37 F.3d 1541 (4th Cir. 1994), 94-1050, Foretich v. Capital Cities/ABC, Inc.

Docket Nº:94-1050.
Citation:37 F.3d 1541
Party Name:Vincent P. FORETICH; Doris Foretich, Plaintiffs-Appellees, v. CAPITAL CITIES/ABC, INC.; American Broadcasting Companies, Incorporated; ABC Holding Company, Incorporated; The Landsburg Company; Alan Landsburg; Linda Otto, Defendants-Appellants.
Case Date:October 17, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1541

37 F.3d 1541 (4th Cir. 1994)

Vincent P. FORETICH; Doris Foretich, Plaintiffs-Appellees,

v.

CAPITAL CITIES/ABC, INC.; American Broadcasting Companies,

Incorporated; ABC Holding Company, Incorporated;

The Landsburg Company; Alan Landsburg;

Linda Otto, Defendants-Appellants.

No. 94-1050.

United States Court of Appeals, Fourth Circuit

October 17, 1994

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[Copyrighted Material Omitted]

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Argued July 12, 1994.

ARGUED: William Bradford Reynolds, Sr., Dickstein, Shapiro & Morin, Washington, DC, for appellants. MacKenzie Canter, III, Copilevitz & Canter, Washington, DC, for appellees. ON BRIEF: Paul R. Taskier, Adam Proujansky, Dickstein, Shapiro & Morin, Washington, DC, for appellants. Mark J. Diskin, Copilevitz & Canter, Washington, DC, for appellees.

Before MURNAGHAN, Circuit Judge, and BUTZNER and PHILLIPS, Senior Circuit Judges.

Affirmed and remanded by published opinion. Judge MURNAGHAN wrote the opinion, in which Senior Judge BUTZNER and Senior Judge PHILLIPS joined.

OPINION

MURNAGHAN, Circuit Judge:

Vincent and Doris Foretich filed a defamation action against the producers and broadcasters of an ABC docudrama in which a character apparently referred to one or both of them as "abusers" of their granddaughter, Hilary A. Foretich, who had been the subject of a prolonged and highly publicized child-custody dispute. On the defendants' pretrial motion, the district court ruled that Vincent and Doris Foretich were "private individuals," not "limited-purpose public figures," and therefore would not have to prove at trial that the defendants acted with "actual malice." The issue of the Foretiches' proper status--"private individuals" or "limited-purpose public figures"--is now before us on interlocutory appeal. Although we conclude that the Hilary Foretich custody battle became a "public controversy," we hold that neither of her paternal grandparents was a "public figure" for the purpose of comment on that controversy because their public statements and actions were made predominantly in self-defense. We therefore affirm the district court's ruling and remand the case for further proceedings.

I

A

Hilary Foretich's parents, Dr. Elizabeth Morgan and Dr. Eric A. Foretich, were separated by the time she was born. By the time she learned to walk, the parents were divorced and embroiled in what would become one of the most notorious child-custody battles in American history.

In 1983, the Superior Court of the District of Columbia awarded temporary custody of Hilary to her mother, Dr. Morgan, subject to scheduled visitations by the child's father, Dr. Foretich. See Morgan v. Foretich, No. D684-83 (D.C.Super.Ct.1983). Over the next few years, Dr. Morgan allegedly came to believe that Hilary was being sexually abused during visitations with her father and the paternal grandparents, Vincent and Doris Foretich. Dr. Morgan sought a temporary suspension of the visitations, but the D.C. Superior Court denied her request. See Morgan v. Foretich, 564 A.2d 1, 2 (D.C.1989).

Following one of Hilary's visitations with the Foretiches in February 1986, Dr. Morgan refused to permit any further visits. A flurry of motions and hearings ensued, and in July 1986 Dr. Morgan was held in contempt and briefly incarcerated. See id. She still refused to turn the child over to her alleged abusers and, following another series of motions, hearings, contempt orders, and appeals, Dr. Morgan was again jailed for contempt in February 1987. Supervised weekend visitations then resumed for several months in compliance with the court's orders, while motions for emergency stays filed by Dr. Morgan, and by Hilary's guardian ad litem, were denied. See Morgan v. Foretich, 546 A.2d 407, 409-10 (D.C.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 790, 102 L.Ed.2d 781 (1989).

