rule 12(b)(6).
- The District Court granted the Daily News’s motion, dismissing all of Cheney's claims.
- Cheney timely appealed the District Court's decision to the United States Court of Appeals for the Third Circuit (intermediate appellate court).
- The Third Circuit initially issued an opinion affirming the District Court's decision.
- Cheney filed a petition for rehearing, which the Third Circuit granted, vacating its prior opinion and holding oral argument.
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Issue:
Does a newspaper article, which includes an identified photograph of an individual next to text describing a sex scandal involving unnamed individuals from the same profession, sufficiently allege that the defamatory material is 'of and concerning' that individual for claims of defamation and false light invasion of privacy under Pennsylvania law, and does such publication constitute 'extreme and outrageous' conduct for intentional infliction of emotional distress?
Opinions:
Majority - Fisher, Circuit Judge
Yes, a reasonable person could understand the Daily News article, with its accompanying photograph, to concern Cheney for the defamation and false light claims, but no, the publication does not rise to the level of 'extreme and outrageous' conduct for intentional infliction of emotional distress. For defamation and false light, the court reversed the District Court's dismissal, holding that the publication could be reasonably understood as 'of and concerning' Cheney. Under Pennsylvania law, a defamatory statement must refer to an ascertained or ascertainable person, and the inquiry focuses on whether the material was 'capable of being reasonably understood as intended to refer to the complainant' in context. While the article text did not name Cheney, his photograph, explicitly identifying him as a Philadelphia firefighter, was placed directly next to an article about a sex scandal involving 'dozens of firefighters' in Philadelphia. Crucially, Cheney's was the only firefighter's name mentioned in the entire publication. The court distinguished Schonek v. WJAC, Inc., where there was no implication connecting the plaintiff to the defamatory statements, and found Cheney's claim stronger than that in Peck v. Tribune Co., where a plaintiff's picture was used incorrectly. Given the context, a reasonable reader could conclude that Cheney's inclusion suggested involvement in the scandal. The court also considered Cheney's allegations of receiving messages from others, accepting them as true at the motion to dismiss stage, as relevant to how a reasonable person would understand the publication. For intentional infliction of emotional distress (IIED), the court affirmed the District Court's dismissal. Pennsylvania law sets an extremely high bar for 'extreme and outrageous' conduct, which must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.' The court found that, while suggesting a person is involved in a sex scandal is unfortunate, it does not meet this stringent standard, which is typically reserved for highly egregious situations like mishandling of a corpse or reckless diagnosis of a fatal disease.
Analysis:
This case clarifies the application of the 'of and concerning' element for defamation and false light claims under Pennsylvania law, emphasizing the critical role of visual elements like photographs and captions when evaluating whether a publication reasonably refers to a plaintiff. It signals that publications cannot easily avoid liability by omitting a name from the main text if accompanying imagery creates a strong, identifiable link to the defamatory content. Conversely, the decision strongly reaffirms the exceptionally high bar for intentional infliction of emotional distress claims in Pennsylvania, making it clear that even significantly damaging or offensive publications rarely meet the 'extreme and outrageous' threshold without truly shocking conduct.
