Solano v. Playgirl, Inc. - 292 F.3d 1078 (9th Cir. 2002)

Rule:

With regard to a false light claim, to survive summary judgment a plaintiff who is a public figure, must establish by clear and convincing evidence that defendant knowingly or recklessly created a false impression. The third element necessary to establish a claim for false light, therefore, is the constitutional requirement of actual malice. A failure to set forth specific facts showing such malice is a proper ground for summary judgment. Specifically, a plaintiff must show that the defendant either deliberately cast its statements in an equivocal fashion in the hope of insinuating a false import to the reader, or that it knew or acted in reckless disregard of whether its words would be interpreted by the average reader as false statements of fact. Proving actual malice by clear and convincing evidence is a heavy burden, far in excess of the preponderance sufficient for most civil litigation. 

Facts:

The January 1999 issue of Playgirl magazine featured a cover photograph of actor Jose Solano, Jr., best known for his role as "Manny Gutierrez" on the syndicated television program "Baywatch" from 1996 to 1999. Solano was shown shirtless and wearing his red lifeguard trunks, the uniform of his "Baywatch" character, under a heading reading: "TV Guys. PRIMETIME'S SEXY YOUNG *S EXPOSED." Playgirl, ostensibly focused on a female readership, typically contains nude photographs of men in various poses emphasizing their genitalia, including some showing them engaged in simulated sex acts. The magazine also contains written editorial features. Although Solano -- who did not pose for or give an interview to Playgirl -- did not in fact appear nude in the magazine, he sued Playgirl alleging it deliberately created the false impression that he did so, making it appear he was willing to degrade himself and endorse such a magazine. The district court granted Playgirl summary judgment, finding Solano had failed to establish that Playgirl created a false impression about what readers would actually see of Solano inside the magazine or in any event that it had acted knowingly or recklessly in doing so. Solano appealed.

Issue:

Did Solano provide sufficient evidence to create triable issues of fact for the jury on the elements of each of his causes of action?

Answer:

Yes.

Conclusion:

The court of appeals held that when the photograph and headlines on the cover were viewed in the context of a magazine that features sexually suggestive nude pictures of men, there was a triable issue of fact regarding the falsity of the message conveyed by Playgirl. Solano raised a genuine issue as to whether Playgirl’s editorial staff produced a cover knowing, or with reckless disregard for whether, Solano’s bare-chest photograph and various suggestive headlines would falsely imply that he voluntarily posed for and appeared nude inside Playgirl. Because Solano had established a genuine issue regarding whether Playgirl acted with actual malice in using his photograph on the cover of Playgirl, it was premature for the district court to address the applicability of the newsworthiness exceptions to the celebrity's claims.