ORDER
This cause comes before the Court on the following pending motions, responses, and related documents:
Defendants’ Motion for Summary Judgment:
1. Defendants’ Notice of Motion for Summary Judgment, and of Request for Oral Argument (Docket No. 105);
2. Defendants’ Motion for Summary Judgment, Request for Oral Argument, and Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment (Docket No. 106);
3. Defendants’ Statement of Material Facts to Which There is No Genuine Dispute (Docket No. 107);
4. Declaration of John W. Dean in Support of Defendants’ Motion for Summary Judgment (Docket No. 108);
5. Declaration of John M. Garrick in Support of Defendants’ Motion for Summary Judgment (Docket No. 109);
6. Declaration of Arnold D. Larson in Support of Defendants’ Motion for Summary Judgment (Docket No. 110);
7. Plaintiffs Memorandum in Opposition to Defendant’s Motion for Summary Judgment (Docket No. 123);
8. Plaintiffs Notice of Filing his Affidavit in Opposition (Docket No. 124);
9. Affidavit of Plaintiff LEONARD CO-LODNY in Opposition (Docket No. 125);
10. Plaintiffs Notice of Filing Cases Cited in Memorandum in Opposition (Docket No. 126);
Plaintiffs Motion for Partial Summary Judgment:
11. Plaintiffs Motion for Partial Summary Judgment (Docket No. Ill);
12. Memorandum in Support (Docket No. 112);
13. Plaintiffs Notice of Filing Documents in Support (Docket No. 113);
14. Plaintiffs Notice of Filing Deposition of John M. Garrick in Support (Docket No. 114);
15. Plaintiffs Notice of Filing Deposition of John W. Dean in Support (Docket No. 115);
16. Plaintiffs Notice of Filing his Affidavit in Support (Docket No. 116);
17. Affidavit of Plaintiff LEONARD CO-LODNY (Docket No. 117);
18. Plaintiffs Notice of Filing Video “Key to Watergate” in Support (Docket No. 118);
19. Plaintiffs Notice of Filing Silent Cowp: The Removal of a President in Support (Docket No. 119);
20. Plaintiffs Notice of Transcripts of Interviews of John Dean in Support (Docket No. 121);
21. Defendants’ Memorandum in Opposition (Docket No. 127);
22. Affidavit of John M. Garrick in Opposition (Docket No. 128);
Plaintiffs Motion to Exclude Evidence:
23. Plaintiffs Motion to Exclude Evidence Relied upon by Defendants in Summary Judgment Proceedings and Memorandum in Support (Docket No. 129);
24. Plaintiffs Certificate of Compliance (Docket No. 130);
25. Plaintiffs Notice of Filing Cases Cited in Memorandum (Docket No. 131);
26. Defendants’ Memorandum in Opposition (Docket No. 134); and
27. Affidavit of John M. Garrick in Opposition (Docket No. 135).
FACTS
Plaintiff LEONARD COLODNY (“Colod-ny”) co-authored a book titled Silent Coup: The Removal of a President. This book advances a novel “theory” about Watergate. According to Colodny, it “exposes John Dean as having repeatedly lied and/or perjured himself during and after his tenure as counsel to [President Richard Nixon].” (Docket No. 3, ¶ 6). As documentation, the authors of Silent Coup cited hundreds of telephone interviews conducted and recorded by Colod-ny. Currently, John Dean (hereinafter Dean) has a pending defamation lawsuit against Colodny and others with regard to Silent Coup in Washington, D.C.
The instant ease, however, involves Dean’s lawyer, John Garrick (hereinafter Garrick). Specifically, Colodny alleges that Garrick defamed him by writing a letter to The Tampa Tribune, which was published in its “Commentary” section. (Docket No. 3, ¶ 7 & Exhibit 2; Docket No. 53, ¶ 6). In this letter, Garrick stated that he and his law firm (Co-Defendant Iverson, Yoakum, Papiano & Hatch, hereinafter IYPH) are “confident that full disclosure of all the tape recordings made by Colodny will expose Colodny’s book, ‘Silent Coup,’ as a fraud.” (Docket No. 3, Exhibit 2).
