Jewell v. Nyp Holdings, Inc.

• Citation: 23 F.Supp.2d 348
• Decision Date: 01 October 1998
• Docket Number: No. 97 Civ. 5399(LAP).,97 Civ. 5399(LAP).
• Parties: Richard JEWELL, Plaintiff, v. NYP HOLDINGS, INC. d/b/a The New York Post, Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

23 F.Supp.2d 348

Richard JEWELL, Plaintiff, v. NYP HOLDINGS, INC. d/b/a The New York Post, Defendant.

No. 97 Civ. 5399(LAP).

United States District Court, S.D. New York.

October 1, 1998.

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Mark E. Goidell, Galasso, Langione & Goidell, Melville, NY, Wayne Grant, Wood & Grant, Atlanta, GA, for Plaintiff.

Slade R. Metcalf, Melissa Georges, Squadron, Ellenoff, Plesent & Sheinfeld, LLP, New York City, for Defendant.

OPINION

PRESKA, District Judge.

Plaintiff Richard Jewell ("Jewell") brings this diversity action for libel against defendant NYP Holdings, Inc. d/b/a The New York Post ("NYP"). The NYP moves for summary judgment pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 56 and for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, the motion is granted in part and denied in part.

                TABLE OF CONTENTS
                BACKGROUND ......................................................  355
                I.     The July 31 Column & Headline ............................  356
                II.    The July 31 Article ......................................  357
                III.   The August 1 Article & Headline ..........................  357
                IV.    The August 1 Photograph ..................................  358
                V.     The August 1 Cartoon .....................................  358
                VI.    The August 2 Article .....................................  358
                VII.   The August 2 Photograph ..................................  359
                VIII.  The NYP's Motion .........................................  359
                DISCUSSION ......................................................  359
                I.     Overview .................................................  359
                II.    Choice of Law ............................................  359
                III.   Defamatory Meaning .......................................  360
                       A.         The July 31 Column & Headline .................  361
                       B.         The July 31 Article ...........................  362
                       C.         The August 1 Article ..........................  363
                       D.         The August 1 Photograph .......................  364
                       E.         The August 2 Article ..........................  365
                       F.         The August 2 Photograph .......................  366
                IV.    Substantial Truth ........................................  366
                V.     The Republication Defense ................................  369
                

                       A.         The AP Wire Service Reports ...................  371
                       B.         The CNN Broadcasts ............................  373
                       C.         The AJC Articles ..............................  374
                VI.    The Opinion-Fact Dichotomy                                  374
                       A.         The Broader Context in Which
                the Statements Were Published .................  378
                       B.         The July 31 Column & Headline .................  380
                       C.         The July 31, August 1 and August 2
                Articles and the August 1 Cartoon .............  383
                                  1.           The July 31 Article ..............  383
                                  2.           The August 1 Article &amp
                Headline .........................  383
                                  3.           The August 1 Cartoon .............  385
                                  4.           The August 2 Article .............  385
                VII.   The Incremental Harm Defense .............................  387
                VIII.  Libel Per Se .............................................  396
                       A.         Indictable Offense ............................  398
                       B.         Work Performance ..............................  399
                CONCLUSION ......................................................  401
                

BACKGROUND

In the early morning hours on July 27, 1996, a bomb exploded in Centennial Olympic Park in downtown Atlanta, Georgia during the centennial olympic games. One person was killed and one-hundred and ten others were injured. See Complaint ¶ 12.¹ Having suffered the collective tragedies of the bombing of the World Trade Center on February 26, 1993 and the Murrah Federal Building in Oklahoma City on April 19, 1995, the nation's sense of domestic security was rapidly eroding. Some seventy-two hours after the explosion, on the afternoon of July 30, 1996, the Atlanta Journal-Constitution ("AJC"), in a special extra edition, published an article identifying Jewell as "the focus of the federal investigation." See id. ¶ 30; Kathy Scruggs & Ron Martz, FBI Suspects "Hero" Guard May Have Planted Bomb, Atlanta Journal-Constitution, July 30, 1996 (extra addition), at 1X ("The First July 30 AJC Article"); annexed as Ex. A to the Affidavit of Andrea Peyser, sworn to on October 3, 1997 ("Peyser Aff."). Publication to a similar effect by the NYP quickly followed. This lawsuit arises from these events.

