Walter v. Herbert

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

:

RICHARD WALTER,

:

Plaintiff CIVIL ACTION NO. 3:23-cv-2166

:

v. (JUDGE MANNION)

:

DAVID GAUVEY HERBERT and

NEW YORK MAGAZINE, :

Defendants :

MEMORANDUM

Richard Walter was the subject of a New York Magazine article calling

him a “fraud.” He now sues the author and the magazine for false light

invasion of privacy. Defendants move to dismiss Plaintiff’s amended

complaint.

I. BACKGROUND

Because this is a motion to dismiss, the court must “accept all factual

allegations as true” and “construe the complaint in the light most favorable

to the plaintiff.” Bruni v. City of Pittsburgh, 824 F.3d 353, 360 (3d Cir. 2016).

The court may also “rely upon exhibits attached to the complaint and matters

of public record.” Id. (internal quotations omitted). Plaintiff attaches the

magazine article to his amended complaint. (Doc. 18-1 at 3–22, 38–48).

Before his retirement, Plaintiff assisted law enforcement officers in and

lectured on “solving cold case crimes of the most heinous nature.” (Doc. 18

¶1). Defendant New York Magazine (the “Magazine”) published an article

written by Defendant David Gauvey Herbert titled “The Case of the Fake

Sherlock” and whose subtitle read:

Richard Walter was hailed as a genius criminal profiler at

murder trials, at forensic conferences, and on true-crime TV. In

reality, he was a fraud. How did he get away with it for so long?

(Doc. 18-1 at 40).1 This article, hereinafter referred to as the “Article,”

was published online on April 11, 2023 and in the Magazine’s April 10–23,

2023 print issue.

A. The Article

As its title suggests, the Article is critical of Walter. It centers on his role

in criminal investigations and his participation in the Vidocq Society, a group

that met regularly in Philadelphia to discuss criminal profiling and unsolved

murders. An introductory paragraph sets the tone:

Richard Walter is many things and little that he claims.

Since at least 1982, he has touted phony credentials and a bogus

work history. He claims to have helped solve murder cases that,

in reality, he had no involvement with—and even one murder that

may not have occurred at all. These lies did not prevent him from

serving as an expert witness in trials across the country. His

1 It appears that the subtitle appearing in the online version of the

article read: “Richard Walter was hailed as a genius criminal profiler. How

did he get away with his fraud for so long?” (Doc. 18-1 at 3).

specialty was providing criminal profiles that neatly implicated

defendants, imputing motives to them that could support harsher

charges and win over juries. Convictions in at least three murder

cases in which he testified have since been overturned. In 2003,

a federal judge declared him a “charlatan.”

After briefly chronicling Walter’s early career history—which involved

of degrees in psychology, a stint as a lab assistant at the Los Angeles County

Medical Examiner’s office, a staff psychologist position at a Michigan prison,

and American Academy of Forensic Sciences conferences—Herbert details

the convictions of Robie Drake for the 1981 murder of two New York

teenagers and Nick McGuffin of Oregon for the 2000 death of his then-

girlfriend. According to the Article, Walter, testifying at Drake’s trial as an

expert witness, “related an impressive—and fictional—résumé”:

He falsely claimed that at the L.A. County Medical Examiner’s

Office, he had reviewed more than 5,000 murder cases. Walter

said he was an adjunct lecturer at Northern Michigan University

(he had spoken there informally, possibly just one), wrote

criminology papers (he had never published), and had served as

an expert witness at hundreds of trials (he’d testified in two

known cases—about a simple chain-of-evidence question and in

a civil suit against a car company).

As to the crime at issue, Walter opined that the accused had committed

a “lust murder” driven by “piquerism.”2

2 The Article describes “piquerism” as “an obscure sadistic impulse to

derive sexual pleasure from penetrating people with bullets, knives, and

teeth.”

In McGuffin’s case, prosecutors reopened investigation ten years after

the murder and consulted with Walter, who the Article says “encouraged the

police to focus on McGuffin”:

There was no new physical evidence, but Walter rearranged

puzzle pieces that didn’t quite fit and crafted his own theory:

McGuffin was a jealous boyfriend who hit Leah in the face and

dumped her body in the woods.

Although the district attorney disclaimed reliance on Walter’s theory,

he “parroted” it at trial, and McGuffin was found guilty of first-degree

manslaughter.

Both these convictions were later vacated. As the Article recounts, the

Second Circuit Court of Appeals granted Drake’s petition for writ of habeas

corpus on the ground that his conviction was obtained by the knowing use of

perjured testimony, namely, Walter’s testimony about his qualifications and

that he had only learned the facts of the case the night before. Drake v.

Portuondo, 553 F.3d 230, 238, 243, 241–48 (2d Cir. 2009). As the Article

also mentions, the court referred to Walter as “a charlatan” and “picquerism”

as “medically speaking, nonsense.” Id. at 235, 245.

