284 F.3d 977 (9th Cir. 2002), 00-16616, Buskirk v. Cable News Network

Docket Nº:00-16616
Citation:284 F.3d 977
Case Date:March 20, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 977

284 F.3d 977 (9th Cir. 2002)




No. 00-16616

United States Court of Appeals, Ninth Circuit

March 20, 2002 San Francisco, California

December 5, 2002

Page 978

Appeal from the United States District Court for the Northern District of California Jeremy Fogel, District Judge, Presiding D.C. Nos. CV-98-20946-JF; CV-99-20889-JF

Counsel: Charles E. Lyons, Charlotte, North Carolina, and Bruce J. Robbins and Elihu H. Berman (argued), Clearwater, Florida, for the appellant. Kevin T. Baine, Nicole K. Seligman, Thomas G. Hentoff, Mary-Rose Papandrea, and Paul Gaffney (argued), Washington, D.C., for the appellee.

Before: Myron H. Bright,1 Betty B. Fletcher, and Raymond C. Fisher, Circuit Judges.

Bright, Circuit Judge


Appellant Robert Van Buskirk brought an action for defamation against Appellees, Cable News Network (CNN), Time Inc., and Time Warner Inc., based upon a series of television and magazine reports stemming from Operation Tailwind, a 1970 United States military operation conducted in Laos. The district court dismissed the action with prejudice for failure to state a claim upon which relief can be granted. We AFFIRM the district court in part and REVERSE and REMAND in part.

I. Facts and Procedural Background

Robert Van Buskirk filed his initial complaint alleging defamation in the United States District Court for the Western District of North Carolina in June of 1999. Page 979

The Judicial Panel on Multidistrict Litigation transferred the case to the Northern District of California and consolidated it with six other libel cases based on the Tailwind reports. Appellees, CNN, Time Inc., and Time Warner Inc., filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. On March 20, 2000, the district court granted Appellees' motion, but allowed Van Buskirk leave to amend his complaint "in order to ensure that [Van Buskirk] has every opportunity to present a viable claim before the Court reaches any decision as to final dismissal of his action." Van Buskirk filed his Second Amended Complaint on May 30, 2000. After a hearing on the matter, the district court again granted Appellees' motion to dismiss, this time with prejudice and without leave to amend.

Van Buskirk's defamation claims stem from news reports broadcast by CNN and by an article published in Time Magazine. Both CNN and Time reported that the United States military used sarin nerve gas during Operation Tailwind, the purpose of the operation was to kill American defectors, and women and children were killed during the operation. Van Buskirk also complains that he was defamed by a subsequent retraction of the reports on CNN that described him as a "primary source" who gave inconsistent statements to CNN and took medication for a nervous disorder.

Specifically, on June 7, 1998, CNN aired its first broadcast of NewsStand: CNN & Time, a television news program, featuring the first of a two-part series concerning Operation Tailwind. Time Magazine published an article reporting virtually the same story.2 On June 14, CNN broadcast a follow-up report setting forth opposing views regarding the type of gas that was used in the operation.3

Prior to the broadcast, CNN repeatedly interviewed Van Buskirk. CNN recorded six or seven hours of video and audio tape concerning Van Buskirk's participation in Operation Tailwind as a lieutenant in the United States Army Special Forces. Van Buskirk's words and image from those interviews appeared throughout the challenged reports.

After the broadcast of the Tailwind reports, CNN retained a First Amendment attorney, Floyd Abrams, of New York, to conduct a review of the factual basis for the reports. On July 2, 1998, CNN published a report (the "Abrams report") which concluded that CNN should retract the story because the record established insufficient credible evidence to support the story's claims. The same day, CNN retracted its broadcast and apologized. On July 5, CNN broadcast an additional report discussing at length both the Abrams report and the decision to retract.

