# Spears v. The New York Times Company

> District Court, N.D. Alabama · December 6, 2023

URL: https://www.frixlaw.com/law-library/cases/9991931

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** December 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9991931

## How later opinions describe it (automated extraction)

- finding plaintiff’ s general claim of emotional distress insufficient to show special damages

## Opinion text

□□□ □□□
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
KAI SPEARS, )
Plaintiff,
v. ) 7:23-cv-00692-LSC
THE NEW YORK TIMES
COMPANY, )
Defendant. )

MEMORANDUM OF OPINION
I. INTRODUCTION
Plaintiff Kai Spears (“Spears”) brings this action based on allegedly
defamatory statements made about him in connection with a shooting that occurred
in Tuscaloosa, Alabama, on January 15, 2023. Before the Court is Defendant The
New York Times Company’s (“The Times”) Motion to Dismiss Complaint
Pursuant to Rule 12(b)(6). (Doc. 12.) The motion is fully briefed and ripe for review.
Upon due consideration and for the reasons stated herein, the motion to dismiss is
due to be GRANTED IN PART and DENIED IN PART.
II. BACKGROUND
On the night of January 14, 2023, Spears and his two high school friends,
Dylan Serafini and Esai Morse, went to the popular student gathering area called

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“The Strip” located on University Boulevard in Tuscaloosa, Alabama, following the
Alabama-LSU basketball game. At the time, Spears was a freshman at The
University of Alabama and played guard on the Alabama basketball team. At 12:30

a.m., Spears and his friends met up outside of Houndstooth Bar with one of Spears’s
teammates, Brandon Miller, and were also joined at some point by the team’s
student manager, Cooper Lee. (Doc. 1 JJ 29, 32.) After meeting up, they drove to
Moe’s Original BBQ in downtown Tuscaloosa where they stayed until 1:40 a.m. (/d.
q 29.) While at Moe’s BBQ, Spears FaceTimed another teammate, Jaden Bradley,
who invited Spears and his friends to join Bradley and others. After declining the
invitation to go out, Spears and his friends drove back to his dorm room while Miller
and Lee drove to The Strip in Miller’s car. (/d. J 31, 32.) At 1:48 a.m., Spears
FaceTimed Bradley again to see where they had gone, which is when Spears learned
that there had just been a shooting on The Strip and bullets had struck Miller’s
windshield. (/d. | 33.) Later that day, Tuscaloosa police investigated the incident and
interviewed members of the basketball team who were out the night before, including
Spears. (/d. J 38.) Police ultimately charged two men in relation to the shooting. No

one else, including Spears, was charged.
In its investigation of the incident, The Times learned that surveillance video
showed two people “were struck by bullets in the crossfire,” and that a “detective

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also made note of an unidentified passenger in Miller’s car.” (Doc. 12 at 13; 12-1 at

3, 5.) In March, a confidential source “familiar with the case” purportedly told The
Times that Spears was the unidentified passenger in Miller’s car at the time of the
shooting. (/d. at 5.)
On March 15, a reporter for The Times approached Spears and asked, “The
night of the shooting, when you were in Brandon Miller’s car, were you scared when
the shots were fired?” (Doc. 1 | 40.) Spears replied, ““No comment.” (/d. 741.) The

reporter then asked Spears if he wanted to comment on his presence the night of the
shooting to which Spears again replied, “No comment.” (Jd. J 42.)
Later that night, The Times published an article describing Spears’s alleged
presence at the shooting with the headline: “A Fourth Alabama Player Was at a
Deadly Shooting, in a Car Hit by Bullets.” (Doc. 12-1 at 2-3.) The article included
various statements about Spears’s alleged involvement, such as, “‘[i]n another car
that was struck were Brandon Miller, a star player for the Crimson Tide, and Kai
Spears, a freshman walk-on whose presence at the scene had not been previously
reported,” and “[i]ncluding Spears, at least four Alabama players have now been
placed at the scene of the shooting that took place in the early morning hours of Jan.
15....” Ud. at 3.) Following publication, representatives of The University of
Alabama and affiliates of Spears told The Times that Spears was not present at the

