Petition for Writ of Certiorari — Jones v. American Broadcasting Cos.

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0) Supreme Court, U.S.

FILED

89-19 =

JOSEPH PSP AIOEUR.

In The CLERK

Supreme Court of the Unitec“Statés —

October Term, 1969

ARTHUR JONES

Petitioner,

vs.

AMERICAN BROADCASTING COMPAN TES, INC.

Respondent,

Petition For Writ Of Certiorari To

The United States Court of Appeals

For The Elewenth Circuit

SINCLAIR, LOUIS, SIEGEL, HEATH, *

NUSSBAUM & ZAVERTHIK, P.A.

1125. Alfred I. @uPont Bldg.

Miami, FL 33131

(305) 374-0544

JAMES F. DOUGHERTY, II, ESQ.

1301 Dade Boulevard

Miami Beach, FL 33139

(305) 531-7300

DWIGHT SULLIVAN, ESQ.

3110 S.E. Financial Center

Miami, FL 33131-2388

EVAN J. LANGBEIN, ESQ.

1125. Alfred I. duPont Bldg.

Miami, FL 33131

(305) 374-0544

*Counsel of Record

T Pp NTED

l. Are false statements in a televi-

sion broadcast accusing Petitioner of hypoc-

risy, lying, unscrupulousness and cruelty to

animals actionable defamation or merely non-

actionable "privileged opinion"?

PARTIES

Petitioner is Arthur Jones, inventor of

Nautilus exercise equipment. Jones main-

tains an estate in Central Florida, near

Ocala, known as Jumbolair. Respondent is

the American Broadcasting Companies, Inc.

(ABC), one of the nation’s three leading

broadcasting companies.

T. F NTENT.

QUESTIONS PRESENTED ..........-

THE PARTIES......... ee

TABLE OF CONTE NTS Da © &.9 6 @.8 ©. @

TABLE OF AUTHORITIES..........

DECISIONS BELOW...........2.. =

JURISDICTION... cee ee eercceeess

CONSTITUTIONAL PROVISIONS.....

STATEMENT OF THE CASE.........00+--

A. Te Pee cette re ete

B. The Proceedings..........

ARGUMENT IN SUPPORT OF GRANTING....

THE WRIT OF CERTIORARI

THE DISTRICT COURT AND ELEVENTH

CIRCUIT ERRONEOUSLY DETERMINED

ABC WAS SHIELDED FROM PETITIONER‘S

CLAIM OF DEFAMATION BY CATEGO-

RIZING THE STATEMENTS IN "SAVE

THE ELEPHANTS" AS OPINIONS"

INSTEAD OF "FACTS."

CONCLUSION... 2c eee cece ccceces

CERTIFICATE OF SERVICE........

e*eeee

Page No.

wo Oo £*& WwW NY

TABLE R

Cases

Afro-American Pub. Co.

v. Jaffe,

125 U.S. App. D.C. 70,

366 F.2d 649 (1966)............. _

Albert Miller Co. v. Corte,

107 F.2d 432 (Sth Cir. 1939)......

Beech Aircraft Corp. v. Rainey,

U.S. 109 S.Ct. 439

Belli v. Orlando Daily

Newspapers, Inc.,

389 F.2d 579 (Sth Cir. 1967)......

Buckley v. Littell,

539 F.2d 882 (2nd Cir. 1976)..s.<«.

Burns v. McGraw-Hill

Broadcasting Co., Inc.,

659 P.2d 1351 (Colo. 1983)......-. °

Carter v. Sterling

Finance Co.,

132 So.2d 430 (Fla. lst

DCA 1961) . 0s cvecewncceecees ceevese oe

Caswell v. Manhattan Fire

& Marine Ins. Co.,

399 F.2d 417 (5th Cir. 1968)......

Cianci v. New Times Pub. Co.,

639 F.2d 54, 64 (2nd Cir. 1980)...

Diplomat Electronic, Inc. v.

Westinghouse Electric Supply Co.,

379 F.2d 377 (5th Cir. 1967)......

oes

17,26

24,27

Galvan v. Press,

347 WoG. SA2Z (USSE) oc cc cccccccccs 23

Gertz v. Robert Welch, Inc.

