Tilton v. Capital Cities/ABC Inc., 92-C-1032-BU.

• Decision Date: 19 June 1995
• Docket Number: No. 92-C-1032-BU.,92-C-1032-BU.
• Citation: 905 F. Supp. 1514
• Parties: Robert G. TILTON, an individual, Plaintiff, v. CAPITAL CITIES/ABC INC., a New York corporation; et al., Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

905 F. Supp. 1514

Robert G. TILTON, an individual, Plaintiff, v. CAPITAL CITIES/ABC INC., a New York corporation; et al., Defendants.

No. 92-C-1032-BU.

United States District Court, N.D. Oklahoma.

June 19, 1995.

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Sheila Miller Bradley, Ted J. Nelson, J.C. Joyce (argued), John C. Joyce, Joyce & Pollard, Tulsa, OK, for plaintiff.

Harvey D. Ellis, Jr., Clyde A. Muchmore (argued), Anton J. Rupert, Crowe & Dunlevy, Oklahoma City, OK, W. Kyle Tresch, Crowe & Dunlevy, Tulsa, OK, Floyd Abrams, Susan Buckley, David G. Januszewski, Edward P. Krugman, Cahill Gordon & Reindel, New York City, for defendants.

ORDER

BURRAGE, District Judge.

On May 26, 1995, the Court entered an Order granting the Motion for Summary Judgment (Docket Entry # 244) filed by Defendants, American Broadcasting Companies, Inc., Robbie Gordon, Diane Sawyer and Kelly Sutherland and denying the Motion for Partial Summary Judgment (Docket Entry # 257) filed by Plaintiff, Robert G. Tilton. The following sets forth the Court's reasons for its decision.

On November 21, 1991, Defendant, American Broadcasting Companies, Inc. ("ABC"), broadcast on its weekly television news show PrimeTime Live, a program entitled "Men of God" which focused on — and was critical of — three televangelists, W.V. Grant, Larry Lea and Plaintiff, Robert G. Tilton. On July 9, 1992, ABC rebroadcast its original PrimeTime Live program, with some revisions and clarifications, and broadcast a follow-up segment reporting on additional information ABC had learned about Plaintiff after its original broadcast.¹ Defendant, Diane Sawyer, was the anchor and correspondent for both of the broadcasts. Defendant, Robbie Gordon, and Defendant, Kelly Sutherland, were the producer and associate producer, respectively, for the specific reports concerning Plaintiff which were entitled "The Apple of God's Eye."

On November 11, 1992, Plaintiff commenced this diversity libel and false light invasion of privacy action against Defendants,² alleging that PrimeTime I and PrimeTime II broadcast three libelous and false light statements. Plaintiff, on May 13, 1993, moved the Court for entry of a temporary restraining order and a preliminary injunction barring ABC from rebroadcasting statements contained in the PrimeTime Live broadcasts. After a five-day evidentiary hearing, the Court denied Plaintiff's request for injunctive relief finding, inter alia, that Plaintiff had failed to demonstrate there was a substantial likelihood of recovery on the merits of his claims. Thereafter, Plaintiff amended his complaint setting forth additional allegations of libelous and false light statements made by Defendants in PrimeTime I and PrimeTime II. At the Court's directive, Plaintiff, on July 26, 1994, filed his Final Amended Complaint, which consolidated all of his claims against Defendants.³ After conducting extensive discovery, Plaintiff has now filed his partial summary judgment motion, seeking judgment as to six segments of the broadcasts which allegedly contain libelous and false light statements. Defendants have also filed a summary judgment motion, seeking judgment as to all alleged libelous and false light statements.

The parties agree that Plaintiff is a public figure. Thus, in order to prevail on his claims, Plaintiff must establish that the alleged defamatory statements are false and that Defendants acted with actual malice in publishing the alleged defamatory statements.⁴Philadelphia Newspapers v. Hepps, 475 U.S. 767, 775-78, 106 S.Ct. 1558, 1563-64, 89 L.Ed.2d 783 (1986); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130, 162, 87 S.Ct. 1975, 1995, 18 L.Ed.2d 1094 (1967). The actual malice standard is not satisfied merely through a showing of ill will or "malice" in the ordinary sense of the term. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666, 109 S.Ct. 2678, 2685, 105 L.Ed.2d 562 (1989). In order to prove actual malice, Plaintiff must show that Defendants acted with "knowledge that the publication was false or with reckless disregard of whether it was false or not." New York Times, 376 U.S. at 280, 84 S.Ct. at 726. A reckless disregard for the truth requires more than a departure from reasonably prudent conduct. Harte-Hanks, 491 U.S. at 688, 109 S.Ct. at 2696. There must be sufficient evidence to support a conclusion that Defendants made the false publication with a "high degree of awareness of ... probable falsity," Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964), or that Defendants "entertained serious doubts as to the truth of their publications." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). The actual malice standard may be proven by indirect or circumstantial evidence. Herbert v. Lando, 441 U.S. 153, 170, 99 S.Ct. 1635, 1645, 60 L.Ed.2d 115 (1979). However, because First Amendment concerns are implicated, Plaintiff must prove actual malice with convincing clarity. New York Times, 376 U.S. at 285-286, 84 S.Ct. at 728-729.

