Horsley v. Rivera

• Decision Date: 28 May 2002
• Docket Number: No. 01-15821.,01-15821.
• Citation: 292 F.3d 695
• Parties: Neal HORSLEY, d.b.a. Pathway Communications, d.b.a. Christiangallery.com, d.b.a. Bestchoice.com, d.b.a. The Creator's Rights Party, Plaintiff-Appellee, v. Geraldo RIVERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

292 F.3d 695

Neal HORSLEY, d.b.a. Pathway Communications, d.b.a. Christiangallery.com, d.b.a. Bestchoice.com, d.b.a. The Creator's Rights Party, Plaintiff-Appellee, v. Geraldo RIVERA, Defendant-Appellant.

No. 01-15821.

United States Court of Appeals, Eleventh Circuit.

May 28, 2002.

COPYRIGHT MATERIAL OMITTED

Daniel M. Kummer, National Broadcasting Co., Inc., New York City, Joseph R. Bankoff, King & Spalding, Atlanta, GA, for Defendant-Appellant.

Neal Horsley, Carrollton, GA, pro se.

Before BIRCH, HILL and HALL^*, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Defendant/appellant Geraldo Rivera appeals the district court's determination that a statement Rivera made to plaintiff/appellee Neal Horsley during the course of a television program hosted by Rivera is not protected as a matter of law by the First Amendment of the United States Constitution nor by applicable state law. Rivera asserted that Horsley was an "accomplice to murder." Because we find that Rivera's allegedly defamatory statement is absolutely protected as rhetorical hyperbole by both the First Amendment and applicable state defamation law, we reverse.

FACTS

Horsley brought this action against Rivera for libel and slander based on an allegedly defamatory statement that was made during the course of a 1998 television interview.

An anti-abortion activist and founder of the Creator's Rights Party, Horsley created and operated a number of anti-abortion web sites on the Internet. One of these web sites listed the names, addresses and Social Security numbers of individual doctors who were known to perform abortions.

In October 1998, Dr. Bernard Slepian, a medical doctor who performed abortions as part of his practice, was shot and killed while standing in the kitchen of his home in Buffalo, New York. His murder attracted national and international media attention. Horsley claims that Dr. Slepian's name and address were not posted on his web site prior to the murder; however, subsequently, Horsley added this information to his list of doctors known to perform abortions and then graphically crossed out Dr. Slepian's entry (Horsley struck an "X" through the entry for Dr. Slepian's name).

On October 27, 1998, four days after the murder of Dr. Slepian, Horsley voluntarily appeared as a participant on the "Upfront Tonight" news and talk-show program hosted by Rivera, broadcast live by the CNBC cable network (the "Program"). At the beginning of the segment of the Program dealing with Horsley's activities, Rivera introduced Horsley, described his anti-abortion web site, and reminded viewers of the recent murder of Dr. Slepian: "The victim of the most recent attack, Dr. Slepian, was well known to abortion opponents. His name and address were posted on a bizarre anti-abortion Web site called The Christian Gallery. Its title page drips with computer-generated blood. Neal Horsley is the owner of that Web site and founder of the so-called Creators Rights Party." Rivera concluded his introduction by addressing Horsley:

Rivera: Now I understand that, technically, you've spoken out against the death — of the murder of Dr. Slepian. You said, "We want to make one thing clear, that we don't want to see anybody die." Yet by crossing out his name on the hit list as he was murdered, as you have for others who have been killed, it seems to me, sir, that you are, in fact, encouraging others to strike out with violence.

Horsley: What it seems like to you is not at all what we're doing. I've been saying for five years that we are gonna be facing a pattern of escalating domestic terrorism in this nation. You call this program a — a war against abortion. The fact is, a war is what happens when government gives its citizens permission to kill other people. And the government of the United States of America gave the citizens of this nation permission to kill unborn babies. That's when the war started. What I'm trying to do is put an end to this war by trying to overturn Roe v. Wade.

Rivera: Overturn is a — is a constitutional fight. It may be a courtroom fight. But in listing these people's names and their addresses and their Social Security number, what you are doing, in my opinion is aiding and abetting a homicide.

Horsley: Well, you're entitled to your opinion, and certainly every — everybody has one, but what I'm doing is doing exactly what we say. We're trying to accumulate evidence because our hearts' desire — is to see the day come when we can prosecute these people who make a living killing God's children. That's what we want to do. And we have the right, as American citizens, to try to change the law through legal means so that we can, in fact, see the day come when these people could be brought to the bar of justice.

