Bell v. National Republican Congressional Comm.

Decision Date21 February 2002
Docket NumberNo. Civ.A. 2:00-0982.,Civ.A. 2:00-0982.
Citation187 F.Supp.2d 605
CourtU.S. District Court — Southern District of West Virginia
PartiesHarry F. BELL, Sr., Plaintiff, v. The NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, a political committee organized pursuant to 26 U.S.C.A. 527, Defendant.

Rudolph L. DiTrapano, DiTrapano, Barrett & Dipiero, PLLC, Charleston, WV, for plaintiff.

Michael W. Carey, Carey, Scott & Douglas, PLLC, Charleston, WV, for defendant, National Republican Congressional Committee.

Bobby R. Burchfield, Jason A. Levine, Richard W. Smith, Covington & Burling, Washington, D.C., for defendant, National Republican Congressional Committee.

MEMORANDUM OPINION AND ORDER

GOODWIN, District Judge.

Now pending is defendant National Republican Congressional Committee's motion for summary judgment. For reasons discussed herein, the motion is DENIED.

I. Background

This suit concerns statements allegedly implying that Harry Bell is a repeat sex offender and rapist. It arises in the context of the race for West Virginia's second district congressional seat in 2000. James Humphreys was the Democratic candidate. Harry Bell was Humphrey's former neighbor and agreed to appear in a television advertisement for Humphreys. The ad was taped in Bell's house, and Bell spoke the line "We want the right to choose our own doctors." The ad was aired across the second district in the spring of 2000. Later in the campaign, Bell and his wife agreed to pose with Humphreys for campaign photographs at a local drug store. One photograph depicting Humphreys, Bell, and Bell's wife appeared in four Humphreys campaign pamphlets and on the Humphreys web site. The photograph showed Bell and his wife standing in front of a drug store shelf, listening to Humphreys speak. Bell consented to the campaign's use of the television advertisement and the drug-store photos.

In mid-October 2000, the National Republican Congressional Committee (NRCC) commissioned and mailed a political pamphlet commenting on Humphrey's record as a lawyer and West Virginia state legislator. One page of the pamphlet featured a version of the Humphreys-Bell photograph, downloaded from Humphreys' web site, from which Mrs. Bell had been cropped. The cropped photograph appeared immediately adjacent to the bold text, "Humphreys Defended Sex Offenders as a Criminal Defense Lawyer," and the caption, "A multi-millionaire trial lawyer, Jim Humphreys has represented rapists and repeat child molesters." The pamphlet did not identify Bell.

Bell filed this suit, asserting claims of libel per se, invasion of privacy, and intentional infliction of emotional distress. After the case began, Bell gave interviews with local news media in which he discussed the pamphlet and his suit.

II. Discussion
A. Standard of Review

To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court will not "weigh the evidence and determine the truth of the matter." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some "concrete evidence from which a reasonable juror could return a verdict in his [or her] favor." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence" in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

B. Defamation and Invasion of Privacy Claims

For Bell to prevail on his defamation claim, he must show that the pamphlet was defamatory and that it referred to him. Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70, 77 (1984). On the invasion of privacy claim, he must show that the pamphlet placed him in a false light. Id. at 86. In performing its analyses, the court is cognizant that the pamphlet appeared in connection with a political campaign. Free speech protections are especially important in this context because elections are manifest democracy.

It is the informed participation of everyday citizens that sustains our democracy. The framers recognized that open debate leads to the discovery and spread of political truth and that citizens who have the opportunity to express themselves help soothe the inherent unrest in a society. See New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). They recognized that obstacles to such debate and expression threaten to destabilize government and provided significant protections for political speech, placing it at the core of the First Amendment. Id. "The greatest menace to freedom is an inert people." Whitney, 274 U.S. at 375, 47 S.Ct. 641.

It has long been recognized, however, that not all speech is of equal First Amendment importance. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). Speech on matters of public concern lies at the heart of the First Amendment's protections. Id. But speech on matters of purely private concern is of less First Amendment concern, and therefore warrants less protection. Id. Balancing First Amendment concerns and the state's interest in providing redress for injury to reputation results in differing levels of protection for public and private figures. Id. To encourage active participation, the law makes it difficult for public figures, such as political candidates, to prevail in defamation suits. Requiring them to prove that a defendant acted with actual malice encourages people to comment freely on high-profile figures—who have invited attention and comment and assumed some risk of injury from defamation — without fear of liability for accidentally defamatory statements. Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (citations omitted). On the other hand, private individuals — who have not invited public comment and are not integral to the discussion — may prevail upon a lesser showing. Id. at 342, 347, 94 S.Ct. 2997. This case requires the court to determine whether Bell was a public or private figure in the context of a congressional election.

During an election, citizens engage in public discussion by pinning buttons on lapels, sticking campaign signs in yards, gluing bumper stickers on cars, and speaking out at town hall meetings. Through these and similar acts, citizens invite their neighbors to discuss political and social reform. Their stated or displayed political preference often provokes further discussion. Given the often contentious nature of political campaigns and the hunger of the media for the slightest whiff of scandal, it is hardly surprising that many citizens are repelled by the process and choose not to participate. Fortunately, others recognize the structural importance of citizen engagement in the public debate which is an election campaign.

Here, Bell marginally participated in such a debate by showing support for Humphreys. He spoke one line in a television ad and posed for campaign photos. Bell did not actively campaign for Humphreys. Bell Dep. at 38. He appeared in the ads only as a "neighborly gesture," and had no particular interest in the issues being discussed. Id. at 30, 33, 37-38. He chose his line solely because it was short. Id. at 30. He did not talk with the media, write editorials or letters to the editor, give press releases, or speak out at public rallies about his support for Humphreys. The Humphreys ads, pamphlets, and web site never identified him.1 In short, Bell simply became peripherally involved, as was his right and civic duty, in the election process. It was this involvement which lead to the NRCC's use of his photo in its pamphlet. The pamphlet is the subject of this suit, and the court must determine how much protection is due it.

1. Limited-Purpose Public Figure Doctrine

Both defamation and invasion of privacy are common law torts. Analysis of each requires the court to determine whether Bell is a limited-purpose public figure or a private individual. Since Gertz, lower courts have developed differing approaches to the limited-purpose public figure doctrine. See generally Nat Stern, Unresolved Antitheses of the Limited Public Figure Doctrine, 33 Hous.L.Rev. 1027 (1996). In West Virginia, a plaintiff is a limited-purpose public figure if the defendant proves 1) that the plaintiff voluntarily engaged in significant efforts to influence a public debate or voluntarily assumed a position that would propel him to the forefront of a public debate on a matter of public concern; 2) that the public debate or controversy and the plaintiff's involvement in it existed prior to the publication of the allegedly libelous statement; and 3) that the plaintiff had reasonable access to channels of communication that would permit him to make an effective response to the defamatory statement in question. Suriano v. Gaughan, 198 W.Va. 339, 480 S.E.2d 548, 557-58 (1996).

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