Price v. Viking Press, Inc.

• Decision Date: 30 December 1985
• Docket Number: Civ. No. 4-85-819.
• Parties: David PRICE, Plaintiff, v. VIKING PRESS, INC., Peter Matthiessen, Bruce Ellison, Defendants.
• Court: U.S. District Court — District of Minnesota

625 F. Supp. 641

David PRICE, Plaintiff, v. VIKING PRESS, INC., Peter Matthiessen, Bruce Ellison, Defendants.

Civ. No. 4-85-819.

United States District Court, D. Minnesota, Fourth Division.

December 30, 1985.

Daniel P. O'Keefe and Roger Magnuson, Dorsey & Whitney, Minneapolis, Minn., for plaintiff.

Martin Garbus, Frankfurt, Garbus, Klein & Selz, New York City, and Barbara F.L. Penn, St. Paul, Minn., for defendant Viking Press, Inc.

MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

Plaintiff David Price brought this action against Viking Press, Inc. (Viking),¹ Peter Matthiessen, and Bruce Ellison, alleging defamation, intentional infliction of emotional distress, false light invasion of privacy, and prima facie tort. He seeks compensatory damages of $25 million, as well as punitive damages, interest, costs, and attorney's fees. Defendant Ellison has counterclaimed alleging prima facie tort, abuse of process, and violations of 42 U.S.C. § 1985, as well as constitutional violations. Diversity jurisdiction is alleged.² The matter is now before the court upon the motion of defendants Viking and Matthiessen to dismiss.³

Background

This action arises from the book In the Spirit of Crazy Horse, written by defendant Matthiessen, allegedly based in whole or in part upon information supplied by defendant Ellison, and published by defendant Viking in 1983. The book addresses, among other things, the role of the Federal Bureau of Investigation (FBI) in the prosecutions arising from the events at Wounded Knee, South Dakota in 1973 and the killing of two FBI agents on the Pine Ridge, South Dakota Reservation in 1975.

Plaintiff's 29 page complaint summarizes the alleged defamatory statements and quotes those portions of the 628 page book that he alleges defame him. He contends that the book accuses him of, among other things, complicity in the murder of an AIM member and in the alleged coverup of that murder, knowingly suborning perjury, violating constitutional rights by illegal investigative and harassment activities, failing to investigate major crimes on Pine Ridge, and threatening witnesses with physical harm. Plaintiff also alleges that many of the factual assertions in the book are fabrication, that documents and court proceedings are grossly distorted and that the defendants knowingly or recklessly published these falsehoods.

Defendants seek to dismiss the entire action for failure to state a claim upon which relief can be granted.⁴ They claim that the complaint does not adequately plead facts establishing malice or actual damages and that the book is privileged under common law. They also claim that the book is not defamatory of Price as a matter of law, that it is absolutely privileged as a neutral report concerning a public official, and that the opinions in the book are not actionable.

Discussion

A. Adequacy of the Pleadings

Defendants claim that plaintiff failed to plead facts showing a reckless disregard for the truth. The court has reviewed the various authorities cited by the parties and concludes that the complaint should be considered in terms of Fed.R.Civ.P. 8. See, e.g., Geisler v. Petrocelli, 616 F.2d 636 (2d Cir.1980) (in defamation actions, "the pleading of additional evidence is not only unnecessary, but in contravention of proper pleading procedures"). Rule 8 requires only that plaintiff's charges be set forth in a short and concise statement, giving enough detail to enable defendants to respond and to raise the defense of res judicata if appropriate. Examination of plaintiff's 29 page complaint establishes that it satisfies the pleading rules for defamation, even under the more detailed approach advocated by some courts. See, e.g., Barger v. Playboy Enterprises, 564 F.Supp. 1151, 1156 (N.D.Cal. 1983), aff'd 732 F.2d 163 (9th Cir.), cert. denied, ___ U.S. ___, 105 S.Ct. 175, 83 L.Ed.2d 110 (1984).

B. The Substantive Bases for Dismissal of the Defamation Count

Because matters outside the pleadings have been submitted by defendants and considered by the court, defendants' motion shall be treated as one for summary judgment. See Fed.R.Civ.P. 12(c). In passing upon such a motion, the court is required to view the facts in a light most favorable to the nonmoving party, and the movant has the burden of establishing that no genuine issue of material fact remains and that the case may be decided as a matter of law. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983); Ralph's Distributing Co. v. AMF, Inc., 667 F.2d 670 (8th Cir.1981).