Also in 1986, Dr. Morgan and Hilary brought civil actions in the United States District Court for the Eastern District of Virginia, Alexandria Division, seeking damages and an end to Dr. Foretich's visitation rights. The plaintiffs claimed that Hilary had been physically and sexually abused by Eric, Vincent, and Doris Foretich, and that the Foretiches had threatened to kill or injure

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Hilary if she told anyone about the abuse. Specifically, the complaint accused the girl's grandfather, Vincent Foretich, of (1) manipulating Hilary's genitalia; (2) inserting various foreign objects into her vagina; (3) orally sodomizing her; (4) anally sodomizing her; and (5) masturbating himself and ejaculating into her face and hair. The complaint accused Doris Foretich of "various acts of sexual abuse and assault and battery upon her granddaughter, specifically including but not limited to acts in which she inserted objects into her vagina." Complaint, Morgan v. Foretich, C.A. No. 86-0944-A (E.D.Va.1986). The defendants filed counterclaims alleging defamation. In February 1987, following a four-day trial in which Hilary's parents and paternal grandparents testified, the jury returned a verdict against Dr. Morgan on the abuse claims and against the Foretiches on the defamation claims. Both sides appealed, and we reversed and remanded in part, see Morgan v. Foretich, 846 F.2d 941 (4th Cir.1988), but the case was never retried. 1 None of the Foretiches was ever indicted for, much less convicted of, any criminal act of child abuse.

In the meantime, Dr. Morgan hid Hilary. A District of Columbia Superior Court Judge ordered Dr. Morgan to disclose Hilary's whereabouts. She refused. Her third incarceration for civil contempt began in August 1987 and continued for twenty-five months, as Dr. Morgan steadfastly refused to reveal the location of Hilary's hideout. See Morgan v. Foretich, 564 A.2d at 3, 21.

While Dr. Morgan spent twenty-five months in a D.C. jail, the controversy generated a torrent of publicity. Dr. Morgan and Dr. Foretich (and their lawyers and surrogates) exchanged charges and countercharges. Each parent hired a public relations agent and commissioned a toll-free "800" number. Hundreds of newspaper and magazine articles were published about virtually every aspect of the controversy. The broadcast media devoted extensive coverage to the dispute and to the various public policy debates that it inspired. On Capitol Hill, the House Committee on the District of Columbia, having received "the largest outpouring of mail regarding a single issue" in its history, reported that the affair was "a local and national issue joining together various political, social, and religious organizations." 2 Magazines termed it "a national cause, taken up by feminist groups, talk-show hosts, and columnists" 3 and a "legal battle that made headlines around the world." 4

Over Dr. Foretich's vocal objections, in September 1989 Congress enacted and President Bush signed into law the District of Columbia Civil Contempt Imprisonment Limitation Act of 1989, Pub.L. No. 101-97, 103 Stat. 633 (codified at D.C.Code Secs. 11-721(f), 11-741(b), 11-944(b)). The Act stated that no person could be imprisoned for civil contempt by the D.C. Superior Court for more than twelve months in connection with a child-custody case. It also specified the circumstances under which a criminal contempt conviction could be imposed in a child-custody dispute, and provided for expedited appeals for those incarcerated for contempt in such cases. See id. As a result of the new Act, the D.C. Court of Appeals ordered Dr. Morgan's release. See Morgan v. Foretich, 564 A.2d at 21.

In 1990, a private investigator hired by Dr. Foretich found Hilary living with her maternal grandparents in Christchurch, New Zealand. Hilary's father and the paternal grandparents rushed to New Zealand, in whose courts the next chapter of the custody battle ensued. Ultimately, the New Zealand Family Court awarded Dr. Morgan full custody of Hilary, and Dr. Foretich agreed neither to contest custody nor to seek visitations. See generally Jonathan Groner, Hilary's

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Trial (1991). Today Dr. Morgan and her now-twelve-year-old daughter remain in New Zealand.

B

Central to the resolution of this interlocutory appeal is the nature and extent of Vincent Foretich's and Doris Foretich's participation in the controversy surrounding their granddaughter's custody. Therefore, we will recount the Foretich grandparents' media exposure in some considerable detail.

The record does not suggest that either grandparent ever actively sought out press interviews. But, over a period of a few years, and most intensively during and immediately after Dr. Morgan's twenty-five months in jail, they did accede to requests for several newspaper and magazine interviews, attend at least three press conferences or rallies organized by or on behalf of their son, and appear on at least two television shows. 5 The grandparents did not simply confine their remarks to denying Dr. Morgan's allegations. They also described the positive environment that they had provided for Hilary, the negative influence that Dr. Morgan had on the girl, their belief that Dr. Morgan was mentally unstable, and the distress that they had suffered as a result of Dr. Morgan's allegations. 6

The record evidence indicates that the grandparents were first quoted in an article published in The Washington Post in August 1986, immediately after Dr. Morgan filed her federal lawsuit accusing Eric, Vincent, and Doris Foretich of abusing Hilary. The article said that the grandparents "denied the allegations" in Dr. Morgan's complaint and "reacted with dismay and outrage." Sandra G. Boodman, Mother Files Suit Alleging Child Abuse, Wash. Post, Aug. 20, 1986, at C3:

"This is filthy dirt created by Elizabeth Morgan," said Doris Foretich, a retired art teacher for the Newport News public schools. "We're not capable of doing things like this." Doris Foretich said that she and her husband lived in Great Falls [Virginia] with their son from June...

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