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shooting. (Doc. 1 50.) On March 20, Spears’s attorney requested a public
retraction of the statements pursuant to Ala. Code § 6-5-186, which The Times
declined. (Id. J] 51, 52.)
Spears then filed this action against The Times, claiming defamation and false
light invasion of privacy. Spears alleges that, as a result of the publication, he suffered
“severe emotional distress, [for which] there is no measurable dollar amount.” (/d.
q 68.) Following the filing of this suit, The Times issued a retraction of their report,
admitting they “misidentified the person who was in the car with Brandon Miller
when the shooting occurred.” (See doc. 12 at 10 n.3.)
STANDARD OF REVIEW
In general, a pleading must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, to
withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint
“must plead enough facts to state a claim to relief that is plausible on its face.” Ray
vy. Spirit Airlines, Inc., 836 F.3d 1340, 1347-48 (11th Cir. 2016) (quoting Bell Atl. Corp.
Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stated another way, the factual

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allegations in the complaint must be sufficient to “raise a right to relief above the
speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). A
complaint that “succeeds in identifying facts that are suggestive enough to render
[the necessary elements of a claim] plausible” will survive a motion to dismiss. Watts

vy. Fla. Int?l Uniy., 495 F.3d 1289, 1296 (11th Cir. 2007) (quoting Twombly, 550 U.S.

at 556) (internal quotation marks omitted).
In evaluating the sufficiency of a complaint, this Court first “identiflies|
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Jgbal, 556 U.S. at 679. This Court then “assume[s] the[]
veracity” of the complaint’s “well-pleaded factual allegations” and “determine[s|
whether they plausibly give rise to an entitlement to relief.” Jd Review of the
complaint is “a context-specific task that requires [this Court] to draw on its judicial
experience and common sense.” Jd. If the pleading “contain[s] enough information
regarding the material elements of a cause of action to support recovery under some
‘viable legal theory,’” it satisfies the notice pleading standard. Am. Fed’n of Labor &
Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting
Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)).
IV. DISCUSSION

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Spears contends that The Times is liable for defamation for failing to use
reasonable care in publishing and disseminating the false statements regarding his
involvement in the shooting. (Doc. 1 J 61.) He also claims that The Times cast him
in a false light by stating that he was present at a murder scene and by implying he

was involved in criminal activity. (/d. ] 72.) Because the challenged article’s contents

are alleged in the complaint, are central to Spears’s claims, and the authenticity of
the article is not challenged by either party, the Court properly considers the

contents of the article in ruling on The Times’s motion to dismiss. Day v. Taylor,
400 F.3d 1272, 1276 (11th Cir. 2005).
A. Defamation/Libel
To state a claim for defamation, a plaintiff must plead that the defendant was

at least negligent in publishing a false and defamatory statement to another which is
either actionable upon proof of special damages (defamation per quod) or actionable
without having to prove special damages (defamation per se). Nelson v. Lapeyrouse
Grain Corp., 534 So. 2d 1085, 1091 (Ala. 1988). For the purposes of this motion, The
Times disputes only whether the challenged statements are defamatory.
Defamation may involve either slander, i.e., spoken statements, or libel, i-e.,
printed statements. Blevins vy. W.F. Barnes Corp., 768 So. 2d 386, 390 (Ala. Civ. App.
1999). The legal distinction between the two “is merely in respect to the question as

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to whether the imputed language or words are actionable per se.” Butler v. Town of
Argo, 871 So. 2d 1, 16 (Ala. 2003) (quoting Ceravolo v. Brown, 364 So. 2d 1155, 1157
(Ala. 1978)). Slander is actionable per se only when it concerns “an indictable offense
involving infamy or moral turpitude.” Jd. at 17. By contrast, libel is actionable per se
“if the language used exposes the plaintiff to public ridicule or contempt, though it
does not embody an accusation of crime.” /d. at 16. Here, the allegedly defamatory
statements were printed and are thus charged as libel.

