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BELL v. AP

March 14, 1984

Theo Bell, Plaintiff
v.
The Associated Press, Defendant



The opinion of the court was delivered by: GREENE

 On March 29, 1982, the Associated Press moved on its sports wire, and various newspapers subsequently published, a story reading in pertinent part as follows:

 
Tampa Bay wide receiver Theo Bell, a member of the National Football League 1979 Champion Pittsburgh Steelers, is being sought on a bench warrant for alleged lewdness at a casino hotel, authorities said Monday.

 It later turned out that the person charged was an imposter who had convinced hotel and police officials that he was Theo Bell. Plaintiff brought this action for libel, and defendant has moved for summary judgment. The motion will be granted.

 I

 It is established that the good faith publication of fair and accurate reports of official actions is privileged. See Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53, 56 (1971). *fn1" This privilege extends to arrest reports. Restatement (Second) of Torts ยง 611, comment "n"; see Medico v. Time, Inc., 643 F.2d 134, 138-39 (3rd Cir. 1981). The issue here is whether, on the facts before the Court, this privilege is a defense to the action.

 The facts are as follows. Someone calling himself Theo Bell, football player for the Tampa Bay Buccaneers, was arrested on March 7, 1982, in connection with an incident of lewdness at the Tropicana Hotel in Atlantic City. An official arrest report was prepared, *fn2" and subsequently a summons and bench warrant were issued when Theo Bell failed to appear in Atlantic City Municipal Court on March 22 as required.

 Upon being made aware of this information, *fn3" Robert Wade, a reporter for the Associated Press, made substantial efforts at verification. He contacted the Captain of Detectives James Dooley, the head of the Atlantic City police department's Casino Hotels Investigations Unit, and asked him to "pull the file" on the Tropicana Hotel incident. Captain Dooley advised him that "Theo Bell of the National Football League Tampa Bay Buccaneers had been detained by the police on March 7, 1982 following an incident of lewdness at the Tropicana," and he gave Wade several additional details. Wade went on to contact the Municipal Court Clerk and the Municipal Court Administrator who confirmed that a warrant was outstanding for Theo Bell for failure to answer the charges against him. The vice president for corporate and legal affairs at the Tropicana Hotel likewise confirmed that an incident had occurred at the hotel involving Mr. Bell, and an Atlantic City municipal court judge gave Wade additional information about the charges against Bell. *fn4"

 Except in relatively minor and immaterial respects, plaintiff does not quarrel with these facts. However, he asserts that the AP story was not a report of an official action or proceeding because the arrest report did not result in plaintiff's arrest but in the arrest of the impostor. Memorandum in Opposition at 7. That contention lacks merit. *fn5"

 The point of the privilege is that it covers the reporting of both true and false factual matters. See, e.g., Binder v. Triangle Publications, Inc., supra; Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406 (E.D. Pa. 1978); Biermann v. Pulitzer Publishing Co., 627 S.W.2d 87 (Mo. App. 1981). In line with this principle, the article must be compared, not with the events as they actually transpired, but with the official reports that the newspaper republished. Mathis v. Philadelphia Newspaper, Inc., supra, 455 F. Supp. at 417; Dameron v. Washington Magazine, 575 F. Supp. 1575 (D.D.C. 1983). If the rule were otherwise -- that is, if a newspaper would have to verify in the case of every arrest and prosecution that the police had the right suspect -- the reporting of criminal proceedings would largely have to cease. Such a result would be entirely at odds with American constitutional and public policy which demands that there be public scrutiny of governmental actions. The considerations underlying that policy are particularly potent when applied to proceedings which result in the arrest or detention of individuals. Where there is no such scrutiny -- as is true in some totalitarian countries -- individuals sometimes disappear without a trace and without public knowledge or accountability.

 Plaintiff has conceded that defendant "thought it was me" (Appendix to defendant's motion at 15.) On that basis, and on the basis of the verifications conducted by Wade, defendant's agent, plaintiff clearly could not carry his burden of proving malice, *fn6" and the defense based on the reporting of official proceedings is therefore well taken.

 II

 The same result follows from a "public figure" analysis of the case. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classified as public figures, may recover for injury to reputation only upon proof that the falsehood was made with knowledge of its falsity or with reckless disregard for the truth. Gertz v. Welch, 418 U.S. 323, 342, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974); Waldbaum v. Fairchild Publications Company, 201 U.S. App. D.C. 301, 627 F.2d 1287 (D.C. Cir. 1980). The lesser protection public figures have from defamation rests on the proposition that, as the court expressed it in Waldbaum, supra, 627 F.2d at 1291-92,

 
. . . those who enter the public spotlight have greater access to the media to correct misstatements about them, as shown by their pre-existing media exposure. More important, in 'assuming special prominence in the resolution of public questions, ' public figures 'invite attention and comment. ' They thus accept the risk that the press, in fulfilling its role of reporting, analyzing, and commenting on well ...

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