Horsley v. Feldt

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Carnes
• Citation: Horsley v. Feldt, 304 F.3d 1125 (11th Cir. 2002)
• Decision Date: 05 September 2002
• Docket Number: No. 01-11201.,01-11201.
• Parties: Neal HORSLEY, d.b.a. Pathway Communications, d.b.a. ChristianGallery.com, d.b.a. BestChoice.com, d.b.a. The Creator's Rights Party, Plaintiff-Appellant, v. Gloria FELDT, Planned Parenthood Federation of America, Kim Gandy, and National Organization for Women, Defendants-Appellees.

304 F.3d 1125

Neal HORSLEY, d.b.a. Pathway Communications, d.b.a. ChristianGallery.com, d.b.a. BestChoice.com, d.b.a. The Creator's Rights Party, Plaintiff-Appellant, v. Gloria FELDT, Planned Parenthood Federation of America, Kim Gandy, and National Organization for Women, Defendants-Appellees.

No. 01-11201.

United States Court of Appeals, Eleventh Circuit.

September 5, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Neal Horsley, Carrollton, GA, pro se.

Steven Louis Lane, Joseph R. Bankoff, Jamie Nordhaus Shipp, King & Spalding, Ralph L. Knowles, Jr., Leslie J. Bryan, Doffermyre, Shields, Canfield & Knowles, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, CARNES and COX, Circuit Judges.

CARNES, Circuit Judge:

This appeal is the second occasion we have had recently to decide issues stemming from a defamation action brought by Neal Horsley in response to criticisms of him in the wake of the murder of Doctor Barnett Slepian, an abortion provider. The first occasion was in a case where Horsley claimed that Geraldo Rivera had defamed him during a television program by accusing him of a felony when he said that Horsley had aided and abetted murder and was an accomplice to murder. Horsley v. Rivera, 292 F.3d 695 (11th Cir. 2002). This Court held the statements in that case were protected as rhetorical hyperbole under the First Amendment and Georgia law, and for that reason the district court should have granted the defendant judgment on the pleadings. Id. at 703.

Although the defamation case giving rise to this appeal also had its origins in criticisms of Horsley because of the murder of Dr. Slepian, it involves different statements and defendants. Here Horsley's suit is against the Planned Parenthood Federation of America (Planned Parenthood); its president, Gloria Feldt; the National Organization for Women (NOW); and its executive vice president, Kim Gandy; and the lawsuit arises out of statements allegedly made by Feldt and Gandy shortly after Dr. Slepian's murder.

Although applying the same principles of law as we did in the related case, Rivera, we reach a somewhat different conclusion in this case. While we affirm most of the district court's judgment on the pleadings for the defendants, we reverse the part of the judgment that involves one of the statements allegedly made by Feldt.

I. BACKGROUND AND PROCEDURAL HISTORY

Horsley, an anti-abortion activist and founder of the Creator's Rights Party, created and operated an anti-abortion Internet website known as "the Nuremberg Files," which listed the names of abortion providers. Dr. Slepian was murdered on October 23, 1998. His name did not appear on the Nuremberg Files website prior to his murder, but on October 24, 1998, the day after the murder, Horsley added Slepian's name to the list. Also on October 24, Horsley altered the Nuremberg Files website to graphically reflect which abortion providers had been wounded or killed; he did so by "graying-out" the wounded and "striking-through" the dead. Dr. Slepian's name was shown with a line struck through it.

A. THE FELDT STATEMENTS

On October 24, 1998, Defendant Gloria Feldt, in her capacity as president of Planned Parenthood, held a press conference about Dr. Slepian's murder. The Associated Press ran an article reporting on Feldt's statements at the press conference. The complaint alleged the article stated that Feldt "told a news conference in midtown Manhattan that the name of the physician, Dr. Barnett Slepian, had appeared on a list of abortion doctors marked for death that was circulated on the Internet," and that "Feldt said she didn't know how long the Internet target list that included Slepian's name has existed, or whether either he or the police were aware of it."

Although Horsley did not include a copy of the AP article with his complaint, Feldt and Planned Parenthood attached a copy of it to their answer. The attached article contained the statements quoted by Horsley in the complaint, which we have quoted in the preceding paragraph, and it also reported that "[Dr. Slepian's] name ... was `crossed off' after he was gunned down in his suburban Amherst home late Friday." The article further characterized Feldt as "charg[ing] ... that police in Buffalo, N.Y., failed to protect a slain abortion doctor because of a `fundamental anti-choice philosophy' within the department," and it included several paragraphs about Feldt's remarks on police bias.

