The opinion of the court was delivered by: Kocoras, District Judge:
The plaintiff, James R. Cantrell, filed this action to
recover actual and punitive damages from American Broadcasting
Companies, Inc. and from two of ABC's employees, Geraldo
Rivera and Peter Lance. The complaint alleges that the
plaintiff suffered injury to his reputation because of a
nationally televised broadcast on February 7, 1980 of ABC's
program entitled "Newsmagazine 20/20." The segment at issue
was entitled "Arson and Profit," which was narrated by Mr.
Rivera and produced by Mr. Lance. Both Rivera and Lance were
investigative reporters who took part in the preparation of
the segment. Defendants move to dismiss the complaint pursuant
to Rule 12(b)(6), F.R.Civ.P., on the ground that it fails to
state a cause of action for libel and for invasion of privacy.
This court has reviewed both a transcript and a videotape of
The 20/20 segment on "Arson and Profit" concerned an
investigation of an alleged arson-for-profit conspiracy
involving a group of real estate owners and their associates
who operated in the Uptown neighborhood of Chicago, Illinois.
In the first minute of the program, an announcer states that
in many cases arson causes some people to get rich while
others lose their homes or lives. He then declares that
"20/20's hidden camera shows you the tricks of the trade."
After the introduction to the program is given by Mr. Hugh
Downs, Geraldo Rivera delivers his opening paragraph:
Because it's so difficult to catch someone in the
act of actually trying to set fire to a building,
the courts allow circumstantial evidence to prove
who committed the crime. Well, in this
investigation by 20/20 and Chicago's Better
Government Association, we believe we've
uncovered some extraordinary circumstantial
evidence. Evidence that a small group of Uptown
Chicago businessmen are making money as their
buildings burn and as their tenants die. This is
a report on "Arson and Profit."
Mr. Rivera then reviews a fire in the Uptown community which
had apparently been caused by an arsonist seeking revenge on
a tenant. (Tr. 3). Immediately afterwards, Rivera states that
there is another type of intentional fire caused by arson for
profit, which is "what the rest of the report is all about."
Rivera reported that ABC News began to investigate "this
group of building owners and their associates" in November of
1979. (Tr. 6). Producer Peter Lance posed as a real estate
developer and had "more than ten meetings with these men" over
the next two months. Two men, who are shown walking together
outdoors, are identified as "the two principal members of the
group." (Tr. 6). One of them is "John Schmiegal, owner of
several transient hotels"; the other is "Charles Roberts, a
notorious Uptown slum lord." (Tr. 6). Shortly after they are
shown, Rivera reports:
While Roberts and Schmiegal are the main
characters in this story, they haven't acted
alone. There is also a supporting cast.
[A view of Cedar Realty's office is then shown on
This is Cedar Realty, a brokerage firm which
lists a number of Uptown Chicago properties. The
principal broker at Cedar is Albert LaBunski.
After other parties are shown, including the agent who
allegedly wrote the insurance policies for the Roberts group,
Rivera asks the viewing audience to consider "Exhibit A",
which is the Ellis Hotel. (Tr. 7). Two people died in a four
alarm fire in that building on February 19, 1979. That was the
sixth fire in the hotel since the Roberts group had taken
control of it in 1968. According to Rivera, a check was issued
in the amount of $145,000 for the Ellis Hotel fire to John
Schmiegal, his wife, and Charles Roberts "among others." (Tr.
8). That insurance payment was allegedly the twenty eighth
received by Schmiegal and associates in the last six years.
Having reviewed two other cases of fire in buildings owned
by the Roberts group, Rivera discussed the fire on December
29, 1979 which killed seven people in the Malden Park
Apartments. (Tr. 9). Specifically, Rivera stated:
According to first reports, the fire was caused
by a tenant cooking in his room. But ABC News
assembled a special fire investigation team to
pinpoint the actual cause of the blaze.
What the fire investigation team uncovered is
sharply different from the original police
findings. You'll learn what we learned about the
fire that left seven people dead, and about the
people who may have been responsible when this
Special 20/20 Report continues after this: (Tr.
After the commercial break, Rivera described the Malden Park
Apartments fire in detail and noted that it was another
building owned by "Charles Roberts and his associates." At
this point in the program, the plaintiff was mentioned for the
James Cantrell is an employee of Cedar Realty,
and he's no stranger to fires in Uptown. He
worked at the Ellis Hotel just before it burned
last year, and was the manager of the Malden Park
Apartments when the fire broke out in December.
At the time Cantrell blamed the fire on a
resident cooking in his fourth floor room. (Tr.
James Cantrell was then shown on the screen and asked about
the cause of the fire. He said that the tenant had three pots
on the stove and that the burners were "turned wide open."
(Tr. 10). Rivera immediately inquired:
Was it an accidental fire caused by a careless
tenant cooking, as James Cantrell, the building
manager contends? Or was this a case of arson?
Rivera reported that ABC News had samples of the stair beams
tested at Pan-Tecnick Laboratories. The results of the tests
indicated that the wood stair beams contained gasoline. At
this point, Rivera stated:
Let's review. Our evidence concludes that the
fire was started by gasoline in the lower rear
stairwell. But building manager Cantrell
continues to insist that it was caused by a
fourth-floor cooking accident. And as the
conversation you're about to witness indicates,
James Cantrell apparently views himself as an
expert when it comes to apartment building fires.
In fact two weeks before the fatal Malden fire,
he [plaintiff] met with 20/20 Producer Peter
Lance, who was continuing in his undercover role
as a real estate developer. We filmed their
conversation from this van, using one-way glass
and a hidden camera. During the course of the
conversation Cantrell actually instructed Lance
on how to get the most insurance money from an
arson fire. He told Lance it was good to have a
basement fire because that way you can collect
for smoke damage for the entire building. But he
went on to say that a fire on the top floor is
even better because then you get paid for water
damage as well. (Tr. 11).
During the foregoing narration, the plaintiff was shown
walking to a car with Lance, getting into the car, and then
speaking to Lance inside the car.
As soon as Rivera had described the conversation between
Lance and Cantrell, Rivera and Lance were filmed in the
following interview with the plaintiff:
On January 9th, we confronted Mr. Cantrell:
RIVERA: See this man right here. [referring to
RIVERA: Do you recall any conversation with him
concerning how to set fires, ...