Actor’s Suit Can Be Tried, Court Rules

A former “Baywatch” actor is entitled to his day in court on claims that he was humiliated and his career compromised when Playgirl magazine placed his bare-chested photo on its cover, a federal appeals court ruled Thursday.

The January 1999 cover featured Jose Solano Jr. under the headline “Prime Time’s Sexy Young Stars Exposed,” which could give the false impression that Solano appeared nude inside the issue and that he agreed to be so featured, the court ruled.

Thursday’s decision by the U.S. 9th Circuit Court of Appeals allows the actor to go to trial and reverses a February 2001 federal district court ruling that Solano failed to show that Playgirl knowingly created a false impression about what readers would see in the magazine.

Solano sued publisher Playgirl Inc., alleging that he was portrayed in a false light and that the magazine misappropriated his likeness, said his attorney, Jonathan Anschell.

Although there were no nude pictures of Solano in the magazine, the 31-year-old actor contended that by putting his photo on the cover amid sexually explicit headlines, the impression was created that he posed for the publication, Anschell said.

“Jose tries to hold himself up as a role model for youth,” the lawyer said, adding that Solano comes from a traditional Catholic family and was a Navy medic during Operation Desert Storm.

“So when he saw himself on the cover of Playgirl, it was a slap in the face of everything he tries to embody,” Anschell said.

The picture showing Solano shirtless, arms folded across his chest, smiling and wearing red swimming trunks, was obtained through a photo bank, the attorney said.

Because the magazine is sold in sealed plastic, readers couldn’t open it to see if Solano was naked, the court’s opinion stated. Inside the magazine, on Page 21, there was a brief biography of the actor, who played Manny Gutierrez on the original “Baywatch” from 1996-99--the show’s first Latino character. With the bio, there was a photo showing him dressed.

Playgirl executives in New York refused to comment on the decision or a deposition cited in the opinion stating that editors instructed staff to “sex up” the cover by implying that the issue contained more nudity than it in fact did.

The company’s attorney, Kent Raygor, said Thursday that he had yet to read the appellate court opinion, but added that the 1st Amendment protects the right of the media to comment on public figures.

“Public figures like Solano don’t get to pick and choose the kind of publications they’re seen in,” he said. “Part of being a public figure means that your life is subject to public commentary.”

Lincoln D. Bandlow, a visiting media law professor at USC’s Annenberg School of Journalism, said the decision reiterates that the 1st Amendment does not protect knowingly false speech.

“Here what the court did was say that the plaintiff’s case should not have been defeated on summary judgment, because it was a jury issue whether or not Playgirl’s speech was knowingly false,” he said.

“It’s not that he simply said, ‘You associated me with an icky nude magazine,’ ” according to Bandlow. “They put text on the cover and threw in interesting word choices that may have implied he’s nude in there.”

The court’s decision relied heavily on a case involving actor Clint Eastwood, who alleged that the National Enquirer used quotes making it look as if he had granted the publication an interview, which he had not. The decision also cited a defamation action brought by O.J. Simpson trial witness Kato Kaelin against the Globe tabloid.