Portions of Feldt's press conference were broadcast nationwide by CNN Live News on October 24, 1998. As alleged by Horsley, the CNN broadcast showed Feldt stating that "[Dr. Slepian's] name had been on a list — you can look it up on the web, christiangallery.com — a list of doctors who are subject to surveillance and murder. His name was already crossed out." Horsley did not include the CNN transcript with his complaint, but Feldt and Planned Parenthood included with their amended answer two CNN transcripts. Those transcripts did not include the statements that Horsley alleged Feldt made, which we have quoted in this paragraph, and Feldt and Planned Parenthood stated that they had been unable to locate any CNN transcripts containing those statements. Horsley claimed that he had a transcript of the CNN broadcast reflecting the statements he alleged Feldt made, but he did not provide a copy of that transcript.

B. THE GANDY STATEMENTS

On October 26, 1998, Horsley voluntarily participated in a televised debate on CNN Today with Defendant Kim Gandy, the executive vice president of NOW. Horsley's complaint alleged that the following exchange occurred during the debate:

JEANNE MESERVE, CNN ANCHOR: Mr. Horsley, let me start with you. Do you advocate the murder of doctors who perform abortions? What was the purpose of your Web site?

NEAL HORSLEY, FOUNDER, CREATOR'S RIGHTS PARTY: Absolutely not. We want to make one [thing] clear, that we don't want to see anybody die. But the fact is, 3,000 babies are going to die today, and that fact has been ignored for the last 25 years. And the thing the Nuremberg files — Web site is doing is reminding people that doctors who kill babies, even if it is authorized by the Supreme Court, might find themselves on trial someday in the same way that the Nazis found themselves on trial at Nuremberg.

MESERVE: So why, exactly, do you have their names on the Web site?

HORSLEY: Because we are making a record, a database, of the people who are actually involved in the — in slaughtering babies and who make a living slaughtering babies, because we want to accumulate evidence in hopes that someday trials might actually be held where that evidence would be used to prosecute those people.

KIM GANDY, NATIONAL ORGANIZATION FOR WOMEN: And for that, of course ...

MESERVE: Kim Gandy, your response.

GANDY: ... you need to have the names of their children, the ages of their children, where their children need to go to school; obviously, you need that kind of information. You're not any better than the folks who sign the Justifiable Homicide Petition and one of those, Paul Hill, went on himself to murder a doctor in Pensacola, Florida.

You have the blood of these doctors on your hands, because you have incited and you have inspired and conspired with others to result in what exactly has happened, that these doctors have been murdered. And until the United States government starts treating these, instead of treating them as isolated incidents, starts treating them as the conspiracy that they are and starts putting the same resources into these murderers that went into the Olympic bombings, that went into the World Trade Center bombings, we are going to see this continue to happen. Doctors and clinical workers will die.

C. THE DISTRICT COURT PROCEEDINGS

Horsley filed a complaint against Feldt, Planned Parenthood, Gandy, and NOW, claiming they had defamed him by accusing him of conspiring in Dr. Slepian's murder, and claiming that they had conspired together to defame him. The defendants filed answers and some motions, including motions for judgment on the pleadings, contending that Feldt's and Gandy's statements were protected expressions of opinion and rhetorical hyperbole. Horsley moved for production of documents, but the district court suspended discovery pending a ruling on the defendants' motions for judgment on the pleadings. Thereafter, the district court granted judgment on the pleadings in favor of the defendants. Horsley filed a timely appeal.¹

II. DISCUSSION

Horsley contends the district court erred in determining based on the pleadings that Feldt's and Gandy's statements were not actionable.² We review de novo a district court's entry of judgment on the pleadings, accepting the facts in the complaint as true and viewing them in the light most favorable to the nonmoving party. See Ortega v. Christian, 85 F.3d 1521, 1524-25 (11th Cir.1996). "Judgment on the pleadings is appropriate only when the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Moore v. Liberty Nat'l Life Ins. Co., 267 F.3d 1209, 1213 (11th Cir.2001) (internal marks omitted), cert. denied, ___ U.S. ___, 122 S.Ct. 1608, 152 L.Ed.2d 622 (2002). We begin with the Gandy statements, because it is easier to sort out the alleged facts relating to them.

A. THE GANDY STATEMENTS

Horsley contends Gandy defamed him during their televised debate on CNN. The Supreme Court has long recognized "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). Acknowledging that debate "may well include vehement, caustic, and sometimes unpleasantly sharp attacks," id., the Court nevertheless has decided that such attacks are constitutionally protected and those who make them are...