McGuffin’s conviction was vacated in 2019 based on newly discovered

evidence. He thereafter sued Walter, the Vidocq Society, and Oregon,

alleging, as the Article relates, “that the state fabricated evidence, coerced

witnesses, and withheld exculpatory information.” Herbert describes a June

2022 deposition taken of Walter, during which McGuffin’s attorney “grilled

the profiler about his claim that he worked on cases with Scotland Yard.”

According to the Article, “Walter could not recall the name of any inspectors

he'd worked with there and appeared not to know that Scotland Yard and the

Metropolitan Police are, in fact, the same organization.” And “[w]hen asked

where Scotland Yard was located, the man who claimed to have visited the

agency’s offices up to 30 times said he didn’t know and then offered

‘downtown London.’”

The Article also describes the national media attention Walter gained

with the Vidocq Society. They were the subject of Michael Capuzzo’s 2009

book, The Murder Room, which praised Walter and repeated some of his

supposed falsehoods. Herbert further relates his own efforts to speak with

Walter, who denied the author’s interview request at his home in

Northeastern Pennsylvania. The Article concludes by remarking that it is

“obvious” that “he is a fraud.”

B. The Complaint

Plaintiff asserts that Defendants “filled” the Article “with misleading and

outright lies about Mr. Walter.” (Doc. 18 ¶4). He offers a list of “nondisclosed

facts” which Herbert “knew and withheld.” (Id. ¶5). The Complaint further

alleges that the Article’s falsehoods were made known to Herbert from his

own research, an American Academy of Forensic Sciences report attached

to Plaintiff’s initial complaint, and comments to the Article written online. (Id.

¶8).

According to the Complaint, Defendants’ failure to … disclose[] facts

that contradicted the substance of their article … was designed to harm Mr.

Walter, place him in a false light, and mislead readers, all causing additional

harm.” (Id. ¶12). This false light has allegedly caused “significant damages

and harm to” Plaintiff, has resulted in him being “now and forever labeled as

a ‘fraud,” and has “stained” “his decades of work.” (Id. ¶13–14).

II. LEGAL STANDARD

A. Motion to Dismiss

The Federal Rules of Civil Procedure require that a complaint contain

“a short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). This standard “does not require detailed

factual allegations, but it demands more than an unadorned, the-defendant-

unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotations omitted). So a complaint that contains only “labels

and conclusions,” or a “formulaic recitation of the elements of a cause of

action” does not comply with Rule 8. Id.

A defendant may move to dismiss a complaint “for failure to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive

a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Iqbal,

556 U.S. at 678. Facial plausibility is achieved “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. Plausibility does not

require probability but “more than a sheer possibility that a defendant has

acted unlawfully.” Id. Facts “merely consistent with” liability do not satisfy this

standard. Id.

As noted above, the court at this stage accepts the complaint’s factual

allegations as true. But this tenet “is inapplicable to legal conclusions.” Id.

(“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”). And “[d]etermining whether a

complaint states a plausible claim for relief” is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common

sense.” Id. at 679.

The federal pleading standard just described requires that district

courts “conduct a two-part analysis.” Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009).

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the complaint’s

well-pleaded facts as true, but may disregard any legal

conclusions. Second, a District Court must then determine

whether the facts alleged in the complaint are sufficient to show

that the plaintiff has a plausible claim for relief. In other words, a

complaint must do more than allege the plaintiff’s entitlement to

relief. A complaint has to show such an entitlement with its facts.

Fowler, 570 F.3d at 210–11 (internal citations and quotations omitted).

B. Governing Law

“A federal court sitting in diversity must apply state substantive law and

federal procedural law.” Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d

Cir. 2000). The parties here agree that Pennsylvania substantive law applies.

C. False Light

“Pennsylvania has adopted the definition of false light invasion of

privacy from the Restatement (Second) of Torts, which imposes liability on a

person who publishes material that ‘is not true, is highly offensive to a

reasonable person, and is publicized with knowledge or in reckless disregard

of its falsity.’” Graboff v. Colleran Firm, 744 F.3d 128, 136 (3d Cir. 2014)

(quoting Larsen v. Phila. Newspapers, Inc., 543 A.2d 1181, 1188 (Pa. Super.

Ct. 1988) (en banc)). To create liability, such publication must also “cause

mental suffering, shame or humiliation to a person of ordinary sensibilities.”

Larsen, 543 A.2d at 1188.

The Superior Court has understood this cause of action to lie even

“where true information is released[,] if the information tends to imply

falsehoods.” Santillo v. Reedel, 634 A.2d 264, 267 (Pa. Super. Ct. 1993)

(citing Larsen, 543 A.2d at 1189). So “[l]iteral accuracy of separate

statements will not render a communication ‘true’ where the implication of

the communication as a whole was false.” Id. Stated otherwise, “false light

invasion of privacy offers redress not merely for matters that are provably

false, but also for those that, although true, are selectively publicized in a

manner creating a false impression.” Krajewski v. Gusoff, 53 A.3d 793, 806

(Pa. Super. 2012).

