Tuesday, March 5, 2002
Ninth Circuit Panel Appears Sympathetic to Actor’s Suit Against Playgirl
By a MetNews Staff Writer
A Ninth U.S. Circuit Court of Appeals panel appeared ready yesterday to give former “Baywatch” actor Jose Solano Jr. his day in court against Playgirl Magazine, which he claims portrayed him in a false light him on the cover of its January 1999 issue.
All three of the judges—Raymond Fisher, Harry Pregerson, and Richard Tallman—appeared to agree that a jury must decide whether statements on the cover and inside the magazine were intended to mislead readers into believing that Solano had posed nude.
Solano insists that he has never posed nude, that he never would, and that his reputation has been damaged by the implication that he posed nude for the magazine, which his attorney, Jonathan Anschell of White, O’Connor Curry Gatti & Avanzado, described as “pornographic.”
The cover image of Solano, in his Baywatch red shorts, was used to promote the magazine’s “lusty lineup” of “TV Guys.” That image, and a photo of Solano inside the magazine, were obtained from a stock house.
The cover picture extended into the Playboy logo across the top of the page, with a caption to the right of the picture reading “Baywatch’s Best Body Jose Solano.” Elsewhere on the cover appeared the headlines “12 Sizzling Centerfolds Ready to Score With You,” and “Primetime’s Sexy Young Stars Exposed’ which Solano claims were placed near his picture in a deliberate attempt to cause readers to think they would find photos of him unclad inside.
A photo also appeared inside the January issue, next to a profile of Solano. The profile, titled “TV Guys – Primetime’s sexy young stars make for one steamy season,” described his experiences in Operation Desert Storm and as a talented youth soccer player before landing a role on what was at one time the most popular television show in the world.
U.S. District Judge Dickran Tevrizian of the Central District of California found that Solano—who had a recurring role on the show for two years before he left, claiming that he was afraid of being typecast—is a public figure who cannot assert invasion-of-privacy claims.
Granting Playgirl’s motion for summary judgment, Tevrizian said the First Amendment does not allow a public figure to obtain redress merely because he was “unhappy and embarrassed.” Solano, he said, could not make the requisite showing of actual malice.
But Anschell drew a positive response from the appellate panel yesterday when he argued that deposition testimony from an associate editor, suggesting that the language of the cover was deliberately chosen to tease readers into thinking that nude photos of Solano and other young television stars were inside, was sufficient to put the issue of malice before a jury.
The panel placed Playgirl’s attorney, Kent Raygor of Sheppard, Mullin, Richter & Hampton, on the defensive.
“I’m not going to stand up here as an exponent of the editorial content of the magazine,” he demurred.
But readers, he said, know that the magazine’s content includes, but is not limited to, male nudity.
Playgirl, he argued, had done nothing to imply that Solano had posed nude. If he had, Raygor said, Playgirl would have “touted it” on the cover, as it has when it has done nude spreads of other male celebrities.
Raygor conceded, however—in response to a question by Pregerson, who held the January 1999 aloft with the cover facing him—that Playgirl purchasers would expect to see nude photos of men regardless of what the cover said. And he admitted in response to a query by Fisher that the magazine sometimes runs nude celebrity photos without expressly identifying them as such on the cover.
Fisher also zeroed in on the use of the word “exposed” on the cover, saying Playgirl had resorted to a double-entendre, perhaps to do exactly what Solano was claiming—make readers believe he had posed nude.
Raygor said that wasn’t intended to refer to Solano, but Fisher said a jury might conclude otherwise.
Copyright 2002, Metropolitan News Company