Garrick wrote this letter, which is attached as Exhibit “A”, in response to a two-part article in The Tampa Tribune written by Ray Locker (hereinafter Locker). The alleged defamatory statement (hereinafter the “fraud” statement) occurred at the end of Garrick’s letter. Before the “fraud” statement, however, Garrick purported to explain several points in Locker’s article that he viewed as “misstatements of fact.” In particular, Garrick took issue with Locker’s statement that Colodny’s tape recordings provided the heart of Colodny’s defamation defense and that Garrick and his firm tried to suppress the recordings. In fact, in the paragraph preceding the “fraud” statement, Garrick referred to Locker’s theory on these two issues as “absolute hogwash!” (Exhibit “A”). It was in this context that Garrick made the challenged “fraud” statement.
PROCEDURAL POSTURE
Following the publication of the “fraud” statement, Colodny sued Garrick and IYPH for defamation in Hillsborough County, Florida, Circuit Court under a one (1) count complaint (Docket No. 3). The defendants removed the case to this District Court (Docket No. 7), which has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (1994). (See Docket No. 3, ¶ 3; Docket No. 53, ¶4) (establishing no dispute as to complete diversity of citizenship). Subsequently, Garrick and IYPH answered (Docket No. 53) and discovery ceased on April 1, 1996 (Docket No. 101).
In the instant case, both parties move for summary judgment. (Docket Nos. 106, 111). In addition, Colodny moves to exclude certain evidence submitted by Garrick and IYPH in support of its motion. (Docket No. 129).
I. The Summary Judgment Standard.
The Court will grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(e);
Celotex Corp. v. Catrett,
II. Defamation and a Limited Public Figure.
When the plaintiff is deemed to be a limited public figure, he or she “has the burden of showing by clear and convincing evidence that the defamatory statement was (1) a statement of fact, (2) which was false, and (3) made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
Shiver v. Apalachee Publishing Co.,
A limited public figure is, in essence, someone who “voluntarily placets] themselves in a position and aet[s] in a manner which invite[s] public scrutiny and comment.”
Silvester v. American Broadcasting Companies,
Even though Colodny merely assumes arguendo that he is a limited public figure, 1 the Court concludes as a matter of law that he is one. Colodny wrote and promoted a book about Watergate, perhaps one of the most notorious events in American history. Colodny wrote this book voluntarily and for profit. Finally, Colodny recognized his position in the public eye, acted on it, and responded to public scrutiny and comment through the media. (See, e.g., Docket No. 125, ¶ 3) (Colodny’s own account of his appearance on “The Gordon Liddy Show”).
Because he had “ready access to the media,” Colodny had easily acquired limited public figure status at the time of the Garrick’s “fraud” statement.
Silvester,
III.Defamatory Statement.
“Under Florida law, words are defamatory when they charge a person with an infamous crime or tend to subject one to hatred, distrust, ridicule, contempt or disgrace or tend to injure one in one’s business or profession.”
Seropian v. Forman,
This Court concludes, as a matter of law, that Garrick’s “fraud” statement is not defamatory. First, Garrick’s words do not charge Colodny with any infamous crime. Rather, it is Colodny’s book that is associated with the word “fraud.” Although Garrick refers to Colodny’s allegedly unlawful voice recordings, those factual assertions are in no way related to the crime of fraud.
Second, Garrick’s “fraud” statement does not tend to subject Colodny to hatred, distrust, ridicule, contempt, or disgrace. At the time of Garrick’s letter, the label “fraud” was nothing new to Colodny or
Silent Coup.
Pri-
Finally, Garrick’s “fraud” statement did not tend to injure Colodny’s business or profession. Colodny had to know that
Silent Coup
would buck the mainstream and, thus, generate criticism. For better or for worse, it is a common notion that negative publicity is often “good” publicity. Indeed, Colodny does not present any record evidence before this Court that the sales of
Silent Coup
suffered as a result of published words such as Garrick’s. Therefore, in context, Garrick’s “fraud” statement is not defamatory.
See Greenbelt Cooperative Publishing Association v. Bresler,
TV. Falsity.
Just like the other elements, the element of “falsity” is an essential part of the plaintiffs
prima facie case
of defamation.