This tort “applies only when the publicity given to the plaintiff has

placed him in a false light before the public, of a kind that would be highly

offensive to a reasonable person.” Id. (quoting Restatement (Second) of

Torts §652 cmt. c).

In other words, it applies only when the defendant knows that the

plaintiff, as a reasonable man, would be justified in the eyes of

the community in feeling seriously offended and aggrieved by the

publicity. Complete and perfect accuracy in published reports

concerning any individual is seldom attainable by any reasonable

effort, and most minor errors, such as a wrong address for his

home, or a mistake in the date when entered his employment or

similar unimportant details of his career, would not in the

absence of special circumstances give any serious offense to a

reasonably person … It is only when there is such a major

representation of his character, history, activity or beliefs that

serious offense may reasonably be expected to be taken by a

reasonable man in his position, that there is a cause of action for

invasion of privacy.

Id. (quoting Restatement (Second) of Torts §652 cmt. c).

D. First Amendment

State tort law that imposes liability on the basis of speech must coexist

with the First Amendment’s guarantees of freedom of speech and freedom

of the press.3 See Am. Future Sys. v. Better Bus. Bureau, 923 A.2d 389, 395

(Pa. 2007) (first citing New York Times v. Sullivan, 376 U.S. 254, 269 (1964),

and then citing Dunn & Broadstreet, Inc. v. Greenmoss Builders, Inc., 472

U.S. 749, 755 (1985)) (observing that “the First Amendment limits the reach

of state defamation laws”); Krajewski, 53 A.3d at 807–08 (explaining that

“First Amendment protections” extend “to speech uttered in violation of a

plaintiff’s state privacy rights). Indeed, the First Amendment constrains

causes of action based on a theory of false light invasion of privacy. See

Cantrell v. Forest City Publ’g Co., 419 U.S. 245, 249 (1974); Krajewski, 53

A.3d at 807–09. The extent of this constraint is discussed further infra

Section III.C.

3 These guarantees are applied to the States through the Fourteenth

Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1938); Near v.

Minnesota ex rel.Olson, 283 U.S. 697 (1931).

III. DISCUSSION

A. Protected Opinion

Defendants first contend that their characterization of Plaintiff as a

“fraud” constitutes opinion shielded from liability by the First Amendment.

(Doc. 21 at 17–22). But that such statement is non-actionable does not

necessarily render the entire Article protected, for the Article could otherwise

contain material which is untrue or which tends to imply falsehoods. And it

does not appear that Plaintiff sues based on that statement alone (although

it dominates his discussion). So this argument does not provide a basis for

dismissing the amended complaint in its entirety.

B. Falsity

Defendants also maintain that the amended complaint must be

dismissed because Plaintiff has not alleged that the Article is “materially

false.” (Doc. 21 at 22–25).

Falsity carries the same meaning for false light invasion of privacy as

it does for defamation, Graboff, 744 F.3d at 137 (citing Larsen, 543 A.2d at

1189). In the defamation context, “[t]he law does not require perfect truth, so

long as any inaccuracies do not render the substance and ‘gist’ of the

statements untrue. ToDay’s Housing v. Times Shamrock Commc’ns, 21 A.3d

1209, 1215 (Pa. Super. Ct. 2011) (citing Masson v. New Yorker Magazine,

501 U.S. 496, 516, 517 (2011)).

Additionally, the First Amendment requires that “a statement on

matters of public concern must be provable as false before there can be

liability under state defamation law, at least in situations … where a media

defendant is involved.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20

(1990).4 For a false light claim, this standard has been applied against the

allegedly false implication of reported statements. See Krajewski, 53 A.3d at

804–05. So a plaintiff must plead that the publication implies false facts;

“false” opinions would not be actionable. An opinion statement may

nonetheless imply facts which themselves are provable as false. See

Milkovich, 497 U.S. at 18–19 (“[E]xpressions of ‘opinion’ may often imply an

assertion of objective fact.”).

Defendants contend that because Plaintiff has not challenged a

number of statements with the same “gist” as those he disputes, he has not

shown that the Article is “materially false.” (Doc. 21 at 24–25). First, the

Article’s “gist”—that Walter is a “fraud”—is not provable as either true or

4 Plaintiff concedes that the Article is on a matter of public concern.

(See Doc. 23 at 16 (“The pertinent federal constitutional requirement is,

simply, this: ‘a statement on matters of public concern must be provable as

false before there can be liability under state defamation law.” (citing

Milkovich, 497 U.S. at 19))).

false. Cf. Rubin v. CBS Broadcasting Inc., 170 A.3d 560, 567 (“The question

remains … whether Rubin will be able to establish that the falsity was

material. In other words, was the ‘gist’ of the publication—that Rubin was

fired because of allegations of sexual abuse—sufficiently different from what

may prove to be the truth … to have a materially different ‘effect upon the

viewer?’”). Second, the Article bases its opinion that Walter is a fraud on

several specific instances. This is not a case where an overwhelming number

of fraudulent occurrences are unchallenged, such that a few falsehoods

could not materially affect the Article’s “gist.” Instead, it is plausible that even

one falsehood, if significant, could alter the Article’s “effect upon the reader.”

