Clyburn v. News World Communications, Inc., 89-7057

Citation903 F.2d 29,284 U.S.App.D.C. 212
Decision Date18 May 1990
Docket NumberNo. 89-7057,89-7057
Parties, 17 Media L. Rep. 1888 John B. CLYBURN, Appellant, v. NEWS WORLD COMMUNICATIONS, INC., and One-Up Enterprises, Inc., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

J. Philip Kessel, with whom Milton Heller, Washington, D.C., was on the brief, for appellant.

Allen V. Farber, with whom Keith R. Anderson and James A. Barker, Jr., Washington, D.C., were on the brief, for appellees.

Before WALD, Chief Judge, RUTH BADER GINSBURG and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

In a series of articles and editorials in 1986 the Washington Times described Joann Medina's collapse from a drug overdose and her death four days later. The paper depicted Medina's boyfriend, plaintiff John Clyburn, as waiting "several critical hours" after Medina's collapse to call for help, in order to allow other partygoers to leave the scene. Clyburn sued the Times's publisher, News World Communications, Inc., and News World's owner, One-Up Enterprises, Inc., for libel. We agree with the district court that Clyburn was a public figure for purposes of this case, and that he failed to introduce enough evidence of actual malice to survive defendants' summary judgment motion.

I

Joann Medina collapsed at an apartment on North Capitol Street in Washington, D.C. sometime in the early morning hours of December 10, 1983. Clyburn was one of those with her at the time. Someone called 911, and paramedics came and attempted unsuccessfully to revive her; she lapsed into a coma and died four days later. The barbiturates, cocaine, and alcohol found in her body led the coroner initially to call her death a suicide; he later changed it to "undetermined."

In 1984 agents from the Drug Enforcement Administration interviewed Clyburn on the subject. In particular, they asked whether Medina had obtained the drugs from Karen Johnson, a friend of Mayor Barry's who had been convicted of possession and conspiracy to distribute cocaine, see Joint Appendix ("J.A.") 66 (affidavit of Hedges), and whether any highranking city officials had been at the apartment with Medina and Clyburn that night. 1 Clyburn also spoke to a reporter from the Washington Post about the circumstances surrounding Ms. Medina's collapse. At both interviews, Clyburn said that he had called 911 and that he was alone with Ms. Medina at the time. He admitted later that he was not alone and that a woman called the paramedics.

Washington newspapers covered the event in some detail in 1984. The Washington Post ran a story in August discussing the medical examiner's claim that political pressure had been exerted to make him change Medina's death certificate. The article also noted that "[t]he U.S. Attorney's office is trying to determine how Medina died and how she obtained the cocaine found in her blood." Death Probed After Autopsy Was Changed, Washington Post, Aug. 11, 1984, at B3, col. 2. The Washington Times published six articles describing the ongoing investigation by the D.C. Police Department, the DEA, and the U.S. Attorney's office, especially their inquiry into whether any highranking Barry administration officials had been at the party. See, e.g., D.C. Aides Probed in Drug Death of Woman at Party, Washington Times, Aug. 15, 1984, at 1A; Feds Check Guest List in D.C. Drug Probe, Washington Times, Aug. 16, 1984, at 5A. Four of the six articles mentioned Clyburn, including his consulting firm's contracts with the D.C. government and his presence at the scene of Medina's collapse.

In 1986 the Times published the articles that are the subject of this lawsuit. Aside from rehashing what had appeared previously, they stated that those at the party, including Clyburn, waited "several critical hours" after Medina's collapse before calling an ambulance so that those present could clear out before the police arrived. This assertion formed the basis of Clyburn's libel suit.

The district court granted the Times's motion for summary judgment, Clyburn v. News World Communications, Inc., 705 F.Supp. 635 (D.D.C.1989), and this appeal followed.

II
A. Limited-purpose Public Figure

Under Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3013, 41 L.Ed.2d 789 (1974), a person may "inject[ ] himself or [be] drawn into a particular public controversy" sufficiently to become "a public figure for a limited range of issues." On those issues, such a person can prevail in a defamation suit only by proving the defendant's "actual malice" under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980), we formulated a three-part test for identifying a limited-purpose public figure, requiring (1) that there have been a public controversy; (2) that the plaintiff have played a sufficiently central role in the controversy; and (3) that the alleged defamatory statement have been germane to the plaintiff's participation in the controversy. See Tavoulareas v. Piro, 817 F.2d 762, 771-75 (D.C.Cir.1987) (en banc) (applying Waldbaum test). In fact the third component plainly goes not to identifying the plaintiff as a public figure, but to whether the defamatory statement is adequately linked to the issues for which he is a public figure.

