Keller v. Miami Herald Pub. Co.

• Decision Date: 19 December 1985
• Docket Number: Nos. 84-5506,84-5641,s. 84-5506
• Citation: 778 F.2d 711
• Parties: , 12 Media L. Rep. 1561 Arlene KELLER, as Personal Representative of the Estate of Gerald D. Keller, Plaintiff-Appellant, v. The MIAMI HERALD PUBLISHING CO., a Florida corporation, Defendant-Appellee. Arlene KELLER, as Personal Representative of the Estate of Gerald D. Keller, Plaintiff-Appellant, v. The MIAMI HERALD PUBLISHING CO., a Florida corporation, and Knight-Ridder Newspapers, Inc., a Florida corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 711

778 F.2d 711

54 USLW 2403, 12 Media L. Rep. 1561

Arlene KELLER, as Personal Representative of the Estate of Gerald D. Keller, Plaintiff-Appellant, v. The MIAMI HERALD PUBLISHING CO., a Florida corporation,

Defendant-Appellee.

Arlene KELLER, as Personal Representative of the Estate of Gerald D. Keller, Plaintiff-Appellant, v. The MIAMI HERALD PUBLISHING CO., a Florida corporation, and Knight-Ridder Newspapers, Inc., a Florida

corporation, Defendants-Appellees.

Nos. 84-5506, 84-5641.

United States Court of Appeals Eleventh Circuit.

Dec. 19, 1985.

Patricia A. Peoples, R. Stuart Huff, Coral Gables, Fla., for plaintiff-appellant.

Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Sanford L. Bohrer, Laura G. Pula, Richard Ovelmen, Miami, Fla., for defendant-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, TJOFLAT, Circuit Judge, and SIMPSON, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

The principal question presented in these consolidated appeals ¹ is whether an editorial cartoon defamed the appellant's decedent. The district court concluded that the cartoon was not capable of being interpreted as a defamatory statement of fact and therefore granted appellees' motions for summary judgment. We agree with the district court's conclusion and affirm.

I.

This case arose out of publicity surrounding the operation of Krestview Nursing Home ² located in Miami, Florida. Gerald Keller, appellant's decedent, owned the home and leased the facility to others who operated it. Krestview became the focus of public attention in 1977 when the Miami Herald, in a series of articles, reported that Keller's lessee had been convicted of misusing $50,000 in state funds earmarked for the patients' personal expenditures. The articles specifically stated that Keller had not been suspected of criminal conduct.

On February 4, 1979, the Herald published a long article detailing what the reporter considered to be extremely poor conditions at the Krestview facility. ³ The article named the former and then current operators of Krestview and identified Keller as Krestview's owner. The article also revealed that Keller had been paid $337,014 for twelve months' rent (presumably for the year 1978), although this amount was more than half the property's assessed value.

On July 28, 1980, the Health Care Financing Administration (HCFA), the federal agency responsible for Medicaid reimbursements and for overseeing state enforcement of Medicaid regulations, sent an inspection team to Krestview. The team cited in their report various deficiencies in the level of care afforded patients at Krestview. Upon completion of the inspection, HCFA immediately informed the State of Florida Department of Health and Rehabilitative Services (HRS) that HCFA would cut off Medicaid payments to Krestview in thirty days.

Reacting to HCFA's decision, HRS filed in state court a petition for injunctive and declaratory relief, seeking authority to transfer Krestview's patients to other nursing homes and to close the facility permanently. The court entered a consent order proposed by the parties which permitted HRS to take over the facility "in order to insure the health, safety and welfare of patients." During the weeks that followed, HRS operated Krestview while evacuating patients to other facilities; on October 28, 1980, Krestview was closed. ⁴

The Miami Herald published four articles between July 25 and October 28, 1980, reporting on HRS's seizure of Krestview. The article appearing on October 28, the day Krestview was closed, recounted the troubled history of the home, including the criminal investigations of its operators. None of these articles identified Keller as one of Krestview's operators or indicated that he had been a target of any criminal investigation.

