Opinion
C. A. 4:21-1504-SAL-KDW
09-17-2021
David Quintel McLaughlin, Plaintiff, v. Darlington County; Investigator Carol D. Tarte; City of Dillon; Officer Corey McLaurin; South Carolina Law Enforcement Division; John Doe 1; John Doe 2; and Gray Television, Inc., doing business as WMBF-TV, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
This matter is before the court on Gray Television, Inc.'s, doing business as WMBF-TV, (“Defendant”), Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 11. Plaintiff filed his Response in Opposition to this Motion on June 9, 2021, ECF No. 29, and Defendant filed a Reply to the Response on June 16, 2021. ECF No. 33. This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(e), D.S.C. Because this Motion is dispositive, a Report and Recommendation is entered for the court's review.
I. Background
Plaintiff alleges he was arrested on or about April 29, 2020, and charged with kidnapping, second degree criminal sexual conduct with a minor, criminal solicitation of a minor, disseminating obscene material to a person under age 18, and blackmail. ECF No. 1-1 at 5-6. Plaintiff states the South Carolina Attorney General's (“AG”) Office issued a press release on or about May 1, 2020, that was placed on the AG's website. Id. at 8. Plaintiff alleges the press release was forwarded to local news outlets, including Defendant, who published the story of Plaintiff's arrest, along with Plaintiff's mugshot on their website and during a local news story. Id. At 9. Plaintiff claims Defendant's article stated Plaintiff “committed these heinous acts of moral turpitude.” Id. Plaintiff contends Defendant “continued to publish/disseminate statements/articles about the Plaintiff which were false and untrue.” Id. Plaintiff alleges the stories contained the following statement:
Investigators said McLaughlin solicited sex from a minor, kidnapped the minor, engaged in criminal sexual conduct with the minor, encouraged the minor to produce and send sexually explicit images, and also blackmailed and extorted the minor.Id. at 20. Plaintiff states the charges against him were terminated in his favor after further investigation. Id. at 8. Plaintiff states the article remains posted on Defendant's website with no retraction or updates about the case being dismissed or statement that Plaintiff was completely innocent of the charges. Id. at 9.
II. Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is “to test the sufficiency of [the] complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Plaintiff does not need to plead detailed factual allegations in his Complaint to survive a motion to dismiss, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), however, the United States Supreme Court has held that a plaintiff's grounds for relief require more than just stating legal conclusions and elements of a cause of action. See Papasan v. Allain, 478 U.S. 265, 286 (1986). Plaintiff's complaint must contain sufficient factual allegations that make a claim for relief plausible, not just possible; the pleading standard demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp., 550 U.S. at 570.
In evaluating a motion to dismiss, the court must accept Plaintiff's factual allegations as true and draw all reasonable inferences in his favor. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). The court should not, however, accept unsupported legal allegations, Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), “legal conclusion[s] couched as . . . factual allegation[s], ” Papasan v. Allain, 478 U.S. at 286, or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). “[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). Additionally, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Cobin v. Hearst-Argyle Television, Inc., 561 F.Supp.2d 546, 552 (D.S.C. 2008); Krimv. Coastal Physician Group, Inc., 81 F.Supp.2d 621, 626 n.2 (M.D. N.C. 1998) (finding that “court may consider the relevant SEC filings and newspaper articles referenced by and integral to the complaint without converting the motion to dismiss into a motion for summary judgment.”).
In this case, the AG's press release and Defendant's news article and televised news story are referenced in Plaintiff's Complaint and are clearly central to Plaintiff's claim.
III. Analysis
Plaintiff bases his defamation claim on the following statement that was made in a news story published by Defendant that was posted on the internet and aired on tv:
Investigators said McLaughlin solicited sex from a minor, kidnapped the minor, engaged in criminal sexual conduct with the minor, encouraged the minor to produce and send sexually explicit images, and also blackmailed and extorted the minor.ECF No. 1-1 at 20. Plaintiff argues nowhere in the stories did Defendant mention Plaintiff was alleged to have committed the crimes, or that Plaintiff was innocent until proven guilty. Id.