ToDay’s Housing, 21 A.3d at 1215. For these reasons, the court declines to

conclude that dismissal is warranted on the basis that Plaintiff has not plead

that the Article, as a whole, is “materially false.”

Still, Plaintiff still must plead that the Article includes material that is not

true or that implies a falsehood.

1. “Fraud”

Plaintiff repeatedly posits that the Article’s characterization of him as a

“fraud” is a falsehood. (See Doc. 23 at 16, 19). He acknowledges that the

alleged falsehood must be “provable as false,” (Id. at 19), but does not

articulate what he thinks the Article states or implies that is provable as false.

If it is Plaintiff’s position that the Article’s “fraud” characterization itself is a

provable falsehood, the court disagrees; that characterization is incapable of

being proven true or false. Plus, the Article discloses the facts underlying this

opinion, and “readers can easily judge the facts for themselves.” McCafferty

v. Newsweek Media Grp., Ltd., 955 F.3d 352, 357 (3d Cir. 2020).

Plaintiff offers a dictionary definition of “fraud” and asserts that “the

article is replete with misinformation and withheld known facts that, if

presented would destroy the entire improper premise of the article.” (Doc. 23

at 19). But this assertion does nothing to specify what provably false

implication is created by such “improper premise.”

Plaintiff also observes that courts have considered “[a]scribed

derogatory traits” as “actionable.” (Doc. 23 at 21 (first citing Milkovich, 497

U.S. at 18–19), and then citing Smith v. Wagner, 588 A.2d 1308, 1311 (Pa.

Super. Ct. 1991) (statements that the plaintiff was “a liar, a thief and a crook”

were “capable of defamatory meaning”)). Milkovich explained that “[i]f a

speaker says, ‘In my opinion John Jones is a liar,’ he implies a knowledge of

facts which lead to the conclusion that Jones told an untruth.” 497 U.S. at

18. And “[e]ven if the speaker states the facts upon which he bases his

opinion, if those facts are either incorrect or incomplete, or if his assessment

of them is erroneous, the statements may still imply a false assertion of fact.”

Id. at 18–19.

Like calling someone a “liar,” calling him a “fraud” may imply that he

has told an untruth (though the latter term is arguably less precise and more

typically understood as hyperbole). When done in the context of a discussion

of the subject’s profession, it may imply particularly that he has lied about his

background or qualifications.

But Plaintiff does not identify what provable falsehood “fraud” implies

here, nor does he claim that he has never exaggerated his professional

background. So even assuming that the “fraud” characterization can imply a

falsehood, Plaintiff has not alleged that it has implied a falsehood. Simply

proclaiming that he is not a “fraud” is insufficient, for one cannot prove that

he is not a “fraud” any more than he can prove he is not a “fake” or a “phony.”

See Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 728 (1st Cir.

1992) (“Whether [the appellant’s stage production] is ‘fake’ or ‘phony’ is …

unprovable, since those adjectives admit of numerous interpretations.”); see

also McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (“The lack of

precision makes the assertion ‘X is a scam’ incapable of being proven true

or false”); Greenbelt Co-op Publ’g Ass’n v. Bressler, 398 U.S. 6, 14 (1970)

(“[E]ven the most careless reader must have perceived that the word

[‘blackmail’] was no more than rhetorical hyperbole, a vigorous epithet”);

Rapaport v. Barstool Sports, Inc., 2024 WL88636 (2d Cir. 2024) (“Barstool’s

accusations of racism and fraud are non-actionable because they lack a

clearly defined meaning, and, in this context, are incapable of being

objectively proven true or false.”).

The court thus concludes that Defendants’ characterization of Plaintiff

as a “fraud” forms no basis for his false light invasion of privacy claim.

2. Withholding Plaintiff’s accomplishments

Plaintiff also suggests that Defendants created a false impression

because they “ignored and withheld from the reader facts that confirmed Mr.

Walter’s reputation as an effective, qualified, and successful forensic

profiler.” (Doc. 23 at 7). But that Mr. Walter is not “effective, qualified,” or

“successful” is unprovable as true or false. And withholding facts such that

the subject is portrayed in a bad light cannot constitute a tort, the withholding

must work to portray him in a false light. Nowhere does Plaintiff specify how

any selective publication of his accomplishments implied a provable

falsehood.

3. Picquerism

Plaintiff next frames the Article’s discussion of “picquerism” as

advancing a falsehood. (See Doc. 23 at 10–11). The Article describes

“picquerism” as “an obscure sadistic impulse to derive sexual pleasure from

penetrating people with bullets, knives, and teeth,” and states that before

Robie Drake’s trial, his attorney “could not find any expert who had ever

heard of picquerism.” It also quotes the Second Circuit’s remark that Walter’s

testimony about picquerism was “medically speaking, nonsense.” Drake v.