On October 29, 1980, the Herald published an editorial cartoon ⁵ which depicted three men in a dilapidated room. On the back wall was written "Krest View Nursing Home," and on the side wall there was a board which read "Closed By Order Of The State of Florida." The room itself was in a state of total disrepair. There were holes in the floor and ceiling, leaking water pipes, and exposed wiring. The men in the room were dressed in outfits resembling those commonly appearing in caricatures of gangsters. Each man carried a sack with a dollar sign on it. One of the men was larger than the other two and was more in the forefront of the picture. One of the others addressed him. The caption read: " 'Don't Worry, Boss. We Can Always Reopen It As A Haunted House For The Kiddies ...' "

Two and one-half years after the cartoon appeared, this libel action was filed against the Miami Herald Publishing Co. by the personal representative of Gerald Keller's estate. ⁶ The complaint alleged that Keller had been defamed because the cartoon falsely depicted Krestview as being in the physical condition portrayed in the picture and because the cartoon falsely identified Keller's personal representative appeals from both summary judgments, claiming that summary judgment was inappropriate in both instances because several material facts remain unresolved. ⁸ Because we conclude that the challenged cartoon could not reasonably have been interpreted as depicting an actual room in Krestview and as implying that Gerald Keller had engaged in specific criminal activity and, because the reasonable inferences which would have been drawn from the cartoon were either true or a statement of pure opinion, we affirm.

him as a criminal. Miami Herald Publishing Co. moved for summary judgment, ⁷ and Keller's personal representative simultaneously moved the court for leave to file an amended complaint adding Knight-Ridder Newspapers, Inc., as a party defendant. Apparently, there was some doubt whether Knight-Ridder or Miami Herald Publishing Co., a division of Knight-Ridder, had published the newspaper in which the cartoon appeared. The court granted Miami Herald Publishing Co.'s motion for summary judgment, concluding that the cartoon was a statement of pure opinion and was not capable of being interpreted as a defamatory statement of fact. The court then granted the personal representive's motion for leave to amend, and Knight-Ridder was made a defendant in the case. Knight-Ridder promptly moved for summary judgment, and the court granted its motion, again concluding that the cartoon constituted a statement of pure opinion.

II.

In passing on the propriety of the district court's grants of summary judgment, we apply the same legal standard a district court must employ, Thrasher v. State Farm Fire & Casualty Co., 734 F.2d 637, 638 (11th Cir.1984) (per curiam): that the evidence, viewed in a light most favorable to the party opposing the motion, demonstrates the absence of a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). We hold that, because the cartoon in question was not capable of being interpreted as a defamatory statement of fact, appellees were entitled to summary judgment as a matter of law.

The rule of decision in a diversity action is provided by state law. Erie Railroad v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Florida law requires as part of a successful libel suit that the statement at issue be reasonably capable of a defamatory interpretation; this determination is to be made by the trial judge in the first instance, prior to the jury's evaluation of whether the statement With these guidelines before us, we examine the cartoon, determining first how a reasonable individual would have interpreted it. As the Supreme Court has acknowledged, the circumstances in which statements are expressed must play an essential role in arriving at a reasonable interpretation. In Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), a newspaper was held liable in Maryland state court for republishing several speakers' comments at a city council meeting that the plaintiff was "blackmailing" the council so he could obtain some zoning variances. The Supreme Court granted certiorari and reversed, holding that, as a matter of law, the word "blackmail," when considered in the full context of the article, could not reasonably have been interpreted as alleging that the plaintiff had engaged in criminal activity. Rather, the word was "no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the plaintiff's] negotiating position extremely unreasonable." Id. at 14, 90 S.Ct. at 1542.

                was in fact understood as defamatory. 9   Belli v. Orlando Daily Newspapers, Inc., 389 F.2d 579, 583 (5th Cir.1967), cert. denied, 393 U.S. 825, 89 S.Ct. 88, 21 L.Ed.2d 96 (1968). 10   In addition, the plaintiff must show that the statement was a false statement of fact as distinguished from opinion, which is protected by the first amendment.   Hay v. Independent Newspapers, Inc., 450 So.2d 293, 295 (Fla.Dist.Ct.App.1984);  Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50, 52 (Fla.Dist.Ct.App.1976) (per curiam), cert. denied, 354 So.2d 351 (1977), cert. denied, 439 U.S. 910, 99 S.Ct. 277, 58 L.Ed.2d 255 (1978). 11   Whether the challenged statement was one of fact or opinion is likewise a question of law to be decided by the court.   See From v. Tallahassee Democrat, Inc., 400 So.2d 52, 56-57 (Fla.Dist.Ct.App.1981)
                

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