1. Special Damages (Libel Per Quod)
To state a claim for libel per quod, a plaintiff must allege special damages.
Nelson, 534 So. 2d at 1091. Special damages represent “the material harms that are
the intended result or natural consequence” of the defamatory statement, and the
general rule is that they are limited to “material loss capable of being measured in
money.” Butler, 871 So. 2d at 18 (quoting Shook v. St. Bede Sch.,74 F. Supp. 2d 1172,
1180 (M.D. Ala. 1999)) (internal citations omitted); compare, e.g., Silvaris Corp. v.
Craig, No. 1:21-CV-332-TFM-N, 2023 WL 2578950, at *10 (S.D. Ala. Mar. 20,
2023) (allegations including lost sales were sufficient to plead special damages) □□□□
Butler v. Dunn, No. 2:19-CV-530-ALB, 2019 WL 7041866, at *4 (M.D. Ala. Dec. 20,
2019) (allegations of damage to reputation did “not reflect a measurable, material
loss—such as loss of employment or the like’’).

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In his complaint, Spears alleges he “suffered the following damages: severe
emotional distress, [for which] there is no measurable dollar amount.” (Doc. 1 J 68.)
As this allegation plainly shows, Spears does not plead a “material loss capable of
being measured in money.” Butler, 871 So. 2d at 18. Accordingly, Spears fails to
plead special damages as necessary to state a claim for libel that is actionable per quod.
See id. at 19 (“Although there was abundant evidence that [the plaintiff] suffered
mentally and emotionally as a result of the untrue statements about her, there was

no evidence of a material loss capable of being measured in money.” (citation and
internal quotation marks omitted)); Shook, 74 F. Supp. 2d at 1181 (finding plaintiff’ s
general claim of emotional distress insufficient to show special damages); see also
Fed. R. Civ. P. 9 (“If an item of special damage is claimed, it must be specifically
stated.”’).
Spears contends that he is not required to show special damages because, in
Alabama, “all libel is actionable per se.” (Doc. 20 at 15.) Spears is correct that he
need not show special damages to the extent that he states a claim for libel that is
actionable per se. However, the assertion that all libel claims are actionable per se in
Alabama is contradicted by long-standing precedent. See, e.g., Trimble v. Anderson,
79 Ala. 514, 516 (1885) (“The action is one for libel. The complaint contains no

averment of any special damage alleged to have been sustained by the plaintiff. To

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be actionable, therefore, the publication made by the defendants concerning the
plaintiff must be libellous [szc] per se....”); White v. Birmingham Post. Co., 233 Ala.

547, 550 (1937) (“Words libelous per se import damage, while words actionable only
per quod are those whose injurious effect must be established by allegation and
proof.”); McGraw v. Thomason, 265 Ala. 635, 637 (1957) (distinguishing legal
standards “where the publication is not libelous per se but only per quod”’); Blevins,
768 So. 2d at 389-90; Melson, 534 So. 2d at 1091. Spears having failed to plead special
damages, “the publication complained of must be libel per se or the complaint states

no cause of action.” Myers ». Mobile Press-Reg., Inc., 266 Ala. 508, 511 (1957) (citing
Trimble, 79 Ala. at 514).
2. Libel Per Se
When printed defamatory language “exposes the plaintiff to public ridicule or

contempt, though it does not embody an accusation of crime,” damages are
presumed and libel is actionable per se. Butler, 871 So. 2d at 16 (quoting Ceravolo, 364
So. 2d at 1157); accord Brewer v. Memphis Pub. Co., 626 F.2d 1238, 1246 (5th Cir.
1980) (“The question of whether an article is libel per se is identical to the question
[of] whether the article is defamatory.”’).
The test for determining whether an article is defamatory is “whether an
ordinary reader or a reader of average intelligence, reading the article as a whole,

