Bryant v. Cox Enterprises Inc.

• Citation: 311 Ga.App. 230,11 FCDR 2411,11 FCDR 2601,715 S.E.2d 458,39 Media L. Rep. 2081
• Decision Date: 28 July 2011
• Docket Number: No. A11A0510.,A11A0510.
• Parties: BRYANTv.COX ENTERPRISES, INC. et al.
• Court: United States Court of Appeals (Georgia)

311 Ga.App. 230
715 S.E.2d 458
39 Media L. Rep. 2081
11 FCDR 2411
11 FCDR 2601

BRYANT
v.
COX ENTERPRISES, INC. et al.

No. A11A0510.

Court of Appeals of Georgia.

July 13, 2011.Reconsideration Denied July 28, 2011.

[715 S.E.2d 460]

Wood, Hernacki & Evans, L. Lin Wood, Jr., Stacey G. Evans, Bryan, Cave, Powell & Goldstein, Nicole J. Wade, Atlanta, for appellant.Dow Lohnes, Peter C. Canfield, Thomas M. Clyde, Atlanta, for appellee.

[715 S.E.2d 461]

DILLARD, Judge.

[311 Ga.App. 230] This case is the culmination of years of litigation during which Richard Jewell and, since his death, the executor of Jewell's estate (collectively, “Jewell”), have sought retribution for the injury to Jewell's reputation following his identification in the media as a suspect in the Centennial Olympic Park bombing during the 1996 Olympic Games in Atlanta. Jewell sued Cox Enterprises, Inc. d/b/a The Atlanta Journal Constitution (“AJC”) ¹ and various AJC reporters ² (collectively, “Media Defendants”) for statements made in several articles in which the Media Defendants reported, inter alia, that investigators believed Jewell planted the bomb in Centennial Olympic Park and then placed a 911 call to law enforcement. In Atlanta Journal–Constitution v. Jewell (“ Jewell I ”),³ this Court affirmed the trial court's ruling that Jewell was a limited-purpose public figure in the context of this case, and further set forth a balancing test to aid the trial court in deciding whether to force the Media Defendants to [311 Ga.App. 231] reveal the identities of the confidential sources from whom they gleaned the information reported in the subject articles.⁴ Upon remand, the trial court concluded that Jewell could not satisfy the requirements set forth in Jewell I and, consequently, denied Jewell's motion to compel. In subsequent orders, the trial court granted summary judgment in favor of the Media Defendants on all of Jewell's claims. It is from these orders that Jewell now appeals. For the reasons noted infra, we affirm the trial court's orders.

I. Background

The underlying facts of this case are not in dispute. The Centennial Olympic Park bombing occurred in the early morning hours of July 27, 1996. Jewell, who had been working in the park as a private security guard, identified an unattended knapsack under a park bench and immediately alerted an officer from the Georgia Bureau of Investigation (“GBI”) to its existence. The discovery of the knapsack was the direct result of Jewell's remarkable astuteness, as illustrated by frequent and detailed surveys of his patrolling area, as well as his keen awareness—despite an ongoing concert and a significant crowd—of the relationship between the multitude of people around him and their various belongings.

Shortly after Jewell and the GBI officer attempted unsuccessfully to identify the owner of the knapsack, the GBI officer reported it to his command post as a suspicious package and requested the dispatch of a bomb-inspection team. Almost immediately thereafter, an anonymous 911 call was made to the Atlanta Police Department, notifying it of the bomb in the park and warning ominously, “you have 30 minutes.” The call was placed from a pay phone located several blocks from the park.

Unaware of the 911 call, the bomb squad responded to the GBI officer's request to inspect the knapsack and determined that it contained an explosive. Jewell aided other law-enforcement officials in evacuating individuals from the area surrounding the bomb prior to its detonation, which occurred approximately 20 minutes after the 911 call was made. Tragically, the bomb took the lives of two victims—one killed directly from the blast and a second who died of a heart attack while running from the scene—and wounded over 100 others. It is widely acknowledged, however, that the acumen, quick-thinking, and bravery exhibited by Richard Jewell during that perilous window of time unquestionably saved the lives of countless individuals.

In the days following the bombing, Jewell's employer, AT & T, scheduled him to participate in numerous television interviews, [311 Ga.App. 232] which he reluctantly agreed to do. At this time, Jewell was being universally hailed by the media as a hero.