Portuondo, 321 F.3d 338, 346 (2d Cir. 2003). That picquerism is “obscure”

is an opinion and not disproven by Plaintiff’s assertion that “Picquerism is an

accepted, peer reviewed, well understood subset of behaviors” or the facts

that it is mentioned in journals and that Walter has published studies on the

topic. (Doc. 18 ¶52). And the Article’s characterization of picquerism as

“obscure” cannot be said to imply that “picquerism” has never been

discussed in journals or that Plaintiff has not published studies on the topic.

The court therefore concludes that the Article’s discussion of picquerism

does not form a basis for Plaintiff’s false light claim.

4. Specific Falsehoods

Among his various non-actionable objections, Plaintiff does identify two

specific implied falsehoods.

a. Scotland Yard

Plaintiff contends that Defendants “falsely portrayed that Walter lied

about” having worked at Scotland Yard. (Doc. 23 at 12; Doc. 18 ¶¶5, 27).

The Article describes a deposition taken of Plaintiff in which Nick McGuffin’s

lawyer “grilled him about his claim that he worked on cases with Scotland

Yard.”

Walter could not recall the name of any inspectors he’d

worked with there and appeared not to know that Scotland Yard

and the Metropolitan Police are, in fact, the same organization.

When asked where Scotland Yard was located, the man who

claimed to have visited the agency’s offices up to 30 times said

he didn’t know and then offered “downtown London.”

The court agrees with Plaintiff that publication of this passage (even if

literally true) without any further discussion of Plaintiff’s involvement with

Scotland Yard implies that Plaintiff had lied about ever working there. And

Plaintiff unequivocally maintains that such implication is false.

The court additionally finds that such an implication, in this context,

would be highly offensive to a reasonable person. That one had entirely and

repeatedly fabricated as significant a career achievement as working at

Scotland Yard is a fact which, if published, would do serious harm to his

professional reputation. And it could alter the “gist” of this Article. So at the

instant procedural juncture, this implication is actionable.

b. Michigan Prison System

Discussing Michael Capuzzo’s The Murder Room, Herbert writes that

“[t]he book repeated and expanded on dozens of falsehoods in Walter’s

résumé.”

In the Michigan prison system, [Capuzzo] wrote, Walter

could shut off hot water and put inmates on a diet of “prison loaf,”

with three meals a day blended and baked into a tasteless brick.

“You will learn to control yourself or I will control you,” he

allegedly told them. But a prison spokesman disputes that a

psychologist could leverage showers and meals in that way.

“Maybe in Shawshank or something,” he says, “But not in real

life.”

Plaintiff alleges that “Herbert knew—and withheld from the readers—

… that may of the techniques used in the Michigan State Prison System to

manage and control the most violent criminals were indeed employed by Mr.

Walter, as part of his duties as a psychologist … responsible for the

treatment, rehabilitation, and control” of inmates. (Doc. 18-1 ¶5, 54).

Assuming arguendo that the above-quoted paragraph implies that

Plaintiff did not employ the tactics described, the court finds that an

implication that he embellished his experience at Michigan prisons would not

be highly offensive to a reasonable person.

c. Michigan State University

Plaintiff also references “Herbert’s false presentation of Mr. Walter’s

work in … Michigan State University.” (Doc. 18 ¶54). Discussing The Murder

Room, the Article states:

Walter also claims in the book that Michigan State hired

him as an adjunct professor and that he collaborated with the

university police to investigate gay twin brothers who fondled

football fans without their consent inside Spartan Stadium. But a

Michigan State spokesman denied that Walter has ever been

employed by the school.

Plaintiff’s bare reference to a “false presentation” is inadequate to state

a claim, for it does not inform us what the falsehood is.

C. Actual Malice

Having determined that Plaintiff has adequately plead that Defendants

published material implying a falsehood that would be highly offensive to a

reasonable person, the court must also determine whether he has plead that

they did so with the requisite state of mind. Defendants contend that he has

failed to plead actual malice. (Doc. 21 at 25–33).

At the outset, Plaintiff disputes that actual malice is an element of a

false light claim against a non-public figure. (Doc. 23 at 22). He relies on

Smith v. Borough of Dunmore, 633 F.3d 176, 182 (3d Cir. 2011), which noted

that the Appellant there had cited Strickland v. Univ. of Scranton, 700 A.2d

979, 987 (Pa. Super. Ct. 1997) for the element of a false light claim: “(1)

publicity, (2) given to private facts, (3) which could be highly offensive to a

reasonable person, and (4) which are not of legitimate concern to the public.”

Neither Smith nor Strickland reached the question of actual malice or held

that it was not required.5 Rush v. Phila. Newspapers, Inc., 732 A.2d 648 (Pa.

Super. Ct. 1999) (also relied on by Plaintiff), cited Strickland for these

elements and opined that, for a false light claim, “the person making the

statement that is accused of rendering another in a false light must act with

‘knowledge of or in reckless disregard as to the falsity of the publicized matter

and the false light in which the other would be placed.’” 732 A.2d at 654

(quoting Larsen, 543 A.2d 1181, 1188 (1988)). Rush did not explicitly cabin

this holding to public figures, though at least one of the plaintiffs in Rush was,

as a member of the Philadelphia School Board, a public figure. See 732 A.3d

at 650, 654.