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would ascribe a defamatory meaning to the language.” Drill Parts and Service Co.,
Inc. v. Joy Mfg. Co., 619 So. 2d 1280, 1289 (Ala. 1993) (citing Loveless v. Graddick, 295
Ala. 142, 148 (1975)). Whether the language is reasonably capable of a defamatory
meaning is a threshold question of law for the Court. Jd. at 1289-90. The question
before this Court, therefore, is whether an ordinary reader, reading The Times’s
article as a whole, could reasonably ascribe to it a meaning that “exposes [Spears] to
public ridicule or contempt.” /d.; Butler, 871 So. 2d at 16. As explained below, this
Court concludes that the article is reasonably capable of a defamatory meaning and,
therefore, Spears has sufficiently pleaded a claim for defamation.
The Times argues that the article depicts Spears as a potential victim of the
shooting and, therefore, it is not defamatory. Indeed, the article does not expressly
accuse Spears of any crime. Instead, it identifies Spears as one of “two players [who]
were in a car struck by bullets in the crossfire.” (Doc. 12-1 at 3.) The article claims
that the shooting “could have been even more deadly” in that “[t]wo bullets struck
the windshield of Miller’s car” but “[nJeither struck Miller or Spears.” (/d. at 3-4.)
Read alone, these statements do not appear reasonably capable of conveying a
defamatory meaning. However, they must be read in the context of “the article as a
whole.” Drill Parts and Service, 619 So. 2d at 1289.

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As Spears argues, an ordinary reader, reading the article as a whole, could
reasonably ascribe to it the implied suggestion that Spears was somehow complicit
in the shooting. See zd. The article refers to multiple members of the basketball
team—including Spears—as being “involved” in the “fatal January shooting.”
(Doc. 12-1 at 3.) It further claims that the University “kept quiet” those players’
involvement in the shooting. (/d. at 5.) The article also places Spears “‘at the scene
of the shooting” and in the car that transported the gun used in the shooting:
[A police detective] said that Miles had texted Miller, telling him to pick
him up and that “I need my joint,” referring to Miles’s gun, which he
had left in the back seat of Miller’s car.
The detective also made note of an unidentified passenger in Miller’s
car. A person familiar with the case identified that person as Spears.
(/d. at 3, 5.) Taken together, these statements could reasonably be read as implying
that Spears was reprehensibly “involved” in the shooting. See McGraw v. Thomason,
265 Ala. 635, 639 (1957) (“‘[P]rinted words are to be taken ... according to the sense
in which they appear to have been used and the idea they are adapted to convey to
those who read them.”’). As such, the language could “expose[] [Spears] to public
ridicule or contempt, though it does not embody an accusation of crime.” Butler, 871
So. 2d at 16; cf Loveless, 295 Ala. at 148 (concluding that an article implying the
plaintiff faced criminal fraud charges was reasonably capable of a defamatory
meaning).
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The Times cites several opinions to support its argument that falsely placing
Spears at the scene of the shooting is not defamatory. The Court is unpersuaded for
three reasons. First, this Court must determine only whether the article is reasonably
capable of a defamatory meaning; a jury must decide whether it is defamatory.
Finebaum v. Coulter, 854 So. 2d 1120, 1128 (Ala. 2003). Second, many of the cited
opinions apply the stricter standard for slander per se and, therefore, are inapposite
here. See, e.g., Anderton v. Gentry, 577 So. 2d 1261 (Ala. 1991). And third, none held
that statements falsely placing a plaintiff at the scene of a crime—let alone

statements that the plaintiff was “involved” in a crime—could not be defamatory.
See, ¢.g., Kelly v. Arrington, 624 So. 2d 546, 550-51 (Ala. 1993) (concluding without
explanation that statements placing the plaintiff at a meeting where others allegedly
colluded “could not reasonably be understood by the average layperson as having a
defamatory meaning”’).
Spears having plausibly alleged that The Times published false statements
which are reasonably capable of exposing him to public ridicule or contempt, The
Times’s motion to dismiss his defamation claim is due to be DENIED. “Velson, 534
So. 2d at 1091.
B. False Light Invasion of Privacy