People's interest in a story purely as voyeurs is not enough to make it a public controversy for these purposes. See Time, Inc. v. Firestone, 424 U.S. 448, 454, 96 S.Ct. 958, 965, 47 L.Ed.2d 154 (1976). There must be "foreseeable and substantial ramifications for nonparticipants." Waldbaum, 627 F.2d at 1296-97. Here, the DEA, the U.S. Attorney's office, and the D.C. Police Department investigated Medina's death to see whether there was any connection between her drug abuse and the Barry administration--particularly whether a Barry associate was a source of her drugs or a member of his administration attended the party at which she collapsed. 705 F.Supp. at 640. These issues were a subject of DEA and Washington Post interviews. The 1984 newspaper coverage--which Clyburn does not claim libelled him--made the inquiries public. See, e.g., Death Probed After Autopsy Was Changed, Washington Post, Aug. 11, 1984, at B3, col. 2 (stating that the U.S. Attorney's office was investigating Medina's case "to determine how Medina died and how she obtained the cocaine found in her blood"). Possible drug dealing and drug use by public officials and their friends obviously have ramifications for others, see Harte-Hanks Communications, Inc. v. Connaughton, 109 S.Ct. 2678, 2695-96, 105 L.Ed.2d 562 (1989), and thus the controversy satisfies Waldbaum.

In discussing whether a plaintiff's role in a controversy was central enough to justify imposing the actual malice burden, the Supreme Court has explained that a private individual typically lacks the public figure's ability to use the media for rebuttal, and "[m]ore important," has not run "the risk of closer public scrutiny" that falls on those who, for example, seek public office. Gertz, 418 U.S. at 344, 94 S.Ct. at 3009. Clearly concerned lest the New York Times standard be thrust on individuals who chose not to run such risks, the Court declared that though it "may be possible for someone to become a public figure through no purposeful action of his own, ... the instances of truly involuntary public figures must be exceedingly rare." Id. 418 U.S. at 345, 94 S.Ct. at 3009. Typically, the Court suggested, limited-purpose public figures will be persons who "have thrust themselves to the front of particular public controversies in order to influence the resolution of the issues involved." Id. 2 Clyburn denies that he injected himself into the public controversy at all.

Courts have placed weight on a plaintiff's "trying to influence the outcome" of a controversy. Waldbaum, 627 F.2d at 1297; compare Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 168, 99 S.Ct. 2701, 2707, 61 L.Ed.2d 450 (1979) (plaintiff who "did not in any way seek to arouse public sentiment in his favor" found not to be limited-purpose public figure). Of course, this can not include statements that merely answer the alleged libel itself; if it did, libellers could "create their own defense by making the claimant a public figure." Hutchinson v. Proxmire, 443 U.S. 111, 135, 99 S.Ct. 2675, 2688, 61 L.Ed.2d 411 (1979). Similarly, we have doubts about placing much weight on purely defensive, truthful statements made when an individual finds himself at the center of a public controversy but before any libel occurs; it is not clear why someone dragged into a controversy should be able to speak publicly only at the expense of foregoing a private person's protection from defamation. Indeed, the cases have suggested that ordinarily something more than a plaintiff's short simple statement of his view of the story is required; he renders himself a public figure only if he voluntarily "draw[s] attention to himself" or uses his position in the controversy "as a fulcrum to create public discussion." Wolston, 443 U.S. at 168, 99 S.Ct. at 2708. See also Time, Inc. v. Firestone, 424 U.S. 448, 454 n. 3, 96 S.Ct. 958, 965 n. 3, 47 L.Ed.2d 154 (1976) (plaintiff not limited public figure because she confined her press conferences to issues of no legitimate public concern); Tavoulareas, 817 F.2d at 773-74 (plaintiff who seized spotlight on public issues found public figure). Here, Clyburn falsely told the Washington Post that he had been alone with Medina and had called 911. We view this cover-up attempt as going beyond an ordinary citizen's response to the eruption of a public fray around him.

More important, Clyburn's acts before any controversy arose put him at its center. His consulting firm had numerous contracts with the District government, he had many social contacts with...

To continue reading

Request your trial
54 cases
  • Bowman v. Heller
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 13 juin 1995
    ...to aid judges in applying the two-prong limited purpose public figure standard set forth in Gertz. 7 See, e.g., Clyburn v. News World Communications, Inc., 903 F.2d 29, 31 (D.C.Cir.1990) (applying test for limited purpose public figure first set forth in Waldbaum v. Fairchild Publications, ......
  • Montgomery v. Risen
    • United States
    • U.S. District Court — District of Columbia
    • 15 juillet 2016
    ...convincing evidence to succeed on a defamation claim. See Gertz , 418 U.S. at 342, 94 S.Ct. 2997 ; see also Clyburn v. News World Commc'ns, Inc. , 903 F.2d 29, 31 (D.C.Cir.1990). A different rule applies for "private individuals," however. Gertz , 418 U.S. at 343, 94 S.Ct. 2997. So long as ......
  • Mzamane v. Winfrey
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 15 mars 2010
    ...allegedly defamatory statements. Under these circumstances, the risk of bootstrapping is not present here. See Clyburn v. News World Commc'ns, Inc., 903 F.2d 29, 34 (D.C.Cir.1990) (public controversy concerning the death of a woman with potential ties to then-D.C. Mayor Marion Barry caused ......
  • Hourani v. Psybersolutions LLC
    • United States
    • U.S. District Court — District of Columbia
    • 18 février 2016
    ...that for less well-connected people would pass unnoticed may place him at the heart of a public controversy.” Clyburn v. News World Commc'ns, Inc. , 903 F.2d 29, 33 (D.C.Cir.1990).For example, in Hatfill, the plaintiff was a bioterrorism expert who provided commentary on the nation's prepar......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT