Don King Prod.S Inc v. The Walt Disney Co., 4D08-3704.

• Decision Date: 30 June 2010
• Docket Number: No. 4D08-3704.,4D08-3704.
• Citation: 40 So.3d 40,38 Media L. Rep. 2516
• Parties: DON KING PRODUCTIONS, INC., and Don King, Appellants,v.The WALT DISNEY COMPANY, ABC Cable Networks Group, ESPN, Inc., Advocate Communications, Inc. (d/b/a Advanced Cable Communications), ESPN Productions, Inc., and ESPN Classic, Inc., jointly and severally, Appellees.
• Court: Florida District Court of Appeals

40 So.3d 40

38 Media L. Rep. 2516

DON KING PRODUCTIONS, INC., and Don King, Appellants,v.The WALT DISNEY COMPANY, ABC Cable Networks Group, ESPN, Inc., Advocate Communications, Inc. (d/b/a Advanced Cable Communications), ESPN Productions, Inc., and ESPN Classic, Inc., jointly and severally, Appellees.

No. 4D08-3704.

District Court of Appeal of Florida Fourth District.

June 30, 2010.

COPYRIGHT MATERIAL OMITTED

Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, Willie E. Gary and Tricia Hoffler of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, P.L., Stuart, for appellants.

Edward Soto, Christopher R.J. Pace and of Weil, Gotshal & Manges LLP, Miami, and James W. Quinn, R. Bruce Rich, David J. Lender, and Yehudah L. Buchweitz, of Weil, Gotshal, Manges LLP, New York, for appellees.

DAMOORGIAN, J.

Don King Productions, Inc. and Don King (collectively “Don King” or “King”) appeal a final summary judgment entered in favor of ESPN, Inc., ESPN Productions, Inc. and ESPN Classic, Inc. We affirm the summary judgment on King's defamation and false light claims because the trial court correctly determined that Don King failed to present record evidence that a genuine issue of material fact exists which would allow a jury to find, by clear and convincing evidence, that ESPN published the statements in question with actual malice. See Mile Marker, Inc. v. Petersen Publ'g, L.L.C., 811 So.2d 841, 846-47 (Fla. 4th DCA 2002).

Don King filed an action for defamation and false light invasion of privacy ¹ based on several statements made during an ESPN Sports Century television program about his life and career. The program contained approximately twenty-two minutes of content, consisting principally of tracks, interviews, clips, and photos. ESPN hired Broadway Video to produce the program.

At issue in this appeal are five of the statements made during the course of the Sports Century program, which King alleges are actionable defamatory statements. Three of those statements were spoken by Don Elbaum, a boxing promoter who has known King for over thirty years. Elbaum was also the source of the fourth statement, which was spoken by the program's host, Chris Fowler. The fifth statement was spoken by Jack Newfield, a writer who had covered King for several years, and whose works on King included numerous newspaper articles, a book entitledOnly in America, and a “Frontline” documentary on the Public Broadcasting Service. The contents of the five statements at issue consist of the following:

1. Elbaum indicated that King organized a benefit exhibition fight for Forest City Hospital. The hospital only received $1,500 out of the $85,000 in ticket sales.

2. Elbaum described a private conversation he had with Meldrick Taylor in which they discussed Taylor being owed $1,300,000 for a fight, and King giving Meldrick a check for only $300,000.

3. Elbaum asserted that King threatened to have Meldrick Taylor killed.

4. Elbaum stated that King convinced doctors to invest $250,000 in a movie about his life that was never made.

5. Newfield described an encounter he had with King at a press conference where King went crazy and threatened to kill him.

King declined ESPN's attempts to interview him for the program.

“A common law claim for defamation requires the unprivileged publication (to a third party) of a false and defamatory statement concerning another, with fault amounting to at least negligence on behalf of the publisher, with damage ensuing.” Mile Marker, 811 So.2d at 845. A public figure bringing a defamation action must prove more than mere negligence on the part of the publisher; he must prove that the publisher acted with actual malice.² New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Mile Marker, 811 So.2d at 845.

In New York Times, the Supreme Court defined actual malice as knowledge that the statement was false or reckless disregard of whether it was false or not. 376 U.S. at 279-80, 84 S.Ct. 710. The Court further clarified this definition in St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968):

[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

Recklessness may be found where “there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Id. at 732, 88 S.Ct. 1323. Under these circumstances, the publisher's profession that he published the defamatory statements in good faith is generally insufficient to obtain a summary judgment. Id.

The trial court granted summary judgment in favor of ESPN after finding that King had failed to establish the falsity of ESPN's statements and that ESPN published the statements with actual malice. We direct our attention only to the second basis for summary judgment and hold that summary judgment was proper because there is no record evidence sufficient to satisfy this court that a jury could find, by clear and convincing evidence, that ESPN acted with actual malice in publishing the five statements in question.³

Our review of an order granting summary judgment is de novo. Seropian v. Forman, 652 So.2d 490, 494 (Fla. 4th DCA 1995) (“In cases involving an alleged defamatory falsehood about a public [figure], an appellate court is required to conduct its own independent review of the evidence and determine for itself whether the evidence is sufficient to meet the exacting requirements of the First Amendment.”). We must draw all reasonable inferences in favor of King, the nonmoving party see Martinez v. Fla. Power & Light Co., 863 So.2d 1204, 1205 (Fla.2003), but our review is guided by the rule that summary judgments are to be more liberally granted in defamation actions against public-figure plaintiffs see Dockery v. Fla. Democratic Party, 799 So.2d 291, 294 (Fla. 2d DCA 2001). And, on a motion for summary judgment in a public-figure defamation case, the burden is on the plaintiff to “present record evidence sufficient to satisfy the court that a genuine issue of material fact exists which would allow a jury to find by clear and convincing evidence the existence of actual malice on the part of the defendant.” Mile Marker, 811 So.2d at 846-47.

King contends that the record demonstrates a material issue of fact regarding ESPN's actual malice because there were obvious reasons for ESPN to doubt the veracity of Elbaum and Newfield, and the veracity of their statements. He points to several parts of the record which, he asserts, show actual malice either individually or in combination.

First, we focus on King's argument that ESPN harbored ill will towards him and intended to portray him in a negative light. In support, King directs us to several emails exchanged between ESPN producers. In these emails, the producers requested more ominous music and referred to King as a “greedy conniver.” There were also emails exchanged between the ESPN producers and producers from Broadway Video, in which the ESPN producers requested the Broadway Video producers portray King as a “huckster,” “thug,” and an “evil mob connected guy.” Finally, King points to several notations on the script where ESPN producers allegedly commented that King should be portrayed as “more evil,” “greedy,” and “engaging in criminal activities.”

Ill will is different than actual malice under the defamation test. See Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50, 52 (Fla. 4th DCA 1976); see also Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967) (stating that the jury instruction that actual malice was established if the jurors found that the editorials were published with ill will was a incorrect statement of the law). Thus, a showing of ill will, alone, cannot establish actual malice. However, ill will or motive, when combined with other evidence, may amount to actual malice. Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 668, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (noting that a plaintiff may prove the defendant's state of mind through circumstantial evidence, such as evidence of motive); Perk v. Reader's Digest Ass'n, 931 F.2d 408, 411 (6th Cir.1991) (stating that a plaintiff “can present proof of malice in the form of cumulative circumstantial evidence, which is often the only way to prove malice in libel cases”). Despite the relevance of ill will and motive, “courts must be careful not to place too much reliance on such factors.” Harte-Hanks Commc'ns, 491 U.S. at 668, 109 S.Ct. 2678.

Any ill will or evil intent in the emails and...