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Spears also claims that the challenged article publicly placed him in a false
light. A defendant may be held liable for publishing information that places the
plaintiff in a false light if (1) the false light would be “highly offensive” to a
reasonable person, and (2) the defendant had “knowledge of or acted in reckless
disregard” as to the falsity of the publicized matter. Regions Bank v. Plott, 897 So. 2d

239, 244 (Ala. 2004) (quoting Butler, 871 So. 2d at 12). The “knowledge of or acted
in reckless disregard” standard is the same “actual malice” standard that a public
figure plaintiff must prove to prevail on a defamation claim. Vew York Times Co. ».
Sullivan, 376 U.S. 254, 271-72 (1964). As both parties have advanced their

arguments under the “actual malice” standard, the Court will analyze the second
element of Spears’s false light claim accordingly.
1. Highly Offensive
A statement is highly offensive “when there is such a major misrepresentation
of [one’s] character, history, activities or beliefs that serious offense may be
reasonably expected to be taken by a reasonable man in his position.””» RESTATEMENT
(SECOND) OF TorTS § 652E cmt. c.’ A statement need not be defamatory to be highly
offensive. Gary v. Crouch, 867 So. 2d 310, 318 (Ala. 2003).

1 Alabama adopted RESTATEMENT (SECOND) OF ToRTS § 652E in Schifano v. Greene Cty.
Greyhound Park, Inc., 624 So. 2d 178, 180 (Ala. 1993).
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The Times argues that “it is not highly offensive to say that [Spears] was in a
car—in which he had ridden earlier that night—at the moment it was hit by
crossfire.” (Doc. 12 at 23-24.) As explained previously, however, the article does

more than place Spears in a car hit by crossfire. It places Spears in the car that
transported the gun used in the shooting; it states that Spears was “involved” in the
shooting; and it claims that the University kept quiet his involvement. Taken
together, these statements could suggest that Spears was “involved” in criminal
activity, which could constitute a “major misrepresentation” of his character or
conduct. See RESTATEMENT (SECOND) OF TORTS § 652E cmt. c. Thus, Spears has
plausibly alleged that The Times placed him in a “highly offensive” false light.
Regions Bank, 897 So. 2d at 244.

2. Actual Malice
Although the article might be highly offensive, Spears has failed to plausibly
allege that The Times published it with actual malice. See Iqbal, 556 U.S. at 686-87
(subjecting “actual malice” pleadings to the plausibility standard).* A defendant

2 This Court “‘disregard[s] the portions of the complaint where [Spears] alleged in a purely
conclusory manner that the defendant[] acted ‘with actual malice’ in publishing the [challenged
article] as these amount to threadbare recitals of the elements of a cause of action, which are
insufficient to state a claim.” Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6 F Ath 1247,
1252 (11th Cir. 2021), cert. denied sub nom. Coral Ridge Ministries Media, Inc. v. S. Poverty L. Ctr.,
142S. Ct. 2453 (2022) (citing Michel v. NYP Holdings, Inc., 816 F.3d 686, 703-04 (11th Cir. 2016)).
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acts with “actual malice” if, at the time of publication, the defendant “entertained
serious doubts as to the truth of his publication” or acted “with a high degree of

awareness of [its] probable falsity.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968)
(citations and quotation marks omitted). The test is subjective; the plaintiff must
show that the defendant actually “entertained serious doubts as to the truth of his
publication.” Berisha v. Lawson, 973 F.3d 1304, 1312 (11th Cir. 2020) (quoting
Silvester v. Am. Broad. Companies, Inc., 839 F.2d 1491, 1498 (11th Cir. 1988)).
Malice can be shown through circumstantial evidence by alleging, for
example, (1) that the story was “fabricated,” (2) the story was “so inherently
improbable that only a reckless man would have put [it] in circulation,” or (3) that
“there are obvious reasons to doubt the veracity of the informant or the accuracy of
his reports.” St. Amant, 390 U.S. at 732. Spears alleges none of the above.’ Instead,
he offers three reasons why this Court should not dismiss his false light claim for
failure to adequately allege actual malice. None have merit.
First, Spears argues that, because showing actual malice calls a defendant’s

state of mind into question, it “does not readily lend itself to summary disposition.”
Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979). This Court agrees with Spears

