Philly Firefighter’s Suit Against NY Daily News Over Sex Scandal Photo Dismissed

The lawsuit filed by a Philadelphia firefighter whose photo was used in an article in the New York Daily News last January about a sex scandal in the Philadelphia Fire Department, has been dismissed. However, his attorneys have already filed an appeal in the case.

You may recall that last February, Firefighter Francis X. Cheney II filed suit against the NY Daily News in the Philadelphia County Court of Common Pleas. The suit alleged defamation, invasion of privacy, and intentional infliction of emotional distress based on a photo of Cheney that accompanied a headline story about a sex scandal in the Philadelphia Fire Department. Cheney had nothing to do with the sex scandal and claimed that numerous people who saw the headline assumed he was involved.

Attorneys for the Daily News successfully had the case removed to federal court in Pennsylvania, where they promptly filed a motion to dismiss for failure to state a claim on which relief may be granted.

On Count I – Invasion of Privacy by Portraying Plaintiff in a False Light, US District Court Judge Stewart Dalzell ruled:

  • Because the inclusion of Cheney’s photograph along with the accompanying caption could not reasonably be read to imply that Cheney was involved in the scandal, Cheney cannot establish a claim for false light/invasion of privacy.
  • Cheney’s photograph appears as one of two in the article, and the first photograph is clearly a generic photograph of a Philadelphia firefighter performing his duties at the scene of a fire several years before the scandal covered in the article.
  • In that context, the second photograph, which emphasizes the crest on Cheney’s jacket and clearly indicates via the caption that the photograph is of Cheney performing official duties at a memorial ceremony many years before the scandal at issue, does not imply that Cheney was one of the firefighters involved in the scandal.
  • Cheney cannot establish that the inclusion of his photograph is the type of “discrete presentation of information in a fashion which renders the publication susceptible to inferences casting one in a false light.”
  • it is clear from the context of the article that Cheney’s photograph was included as stock footage, and there is no reasonable inference from the inclusion of the photograph that he was involved in the scandal.

As to Count II – Defamation/Libel, Judge Dalzell ruled:

  • the plaintiff in a defamation or libel case bears the burden of proving: (1) the defamatory character of the communication, (2) publication by the defendant, (3) application to the plaintiff, (4) the recipient’s understanding of the publication’s defamatory meaning, and (5) the recipient’s understanding of the publication as intended to be applied to the plaintiff.
  • to recover, a plaintiff must show that the defamatory statement was “of and concerning” him, and a plaintiff cannot recover if the alleged defamatory statements “could not reasonably be read as accusing [the plaintiff] of personal involvement in the acts in question.”
  • the allegedly defamatory material in the article is not capable of being reasonably understood as intended to refer to Francis Cheney. The caption accompanying his picture makes clear that it is an old photo from a memorial ceremony in 2006. The photograph’s focus is on the Philadelphia Fire Department patch on Cheney’s coat, not Cheney himself. The inclusion of a second picture of an unnamed Philadelphia firefighter responding to a fire years before emphasizes that both photographs are to provide texture, not content, to the article. Further, nothing in the article refers to either picture or constitutes innuendo that either pictured firefighter had any relationship to the story beyond being a Philadelphia firefighter.
  • Because Cheney cannot establish that the defamatory statements in the article are capable of being reasonably understood to refer to him, he cannot establish a claim for defamation or libel.

As for Count III – Intentional Infliction of Severe Emotional Distress, Judge Dalzell ruled:

  • The Daily News’s alleged conduct is not sufficiently extreme or outrageous to establish liability for intentional infliction of emotional distress.
  • While we must accept all of Cheney’s well-pleaded facts as true, we give no such credit to his legal conclusions. But, even if we did, and agreed that the Daily News created the false impression that he was one of several firefighters and/or other city employees involved in such a scandal, it would not be enough to establish a claim for intentional infliction of emotional distress. Being falsely implicated in lewd or lascivious conduct is unfair and unfortunate — and sometimes defamatory — but not extreme or outrageous.

Yesterday, Cheney’s attorneys filed an appeal of Judge Dalzell’s ruling to the US 3rd Circuit Court of Appeals.

Here is a copy of the ruling: Cheney v. NY Daily News

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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