Plaintiff also cites Lawson v. Pennsylvania SPCA, 124 F. Supp. 3d

394, 410 (E.D. Pa. 2015), which quotes Commonwealth v. Hayes, 414 A.2d

318, 325 n.18 (Pa. 1980) for the rule that “[t]he tort of placing the plaintiff in

a false light consists of … malice on the part of the defendant where the

published matter is in the public interest.” By his citation to this language,

Plaintiff appears to conflate public figures and matters of public interest: while

5 Krajewski v. Gusoff, 53 A.3d 793, 806 n.4 (Pa Super. Ct. 2012) later

characterized Strickland’s elements statement as dicta, which Strickland had

extracted from Harris v. Easton Publ’g Co., 483 A.2d 1377, 1387 (1984),

which had confined its discussion to a different invasion of privacy tort.

Krajewski expressly “disavow[ed] any suggestion that a lack of ‘legitimate

public concern’ should be an element of section 652E claim for false light

invasion of privacy.” 53 A.3d at 806 n.4.

Plaintiff asserts that he is “private figure,” (Doc. 23 at 22), he concedes that

the Article is on a matter of public concern. (See Doc. 23 at 16 (“The pertinent

federal constitutional requirement is, simply, this: ‘a statement on matters of

public concern must be provable as false before there can be liability under

state defamation law.” (citing Milkovich, 497 U.S. at 19))). The Article deals

with Plaintiff’s professional work in assisting with criminal prosecution and

investigation. Surely the public has an interest in evaluating the credibility of

those the State enlists to enforce criminal law.

Defendants in reply do not mention the public–private figure distinction

posited by Plaintiff, but instead simply assert that “‘Pennsylvania has

adopted the definition of false light invasion of privacy from the Restatement

(Second) of Torts, which imposes liability on a person who publishes material

with knowledge or in reckless disregard of its falsity,’ i.e., actual malice.”

(Doc. 26 at 7 (quoting Graboff, 744 F.3d at 136 (quoting Larsen, 543 A.2d at

1188))). Graboff quoted Larsen, in which the plaintiff was a justice of the

Pennsylvania Supreme Court. Larsen, in turn, quoted the Restatement,

which, although facially requiring “knowledge of” or “reckless disregard as to

… falsity,” also includes this “caveat”:

The [American Law] Institute takes no position on whether

there are any circumstances under which recovery can be

obtained under this Section if the actor did not know of or act with

reckless disregard as to the falsity of the matter publicized and

the false light in which the other would be placed but was

negligent in regard to these matters.

Restatement (Second) of Torts §652E caveat.

This caveat emanates from the Supreme Court’s holding in Gertz v.

Robert Welch, Inc., 418 U.S. 323, 335, 347 (1974) that the constitutional

limitation prohibiting public officials or public figures from recovering for

defamatory falsehoods absent proof of actual malice does not extend to

claims brought by private individuals. Instead, “so long as they do not impose

liability without fault, the States may define for themselves the appropriate

standard of liability for a publisher or broadcaster of defamatory falsehood

injurious to a private individual.” Gertz, 418 U.S. at 347. Though Time, Inc.

v. Hill, 385 U.S. 374, 388 (1967) applied the actual malice limitation to false

light claims,6 the Second Restatement recognized that, owing to Gertz, the

“full extent of the authority of [Time v. Hill] is presently in some doubt.”

Restatement (Second) of Torts §652E cmt. d. It therefore, “[p]ending further

enlightenment from the Supreme Court,” “provide[d] that liability for invasion

of privacy for placing the plaintiff in a false light may exist if the defendant

6 The Court in Cantrell v. Forest City Publ’g. Co., 419 U.S. 245, 249

(1974) explicitly declined to consider “whether a State may constitutionally

apply a more relaxed standard of liability for a publisher of false statements

injurious to a private individual under a false-light theory of invasion of

privacy, or whether the constitutional standard announced in Time, Inc. v.

Hill applies to all false-light cases.”

acted with knowledge of the falsity of the statement or in reckless disregard

as to truth or falsity,” but left “open the question whether there may be liability

based on a showing of negligence as to truth or falsity.” Id.

Pursuant to Gertz, the Pennsylvania Supreme Court has recognized a

distinction between the fault required in defamation actions brought by public

officials or public figures versus that required for private figures. Am. Future

Sys. v. Better Bus. Bureau, 923 A.2d 389, 400 (Pa. 2007):

If the plaintiff is a public official or public figure, and the statement

relates to matters of public concern, then to satisfy the First

Amendment strictures the plaintiff must establish that the

defendant made a false and defamatory statement with actual

malice. In contrast, states are free to allow a private-figure

plaintiff to recover by establishing that the defendant acted

negligently rather than maliciously …. [W]e … find this to be the

appropriate standard relative to a private-figure plaintiff.

