Underwager v. Channel 9 Australia

• Citation: 69 F.3d 361
• Decision Date: 31 October 1995
• Docket Number: No. 94-55227,94-55227
• Parties: 24 Media L. Rep. 1039, 95 Cal. Daily Op. Serv. 8449, 95 Daily Journal D.A.R. 14,570 Ralph UNDERWAGER, Plaintiff-Appellant, v. CHANNEL 9 AUSTRALIA; "60 Minutes" of Australia; Anne Schlebaum; Mike Munro, Defendants, and James Peters, Sr.; Anna Salter; Kim Oates; Charles R. Vaughn, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 361

69 F.3d 361

24 Media L. Rep. 1039, 95 Cal. Daily Op. Serv. 8449,

95 Daily Journal D.A.R. 14,570

Ralph UNDERWAGER, Plaintiff-Appellant, v. CHANNEL 9 AUSTRALIA; "60 Minutes" of Australia; Anne Schlebaum; Mike Munro, Defendants and James Peters, Sr.; Anna Salter; Kim Oates; Charles R Vaughn, Defendants-Appellees.

No. 94-55227.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 8, 1995.

Decided Oct. 31, 1995.

Robert E. Sutton, Milwaukee, Wisconsin, for plaintiff-appellant.

Lawrence R. Levin, Levin & Funkhouser, Chicago, Illinois, for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before: FLETCHER, WIGGINS, and FERNANDEZ, Circuit Judges.

FLETCHER, Circuit Judge:

Ralph Underwager appeals the district court's dismissal of his defamation claims against Charles Vaughn and James Peters, Sr., for lack of personal jurisdiction and against Kim Oates on summary judgment (on the merits) arising from Oates's showing of a videotape in which Vaughn and Peters criticize Underwager's qualifications and performance as an expert witness on child sexual abuse. ¹ We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.

BACKGROUND

Underwager is a Minnesota psychologist who has testified as an expert witness in more than 250 trials on the subject of the unreliability of children's testimony alleging Among those who appeared on the program were Peters, at the time a senior staff attorney for the National Center for the Prosecution of Child Abuse in Virginia, and Vaughn, an attorney practicing in Indiana. Oates, a professor at the University of Sydney and chairman of the Division of Medicine of the Children's Hospital, as well as an expert witness for the prosecution in Crown v. Deren, replayed part of the Sixty Minutes program at the San Diego Conference on Responding to Child Maltreatment, held on January 22, 1992, in La Jolla, California.

sexual abuse. On August 5, 1990, the television program Sixty Minutes Australia broadcast a documentary, "Witness for Mr. Bubbles," in which American attorneys and psychologists disputed Underwager's theories and credentials. The segment was primarily concerned with Underwager's testimony for the defense in Crown v. Deren, the so-called "Mr. Bubbles" case, in which an Australian defendant was acquitted of charges that he had sexually assaulted his wife's nursery school students in bubble baths.

Underwager sued Peters, Vaughn, and Oates in federal court in the Southern District of California. Underwager alleged that Vaughn and Peters conspired to defame him, to injure his professional reputation, and to interfere with his prospective economic opportunities; he also alleged that each defendant individually defamed him. The district court granted Peters's and Vaughn's motions to dismiss for lack of personal jurisdiction, and granted summary judgment for Oates. Underwager appeals. Oates requests double costs and attorneys fees. ²

DISCUSSION

1. The Peters and Vaughn Claims

Underwager concedes that he cannot establish personal jurisdiction over Peters and Vaughn as individuals, ³ but argues that the district court failed to consider a "conspiracy theory" of personal jurisdiction over them. When the facts are undisputed, we review de novo a district court's determination in respect to personal jurisdiction. See Bourassa v. Desrochers, 938 F.2d 1056, 1057 (9th Cir.1991).