Defendant moves to dismiss Plaintiff's Complaint arguing it is entitled to the fair report privilege for the publication of a government report and Plaintiff has not pleaded any facts to suggest Defendant exceeded the privilege. ECF No. 11-1 at 4. Defendant also contends its internet publication and televised news story directly contradicts Plaintiff's core allegations. Id. Defendant attaches a copy of the news article and a video of the televised news story in support of its motion. ECF Nos. 11-2 and 11-3.
In response, Plaintiff argues Defendant's news story is not protected by the fair report privilege because the publication was not fair and impartial, and Defendant acted with actual malice in making the publication. ECF No. 29. In support of his claims, Plaintiff argues Defendant did not: (a) clarify that the statements made by the investigators were allegations or claims, nor did Defendant include a statement that all defendants are presumed innocent unless and until they are proven guilty in a court of law as was stated in the AG's press release; (b) broadcast and report that “investigators claimed or alleged” as other news agencies did, but instead broadcast and published the statement in a biased, one-sided and impartial manner that presumed the charges were true and Plaintiff was guilty based solely on what the investigators said; and (c) update the article, nor taken steps to retract the article. Id. at 6-12. Plaintiff attaches Defendant's article, the AG's press release, and a publication by news station WPDE TV-15 in support of his claims. ECF Nos. 29-1-29-3.
In reply, Defendant argues Plaintiff has not cited to any authority that supports his argument that the use of “said, ” as opposed to “allege, ” made their stories unfair and partial, contending allege and say are synonyms. ECF No. 33 at 1-2. Defendant also contends the law does not obligate anyone publishing a report on a criminal investigation to add language that the accused is innocent until proven guilty, nor does the law require a publisher to redact or update its publication after the charges against Plaintiff were dropped. Id. at 4. Defendant claims a comparison of the AG's press release to its news reports reveals that its publication was a fair and accurate to the press release. Id.
The tort of defamation allows a plaintiff to recover for injury to his reputation as the result of a defendant's communications to others of a false message about a plaintiff. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Under South Carolina law, the essential elements of a claim for defamation are: 1) a false and defamatory statement; 2) unprivileged publication to a third party by defendant; 3) fault on the part of the defendant publisher; and 4) actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. See Floyd v. WBTW, No. 4:06-cv-3120-RBH, 2007 WL 4458924, *2 (D.S.C. Dec. 17, 2007).
“Under the law of defamation . . . certain communications give rise to qualified privileges, including . . . fair and impartial reports in newspapers o[n] matters of public interest.” West v. Morehead, 720 S.E.2d 495, 498 (S.C. Ct. App. 2011). Under the defense of qualified privilege, “one who publishes defamatory matter concerning another is not liable for the publication if (1) the matter is published upon an occasion that makes it [qualifiedly or] conditionally privileged, and (2) the privilege is not abused.” Swinton Creek Nursery v. Edisto Farm Credit, 514 S.E.2d 126, 134 (1999). Generally, whether a publication gives rise to a qualified privilege is a question of law for the courts. Id. at 134. However, the fair report privilege “extends only to a report of the contents of the public record and any matter added to the report by the publisher, which is defamatory of the person named in the public records, is not privileged.” Jones v. Garner, 158 S.E.2d 909, 913 (1968). When conflicting evidence exists, “the question [of] whether [a qualified] privilege has been abused is one for the jury.” Swinton Creek, 514 S.E.2d at 134.
Plaintiff's defamation claim centers on a news article and televised news story published by Defendant that was based on an AG's press release. ECF No. 1-1 at 8-9, 19-21; ECF No. 29 2. The press release states, in pertinent part, that:
South Carolina Attorney General Alan Wilson announced the arrest of David Quintel McLaughlin, 38, of Hamer, SC, on seven charges connected to the sexual exploitation of a minor. Internet Crimes Against Children (ICAC) Task Force investigators with the Darlington County Sheriff's Office made the arrest. Investigators with SLED and the Dillon County Sheriff's Office, both also members of the state's ICAC Task Force, as well as the Dillon Police Department, assisted with this arrest.