Axelrod v. Califano,
Therefore, for purposes of this Order only, the Court concludes that both parties have failed to meet their summary judgment burdens with regard to “falsity.” Garrick has failed to point out the absence of evidence to support Colodny’s case.
Celotex Corp. v. Catrett,
V Factv. Opinion.
It is well established that a “pure expression of opinion is constitutionally protected.”
E.g., Smith v. Taylor County Publishing Company,
In deciding whether the expression is a fact or an opinion, the Court must:
[E]xamine the statement in its totality and the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published.
Id.
(citing
Information Control v. Genesis One Computer Corp.,
After due consideration of its context, cautionary terms, medium, and audience, this Court concludes that Garrick’s “fraud” statement is an expression of pure opinion and, thus, not actionable by Colodny.
The context of Garrick’s “fraud” statement is substantially similar to the context of a defamatory statement in
Hay v. Independent Newspapers, Inc.,
The Hay court held that the expression was one of pure opinion and, thus, not actionable. Id. at 295. The court emphasized the context of the “crook” statements in that they appeared in the letter to the editor section of the newspaper. Id. The Hay court also reasoned that the statements “were based in part upon facts disclosed in the article, but the fact that criminal charges had been filed against [the plaintiff] was either known or readily available to the reader as a member of the public.” Id. Finally, the court stressed how the statements were “directed not toward [the plaintiff], but toward the judicial system.” Id.
Garrick’s “fraud” statement is no less an expression of pure opinion than the “crook” statements in
Hay.
Both were published as a letter to the editor. Like the “crook” statement, Garrick’s “fraud” statement relies upon several paragraphs of detailed, disclosed factual assertions. Garrick’s “fraud” statement also refers to his client’s defamation lawsuit against Colodny, which is a “readily available” matter of public record just as the
Hay
plaintiffs criminal charge was. Finally, just as the “crook” statement was directed at the judicial system and not the plaintiff, Garrick’s “fraud” statement was directed at Colodny’s book and Locker’s article, not Colodny himself. Indeed, the “fraud” statement is proximately linked with Garrick’s hyperbolic reaction to Locker’s theory that Colodny’s tapes validate
Silent Coup:
“absolute hogwash!” Therefore, in context, the “fraud” statement is an expression that “cannot reasonably be interpreted as stating actual facts” about Colodny.
Milkovich v. Lorain Journal Co.,
Second, the “fraud” statement is properly deemed an expression of pure opinion because Garrick sufficiently cautions it as such. Indeed, rather than an outright proclamation, Garrick merely stated that he was “confident” that full disclosure of Colodny’s recorded interviews would reveal Silent Coup as a fraud. This commentary was clearly an expression of his legal theory of Dean’s pending defamation suit against Colodny. It is only natural that Garrick, Dean’s lawyer, would conclude his response to Locker’s article with his theory of the case.
Finally, other circumstances with regard to the “fraud” statement lead this Court to conclude that it is an expression of pure opinion. As noted supra, the “fraud” statement appeared in a medium that invites opinion, in that it was a letter to the editor and published in The Tampa Tribune’s “Commentary” section. The Tribune no doubt published the letter because many readers of Locker’s article about Garrick and his firm would want to see their reaction to it.
Although not binding precedent, the case of
Henry v. Halliburton,
After an extensive and accurate review of the law of defamation, the Supreme Court of Missouri, sitting en banc, held that the defendant’s statements were non-actionable expressions of opinion. Id. at 790. Highly instructive with regard to the instance case, the Henry court stated:
The words relied on most heavily by appellants are the words “fraud” and “twister.” Unless it can be established that by the use of the words “fraud” or “twister” respondent was accusing appellants of having committed a specific crime, then the use of these words would be too imprecise, undefinable and no more actionable that [sic] the words “with greed” “to fleece a consumer.”
* * * * * *
Considering these words in light of all relevant circumstances, we believe that.... [the defendant] is not charging the commission of any specific crime, and “broad, unfocused, wholly subjective eomment[s]” that do not suggest to the ordinary reader that the plaintiff committed a crime are not actionable.
Just as the Henry court believed that the word “fraud” was too imprecise, undefinable, and non-actionable, so does this Court. Furthermore, as discussed supra, Garrick’s words do not suggest to the ordinary reader that Colodny committed a crime. Therefore, the totality of the circumstances surrounding the “fraud” statement clearly lead this Court to conclude that it was an expression of non-actionable, pure opinion.
VI. Actual Malice.
Because Colodny is a limited public figure, his defamation suit is subject to First Amendment limitations.
Harte-Hanks Communications, Inc., v. Connaughton,
A defendant acts with “actual malice” if he or she makes the challenged statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”
New York Times Co. v. Sullivan,
For purposes of summary judgment, this Court must determine “whether the evidence presented [by Colodny] is such that a reasonable jury might find that actual malice had been shown with, convincing clarity.”
Anderson v. Liberty Lobby, Inc.,
Even if the Court assumes the truth of Colodny’s argument, i.e. that Garrick listened to only “one or two minutes” of the accessible tapes and primarily relied upon his client’s word, such record evidence is insufficient to support an inference of actual malice. While it is true that a public figure often “must rely upon circumstantial evidence to prove his case,” it “is well established that evidence that a publisher failed to investigate prior to publication does not, by itself, prove actual malice.”
Hunt v. Liberty Lobby,
There is no more record evidence of actual malice in this case than there was in
Meisler v. Gannett Company,
Just as no reasonable jury could have found actual malice by clear and convincing evidence in Meisler, no reasonable jury could find actual malice in the instant ease. Indeed, Garrick’s investigation was certainly no less cursory than the Meisler reporter’s. Both the Meisler defendant and Garrick had access to more information. Like the Meis-ler record, the record in this case supports an inference of negligence at best, which is “not the appropriate standard for proving actual malice.” Id.
Furthermore, the fact that Garrick relied on his client for much of the information does not raise a genuine issue of material fact with respect to actual malice. Colodny’s assertion that Dean is inherently unreliable is of little surprise in light of the contents of Silent Coup and Dean’s pending defamation suit against Colodny. However, this Court finds it wholly disingenuous on the part of Colodny to now assert that Garrick inadequately investigated his client’s position that Silent Coup is a fraud. Certainly, if Colodny truly believed that Garrick’s investigation was “grossly inadequate,” he would have moved for sanctions under the “reasonable inquiry” prong of Fed.R.Civ.P. 11 in the Dean lawsuit.
Therefore, after due consideration of the parties’ record evidence, arguments, and case law analogies, this Court concludes that Co-lodny fails to raise a genuine issue of material fact with respect to actual malice.
The final ground for granting summary judgment in favor of Garrick and IYPG involves the doctrine of fair comment. As handed down from the courts of England, the law of libel “recognizes fair comment as a complete defense to a charge of a libelous publication.”
Guitar v. Westinghouse Electric Corp.,
The Court concludes, as a matter of law, that the doctrine of fair comment bars Colodny from recovering for defamation. Garrick certainly “had an interest in defending” against the contents of Looker’s article, and Colodny’s statements therein, both as Dean’s lawyer and as the subject of Locker’s article.
See Abram v. Odham,
Overall, Colodny’s defamation claim patently deserves summary disposition in light of the Court’s conclusions
supra.
By granting the defendants’ motion for summary judgment, this Court is in no way invading the province of the jury. Rather, the Court is upholding its duty to prevent “a forbidden intrusion on the field of free expression.”
Bose Corp. v. Consumers Union of United States, Inc.,
ORDERED that Defendants’ Motion for Summary Judgment (Docket No. 106) be GRANTED; Defendants’ Request for Oral Argument (Docket No. 105) be DENIED; Plaintiffs Motion for Partial Summary Judgment (Docket No. Ill) be DENIED as without merit in light of the Court’s decision to grant the defendants’ motion; Plaintiffs Motion to Exclude Evidence (Docket No. 129) be DENIED as without merit and because the evidence sought to be excluded was in no way dispositive of this Court’s Order; and the Clerk of Court shall ENTER final judgment in favor of Defendants and DISMISS this cause of action.
DONE AND ORDERED.