Klein v. Victor

• Citation: 903 F. Supp. 1327
• Decision Date: 13 October 1995
• Docket Number: No. 4:94CV1739 CDP.,4:94CV1739 CDP.
• Parties: Pamala KLEIN and Norma Howes, Plaintiffs, v. Jeffrey S. VICTOR and Open Court Publishing Company, Incorporated, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

903 F. Supp. 1327

Pamala KLEIN and Norma Howes, Plaintiffs, v. Jeffrey S. VICTOR and Open Court Publishing Company, Incorporated, Defendants.

No. 4:94CV1739 CDP.

United States District Court, E.D. Missouri, Eastern Division.

October 13, 1995.

COPYRIGHT MATERIAL OMITTED

Robert L. Carter, Reinert and Duree, St. Louis, MO, Don W. Weber, Collinsville, IL, for Pamala Klein, Norma Howes.

W. David Wells, Thompson and Mitchell, St. Louis, MO, Leonard J. Frankel, Of Counsel, Vines and Frankel, Joseph P. Danis, Carey and Danis, St. Louis, MO, for Jeffrey S. Victor.

W. David Wells, Thompson and Mitchell, St. Louis, MO, Julie A. Bauer, Timothy J. Rivelli, Wiston and Strawn, Chicago, IL, Joseph P. Danis, Carey and Danis, St. Louis, MO, for Open Court Publishing Company Incorporated.

MEMORANDUM AND ORDER

PERRY, District Judge.

This matter is before the Court on defendants' motions to dismiss for failure to state a claim upon which relief may be granted.

In 1993, defendant Open Court Publishing Company, Inc., published defendant Jeffrey S. Victor's book, Satanic Panic: The Creation of a Contemporary Legend. Plaintiffs Pamala Klein and Norma Howes, in their twelve-count petition (initially filed in the Circuit Court for the City of St. Louis), seek damages from both defendants. The twelve counts are labelled, variously, libel per se, libel per quod, punitive damages, libel-actual malice, "false light" invasion of privacy, and intentional and negligent infliction of emotional distress. The book, which was attached to plaintiffs' complaint as an exhibit, purports to be an expose of the claims made by persons who believe they have been victimized by Satanic cults. Both plaintiffs are reported by the book to be involved in investigation and treatment of ritual abuse.

Both defendants have now moved to dismiss the complaint for failure to state a claim. Defendants maintain that the statements complained of by plaintiffs are not actionable, either because they are not defamatory, do not imply assertions of objective fact, do not refer to plaintiffs, or are privileged. Defendants also argue that plaintiffs have failed to plead specific facts to support their claim that defendants knew or had reason to suspect that the statements were false. Defendants move to dismiss Counts V and XII, the "false light invasion of privacy" counts, on the grounds that said claims may not be asserted in a defamation case under Missouri law. Finally, defendants request dismissal of plaintiff Klein's emotional distress claims (Counts VI and VII) on the grounds that such claims cannot arise under Missouri law when defamation is the sole offending conduct. Klein now concedes that Counts VI and VII fail to state a claim under Missouri law, but both plaintiffs contest all the other grounds raised by the motions to dismiss.

I. Defamation

Under Missouri law, a claim for defamation will survive a motion to dismiss if the communication alleged in the petition, together with matters of inducement and innuendo alleged in the petition, is capable of a defamatory meaning. See Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, 51 (1955); Swafford v. Miller, 711 S.W.2d 211, 213 (Mo.Ct. App.1986). In considering a motion to dismiss, the Court must view the facts alleged in the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). However, whether the allegedly libelous words are defamatory is a question of law which the court may decide on a motion to dismiss. See Buller v. Pulitzer Publishing Co., 684 S.W.2d 473, 477 (Mo.Ct.App.1984); Brown v. Kitterman, 443 S.W.2d 146, 150 (Mo.1969). The allegedly defamatory words must be read in connection with the whole publication, rather than in isolation. Missouri Church of Scientology v. Adams, 543 S.W.2d 776, 777 n. 2 (Mo.1976).

Evaluation of the plaintiffs' complaint here is complicated by the fact that each plaintiff uses four separate counts to allege a single claim. That is, plaintiffs each allege libel per se and libel per quod in separate counts, and also each use two separate counts to seek punitive damages. Missouri courts no longer recognize separate causes of action for libel per se and libel per quod. See Nazeri v. Missouri Valley College, 860 S.W.2d 303, 313 (Mo. en banc 1993). Thus, the undersigned will refer to Counts I through IV and VIII through XI collectively in discussing each plaintiff's claim for defamation.

