Miles v. National Enquirer, Inc.

• Citation: 38 F.Supp.2d 1226
• Decision Date: 27 January 1999
• Docket Number: No. 98-WY-528-CB.,98-WY-528-CB.
• Parties: Stephen MILES, Plaintiff, v. NATIONAL ENQUIRER, INC., a Florida Corporation; John South; David Wright; and John Does 1-20, Defendants.
• Court: U.S. District Court — District of Colorado

38 F.Supp.2d 1226

Stephen MILES, Plaintiff, v. NATIONAL ENQUIRER, INC., a Florida Corporation; John South; David Wright; and John Does 1-20, Defendants.

No. 98-WY-528-CB.

United States District Court, D. Colorado.

January 27, 1999.

Walter Lee Hill, Julia Yoo, Boulder, CO, for Plaintiff.

Gerson Zweifach, Williams & Connolly, Washington, DC, Andrew M. Low, David, Graham & Stubbs, LLP, Denver, CO, for Defendants.

ORDER GRANTING DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT

BRIMMER, District Judge.

This matter comes before the Court upon Defendants' motion for summary judgment because Plaintiff has failed to come forward with clear and convincing proof of actual malice. Having reviewed the file and being fully advised of the premises, for the reasons that follow, the Court FINDS and ORDERS that Defendants' motion for summary judgment is GRANTED IN ITS ENTIRETY.

Discussion

The Court gave a detailed factual recitation in its December 14, 1998, Order on Summary Judgment. The relevant facts have not changed and are hereby incorporated by reference. Any additional facts will be discussed in the Court's analysis.

"Summary judgment is appropriate if the pleadings and other documents submitted before the court `show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir.1998) (quoting Fed.R.Civ.P. 56(c)). Accordingly, this Court views the evidence in the light most favorable to Miles. See Baptiste v. J.C. Penney Co., Inc., 147 F.3d 1252, 1255 (10th Cir.1998). "A fact is `material' if it `might affect the outcome of the suit under the governing law,' and a `genuine' issue exists if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Occusafe, Inc. v. EG&G Rocky Flats, Inc., 54 F.3d 618, 621 (10th Cir.1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Given these standards, this Court turns to Defendants' motion for summary judgment.

As stated in the December 14 Order, Plaintiff must adduce clear and convincing proof of actual malice to sustain a cause of action for defamation. To meet this burden, Plaintiff must produce "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Thus, the "appropriate summary judgment question [is] whether the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not." Liberty Lobby, Inc., 477 U.S. at 255-56, 106 S.Ct. 2505. Of course, Defendants must first come forward with evidence showing that there is no genuine issue of material fact on this issue; if Defendants meet that burden, the burden shifts to Plaintiff.

Additionally, it is not enough for a defendant to simply state that he believed the truth of a publication and thus that no actual malice exists. The St. Amant Court specifically recognized this notion. See 390 U.S. at 732, 88 S.Ct. 1323; see also Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103, 1106 (Colo.1982) (en banc) (adopting the entire St. Amant definition of reckless disregard for private plaintiffs in matters of public concern). "The finder of fact must determine whether the publication was indeed made in good faith." St. Amant, 390 U.S. at 732, 88 S.Ct. 1323. The St. Amant Court explained this idea further:

Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation.

Id. The Court understands this "good faith" requirement to mean simply that it is not enough for a defendant to rest on a belief of truth as a defense to reckless disregard. He must have some credible reason for holding a belief of truth. If a defendant does not, he is not entitled to First Amendment protection. See id.

Further, because issues of intent are now before the Court, the Court must determine whether calling one a "pedophile" or "sex offender" is defamatory per se or defamatory per quod. See Keohane v. Wilkerson, 859 P.2d 291, 301 (Colo.App. 1993), aff'd, 882 P.2d 1293 (Colo.1994). This determination has practical implications in this case. If the statements are defamatory per se, Plaintiff need not prove that Defendants intended the defamatory implications of a statement because the statements would have no positive implication — the statements would be defamatory as a matter of law.