1. The Defamatory Meaning of the Allegations

In libel claims, a publication may be defamatory on its face or it may carry a defamatory meaning only by reason of extrinsic circumstances. Under Minnesota law the court determines whether an alleged defamatory innuendo is reasonably conveyed by the language used. Utecht v. Shopko Department Store, 324 N.W.2d 652, 653-654 (Minn.1982); Marudas v. Odegard, 215 Minn. 357, 10 N.W.2d 233 (1943). The alleged defamatory passages must be considered in the context of the entire work and the words taken as they are commonly understood. If the words are capable of defamatory meaning, the finder of fact must decide whether they were so understood. Utecht v. Shopko Department Store, 324 N.W.2d 652, 654 (Minn.1982).

Defendants claim that many of the statements in the complaint are innocuous. The court has carefully reviewed each allegation, as well as examining the book itself, and concludes that allegations 10(p), 10(r),⁵ 10(y), 11(c), and 11(h) must be dismissed for, as a matter of law, they cannot be reasonably construed as defaming the plaintiff.⁶ Many of the other allegations are reasonably susceptible of a defamatory connotation because they republish defamatory statements made by others. Unless protected by a privilege, defendants are as liable for republication of a defamatory statement as if they had made the statement themselves. See, e.g., Cianci v. New Times Publishing Co., 639 F.2d 54, 60-61 (2d Cir.1980); W. Prosser, Handbook of the Law of Torts § 111 (4th ed. 1971).

a. Group Libel

Defendants claim that several paragraphs of the complaint do not concern Price, but only make general reference to the FBI, a large group, and must be dismissed as well. Plaintiff claims, on the other hand, that the number of FBI agents typically assigned to the Rapid City branch was so small that a reader could reasonably conclude that the charges of misconduct referred to plaintiff individually.

Four Minnesota cases have dealt with the question of whether alleged defamation of a group attaches stigma to a member of the group. Of the three cases which allowed plaintiffs to go forward with their libel action, two turned on the effect of a statute which has been subsequently repealed.⁷ See Palmerlee v. Nottage, 119 Minn. 351, 138 N.W. 312 (1912); Petsch v. St. Paul Dispatch Printing Co., 40 Minn. 291, 41 N.W. 1034 (1889). Neither opinion discloses the number of persons in the group, but Palmerlee involved the board of county commissioners for Dodge County and Petsch involved an article about a St. Paul "city hall ring." From these facts, one can assume that the group was few in number. Moreover, the plaintiff in Petsch was identified by name and as a lieutenant to the chief of the gang. In the third case, Fullerton v. Thompson, 123 Minn. 136, 143 N.W. 260 (1913), one of the nine members of the state board of medical examiners was permitted to bring an action on an article about the board. The court stated that "the publication conveys the meaning clearly that each member of the board participated in whatever was done with the fees collected from physicians moving into this state and licensed to practice here by the board." The plaintiff was also identified by name in the article.

Stewart v. Wilson, 23 Minn. 449 (1877), dealt with a statement of broader impact. The court found that the alleged defamatory statement, "we have not the slightest doubt but there is a good deal of perjury in these numerous cases, and it ought to be shown up" is too general to be actionable. 23 Minn. at 453. It found that the sentence "in and of itself imputes perjury to no particular person." Id. Under Stewart, a statement defaming a large group will not be actionable by an individual member of the group unless the statement is made in other than an impersonal sense and under circumstances where it could be reasonably understood to apply to that member. Id. at 453-54.

All of these cases were decided long before the Supreme Court drastically modified the reach and breadth of common-law libel actions in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This court need not consider the application of any constitutional protections, however, because it finds, as a matter of law, that the allegations in 10(j), 11(a), 11(b), 11(c), 11(d), 11(e), 11(f), 11(h), and 11(i) are not actionable under Minnesota law. To the extent that group libel is still a viable theory, it is not called for upon these facts.

In his complaint, plaintiff alleges that he is one of a small group "of as few as 10 special agents assigned to the Pine Ridge Reservation...." While ten may have been the number of FBI agents "typically assigned" to the Rapid City branch, plaintiff's memorandum p. 28, the court may take judicial notice that the number was not so limited during the time period which the book discusses. In Wounded Knee Legal Defense/Offense Committee v. Federal Bureau of Investigation, 507 F.2d 1281 (8th Cir.1974), the Court of Appeals described the situation in Rapid City, South Dakota in March, 1973: "At that time the area was replete with F.B.I. agents and federal marshals who had been summoned as a result of the Indian action at Wounded Knee." Media stories from the time period also indicate that the number of FBI agents operating near Rapid City exceeded the number typically assigned.

Where the group is not small, a...