As stated, Plaintiff must also establish falsity of the alleged defamatory statements in order to prevail on his claims. Hepps, 475 U.S. at 776-78, 106 S.Ct. at 1563-64; Garrison, 379 U.S. at 74, 85 S.Ct. at 215. In so doing, Plaintiff cannot simply point to minor inaccuracies in the challenged statements. Rather, he must show that the statements were not substantially true. As stated by the Supreme Court in Masson v. New Yorker Magazine, 501 U.S. 496, 516-517, 111 S.Ct. 2419, 2432-2433, 115 L.Ed.2d 447 (1991), it is "the substance, the gist or the sting" of the alleged defamatory statements that are critical to the Court's analysis.

Unlike the element of actual malice, the Supreme Court has not addressed the appropriate standard of proof for falsity. Harte-Hanks, 491 U.S. at 661, n. 2, 109 S.Ct. at 2682, n. 2. The circuit courts, which have addressed the issue, have reached different conclusions. Compare Firestone v. Time, Inc., 460 F.2d 712, 722-723 (5th Cir.) (Bell, J., specially concurring), cert. denied, 409 U.S. 875, 93 S.Ct. 120, 34 L.Ed.2d 127 (1972) and Buckley v. Littell, 539 F.2d 882, 889-90 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 785, 786, 50 L.Ed.2d 777 (1977) (expressing view that clear and convincing standard applies to issue of falsity) with Goldwater v. Ginzburg, 414 F.2d 324, 341 (2d Cir. 1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970) and Rattray v. City of National City, 36 F.3d 1480, 1487 (9th Cir.1994) (expressing view that preponderance of the evidence standard applies). However, in reaching its determination of the parties' motions, the Court need not make a definitive ruling in regard to the appropriate standard of proof. As will be discussed hereinafter, the Court finds Plaintiff's proof of falsity is inadequate even under the lesser standard of the preponderance of evidence in regard to several of his claims. As to other claims, the Court finds Plaintiff cannot establish the element of actual malice, and therefore, falsity need not be addressed.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the Court must draw all reasonable inferences from the record in favor of the party opposing summary judgment. Brueggemeyer v. American Broadcasting Cos., 684 F.Supp. 452, 454 (N.D.Tex.1988). When the non-moving party bears the burden of proof at trial, summary judgment is warranted if the non-moving party fails to "make a showing sufficient to establish the existence of an essential element of that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In determining whether a material factual dispute exists for trial, the Court views the evidence through a prism of the controlling legal standard. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Thus, in regard to the issue of actual malice,

"the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not."

Id. at 255-56, 106 S.Ct. at 2514.

Applying the foregoing standards, the Court now examines the alleged libelous and false light statements in PrimeTime I and PrimeTime II.

Haitian Orphanage

PrimeTime I reported:

"SAWYER: voice-over And what about this mission, Tilton's orphanage in Haiti? We kept thinking about Bob Jones and how he told us you could just fix yourself up a sign and claim an orphanage.

BROTHER BOB JONES: Put your name on there, whatever you want.

SAWYER: voice-over Tilton uses three different names for his Haiti orphanages, so when we went to Haiti, we asked the government officials in charge of foreign missions if they'd heard of any of Tilton's orphanages. They said no.

interviewing So nothing from Robert Tilton here?

HAITIAN OFFICIAL: No."

PrimeTime II also reported:

"SAWYER: voice-over And what about this mission, Tilton's orphanage in Haiti? Well, remember Bob Jones who told us for just a few thousand a month we could put up a sign and claim an entire orphanage, even if we weren't the only contributor.

BROTHER BOB JONES: Put your name on there, whatever you want.

SAWYER: voice-over So even though his magazine calls it the Robert Tilton Ministries Children's Home, it's really not Tilton's place at all, which is

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