3 In his response brief, Spears argues that The Times “has offered nothing to establish the
veracity or reliability of [its informant] who clearly turned out to be wrong.” (Doc. 20 at 32.) This
argument misunderstands Spears’s burden to allege facts affirmatively showing ‘“‘obvious reasons
to doubt the veracity of the informant,” which he has not done. St. Amant, 390 U:S. at 732.
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that the presence of actual malice is generally a question for the jury. St. Amant, 390
U.S. at 732. But that rule applies to proveng actual malice, not pleading it. See
Hutchinson, 443 U.S. at 120 n.9. Because Spears fails to adequately plead actual
malice, his false light claim is properly dismissed at this juncture. Michel v. NYP
Holdings, Inc., 816 F.3d 686, 702 (11th Cir. 2016).
Second, Spears asserts that The Times “failed to properly investigate whether

or not Plaintiff Kai Spears was present at the murder scene....” (Doc. 1 J 78.) This
assertion is conclusory; Spears does not allege how the investigation was improper
or what The Times could have or should have done but failed to do. Such conclusory
allegations “are insufficient to support a cause of action.” Michel, 816 F.3d at 704
(citing Igbal, 556 U.S. at 678). Moreover, relevant non-conclusory allegations in the
complaint show that The Times did investigate before publishing the article. For
example, a reporter approached Spears and asked, ‘“‘The night of the shooting, when

you were in Brandon Miller’s car, were you scared when the shots were fired?”
(Doc. 1 J 40.) Rather than correct the reporter, Spears declined to comment. (/d.
41, 42.) Regardless, “‘a failure to investigate, standing on its own, does not
indicate the presence of actual malice”; “there must be some showing that the
defendant purposefully avoided further investigation with the intent to avoid the

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truth.” Michel, 816 F.3d at 703. Spears alleges no facts plausibly showing such an
intent. [gbal, 556 U.S. at 678.
Third and finally, Spears highlights the facts that (1) The Times failed to

retract the article and instead republished it after Spears and his representatives
denied his presence at the shooting, and (2) the republished article noted the denials
but reasserted the same false claims about Spears. (Doc. 1 50-52.) He argues that
these facts are evidence of actual malice and tantamount to an accusation that he was
lying and that the University was covering up for him. The Court disagrees.
Contrary to Spears’s assertion, the fact that The Times rejected his and the
University’s denials does not show actual malice. See Harte-Hanks Comme’ns, Inc. v.
Connaughton, 491 U.S. 657, 691 n.37 (1989). “|T]he press need not accept denials,
however vehement; such denials are so commonplace ... that, in themselves, they
hardly alert the conscientious reporter to the likelihood of error.” Jd. (citation and
quotation marks omitted). Furthermore, that The Times noted the denials of
Spears’s presence at the shooting when it reasserted those false claims refutes, rather
than supports, a finding of actual malice:
[Where the publisher includes information contrary to the general
conclusions reached in an article, that showing tends to undermine the
claims of malice. ... The reasoning behind the rule is simple. Where a
publisher gives readers sufficient information to weigh for themselves
the likelihood of an article’s veracity, it reduces the risk that readers will
reach unfair (or simply incorrect) conclusions, even if the publisher
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itself has. Moreover, discouraging the inclusion of such contrary
sources for fear of fueling a defamation lawsuit would run counter to the
constitutional goal of promoting the free and robust discussion of public
events. Thus, reporting perspectives contrary to the publisher’s own
should be interpreted as helping to rebut, not establish, the presence of
actual malice.
Michel, 816 F.3d at 703.
In support of his argument—which contradicts binding precedent—that
republishing the article alongside denials shows actual malice, Spears cites opinions
from the United States Supreme Court, Alabama courts, and more. After careful
consideration, this Court is unconvinced.
In Herbert »v. Lando, the Supreme Court indicated in a footnote that “prior or
subsequent defamations” may evidence actual malice. 441 U.S. 153, 164 n.12 (1979)
(quoting 50 Am. Jur. 2d, Libel and Slander § 455 (1970)). Citing Herbert, the
Supreme Court of Pennsylvania later reaffirmed its own prior holding that “a
subsequent act of republication after a defendant is put on notice by a lawsuit that
alleges defamation is relevant to a determination of actual malice in the initial
publication.” Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 471 (2007). Read in