923 A.2d at 400 (internal citations omitted).7 Similarly, some states

have, considering Gertz, held that private figure plaintiffs need only show

negligence to sustain a false light claim.8

7 Importantly, American Future Systems also imposed the actual

malice limitation, as Gertz did, on a “limited purpose public figure,” which is

one who “voluntarily injects himself or is drawn into a particular public

controversy and thereby becomes a public figure for a limited range of

issues.” Id. at 401, 405 (quoting Gertz, 418 U.S. at 351). No argument has

been presented here whether Plaintiff is a limited purpose public figure.

8 Compare, e.g., Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70,

89 (W.Va. 1983) (“[T]he test to be applied in a false light invasion of privacy

action by a private individual against a media defendant is what a reasonably

(footnote continued on next page)

But the Pennsylvania Supreme Court has yet to dispense with the

requirement of actual malice in false light claims brought by private figures

on matters in the public interest. See Commonwealth v. Hayes, 414 A.2d

318, 433 n.18 (Pa. 1980). Absent a definitive answer from the Pennsylvania

Superior Court,9 this court cannot predict that the Pennsylvania Supreme

Court would do so.

And the Superior Court has given no definitive answer. Instead, it has

continued to require actual malice without explicit regard to the plaintiff’s

status as a public or private figure. See Rubin v. CBS Broadcasting Inc., 170

A.3d 560, 567, 568 n.9 (Pa. Super. Ct. 2017) (“The required standard of fault

in a false light claim is … actual malice.”) Federal courts, too, have required

actual malice without discussing whether the plaintiff was a public or private

prudent person would have done under the same or similar circumstances.”),

with Lovgren v. Citizens First Nat’l Bank of Princeton, 534 N.E.2d 987, 991

(Ill. 1989) (“We conclude … that in false-light cases it is not necessary to

distinguish between private and public figures, as is required in some

defamation cases, and we, accordingly, adopt the ‘actual malice’ approach

of the Restatement.”). Still others have dispensed with the actual malice

requirement for private figures only when the claim involves matters of

private concern. See, e.g., West v. Media Gen. Convergence, Inc., 53

S.W.3d 640, 647–48 (Tenn. 2001).

9 In predicting how a state supreme court would decide on unresolved

questions, “[t]he opinions of intermediate appellate state courts are ‘not to be

disregarded by a federal court unless it is convinced by other persuasive

data that the highest court of the state would decide otherwise.” Nationwide

Mut. Ins. Co., 230 F.3d 634, 637 (3d Cir. 2000) (quoting West v. AT&T Co.,

311 U.S. 223, 237 (1940)).

figure. See, e.g., Taha v. Bucks County, 9 F. Supp. 3d 490, 494 (E.D. Pa.

2014). And Pennsylvania standard jury instructions include actual malice

without differentiation between public and private figures. See Pa.

Suggested Standard Civil Jury Instructions §17.220(4).

The court will therefore require that Plaintiff plead actual malice. See

Time, Inc. v. Hill, 385 U.S. at 390–91; Hayes, 414 A.2d at 433 n.18; Rubin,

170 A.3d 560, 568 n.9. The court agrees with Defendants that Plaintiff has

not done so.

Actual malice is not “ill will or malice in the ordinary sense of the term.”

Joseph v. Scranton Times, L.P., 129 A.3d 404, 436–37 (Pa. 2015). Nor is it

shown “by virtue of the fact that the media defendant published the material

to increase its profits, or the failure to investigate before publishing …

although the purposeful avoidance of the truth is in a different category.” Id.

(citing Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666–92

(1989)). Actual malice may be proven, however, by circumstantial evidence.

Id. at 437.

Though the Complaint does allege that Herbert “knew that Mr. Walter

had indeed lectured at … Scotland Yard,” (Doc. 18 ¶5), pleadings have been

required to contain more than generalized assertions to establish actual

malice. See McCafferty, 955 F.3d at 359; Tucker v. Phila. Daily News, 848

A.2d 113, 131–36 (Pa. 2004); Monge v. Univ. of Pennsylvania, 674 F. Supp.

3d 195, 212 (E.D. Pa. 2023); Patrick v. Daily Beast Co., LLC, 674 F. Supp.

3d 159, 163 (E.D. Pa. 2023); Earley v. Gatehouse Meda Pa. Holdings, Inc.,

3:12-1886, 2015 WL 1163787, at *3 (M.D. Pa. 2015). And Plaintiff has

supplied no factual allegations (that is, allegations beyond conclusory

statements that Defendants “knew” or “had been made well aware of,”

falsehoods; “had absolutely no basis for” certain implications; “fabricated”

statements; or “intentionally disregard[ed]” facts, (Doc. 18-1 ¶¶5, 38, 41, 43,

46, 50)), which would plausibly indicate that Plaintiffs knew or purposefully

avoided knowing any falsehood at the time they published the Article.