Investigators state McLaughlin solicited sex from a minor, kidnapped a minor, engaged in criminal sexual conduct with a minor, encouraged a minor to produce and send sexually explicit images, as well as blackmailed and extorted a minor.ECF No. 29-2.
The undersigned has reviewed Defendant's news article and televised news story and finds that the article and news story challenged by Plaintiff are entitled to the protections of the fair report privilege. The undersigned finds the article and news story presented a full, fair, and accurate report of the AG's press release. The facts described in news article and televised news story are derived from the AG's press release about Plaintiff's arrest and the crimes he was charged with. In fact, the defamatory statement Plaintiff references in his Complaint is virtually identical to the statement in the press release. Compare the AG's press release statement:
Investigators state McLaughlin solicited sex from a minor, kidnapped a minor, engaged in criminal sexual conduct with a minor, encouraged a minor to produce and send sexually explicit images, as well as blackmailed and extorted a minor.to the statement in Defendant's news stories:
Investigators said McLaughlin solicited sex from a minor, kidnapped the minor, engaged in criminal sexual conduct with the minor, encouraged the minor to produce and send sexually explicit images, and also blackmailed and extorted the minor.ECF No. 1-1 at 20; ECF No. 29-2. Because the news article and televised news story are based on facts as stated by the AG's office, these publications convey to the persons who read them a substantially correct account of the AG's press release. The undersigned notes Plaintiff has not cited to any evidence to show the facts in either story were manipulated, enlarged or embellished by the reporters.
As to Plaintiff's argument Defendant's publication was malicious and therefore not protected by the fair report privilege, the undesigned finds Plaintiff has not offered sufficient evidence to raise a genuine issue of material fact concerning Defendant's abuse of the privilege. Addressing Plaintiff's argument Defendant's failure to include language from the press release that all defendants are presumed innocent until proven guilty, the undersigned finds the fair report privilege is not lost because a report is not identical to the source public record. “The privilege does not require that the published report be verbatim of the official report, but it must only be substantially correct.” Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249, 254 (4th Cir. 1988); see also Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003) (holding articles giving a “rough-and-ready summary” of official statement by police protected by fair report privilege).
Plaintiff also claims Defendant's news stories are misleading because Defendant failed to include the phrase “investigators claimed or alleged” giving the impression Plaintiff was guilty. The undersigned does not find the absence of these phrases rendered the stories unfair or misleading. The challenged news story and article only stated Plaintiff arrested and neither publication gave the impression that Plaintiff had been convicted. See Lee v. TMZ, Civ. No. 2:15- 00234 (WJM), 2015 WL 5638081 at *5 (D.N.J. Sept. 24, 2015) (explaining courts have rejected arguments that the press must use words like ‘allege' or ‘accuse' in every instance to avoid the impression that an arrestee had been convicted or that any of the allegations have been otherwise adjudicated); Williams v. South Carolina, C/A No. 0:06-2590-CMC-BM, 2006 WL 3843608, at *6 (D.S.C. Dec. 22, 2006) (reviewing cases that found publication of a summary of public records was protected by fair report privilege, even if the contents of the governmental records are defamatory).
Finally, Plaintiff contends Defendant's failure to update or retract the news stories caused Defendant to the forfeit the protection of the fair report privilege. The undersigned notes the news stories were true at the time of publication, accordingly the subsequent dismissal of the charges against Plaintiff does not make Defendant's publication unfair or inaccurate. See Padgett v. Sun News, 292 S.E.2d 30, 33 (S.C. 1982) (finding a newspaper's publication of contents of a summons charging plaintiff with a certain crime, despite subsequent filing of complaint which omitted this crime, did not negate the accuracy of the newspaper's publication).
The undersigned finds the news article and televised news story were a substantially correct account of the AG's press release, and therefore these stories are protected under the fair report privilege. The undersigned recommends Defendant's Motion to Dismiss, ECF No. 11, be granted.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).