context, however, the holding in Weaver applies to the republication or refusal to

retract statements that have “been demonstrated to [the defendant] to be both false
and defamatory.” Jd. at 470. The statements at issue here are unlike those in Weaver,
which were clearly demonstrated to be defamatory. See zd. at 463 (addressing false
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accusations that the plaintiff sexually abused women and children). While the

statements challenged here might be defamatory, they are not unequivocally so.
Moreover, The Times did not republish the article after this lawsuit was filed; it
retracted. (Doc. 20 at 12 n.2.)
Next, in Tanner v. Ebbole, the Court of Civil Appeals of Alabama was asked to
consider whether there was sufficient evidence of actual malice to sustain a jury
verdict for the plaintiff on a libel claim. 88 So. 3d 856, 867-69 (Ala. Civ. App. 2011).
The court found “some support” for the trial court’s view that malice could be
inferred from the defendant’s failure to retract defamatory statements after receiving
a demand letter from the plaintiff’s lawyer. Jd. at 868. However, citing Sudlzvan, 376
U.S. at 286-87, the appellate court expressed a lack of confidence in that view. See
Tanner, 88 So. 3d at 869. Ultimately, the court declined to “consider [the issue|
further” in part because the defendant presented “no reason or authority upon
which to reverse the trial court’s ruling.” /d. Such meager analysis does not persuade
this Court to adopt Spears’s position in the face of contrary, reasoned authority.

4 Other opinions cited by Spears are distinguishable on this basis. See, e.g, Gray ». WALA-
TV, 384 So. 2d 1062, 1065 (Ala. 1980) (false accusations of political corruption “[c]ertainly ...
subject[ed] the plaintiffs to public ridicule and ... injure[d] their reputation, both individually and
in their business”); Pezsner v. Detroit Free Press, Inc., 104 Mich. App. 59, 62-63 (1981), aff'd as
modified, 421 Mich. 125 (1984) (addressing false accusations of incompetence and ethical
misconduct directed at a criminal defense attorney).
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In the final opinion Spears cites on this point, the Fifth Circuit found that a
failure to retract false allegations of fraud supported a finding of actual malice. See
Golden Bear Distrib. Sys. of Texas, Inc. v. Chase Revel, Inc., 708 F.2d 944, 950 (5th Cir.
1983). Significantly, however, the plaintiff in that case had contacted the defendant
and “offer[ed] to prove that it was innocent of any wrongdoing,” but the defendant
refused. Jd. This appears to be a perfect example of “some showing that the
defendant purposefully avoided further investigation with the intent to avoid the
truth,” contemplated by the Eleventh Circuit in Michel. 816 F.3d at 703. Here, by
contrast, there is no showing that The Times purposefully avoided further
investigation with the intent to avoid the truth, and it retracted the challenged
statements after Spears offered proof of their falsity. (Doc. 20 at 31.)
Accordingly, because Spears has failed to allege any facts that would allow this
Court to plausibly infer that The Times acted with actual malice when it published
the challenged article, The Times’s motion to dismiss Spears’s false light claim is
due to be GRANTED. /gbal, 556 U.S. at 686-87.
V. CONCLUSION
For the reasons stated above, The Times’s Motion to Dismiss (doc. 12) is due

to be GRANTED IN PART and DENIED IN PART. The motion is due to be

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GRANTED as to Spears’s false light claim and DENIED as to his defamation claim.
The Court will enter an order consistent with this Memorandum of Opinion.
DONE anp ORDERED ON DECEMBER 6, 2023.

L. SCOTT Ce
UNITED STATES DIS¥RICT JUDGE
215647

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991931. Public record. Not legal advice.