Initially, from the evening of July 27 to the morning of July 30, Jewell's actions were described by the national and international print and broadcast media as heroic. See Complaint ¶ 20. Although reluctant to grant interviews with the media, Jewell did so on a limited basis in an effort to accommodate the desires of one of the olympics' corporate sponsors. See id. ¶ 30. This media attention focused on Jewell's role in the events immediately prior to the explosion.

Approximately twenty minutes before the bomb exploded, Jewell reported the existence of an unattended package in the Centennial Olympic Park to Tom Davis ("Davis"), a member of the Georgia Bureau of Investigation. See id. ¶ 14. Shortly after Davis and Jewell unsuccessfully attempted to ascertain whether anyone owned the package, Davis called his command post, reported a suspicious package and requested the dispatch of a bomb inspection team. See id. ¶ 16. Almost immediately thereafter, an anonymous 911 call was placed to the Atlanta Police Department in which the caller stated: "There is a bomb in Centennial Park. You have thirty minutes." See id. ¶ 13. Prior to the explosion which occurred some twenty minutes after this call, Jewell attempted to evacuate individuals from the area surrounding the location of the suspicious package. See id. ¶¶ 18-19. Although the explosion killed one person and injured numerous others, a number of people were moved away from the site with Jewell's assistance. See id. ¶ 19.

The tone of the media coverage changed dramatically with the breaking story published by the AJC on July 30. As noted above, that article identified Jewell as the "focus of the federal investigation." See The First July 30 AJC Article; Peyser Aff.Ex. A. The article also indicated that Jewell fit the profile of a "lone bomber" and that the profile "generally includes a frustrated white man who is a former police officer, member of the military or police `wannabe' who seeks to become a hero." Id. A second article was also published in this special edition and reported similar information. See Kent E. Walker, Bomb Suspect Had Sought Lime-light, Press Interviews, Atlanta Journal-Constitution, dated July 30, 1996 (extra edition), at 3X; annexed as Ex. B to the Peyser Aff.

With respect to the NYP, and broadly speaking, the Complaint pleads libel concerning two different aspects of the NYP's reporting. First, libel in connection with Jewell's alleged responsibility for the bombing of Centennial Olympic Park. Second, libel with respect to Jewell's prior work history and job performance. Jewell claims that the NYP libeled him in one column, three articles, two photographs and one cartoon.

I. The July 31 Column & Headline

Jewell claims that a July 31 column in the NYP written by Andrea Peyser ("Peyser") libeled him in various respects ("July 31 Column"). A copy of this column, along with the front page of the NYP from this date, is annexed as Ex. E to the Peyser Aff. This column contains, in addition to its headline, the following allegedly libelous statements:²

Who checked `Rambo' crossing guard's record?

Richard Jewell, the Olympic security guard who's reportedly turned into a prime suspect for Saturday's deadly bombing, had a reputation for being the Village Rambo in Habersham County—a rural area in the North Georgia mountains that actually sees snow in winter.

He was a fat, failed former sheriff's deputy who spent most of his working days as a school crossing guard, and yearned to go further. But he lost his job on the county force, after six years[,] when he wrecked a squad car.

Jewell got another chance in April 1995, when he was hired as a security guard for tiny Piedmont College in Demorest, a town with just a few hundred residents. It was, to put it mildly, a disaster.

The final straw came after Jewell got up in the middle of the night and set up a road block around the campus, hunting for people driving under the influence, said a source speaking on condition of anonymity. "He was let go after that," said the source.

"He was a straight arrow who overdid everything," college president Ray Cleere told me yesterday.

It was Cleere who telephoned the FBI on Sunday, after watching endless TV broadcasts featuring his former employee. Something about Jewell, taking credit for saving lives in Centennial Park, didn't sit right with the college president.

It wasn't that Jewell was brutal. But on a campus of 1,000 students, where the worst imaginable problems might involve open beer containers and loud music, Jewell seemed desperate to stand out as a hero.

"But these aren't the streets of New York. We have a small, country town with a small liberal-arts college. He over-investigated everything."

As an example, Cleere said disputes that could be resolved with a little adult mediation often turned into federal cases.

"Kids who get into scuffles—that does not require investigation," he said.

That the main suspect in a major act of terrorism is a home-grown failure is both a relief—and a major embarrassment—to this city's real law-enforcement people.

The scary part is, as the minutes ticked by, it was Jewell, this disgraced...