Whether a statement is defamatory per se or per quod is a question of law. See id. "A statement may be considered defamatory per se if it is specifically directed at the person claiming injury and, on its face and without extrinsic proof, it is unmistakably recognized as injurious." Id. (citing Lininger v. Knight, 123 Colo. 213, 226 P.2d 809 (1951)); see also Lind v. O'Reilly, 636 P.2d 1319, 1320 (Colo.App. 1981). To decide whether a statement is defamatory per se, the Court must examine the statement on its own, without the aid of inducements, colloquialisms, innuendos, and explanatory circumstances. See Keohane, 859 P.2d at 301.

"Historically, a statement constituted defamation per se if it imputed a criminal offense; a venereal or loathsome disease; improper conduct of a lawful trade, business, profession or office; or unchasity of a woman." Id. (citing numerous cases). In contrast, a statement is defamatory per quod if it requires innuendo or extrinsic facts to establish its defamatory character, and requires pleading special damages. See id.

Although merely accusing one of being a homosexual is not defamatory per se, see Hayes v. Smith, 832 P.2d 1022, 1025 (Colo.App.1991), Miles alleged that Defendants named him a "pedophile" and "sex offender." There can be no doubt that both statements subjected Miles to a category of persons "considered deserving of social approbation." Id. at 1025. The Court has no doubt that such accusations subjected Miles to public ridicule and hatred. Such statements are defamatory per se. See id.

However, a declaration that these statements are defamatory per se also requires that no extrinsic evidence is necessary to determine that the statements are "of and concerning the plaintiff." Lind, 636 P.2d at 1320. The statements here meet that criteria. The November article stated: "Included on that list are dozens of pedophiles and sex offenders living in Boulder. One of them, gay photographer Stephen Miles...." Without any extrinsic evidence, there is no doubt that this statement is of and concerning Stephen Miles. Accordingly, the Court finds that the statements in this case are defamatory per se.

A. Miles' Pedophile Allegation Must be Dismissed

Plaintiff has argued that he can show Defendants' actual malice by relying on the standard announced in Kuhn v. Tribune-Republican Publishing Co., 637 P.2d 315, 318 (Colo.1981) (en banc). In Kuhn, the plaintiffs, public officials, sued for defamation for newspaper articles that claimed that certain ski areas were chosen for government use because such ski areas provided ski passes for the personal use of the plaintiffs. See id. at 316. A jury verdict was entered for the plaintiffs, but the court of appeals reversed. See id. The Colorado Supreme Court found that a finder of fact could infer actual malice if an investigation is grossly inadequate. See id. at 319 (citing, in part, Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)).

The Kuhn court found that given this standard, a jury could conclude that the reporter in that case acted with actual malice. See id. The reporter admitted that he had no basis for most of his erroneous statements and that he failed to take the time to corroborate most of the allegations in the article (despite the fact that there was no urgency to publish the article). See id. And while the reporter verified that the department had received free ski passes, with no factual support the reporter wrote that the plaintiffs personally received ski passes. See id. at 317. Reporting such statements under these facts amounted to fabrication; the reporter simply made up the portion of the story that stated that the plaintiffs personally received ski passes. See id. at 319. "In this context, a reporter's failure to pursue the most obvious available sources of possible corroboration or refutation may clearly and convincingly evidence a reckless disregard for the truth."¹ Id. (citation omitted).

In any event, Kuhn is distinguishable from the current case. There are simply no compelling facts like those present in Kuhn that display a "grossly inadequate" investigation. At most, the facts demonstrate a mere failure to investigate further — something the Supreme Court has specifically stated is not enough to constitute actual malice by itself. There was no fabrication of facts here. South and Wright had credible evidence for their assertions. As the Court will explain, John South and David Wright researched their stories and, based on that research, wrote their stories.

The uncontroverted record demonstrates that John South and David Wright had a good faith belief that Miles was and is a pedophile. First, an unnamed source told John South that Plaintiff was a pedophile.² South's interview notes corroborate this assertion. South's research file also contained Boulder Daily Camera articles which recount that in 1989, Miles had been arrested on suspicion of taking pornographic photographs of juveniles and giving them drugs and alcohol. Miles was also arrested and charged, but never convicted, in connection with a child...