[715 S.E.2d 462]

On July 30, however, the tone of the media's coverage of Jewell changed dramatically after the AJC published a breaking story entitled “ FBI suspects ‘hero’ guard may have planted bomb,” in which it identified Jewell as “the focus of the federal investigation[.]” The article claimed that Jewell “fit[ ] the profile of the lone bomber,” accused him of “approach[ing] newspapers, including [t]he [AJC], seeking publicity for his actions,” and reported that “[i]nvestigators [were] checking to see if his voice matche[d] that of a 911 caller who phoned in a warning of the park bomb.” The AJC did not attribute any of the assertions contained in the article to an official source or otherwise identify the origin of this information.

CNN then reported the contents of the AJC article, and Jewell instantly became the subject of intense world-wide media scrutiny. For the next 88 days, Jewell and his mother—with whom he was living and caring for while she recovered from surgery—were constantly surveilled by a swarm of reporters that remained camped outside of their apartment.

In the interim, the Media Defendants published additional articles which form the basis of the instant appeal. Specifically, in a July 31 article, the AJC reported that “[i]nvestigators ... believe [Jewell] placed the 911 call himself.” On August 1, the AJC referred to Jewell as the man “who investigators believe may have planted the pipe bomb....” And, on August 4, the AJC published an article in which it repeated that, “[i]nvestigators have said they believe Jewell ... planted the bomb and phoned in a warning to 911.” Again, none of the articles indicated the sources of the reported information. Additionally, writer Dave Kindred published a column on August 1, entitled “ A long wait in the shadows after his moment in the sun ” (the “Kindred column”), in which Kindred described Jewell as he waited outside while federal agents searched his apartment. Kindred then drew comparisons between Jewell and the notorious Wayne Williams, a convicted child serial killer (who was also from the Atlanta area).

On October 26, 1996, the United States Department of Justice took the unusual step of formally announcing that Jewell was no longer a suspect in the investigation. Eric Robert Rudolph subsequently admitted to planting the Centennial Olympic Park bomb, and he is currently serving a life sentence for that and several other bombings.

II. Procedural History

In January 1997, Jewell filed a complaint for libel against the Media Defendants, alleging that he had been defamed in various [311 Ga.App. 233] publications. Years of extremely contentious discovery ensued, requiring the trial court to oversee and resolve a seemingly endless number of disputes between the parties. Jewell repeatedly insisted that he was entitled to know the identities of the sources who allegedly provided the Media Defendants with the information published in the early days of the investigation, and the Media Defendants steadfastly refused to produce the identities of their sources, claiming that not only the identities, but also any information possibly leading to those identities, were privileged. The trial court ultimately rejected the Media Defendants' position that the information was privileged, and granted Jewell's motion to compel. The trial court also deemed Jewell a limited-purpose public figure in the context of its defamation analysis, thus requiring him to prove, prior to recovery, that the statements at issue were published with actual malice. When the Media Defendants repeatedly defied the trial court's order by refusing to reveal the source identities, the trial court held two AJC reporters, Scruggs and Martz, in contempt and ordered them incarcerated indefinitely until they complied with its mandate.

In Jewell I, we affirmed the trial court's holding that Jewell was a limited-purpose public figure.⁵ We nonetheless introduced

[715 S.E.2d 463]

a balancing test that required the trial court to weigh Jewell's specific need for the identities of the Media Defendants' confidential sources against the Media Defendants' interest in protecting the privacy of those sources, but only after the court assessed the potential viability of Jewell's claims as a threshold to ordering such disclosure.⁶ After the case was remanded, the trial court denied Jewell's motion to compel, concluding that Jewell could not meet the showing of need set forth in Jewell I because the challenged statements were either substantially true and/or the identities of the confidential sources were unnecessary to establish whether the statements were defamatory. In a subsequent order, the trial court granted summary judgment to the Media Defendants on all but one of Jewell's claims, reasoning that the published statements were not actionable because they lacked the requisite degree of falsity and/or there was insufficient evidence to conclude that they were made maliciously. Sometime thereafter, at the invitation of Jewell and for the purposes of judicial economy, the trial court granted the Media Defendants [311 Ga.App. 234] summary judgment on Jewell's last claim, reasoning that it was barred by the incremental-harm doctrine.

It is from these orders that Jewell now appeals. Jewell has limited this appeal to the above-quoted statements contained in the July 31, August 1, and August 4 articles, as well as those made in the Kindred column.⁷ Specifically, Jewell argues that the trial court erred in denying the motion to compel the disclosure of the Media Defendants' confidential sources and in granting summary judgment to the Media Defendants. For the reasons noted infra, we affirm.

III. Applicable Law

Under Georgia law, any “false and malicious...