Barry v. Time, Inc.

• Decision Date: 05 April 1984
• Docket Number: No. C-83-4183-MHP.,C-83-4183-MHP.
• Citation: 584 F. Supp. 1110
• Court: U.S. District Court — Northern District of California
• Parties: Peter K. BARRY, Plaintiff, v. TIME, INC., a corporation; Quintin Dailey; Sports Illustrated Division of Time, Inc., a corporation; Does One through One Hundred, inclusive, Defendants.

584 F. Supp. 1110

Peter K. BARRY, Plaintiff, v. TIME, INC., a corporation; Quintin Dailey; Sports Illustrated Division of Time, Inc., a corporation; Does One through One Hundred, inclusive, Defendants.

No. C-83-4183-MHP.

United States District Court, N.D. California.

April 5, 1984.

COPYRIGHT MATERIAL OMITTED

Marvin E. Lewis, Lewis & Lewis, San Francisco, Cal., for plaintiff.

James T. Fousekis, Donald D. Archer, Steinhart & Falconer, George G. Walker, San Francisco, Cal., for defendants.

OPINION

PATEL, District Judge.

I. FACTS

Plaintiff, Pete Barry ("Barry"), is the former head basketball coach at the University of San Francisco ("USF"). Defendant Quintin Dailey ("Dailey") was a star player on the USF basketball team, and is now a professional basketball player for the Chicago Bulls. This action for libel (against defendant Time, Inc.) and slander (against defendant Dailey) arises out of two articles in the July 26, 1982 and August 9, 1982 editions of Sports Illustrated, one of defendant Time's publications. These articles focus on USF's investigation of charges that Dailey had received improper payments, in violation of the rules of the National Collegiate Athletic Association ("NCAA"), from a company owned by J. Luiz Zabala, a USF supporter. Both articles also note that Dailey had recently pled guilty to aggravated assault charges against a female USF student. The controversy surrounding the allegations of illegal recruiting methods ultimately led the President of USF, the Reverend John Lo Schiavo, to cancel the men's basketball program in August of 1982.

The statements giving rise to the present lawsuit involve Dailey's accusation that the coach, Barry, was involved in the Zabala payments and had personally transmitted money to Dailey in violation of NCAA rules. This accusation was reported in both the July 26, 1982 and the August 9, 1982 articles. The articles in question also contain denials from Barry that he had ever been involved in any illegal or questionable payments to Dailey or any other player while he was coach.

Barry filed his original complaint in propria persona. That complaint elicited a motion to dismiss from the defendants, and Barry subsequently engaged counsel and filed a first amended complaint. The first amended complaint alleges that Dailey's statements were slanderous per se, and that the republication of these statements by Time was libelous per se. The first amended complaint further alleges that the articles were understood by some readers to imply that Barry had actually transferred money improperly to USF basketball players, and that Sports Illustrated's report of a "scandal" and "shocking conditions" in the USF basketball program led readers to accept as true the assertion that Barry had been involved in improper payments to basketball players.

With regard to Time's state of mind in publishing the articles in question, it is claimed that Time was at least negligent in failing to exercise reasonable care to discover the falsity of the assertions contained in the articles. Moreover, it is alleged that the articles were published either with knowledge that they were false or with reckless disregard of whether they were false. Since the articles mention that Dailey was a convicted felon and had failed a polygraph test regarding the assault to which he ultimately pled guilty, it is claimed that Time subjectively entertained serious doubts as to the truth of Dailey's assertions that Barry improperly transmitted money to him.

The first amended complaint further alleges that Barry is not a public figure, since he "has never sought or assumed a role of especial prominence in the affairs of society," and "occupied no position of persuasive power or influence and ... never thrust himself to the forefront of any particular public controversy in order to influence the resolution of the issues involved." Barry prays for general damages in the sum of $250,000.00, and punitive damages of $500,000.00.

By this motion, Time seeks to dismiss the first amended complaint for failure to state a claim upon which relief can be granted.¹ This motion is based on essentially four grounds: (1) Barry is a public figure, and therefore must plead "actual malice"; (2) the first amended complaint contains insufficiently specific allegations of malice to survive a motion to dismiss; (3) the accurate republication of Dailey's charges against Barry is constitutionally protected by the neutral reportage privilege; and (4) the publication of the articles in question is protected by the California fair comment privilege contained in Cal.Civ.Code § 47(3).

This court finds that Barry is at least a limited public figure with regard to comments concerning his position as head basketball coach at USF, and that the first amended complaint fails to plead "actual malice" with the requisite specificity to survive a motion to dismiss.² Moreover, summary judgment in favor of defendant Time is independently required by the constitutional privilege of neutral reportage, which this court finds protects the accurate republication of defamatory statements leveled by one participant in a public controversy against another participant in that controversy.³

II. DISCUSSION

A. Is Barry A Public Figure?

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court held that public officials may not prevail in a defamation action unless they can prove "actual malice." That malice was described as being present when a defendant publishes a statement "with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 279-80, 84 S.Ct. at 725-26.⁴ The Court recognized that this strict standard would preclude recovery by some plaintiffs for erroneous and injurious statements, but felt that some false statements must be tolerated to ensure "that debate on public issues is uninhibited, robust, and wide-open ...." 376 U.S. at 270, 84 S.Ct. at 720.

In the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Court extended the rule of New York Times to apply to libel suits brought by "public figures." Butts involved an article accusing plaintiff, the athletic director of the University of Georgia, of conspiring to "fix" a football game between the University of Georgia and the University of Alabama. Walker involved the distribution of a news dispatch erroneously stating that plaintiff, a former Army officer who had been in charge of the federal troops during the school segregation confrontation at Little Rock, had personally led a charge against federal marshals and encouraged rioters to use violence during a riot at the University of Mississippi. The Court held that the New York Times "actual malice" standard should be extended to include criticism of nonpublic persons who "are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." 388 U.S. at 164, 87 S.Ct. at 1996 (opinion of Warren, C.J., concurring in result). The Court found that Butts "may have attained public figure status by position alone," while Walker achieved his public figure status "by his purposeful activity amounting to a thrusting of his personality into the `vortex' of an important public controversy...." 388 U.S. at 154-55, 87 S.Ct. at 1991 (opinion of Harlan, J.).

It was not until Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), however, that the Court made an authoritative attempt to define the term "public figure." In Gertz, a libel action was brought against the publisher of a magazine article describing plaintiff, a private attorney for a criminal defendant, as a "Communist" and a participant in various "Marxist" and "Red" activities. In balancing the need for a vigorous and uninhibited press against the legitimate state interest in compensating individuals for defamatory statements, the Court set up an analytical framework categorizing potential defamation plaintiffs based on several considerations.

One factor considered in the Gertz analysis is access to the media to correct factual misstatements: "Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy." 418 U.S. at 344, 94 S.Ct. at 3009.⁵

A second consideration affecting the balance between freedom of the press and protection of individuals from defamation rests on an "assumption of the risk" rationale:

There is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case....

Those classed as public figures stand in a similar position.

Id. at 344-45, 94 S.Ct. at 3009.

Having justified the differential treatment to be accorded public and private figures, the Court went on to create two sub-classifications of public figures: persons who are public figures for all purposes, and persons who are public figures with regard to particular public controversies:

For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

418 U.S. at 345, 94 S.Ct. at 3009. Put...