Rivera: You know, you speak of justice and yet you cross out a man's name. He's shot dead in front of his family, a bullet coming through the window of his home; a coward's attack. How can you sit there with a straight face and pretend such righteousness?

Horsley: I'm not pretending righteous — I've got blood of these children on my hands. As a citizen of the United ...

Rivera: You may have the blood of this doctor on your hands, Mr. Horsley.

Horsley: Well, I — the — the point is that 3,000 babies a day are dying. And as a citizen of the United States of America, I have a choice. I can stand by and collaborate with that slaughter or I can do what I can do to stop it. It's not against the law for me to keep a list of people who are — are practicing — making a living killing babies. That's all I've been doing.

Rivera: Would you dare say that to Dr. Slepian's widow? Would you dare say that to his children?

Horsley: I say that now. That's exactly what I'm doing. I say that to every abortion doctor and every family of every abortionist in the country, that we really want to see you brought to justice. We want to see you tried, because what you're doing is killing God's children.

Rivera: And where — and where in your faith — where in the Christian faith does it — does it justify what you do by — by giving information that would allow a murderer access...

Horsley: What we're...

Rivera: ... that would allow a target to be made more vulnerable than ever? Where in the Bible does it give you that right?

Horsley: The — the Yellow Pages gives the same information that we give. And the Bible says that God ordains government to enforce the law, to protect the lives of — of people who are being slaughtered unmercifully, and that's what's happening to these babies. And — and everybody can ignore 'em, but there are people here who are not going to ignore the slaughter of these children.

Rivera: And how about the slaughter of this man? This man who...

Horsley: It's a tragedy. I've said it's a tragedy.

Rivera: ... they say in the Buffalo area was a — a man who mercifully ga — gave birth or helped women give birth in difficult conditions; who was generous of spirit; who was a compassionate man; who helped many more babies be born than he ever performed the — the — the procedure of abortion. What about him?

Horsley: I'm not trying to...

Rivera: Does that makes [sic] 3,001? Is his death less than theirs?

Horsley: I had nothing to do with his death, nor am I trying to justify...

Rivera: How can you say that? You crossed out his name on that damn list.

Horsley: Because...

Rivera: How dare you?

Horsley: Because I'm keep — I'm keeping a list of the people who are being killed, because I've been saying all along, it's not just babies who are at risk. Geraldo, my life is at risk. Your life is at risk. This whole nation's very existence is at risk.

Rivera: You are an accomplice to homicide, Mr. Horsley.

Horsley: You are, too, because you're — you're showing exactly the same information. You're telling people about The Nuremberg Files list. You're a collaborator just like I am, if that's true.

Rivera: If giving you publicity is, then I feel ashamed. I feel deeply ashamed of myself.

Horsley: Well, you should be because you — that's how you sell — that's how you sell your time.

Rivera: Oh, go on, sell our time.

Horsley: You sell your time. That's what you're doing. That's why you've got me on here, because people are tuning in. You know it. They know it.

Rivera: Because people want to see the real face of a — of an accomplice to homicide, and they're looking at your face now. And they understand what you're doing.

Horsley: Well, you can call me what you want to call me.

Rivera: And don't think to fool with rhetoric, with your empty rhetoric. You have — you have set back the pro-life movement. You — take to people like the Reverend Falwell, and they look at you with disdain. They look at you with disgust for what you are doing.

Horsley: I don't care what they look at me as.

Rivera: And you pretend to use the Constitution to shield your activities.

Horsley: What I care about is the fact there are 3,000 babies being slaughtered every day, and I'm gonna do my best to see it stopped.

Rivera: If — if — if you are the face of the pro-life movement, then you have helped defeat the very movement that you say you cherish.

Horsley: Well, you can say that, but we'll see what happens over time.

Rivera: Yeah. We'll see.

Horsley: That's where it'll turn.

Rivera: Is my name going to be on your list next?

Horsley: I hadn't thought about it ...

Rivera: Yeah.

Horsley: ... but it—it's a good idea.

Rivera: Good night. Good night, Mr. Horsley, I'm sure.

Soon after appearing in this interview, Horsley began receiving threatening emails and letters. Many of these messages contained death threats against Horsley or his family.

Horsley filed suit against Rivera for libel and slander, asserting that Rivera made false and malicious defamatory statements against him by falsely accusing him of committing a felony — specifically, of being an accomplice to murder in the death of Dr. Slepian.¹ Rivera moved for judgment on the pleadings, asserting that...