Underwager cites two district court opinions in which a conspiracy theory was applied. In one of those cases, the court required the plaintiff to allege specific overt acts in the forum state that furthered the conspiracy. Mandelkorn v. Patrick, 359 F.Supp. 692 (D.D.C.1973) (finding jurisdiction over individuals who conspired to "de-program" cult member). In the other, the court stated that jurisdiction could be exercised only "where substantial acts in furtherance of the conspiracy were performed in the forum state and the co-conspirator knew or should have known that the acts would be performed in the forum state." Gemini Enterprises, Inc. v. WFMY Television Corp., 470 F.Supp. 559, 564 (M.D.N.C.1979) (internal citations omitted) (finding jurisdiction over trade association whose advertising code local TV station observed).

Here, Underwager alleges no facts to even suggest a conspiracy between Peters and Vaughn on the one hand and Oates on the other hand. In fact, his amended complaint against Oates does not claim Oates conspired. While he states on appeal that "Oates obtained copies of the videotape from the producers of the program," this does not implicate in a conspiracy persons who merely appeared on the program.

Further, Underwager does not dispute Peters's and Vaughn's claims that they had no knowledge that Oates planned to play the tape in La Jolla. While the airing of an Australian TV program in Australia is reasonably foreseeable, the re-airing of such a program by a third party at a conference in California two years later is not. Thus, the district court correctly dismissed the claims against Peters and Vaughn for lack of personal

jurisdiction. See also Wilson v. Belin, 20 F.3d 644, 649 (5th Cir.) (no jurisdiction over non-residents whose comments were solicited by reporters and published in newspaper circulated in forum state), cert. denied, --- U.S. ----, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994); Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201 (1st Cir.1994) (no jurisdiction in Massachusetts over California defendant who allegedly libelled plaintiff in comments made in phone conversation initiated by reporter in Massachusetts and published in Massachusetts newspaper).

2. The Oates Claims

We review de novo a grant of summary judgment. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. at 1130. To defeat the motion for summary judgment, the nonmoving party must "make a sufficient showing on [all] essential element[s] of [his] case with respect to which [he] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

As a preliminary matter, Underwager asserts that Oates is not entitled to First Amendment protection because he is not a United States citizen. We have no direct authority on the question of whether persons who are legally within the borders of our country but who are not citizens or resident aliens enjoy First Amendment rights. However, the cases suggest that they do. In Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), Justice Murphy stated:

The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all "persons" and guard against any encroachment on those rights by federal or state authority.

Id. at 161, 65 S.Ct. at 1455-56 (Murphy, J., concurring). In United States v. Barona, 56 F.3d 1087 (9th Cir.1995), we held that constitutional rights expressly limited to the "people," such as those created by the Fourth Amendment, are held only by "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community" as contrasted to "the Due Process Clause of the Fifth Amendment which protects all 'persons'." Id. at 1093. Interestingly, within the First Amendment, the forepart refers to Congress making no law respecting an establishment of religion, or prohibiting its free exercise or abridging freedom of speech or of the press. Only when, in the latter part, it speaks of the right to peaceably assemble and to petition the Government for a redress of grievances does it refer to "the right of the people." Thus, there is no expressed limitation as to whom the right of free speech applies.

We conclude that the speech protections of the First Amendment at a minimum apply to all persons legally within our borders. This conclusion is certainly consistent with the Supreme Court's and our high elevation of such rights. Here, the attempt of a United States citizen to use our courts to deny the privilege of free speech to a visitor to the United States, legally within the country, cannot be countenanced. Accordingly, we hold that the First Amendment shields statements made by Oates during his visit.

The First Amendment requires a plaintiff who is a public figure to demonstrate actual malice by clear and convincing evidence. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 509, 111 S.Ct. 2419, 2429, 115 L.Ed.2d 447 (1991). "The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law." Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 110 S.Ct. 2695, 2705, 111 L.Ed.2d 1 (1990) Oates did not appear on the Sixty Minutes program. Underwager's claims against Oates are based on Oates's republication of the tape and his comments about Underwager at the San Diego conference. We affirm summary judgment on the following grounds. ⁴ First, with only one exception, the alleged defamatory statements do not contain or imply verifiable assertions of fact and, therefore, they are not actionable. Second, with regard to the one provable factual assertion, Underwager has failed to establish a genuine dispute as to the material issue of actual malice. ⁵

(quoting...