On June 21, 2016, the U.S. Court of Appeals for the Third Circuit reheard en banc a defamation and false light claim against the New York Daily News. The paper was sued by a Philadelphia firefighter whose photograph appeared with an article in January of 2016 about a sex scandal involving Philadelphia firefighters and a paramedic.
The Third Circuit affirmed a dismissal of the suit back in February after finding that Cheney could not show that the allegedly defamatory material in the article was capable of being reasonably understood as referring to him. The panel concluded that the article does not name Cheney in any way and that the caption on the picture makes it clear that it was a stock photograph meant to illustrate firefighters in general, not those involved in the scandal. The photograph of Cheney had the caption, “Philadelphia firefighter Francis Cheney holds a flag at a 9/11 ceremony in 2006.”
The attorney for Cheney argued during the rehearing that his client should get a second chance at suing the paper because Cheney only found out about the article after people who saw it contacted him and thought he was involved in the scandal. The attorney argued that therefore, a reasonable reader could in fact conclude the article is about Cheney.
During the rehearing, Judge Chagares raised concerns about the confusing and high standard for dismissing defamation cases, and stated, “We better be sure [there’s no possibility of defamation] before we render a final decision at this point. This is utterly incapable of a defamatory meaning?”
Cheney v. Daily News L.P., No. 15-2251, 2016 WL 456625 (3d Cir. Feb. 5, 2016)
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