In this report, featured on the CNN program Talkback Live, a CNN correspondent stated that Van Buskirk "wrote a book about the incident which never mentioned nerve gas nor defectors, that his statements in different interviews with Page 980

CNN were inconsistent, and that his own knowledge of what sort of gas was used was limited." The correspondent also reported that Van Buskirk "said he had been taking drugs for a nervous disorder for ten years though he finally stopped." Similar statements were made on a follow-up segment on NewsStand, later that day. In an interview for the segment, Floyd Abrams mentioned Van Buskirk: "And worst of all, worst of everything, he didn't know what he was talking about. He's not a guy who would know if it was nerve gas or sleeping gas or tear gas. He was on the ground." Defendant's Motion to Dismiss Ex. 5 at 4.

After Van Buskirk filed his Second Amended Complaint, the district court again considered CNN's motion to dismiss. The district court, without objection, concluded that it could properly consider the complete interview transcripts and tapes under the incorporation by reference doctrine.4 The court then dismissed the complaint with prejudice and denied leave to amend. Van Buskirk appeals this order.

II. Standard of Review

The district court granted defendants' motion to dismiss under Rule 12(b)(6). Ordinarily, a court may look only at the face of the complaint to decide a motion to dismiss. In this case, the district court relied on the doctrine of"incorporation by reference" to consider documents that were referenced extensively in the complaint and were accepted by all parties as authentic. See In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999). Under the "incorporation by reference" rule of this Circuit, a court may look beyond the pleadings without converting the Rule 12(b)(6) motion into one for summary judgment.

We review de novo the district court's dismissal of complaints for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Id. at 983. "A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Rabang v. INS, 35 F.3d 1449, 1451 (9th Cir. 1994) (citing Buckey v. County of Los Angeles , 968 F.2d 791, 793-94 (9th Cir. 1992)).

III. Discussion

A. Original Broadcasts

After reviewing the CNN interviews with Van Buskirk as a whole, the district court concluded as a matter of law that Van Buskirk could not maintain a defamation action based upon the reported use of deadly nerve gas or the targeting of American defectors because such reports were consistent with Van Buskirk's own version of events as told to Appellees. The district court did acknowledge that the reports contained some "contextual discrepancies," but ultimately decided that a defamation claim could not stand where a report was entirely consistent with the plaintiff's version of events. Additionally, the court found no authority for "the proposition that publication of statements obtained during repetitive, suggestive or even brutal interviews gives rise to a claim for defamation."

Van Buskirk argues that the district court erred on several grounds. First, Van Buskirk maintains that Appellees relied on coercive interview tactics, such as repeatedly"interrogating" him, to elicit statements from him. In the same vein, Van Buskirk claims Appellees "planted in his mind the belief that the true mission might have been to kill American defectors." Second, Van Buskirk alleges Page 981

that Appellees took excerpts from the hours of "repetitive suggestive questioning" out of context in order to support its dual premises about the use of sarin gas and the killing of American defectors. 5 Finally, Van Buskirk argues that CNN reported that women and children had been killed by members of Operation Tailwind when truthful information provided by Van Buskirk indicated that he had no personal knowledge of any such killings.

Van Buskirk cites only one case in support of these arguments, Flake v. Greensboro News Co., 195 S.E. 55, 60 (N.C. 1938), which held that a court should determine how ordinary people would naturally understand the publication in deciding whether or not it is libelous.6 In his briefs to this court, Van Buskirk does not attempt to refute the district court's legal conclusion that reports consistent with a plaintiff's own version of events cannot be found to defame that individual.

In reviewing the district court's conclusions, we note that the court cited Brown v. Boney, 255 S.E.2d 784, 791 (N.C. Ct. App. 1979) (holding that under North Carolina law an admission of the truth of the statement is a complete defense to a defamation claim), in support of its conclusion that Van Buskirk cannot maintain a defamation action because Appellees' reports were consistent with Van Buskirk's own version of events as told to Appellees. Significantly, Brown stands for the proposition that truth is a defense to defamation, not that a paraphrasing of plaintiff's own words by a defendant does not amount to defamation. Without explicitly saying so, the district court in this case extended North Carolina's "truth" defense to include an"own words" defense. Other courts have recognized the logical extension of the "truth" defense to include an "own words" defense. See Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir. 1993) ("[A] party's accurate quoting of another's statement cannot defame the speaker's...

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