He does allege that Herbert “was specifically informed … that he had

to … provide a balanced story on Mr. Walter” and “include those facts that

revealed the truth about Mr. Walter.” (Doc. 18 ¶9). But this allegation misses

the mark. It matters not whether Herbert knew sound journalistic practices;

he must have known or recklessly disregarded a falsehood and then stated

or implied that falsehood. Plaintiff also alleges that

Defendants’ malicious claim that Mr. Walter is a fraud

intentionally ignored all of the easily obtainable proof of Mr.

Walter’s decades of experience and insightful work in scores of

cold cases that have brought the most dangerous criminals to

justice; this was done so because these defendants entertained

serious doubts as to the truthfulness of their “fraud” claims.

(Id. ¶32). Again, Plaintiff confuses the opinion that he is a “fraud” with

a fact that is provable as false. This allegation does not identify a falsehood

known or recklessly disregarded by Defendants. Nor are allegations that

Herbert violated a journalistic code of ethics, (Doc. 18 ¶55), or exhibited “ill

will towards Mr. Walter”, (id. ¶7–8, 31), sufficient. See McCafferty, 955 F.3d

352, 359 (“[E]ven an extreme departure from professional standards, without

more, will not support a finding of actual malice.”); id. (“Actual malice … does

not connote ill will or improper motivation.”).

Plaintiff’s brief does not compel a different conclusion. It consists

primarily of citations to authority followed by bare assertions that this element

is satisfied. (See Doc. 23 at 23 (“[T]his is precisely why … that the implication

of malice in the pleadings is sufficient to permit the case to proceed.”), 24

(“That is more than adequately plead in the Amended Complaint”). Even if it

were clear to what “this” and “that” referred, Plaintiff has omitted any

explanation why the cited legal principles dictate a ruling in his favor.

Plaintiff further cites Defendants’ “republication” of the Article as

evidence of malice. (Doc. 23 at 24 (citing Weaver v. Lancaster Newspapers,

Inc., 926 A.2d 899, 905 (Pa. 2007)). First, Plaintiff’s indirect allegations of

“republication” (Doc. 18 ¶¶5. 40, 44, 46), are insufficiently specific to be

considered. He mentions no date or medium. His vague reference to

“republication” does not adequately put Defendants on notice of the claim

against them. See, e.g., Garamendi v. Golden Eagle Ins. Co., 27 Cal. Rptr.3d

239, 260 (Cal. Ct. App. 2005). Second, to the extent he refers to the

magazine and print versions, (Doc. 18-1 at 3–14, 39–48), as separate

publications, there is no indication in the attachments to the complaint that

the magazine version was published after the online version. The online

version is dated April 11, 2023, (Doc. 18 at 3), while the print version

appeared in the April 10–23 issue. (Id. 18-1 at 42). At any rate, Plaintiff’s

reliance on online commentary posted to the Article by anonymous internet

users as demonstrating knowledge, (Doc. 18 ¶¶5, 45, 46, 53; Doc. 18-1 at

14–22; Doc. 23 at 11–13), is plainly unpersuasive and merits no further

discussion. And the American Academy of Forensic Sciences Ethics

Committee report he attaches, (Doc. 18-1 at 30–37), is dated September 10,

2023, well after the Article was published. It thus is not relevant to

Defendants’ awareness at the time of publishing, as Plaintiff suggests. (Doc.

18 ¶38).

Finally, Plaintiff’s assertion that the omission of several “context-critical

facts admittedly known to Defendants” “confirms … that Defendants

published the core smear here knowing that they had no basis for it,” (Doc.

23 at 25), identifies no falsehood allegedly known to Defendants. Again, the

“smear” that Plaintiff is a “fraud” is not capable of being proven true or false.

The First Amendment shields Defendants from liability on the ground that

their opinion of Plaintiff is negative, even if unduly so.

Accordingly, the court concludes that Plaintiff has not satisfied the

element of actual malice and has thus failed to state a claim for false light

invasion of privacy.

D. Amendment

“[I]n the event a complaint fails to state a claim, unless amendment

would be futile, the District Court must give a plaintiff the opportunity to

amend her complaint.” Phillips v. County of Allegheny, 515 F.3d 224, 228

(3d Cir. 2008). The court cannot say at this stage that amendment would be

futile, so dismissal will be with leave to amend if Plaintiff can allege facts

plausibly showing actual malice.

An amended complaint should exclude irrelevant allegations, such as

those related solely to opinions or to occurrences after publication (unless

they somehow touch on Defendants’ state of mind at the time of publication).

E. Transcript

Finally, Plaintiff objects to Defendants’ attachment of a deposition

transcript from the McGuffin civil suit. (Doc. 26 at 19–20; Doc. 21-1 at 13–

303). But the court has not considered this exhibit in addressing Defendants’

motion. In any event, Plaintiff had actual notice of this document as it

transcribes his deposition and is discussed in the Article. See In re Burlington

Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss will be

granted and Plaintiff’s amended complaint dismissed with leave to amend.

An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: May 14, 2024

23-2166-01