Opinion
1:97cv341.
October 2, 1998
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendant's Motion for Summary Judgment. Even though plaintiff is proceeding pro se, he filed a memorandum of law in opposition to defendant's motion within six days of defendant's filing. That response contained arguments of law and referenced evidentiary material submitted by plaintiff in opposition to defendant's Motion for Summary Judgment. As a consequence, the court, having determined that to send the pro se plaintiff a Roseboro notice after he had filed the response anticipated under that line of decisions would likely be confusing, elected not to send such notice. Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
As will be discussed below, even when all factual issues are resolved in plaintiff's favor, the court is compelled to recommend that his action for "assault, libel slander" be dismissed as a matter of law, inasmuch as (1) no cause of action for common-law assault can be sustained on these facts, and (2) as a limited purpose public figure, plaintiff has made no showing in support of his libel-and-slander claim that the contents of the challenged newspaper article are false or that the article was published with actual malice. Plaintiff's complaints regarding the wording of sentences do not amount to actionable wrongs under prevailing case law. Further, there is no viable claim where, as here, an individual voluntarily seeks the public spotlight under which matters are revealed which are less than flattering or are counterproductive to the cause being espoused.
FINDINGS AND CONCLUSIONS
I. Background
Plaintiff resides in Henderson County, North Carolina, and has access to the Internet in his home. During the 1996 Summer Olympics, a number of municipalities throughout the country passed anti-homosexual ordinances. A self-described gay-rights activist, plaintiff took exception to one such resolution that was passed in neighboring Rutherford County, North Carolina.
In order to stop the spreading of this religious right initiative, I decided to form a group and try to bring an awareness to other counties as to what was going on and, hopefully, stop the spread of these anti-gay resolutions from just completely taking over Western North Carolina.
Merrill Deposition, at 17-18. Plaintiff learned that James Garrett, a resident of Rutherford County, had formed North Carolina Citizens Against Discrimination, "NCCAD." Garrett told plaintiff to "do anything you'd like to" in furtherance of the goals of NCCAD.
After hooking up with NCCAD, plaintiff wrote a letter to the editor of the Hendersonville Times-News. He also wrote and distributed a press release stating that the "grassroots organization called Citizens Against Discrimination (CAD) called for a boycott of North Carolina by the film industry." The press release stated that plaintiff had organized the boycott in an effort "to make film producers aware of the homophobia existing on the books in North Carolina and existing in the U.S. Senate from Senator Jesse Helms and Senator Lauch Faircloth both from the Tarheel [sic] State." The press release characterized the main objective of the boycott as "to get the anti-gay resolutions in the state rescinded." It also stated that "[f]ilm business in the state has declined dramatically, many productions canceled, and it is possible that HARPO Productions will move its planned feature `The Wedding' scheduled to be filmed in Wilmington, NC to a different state." Id.
The press release was sent to local news media, as well as to Barry Diller, Rupert Murdock, David Getman, and The Hollywood Reporter. Following the press release, the Hendersonville Times-News, the Forest City Daily Courier and The Hollywood Reporter published articles. Plaintiff admits in his deposition that, at the time, CAD had no formal organization, only an informal one "through concern over the anti-gay resolution through association."
On October 27, 1996, in Lake Lure, North Carolina, plaintiff called a meeting. About 100 people attended. The agenda of the meeting was simply "to say how unfair these anti-gay resolutions were." The group formed no organization, elected no officers, and adopted no bylaws. Plaintiff admits in his deposition that CAD was not organized until September 9, 1997 — six weeks after the challenged article was published. To this day, it has no officers, no board of directors, or any other indicia of an official group.