In Nazeri, after an extensive discussion of the history of defamation law in Missouri, the Missouri Supreme Court expressly approved the formulation of the tort as expressed in the Missouri Approved Instructions, § 23.06(1) and (2). Section 23.06(1) applies to private figures; section 23.06(2) applies to public figures where the actual malice standard of New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) applies. In Counts IV and XI plaintiffs have alleged the actual malice standard, so, for purposes of the motion to dismiss the Court will assume that MAI § 23.06(2) applies. Under that formulation, the elements of a claim for defamation are:

(1) defendant published the statement which plaintiffs allege to be defamatory;

(2) that statement was false;

(3) defendant published the statement either with knowledge of its falsity or with reckless disregard for whether it was true or false at a time when defendant had serious doubts as to whether it was true;

(4) the statement tended to deprive the plaintiff of the benefit of public confidence and social associations;

(5) the statement was read by others; and

(6) plaintiff was thereby damaged.

See MAI § 23.06(2); see also Nazeri v. Missouri Valley College, 860 S.W.2d 303, 312 (Mo. en banc 1993).

Layered on top of the state-law tort of defamation, of course, is the first amendment, which protects freedom of expression and guarantees that issues of public concern may be freely and openly debated. Although many courts have drawn a distinction between "fact" and "opinion" in determining what is protected speech, and although the Missouri Supreme Court stated in Nazeri that "expressions of opinion are absolutely privileged," the Supreme Court, in Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1 (1990), rejected a separate constitutional privilege for a statement merely because it may be labelled "opinion" or couched with the phrase "in my opinion." The Court in Milkovich did agree that for a "statement on matters of public concern" to be actionable it must be "provable as false", at least where, as here, a media defendant is involved. There is no doubt that child abuse, ritual or otherwise, is a matter of public concern.

Thus, to determine whether the alleged defamatory statement is protected speech, the Court must, as a threshold matter, determine whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact. Milkovich, 497 U.S. at 19-20, 110 S.Ct. at 2706-2707; Nazeri, 860 S.W.2d at 313. One Circuit has stated the analysis required by Milkovich in the following way:

As a starting point for our analysis, we adopted a three-part test: (1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.

Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir.1995).

A. The Allegedly Defamatory Passages

Plaintiff Klein's allegations of defamation, contained in paragraph 4 of Count I, are set out in full here:

4. In 1993, the Defendants caused to be created, promoted, and published a certain book known as Satanic Panic. In said book, Defendants falsely charged Plaintiff, Pamala Klein, with an inability to do her job in her chosen profession or occupation and with a lack of skill or knowledge in the professional conduct of her profession or occupation, to wit:

(a) Defendants falsely accused Plaintiff of being a "moral crusader" (Satanic Panic, pages 242-246). Defendants then defined a moral crusader as a person who turns symbolic crusades "... into witch hunts for deviants ...". Defendants further defined a moral crusader as a person in whom "... the guilt or innocence of individuals accused of deviance from those values is likely to be a less significant concern for moral crusaders." Defendants further stated that moral crusaders "... are likely to assume the guilt of those who are accused ...". (Id. page 209).

(b) Having defined Plaintiff, Pamala Klein, as a "moral crusader", Defendants then stated that "The claims of moral crusaders serve to construct a definition of a new form of deviance through rhetorical devices rather than through careful scientific investigation." (Id., page 212).

(c) Defendants further misrepresented the professional career of Pamala Klein with regard to the child abuse therapist/investigative profession by falsely stating that Klein had fomented "... unsubstantiated child abuse accusations ..." by appearing in certain training video tapes produced by Cavalcade Productions of Ukiah, California (Id., page 122).

(d) The Defendants falsely stated that the Plaintiff, Pamala Klein, was "... terminated by the Governing Board ..." of the Hanover Township Mental Health Board in 1989 (Id., page 243).

(e) The Defendants further falsely stated that "... Klein used questionable methods of interviewing, asked leading questions, and drew conclusions not based upon facts." (Id., page 246).

(f) In imputing bad motives to Plaintiff in the exercise of her chosen profession and occupation, the Defendants falsely stated that "In the process, Pamala Klein transformed a moral enterprise into a lucrative business enterprise." (Id., page 242).

(g) In imputing a lack of knowledge or skill and improper motives to the Plaintiff in the

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