Third Circuit sends Philadelphia firefighter's libel case back for reconsideration

By April Bamburg | Jul 26, 2016

PHILADELPHIA – A defamation case against the New York Daily News filed by a Philadelphia firefighter whose photograph was included with a story about an alleged sex scandal involving the city's firefighters should not have been dismissed, according to a panel of judges from the U.S. Court of Appeals for the Third Circuit.

The decision means that the Philadelphia firefighter, Francis X. Cheney II's libel suit against the publication goes back to the court that dismissed it earlier this year. This isn't surprising, says Connor Mullin, an attorney with Akin Gump, who recently wrote a piece regarding the case for his law firm's blog.

"You had a very salacious article and a photograph of a firefighter. The court said it would be reasonable for a reader to infer that the person pictured was involved in the story," Mullin told the The Pennsylvania Record.

Connor Mullin   Courtesy of Akin Gump

The New York Daily News took down Cheney's photograph, but he pursued the case, even after the Feb. 5 dismissal. This isn't surprising, Mullin said.

"Sometimes a retraction or taking a story down is not enough for reputation recovery, which is what I do," Mullin said. "Initial readers may have that impression and not return to a website after a photo has been removed or a retraction has been made."

The case started when the New York Daily News posted an article about an alleged sex scandal related to the Philadelphia Fire Department. Along with the story, the publication ran a photograph of Cheney in uniform, holding a flag at a 9/11 ceremony, and identified him by name. 

The photograph did not focus on his face, but instead on his arm patch. His face, however, was visible in the photograph. The story ran on Jan. 29, 2015, and Cheney filed a lawsuit for false light invasion of privacy and defamation on Feb. 11, 2015.

After publication of the article and Cheney's picture, Cheney alleged he received messages from strangers, friends, family members and even his colleagues at the Philadelphia Fire Department.

In the decision by the Third Circuit, the judges reversed decisions on Cheney's claims for defamation and false light invasion of privacy and sent the case back for reconsideration of those counts. The judges affirmed the lower court's dismissal of his claim for intentional affliction of emotional distress.

"The decision does not change anything in the libel laws," Mullin said. "There's nothing earth-shattering here.

"The lesson here is that if you're improperly associated with a story, there is an avenue for relief."

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