Upon learning of the story published in The Hollywood Reporter, reporter Maile Carpenter with The News Observer, began investigating the purported boycott of the North Carolina film industry. It is undisputed that she interviewed North Carolina film commissioners Bill Arnold, Mark Stricklin and Marcey Kelso, none of whom knew anything about a boycott of the film industry in North Carolina. Aside from having seen plaintiff's press release, none of them knew anything of plaintiff. Ms. Carpenter also spoke with individuals in the production of movies being filmed in North Carolina. None of them knew anything about a boycott, and all confirmed that their projects were proceeding in North Carolina.
Ms. Carpenter also attempted to interview Jeffrey Daniels, the author of the Hollywood Reporter article, but he refused to talk with her. An editor with The Hollywood Reporter told Ms. Carpenter that the paper had "no comment." Finally, Ms. Carpenter spoke directly with plaintiff, who confirmed that there was no actual boycott. Rather, he described his efforts to encourage a boycott of the industry. Although Ms. Carpenter inquired about other members of his organization, Mr. Merrill declined to name them.
II. Summary Judgment Standard
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). By reviewing substantive law, the court may determine what matters constitute material facts. Id. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of defendant's Motion for Summary Judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
III. Discussion
A. Assault
Under the common law of North Carolina, the tort of assault occurs when a person is put in apprehension of harmful or offensive contact, without any actual contact. Ormand v. Crampton, 16 N.C. App. 88 (1972). Clearly, neither the complaint nor the evidence submitted by plaintiff support any claim for common-law assault. The undersigned, therefore, will recommend that plaintiff's assault claim be dismissed with prejudice.
B. Libel and Slander
Plaintiff contends in his complaint that the article published by defendant in print and made available on the Internet was libelous for the following statements:
a. "[Plaintiff's was a] one-man boycott."
b. "Bad news travels fast in the movie business, even when it isn't true."
c. "Tack on a few catch phrases — say, `Jesse Helms,' `gays and lesbians' and `Oprah' — and it goes to the gossip express."
d. "[Plaintiff] is a 63-year old retired man named Charles E. Merrill sitting at home in the Henderson County community of Edneyville with a computer and an agenda."
e. "Plaintiff] can't name any member of his group."
f. "Politicians have never heard of him."
g. "Jeffrey Daniels (The Hollywood Reporter) won't talk about the story, his editors refuse to comment."
When the content and circumstances surrounding publication of an allegedly defamatory statement are not in dispute, the determination as to whether the publication is privileged is a question of law for the court. Nesbitt v. Multimedia, 9 Media L. Rep. (BNA)1473, 1476 (W.D.N.C. 1982) ( citing Hartsfield v. Hines, 200 N.C. 356, 157 S.E. 16 (1931)).
Immunity attaches to accurate reports on matters already reported by reliable sources. Where a defendant fairly, accurately, and neutrally reports information, summary judgment is appropriate. McKinney v. Avery Journal, 99 N.C. App. 529, 532, review denied, 327 N.C. 636, 399 S.E.2d 123 (1990); Sunshine Sportswear Electronics, Inc. v. WSOC Television, Inc., 738 F. Supp. 1499, 1510 (D.S.C. 1989); In re United Press International, 16 Media L. Rep. (BNA) 2401, 2408 (D.D.C. 1989). The prevailing law concerning libel and a free press is succinctly summarized by the North Carolina Court of Appeals in McKinney v. Avery Journal, supra, as follows:
The landmark case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), established that a public official could not recover damages for a defamatory statement relating to his conduct in office absent a showing that the statement was made with "actual malice," that is, with knowledge that the statement was false or with reckless disregard for its veracity. In the absence of actual malice, such statement is protected by the First Amendment. Id.; Cline v. Brown, 24 N.C. App. 209, 210 S.E.2d 446 (1974), cert. denied, 286 N.C. 412, 211 S.E.2d 793 (1975). This rule was later extended to apply also to "public figures." See Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).Id., at 531. "In a libel action, the defamatory statements must be false in order to be actionable, and an admission of the truth of the statement is a complete defense." Brown v. Boney, 41 N.C. App. 636, 647, 255 S.E.2d 784, 791, disc. review denied, 298 N.C. 294, 259 S.E.2d 910 (1979). Although truth often is referred to as a "defense," all public plaintiffs must bear the burden of proving falsity. Philadelphia Newspapers v. Hepps, 475 U.S. 767, cert. denied 475 U.S. 1134 (1986). A statement need not be perfectly accurate to be entitled to immunity from a libel claim; rather, the first amendment requires only substantial accuracy.
Minor inaccuracies do not amount to falsity so long as "the substance, the gist, the sting, of the libelous charge be justified." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991). Libel plaintiffs cannot rest their claims on conclusory assertions. Plaintiff's own deposition testimony and the testimony of reporter Maile Carpenter establish the truth of the statements identified in plaintiff's complaint as libelous:
a. that his was a "one-man boycott" — plaintiff admitted in his complaint that, at the relevant time, CAD had no officers or members, and was an organization of one;
b. that "[b]ad news travels fast in the movie business, even when it isn't true" — plaintiff admitted in his deposition and in his interview with the reporter that, in fact, the film industry was not boycotting North Carolina;
c. "Tack on a few catch phrases — say, `Jesse Helms,' `gays and lesbians' and `Oprah' — and it goes to the gossip express" — it is undisputed that it was plaintiff's own press release that invoked the names of "Jesse Helms, Oprah Winfrey's production company, and gays and lesbians," and that plaintiff sent that news release to The Hollywood Reporter;
d. CAD "is a 63-year old retired man named Charles E. Merrill sitting at home in the Henderson County community of Edneyville with a computer and an agenda" — it is beyond dispute that this statement, while establishing a less than a flattering persona for plaintiff, is completely accurate;
e. that plaintiff "can't name any member of his group" — this statement finds full support in plaintiff's own deposition and appears, most accurately, to be simply a dispute between "could not" and "would not" name members, even though it is undisputed that there were no members beyond plaintiff himself;
f. "Politicians have never heard of him" — this accurately reflects Ms. Carpenter's interviews with politicians. That politicians may have run across plaintiff's name in years past in a different context is irrelevant;
g. "Jeffrey Daniels (The Hollywood Reporter) won't talk about the story, his editors refuse to comment" — plaintiff has not supported his contention that this statement is false. It is undisputed that Jeffrey Daniels refused to talk to Ms. Carpenter when he hung up the phone on her.
Beyond failing to show that the contested statements were false, plaintiff has not shown that the statements were libelous. See Raymond v. Duke University, 91 N.C. App. 171, 181, 371 S.E.2d 701, 708, review denied, 323 N.C. 629, 374 S.E.2d 590 (1988). Further, plaintiff has failed to show that the article was published with "actual malice," i.e., that the defendant published false, defamatory material with knowledge or reckless disregard of its falsity. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). As a limited purpose public figure, plaintiff is obligated to make a showing of malice. He has not met that obligation. Furthermore, he cannot make such a showing, inasmuch as he admitted in his deposition that the story published by defendant was truthful.
C. Conclusion
The only falsity in this case appears to be the rather misleading press release issued by plaintiff. It is the obligation of a free press to ferret out the truth and report it to the public. That such reporting sheds revealing light on a person who has sought the spotlight is simply not actionable. While plaintiff certainly enjoys the right to organize a boycott in protest to public-policy decisions he believes to be unjust, the press also enjoys a first-amendment right to look behind his contention that the film industry had boycotted North Carolina. Clearly, plaintiff's characterization of the activities of the film industry was unfounded, and defendant's publication of an article revealing that there was no boycott and that CAD consisted of a man with a computer and an agenda was wholly accurate and, therefore, privileged. Nesbitt v. Multimedia, supra.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendant's Motion for Summary Judgment be ALLOWED and that this action be dismissed with prejudice in its entirety.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to defendant's Motion for Summary Judgment (#11).