418 U.S. 323 (1974) 2. ccscccenceces 19

Harte-Hanks Communications,

Inc. v. Connaughton,

__ U.S. __, 109 S.Ct. 2678 (1989). 25,26,30

Hotchner v. Castillo - Puche,

551 F.2d 910 (6th Cir. 1977)...... 21

Information Control Corp. v.

Genesis One Computer Corp.,

611 F.2d 781 (9th Cir. 1980)...... 19

Jones v. ABC,

694 F.Supp. 1542 (M.D.Fla. 1988)... 8

Jones v. Greeley,

25 Fla. 629, 6 So. 448 (1889)..... 27

Lasky v. ABC,

631 F.Supp. 962 (SDNY 1986)....... 16

Loeb v. Geronemus,

66 So.2d 241 (Fla. 1953).......... 27

McBride v. Merrell Dow and

Pharmaceuticals, Inc.,

717 F.2d 1460 (D.C. Cir. 1983).... 23,28

McCabe v. Rottiner,

814 F.2d 839 (lst Cir. 1987)...... 21

McClellan v. L’Engle,

74 Fla. 581, 77 So. 270 (1917).... 27

McNamus v. Doubleday,

513 F.Supp. 1383 (S.D.N.Y.1981)... 22

ate

Milkovich vs. The Lorain

Journal Co., et al.,

— U.St 5 Se eae. ae

947 (Jan. 22, A nae ee el

Milkovich v. The Lorain

Journal Co.,

46 Ohio App.3d 20, 545

Ws BG. 2a S5SO Tapes sac e vases cvoer

Neary v. Regents of the

University of California,

185 Cal.App. 3d 1136,

230 Cal. Rptr. 281 (1986).........

New York Times v. Sullivan,

376 Dus 254 CL9GS) eG COCR eh

Ollman v. Evans,

471 U.S. LL27 (I9SS).. 0. es obeeee's

Ollman v. Evans,

750 F.2d 970 (D.C. Cir. 1984).....

Paul v. Davis,

S20 U.B. GES CIS7IES) osocrcsecccece ee

Quartana v. Utterback,

787 F.2d 1297 (8th Cir. 1986).....

Richard v. Gray,

Se. OG.ae: SO0. CELE. XOSS) os VC FHS

Rosenblatt v. Baer,

383 U.S. 75 CLIGSS pre secccseccddcdc

Scott v. News Herald,

496 N.E.2d 699 (Ohio Sup.

cE. SOMES Re hawewcerebhekeccuctee

Walsh v. Miami Herald Pub. Co.,

80 So.2d 669 (Fla. . ) > rarer args

D> }

“SSS SR

11,17,18,

20,44

18,20

18,21,44

Washington Post Co. v.

Chaloner,

250 U.S. 290 (CU9DUD) ww rvenvvnvesens 22

Zartman v. Leheigh County

Humane Society,

482 A.2d 266 (Pa.Supp.Ct.

WDBE) ww reenvvnnevnvvvervnvssessers 28

Other Authorities

Hustler Magazine v. Falwell,

103 Harv. L. Rev. 601

(Jan, UW99O) wp wwvveeees eee © es eee &@ 8 @& © 19

Newsweek Magazine, "The Battle

Over Animal Rights" (Dec. 26,

1989), Pp. ~ |. > Pearce ee oe eee 28

Restatement (Second) of Torts

§559 (1977). ..ee eeeeeeeeeeeeee eee 28

Traynor, “Defamation Law: Shock

Absorbers For Its Ride Into

The Grove Of An Academe," 16

Journal of College & Unive«sity

Law, 373, footnotes 1 & 2

(Winter 1990)... .ccceeeveees we eces 28

U.S. Constitution, Amendment I

and Amendment Vi... cece eeceeces 10

Se a eee 9

2B U.S.C. SlL3SSZ. 0 ease vvccnvcvvcne 14

DECISIONS BELOW

(A) The District Court's decision in

Jones v. American Broadcasting Companies,

Inc., is officially reported at 694 F.Supp.

1542 (M.D.Fla. 1988). On Appeal, the Blev-

enth Circuit affirmed the District Court by

a per curiam decision, without rendering an

opinion, on December 21, 1989. Rehearing

was denied on February 27, 1990, and the

mandate issued on March 7, 1990.

JURISDICTION

Jurisdiction to consider this petition

is conferred on the Court by 28 U.S.C.

Section 1254(1).

CONSTITUTIONAL PROVISIONS

This case involves the deprivation of a

libeled plaintiff’s constitutional protec-

tion contained within the Fifth Amendment to

the U.S. Constitution:

No person shall ... be de-

prived of life, liberty, or prop-

erty without due process of law-

ote

The First Amendment to the United

States Constitution provides, in part:

Congress shall make no law

abridging the freedom of

speech, or of the press.

-10-

TATEMENT OF , THE E

A. The Facts

This Court recently granted certiorari

to review Milkovich vs. The Lorain Journal

Co. et al, __U.S. _, 107 L.Ed.2d 947 (Jan.

22, 1990); see also, Milkovich v. Lorain

Journal Cco., 46 Ohio Supp. 3d 20, 545 N.E.2d

1320 (1989). Like Milkovich, this case fea-

tures the crucial, recurring issue a defama-

tion plaintiff encounters when he sues a

media defendant: are the defamatory state-

ments non-actionable because they may be

categorized as "opinion," rather’ than

*fact"?"

In 1984, ABC broadcast "The Flying

Elephants" idealizing Petitioner, ARTHUR

JONES (Jones).

lpetitioner is indebted to Petitioner in

Milkovich for providing copies of both their petition

for writ of certiorari and brief filed with this

Court. Because of the similarity of the legal issues

presented, Petitioner herein adopts much of the legal

argument made in the Milkovich case which has been

argued in this Court. -ll-

Jones maintains an estate in Central

Florida, near Ocala, known as Jumbolair. In

1984, ABC reported Jones’ daring flight tc

Zimbabwe, Africa to rescue 63 baby ele-

phants, endangered by a Zimbabwe culling

program. The elephants were herded aboard

Jones’ 707 jetliner and airlifted to safety

at Jumbolair in Ocala. Petitioner was

portrayed as the noble savior of an endan-

gered species, the African elephant.

On March 12, 1987, Respondent, ABC,

broadcast a sequel on its weekly "20/20"

newsmagazine dubbed "Save the Elephants. ”"

The 1987 sequel was a dramatic turn-

about by ABC. Jones was captioned as an

“Entrepreneur” who duped ABC and the Ameri-

can public. ABC branded Petitioner an

“eccentric Florida millionaire," accusing

him of falsity, dishonesty and hypocrisy in

his statements, actions and motives in 1984.

The network charged Jones with "dumping" the

~-12—-

elephants, dispersing the herd "to a fate

worse than death" by selling them to animal

trainers using “cruel" techniques, knowing

the animals would be abused, neglected and

likely would die.’

The ABC depiction of Jones employed the

caustic moderation of Hugh Downs, Barbara

Walters and ABC’s "nature and wildlife

correspondent," Roger Caras. The feature

used edited clips of the 1984 broadcast, and

Clips of lengthy interviews with Jones and

others. ABC employed an “expert," one Pat

Derby, Caras’ longtime personal friend, who

in fact was not an elephant expert. Ms.

Derby made disparaging and derogatory "ex-

pert" comments regarding Jones’ mistreatment

of the elephants. Derby’s long friendship

with Caras was undisclosed to the viewing

public (Derby Dep. 77,169).

2The complete official ABC transcript is includ-

ed in the Appendix, A

= oe

ABC also did not inform its viewers

that Caras coached his friend Derby to

deliver a more "life-and-death" indictment

of Petitioner. Caras told Derby in ABC’s

"outtakes": "Somewhere in this, because

some bad things have been done -- somewhere

in here there’s a villain... Someone is

doing something terrible to elephants, which

was not the advertised intent when they were

brought here..." (ABC’s Appendix to Motion

for Summary Judgment, Ex. F, p.254-255).

B. The Proceedings

Jones sued ABC, alleging the 20/20

broadcast falsely cast him as a liar and a

hypocrite, and accused him of animal cruel-

ty. Jurisdiction of the U.S. District Court

was based on 28 U.S.C. §1332 (Diversity of

Citizenship). Following depositions of

Jones and Derby and production of ABC’s

“outtakes” and other documents, the District

Court granted ABC’s Motion for Summary

Judgment. Ina lengthy opinion (694 # supe.

1542), the Court found that selected state-

ments from the "Save the Elephants" broad-

cast either were not defamatory as a matter

of law, or as to those statements which were

capable of defamatory connotation, were

protected as “opinion" of ABC. The District

Court said (694 F.Supp. 1552):

This constitutes the statements in

the broadcast which refers to

Plaintiff’s keeping a promise or

not, and perhaps to his "honesty."

If € statements are factual in

nature they might be actionable.

However, the Court finds that

these statements are non-action-

able opinion.

Petitioner urged the Court to be mind-

ful that "jt is the medium which is the

message." Jones requested the Court to view

the entire broadcast, to consider facial

expressions of the speakers in the broadcast

and their vocal intonations, to evaluate the

film clips and editing, as well as the

broadcast "“outtakes," to determine the

cae

- a

"overall impact" of the ABC 20/20 broad-

cast.’ On appeal, the Eleventh Circuit

affirmed the District Court without render-

ing a written opinion.

ARGUMENT IN SUPPORT OF

GRANTING THE WRIT OF CERTIORARI

THE DISTRICT COURT AND ELEVENTH

CIRCUIT ERRONEOUSLY DETERMINED ABC

WAS SHIELDED FROM PETITIONER’S

CLAIM OF DEFAMATION BY CATEGORIZ-

ING THE STATEMENTS IN “SAVE THE

ELEPHANTS" AS “OPINIONS” INSTEAD

OF “FACTS.”

In granting a summary judgment, the

trial judge found:

...-[T]he statements in the broad-

cast which refers to Plaintiff’s

{Jones’] keeping a promise or not,

and perhaps to his "honesty." If

these statements are factual in

nature they might be actionable.

3courts recognize that "the television medium

offers the publisher the opportunity, through visual

presentation, to emphasize certain segments in ways

that cannot be ascertained from merely reading of the

transcript." Lasky v. ABC, 631 F.Supp. 962, 970

(S.D.N.Y. 1986). ABC contrasted visual clips of

African elephants blissfully roaming in their natural

habitat, against a backdrop of a snow-capped mountain

range (of what might have been Mt. Kilimanjaro in

Tanganyka, not Zimbabwe) with later shots of chained

elephants, helplessly thrashing about after Petition-

er allegedly “dumped” them into captivity.

wien

However, the Court finds that

these statements are non-action-

able opinion. (694 F.Supp. 1552)

As in Milkovich, under scrutiny by this

Court, this case presents the repeat ques-

tion almost reflexively raised by media

defendants sued for libel. No matter how

false or damaging the innuendo, insinuation

or “sting” of the defamation, if the defen-

dant can persuade the court that its asser-

tions are “opinions,” not "facts," the issue

of defamatory meaning may be removed from a

jury’s consideration. Because statements of

“opinion” and "fact" invite “inevitably

arbitrary" distinctions and turn on ques-

tions of "degree" [see Beech Aircraft Corp.

7. ees US. Cg 109 6S .Ct. 6439

(1988)], a libeled plaintiff’s right to

vindicate his damaged reputation often turns

on "Humpty Dumpty’s use of language."

Cianci v. New Times Pub. Co., 639 F.2d 54,

64 (2nd Cir. 1980). Note, e.g., the trial

aah

court’s revealing subjective statements:

"If these statements are factual etc. p. 7

infra. Query: Shouldn’t Jones have been

given an opportunity to prove that the

obvious accusations in the broadcast were

false.

Chief Justice Rehnquist observed "Lower

courts have seized on the word ‘opinion’ to

solve with a meat axe a very subtle and

difficult question,..." Ollman _v. Evans,

471 U.S. 1127, 1129 (1985) [dissenting from

the denial of certiorari]. The dissenting

judge in Milkovich, Justice Brown, noted

that the legal test applied to distinguish-

ing assertions of fact from opinion amounted

to "no more than a geyser spouting judicial

steam, fog and mist." Scott v. News Herald,

496 N.E.2d 699, 723 (Ohio Sup. Ct. 198%).

The confusion surrounding the opinion/-

fact dichotomy intensified after this Co-

at8e.

urt’s statement in Gertz v. Robert Welch,

Inc., 418 U.S. 323, 339 (1974):

Under the First Amendment

there is no such thing as a false

idea....

The courts have struggled to adopt and

apply varying "tests" or "factors" to deter-

mine when an "“idea" is separated from

"facts" connected with those ideas which are

defamatory. See, e.g. Ollman v. Evans, 750

F.2d 970 (D.C. Cir. 1984) (en banc); Infor-

ontrol Corp. v. nesis One Computer

Corp., 611 F.2d 781 (9th Cir. 1980). MThe

result, too often, is a “meat axe" approach,

as it was in Jones’ case.

Legal distinction between fact and

opinion in libel cases is not new. The

distinction "formed the backbone of the fair

comment privilege." See, Post, "The Consti-

tutional Concept of Public Discourse:

Outrageous Opinion, Democratic Deliberation,

and Hustler Magazine v. Falwell,” 103 Harv.

= a

L. Rev. 601, 650 (Jan. 1990). The fair

comment privilege "roughly functioned to

immunize the publication of honestly held

but defamatory opinions about matters of

public concern that were fair and communi-

cated without malice." Ibid, at 627.

What has changed drastically since

Gertz, however, is the elevation of the

distinction to one bearing constitutional

immunity. The courts now have created

numerous local and varied formulae for

differentiating a supposedly protected

“opinion” from an unprotected "fact" which

damages reputation.

For instance, the factors applied in

Milkovich were adopted from Ollman v. Evans,

supra: (1) the specific language used; (2)

whether the statement is verifiable; (3) the

general context of the statement; and (4)

the broader context in which the statement

appeared. Other courts have been less

=20-

precise in reaching conclusions that "opin-

ions" are constitutionally protected. See,

e.g.-, Buckley v. Littell, 539 F.2d 882 (2nd

Cir. 1976); Vv. stillo - Pu ,

551 F.2d 910 (6th Cir. 1977); McCabe v.

Rottiner, 814 F.2d 839 (lst Cir. 1987). In

this case, no "“test" or legal analysis was

applied; the lower courts simply took the

"meat axe" and stated:

This constitutes the statements in

the broadcast which refers to

Plaintiff‘s [Jones’]} keeping a

promise or not, and perhaps to his

“honesty. " If these statements

are factual in nature they might

be actionable. However, the Court

finds that these statements are

non-actionable opinion. (694

F.Supp. 1552.)

Such analysis has the potential to make

“every statement of fact a statement of

opinion in every case and therefore not

actionable." Scott v. News Herald, supra,

496 N.E. 2d at 725. The standardless con-

Clusion that language is "opinion," not

“fact,” also ignores recognition "that an

mh w

opinion may have as pernicious and harmful

effect as other forms of defamation....”

Burns v. McGraw-Hill Broadcasting Co., Inc.,

659 P.2d 1351, 1385 (Colo. 1983); McNamus v.

Doubleday, 513 F.Supp. 1383 (S.D.N.Y. 1981).

A nebulous constitutional protection

afforded “opinion” speech also permits the

trial court to employ subjective, perhaps

even biased, judicial understanding of a

publication, which is unarticulated for

purpos s of appellate review. In Washington

Post Co. v. Chaloner, 250 U.S. 290 (1919),

this Court stated that if a statement is

susceptible to two meanings, one libelous

and another not: >

..- [I]t is for the jury to say,

under all the circumstances sur-

rounding its publication, includ-

ing extraneous facts admissible in

evidence, which of the two mean-

ings would be attributed to it by

those to whom it is addressed or

by whom it may be read.

See also, Belli v. Orlando Daily Newspapers,

Inc., 389 F.2d 579 (Sth Cir. 1967); McBride

=-22-<

ee vy

Vv. Merrell Dow and Pharmaceuticals, Inc.,

717 F.2d 1460, 1465 (D.C. Cir. 1983).

If the court makes an “inevitably

arbitrary" conclusion that despite defamato-

ry capability an assertion is one of "“opia-

ion” and not “fact,” then a plaintiff whose

reputation palpably may be hurt by the

assertion is denied meaningful due process

of law. Traditional notions of due process

and fair play have called for the applica-

tion of a legal standard which can be artic-

ulated and understood by persons of common

intelligence. See, Galvan _v. Press, 347

U.S. 522, 530 (1954).*

‘Thies Court stated in Paul v. Davis, 424 U.S.

693, 701 (1976) that harm to reputation alone in a

case brought under 42 USC Section 1983 “apart from

some more tangible interests such as employment” was

not sufficient to invoke protection of the Due

Process Clause. The more tangible interest at stake

here is the threshold right of a litigant whose

reputation has been tarnished or destroyed by a

libeler to gain meaningful access to the court in the

face of vague legal standards applied to the defini-

tion of an "opinion" versus "fact."

Paradoxically, the law of defamation

always has looked to "the average normal and

reasonable person of ordinary intelligence,

in the community of publication..." to

determine if a publication is capable of

exerting reputational damage. e, €.g.,

Albert Miller Co. v. Corte, 107 F.2d 432,

435 (Sth Cir. 1939); Diplomat ectronic

Inc. v. Westinghouse Electric Supply Co.,

378 F.2d 377, 381-382 (5th Cir. 1967). This

faith in the reader or viewer of common

intelligence is undermined by the amorphous,

turgid protection of “opinions ,." afforded

constitutional dimension by the courts.

While there is a societal interest in

“uninhibited, robust and wide-open debate”

on issues of public concern [New York Times

v. Sullivan, 376 U.S. 254, 270 (1964)],

society has an equally important interest in

protection of the self-esteem and reputation

of its individual human beings. Justice

-24-

Stewart stated in his concurring opinion in

Rosenblatt v. Baer, 383 U.S. 75, 93 (1966):

- - - The destruction that defama-

tory falsehood can bring is, to be

sure, often beyond the capacity of

the law to redeem. Yet, imperfect

though it is, an action for damag-

es is the only hope for vindica-

tion or redress the law gives to a

man whose reputation has been

falsely dishonored.

Individuals should not be left without

recourse when false and defamatory state-

ments damage their reputation. Jones should

not have had his cause summarily terminated

at its preliminary stage by the court’s

conclusion that a clearly defamatory broad-

cast, viewed nationwide, was nothing more

innocuous than a non-actionable, non-defama-

tory expression of "opinions."

The more elusive the standards of free

speech or press in libel cases, ironically

the less protection afforded to free speech.

Cf., Harte-Hanks Communications, Inc. v.

Connaughton, U.S. , 109 §.Ct. 2678

~25<

(1989). This Court held in Connaughton that

the "purposeful avoidance of the truth”

shows actual malice. Quoting Afro-American

Pub, Co. v. Jaffe, 125 U.S. App. D.C. 70,

76, 366 F.2d 649, 655 (1966) (en banc), the

Court recognized “the defamer may be the

more successful when he baits the hook with

truth." If purely defamatory statements

"bait the hook" with alleged “opinions” the

remarks are no less defamatory.

In Cianci v. New Times Pub. Co., supra,

the court held an allegation imputing "“spe-

cific criminal or other wrongful acts” was

not insulated from liability because of

characterization that the statement was only

an “opinion.” See, 639 F.2d at 64. Imputa-

tions of dishonest, unscrupulous or hypo-

critical acts or conduct are defamatory.

See, e.g., Harte-Hanks nications, Inc.

v. Connaughton, supra; an . er-

back, 787 F.2d 1297, 1301 (8th Cir. 1986);

=26-

ectric Inc. v. Westinghouse

Electric Supply Co., supra, 378 F.2d at 381-

82; Caswell _v. Manhattan Fire & Marine Ins.

Co., 399 F.2d 417, 420-421 (5th Cir. 1968).

Under Florida law, applicable to this diver-

sity case:

---Imputation of hypocrisy or

dishonesty is as libelous, when

veiled under words which mean

that, as if made directly by the

words themselves.

See Jones v. Greeley, 25 Fla. 629, 6

So. 448, 449 (1889).

Florida courts are as vigilant to flesh

out a libel as the defamer may be to dis-

guise it. See generally, Walsh v. Miami

Herald Pub. Co., 80 So.2d 669 (Fla. 1955);

Loeb v. Geronemus, 66 So.2d 241 (Fla. 1953);

Richard v. Gray, 62 So.2d 597 (Fla. 1953);

M el . L’Engle, 74 Fla. 581, 77 So.

270 (1917); Carter v. Sterling Finance Co.,

132 So.2d 430 (Fla. lst DCA 1961).

a |

Courts have recognized imputations of

animal cruelty, abuse or neglect are defama-

tory. See Zartman v. Leheigh County Humane

Society, 482 A.2d 266, 270 (Pa.Supp.Ct.

1984); Neary v. Regents of the University of

California, 185 Cal.App. 3d 1136, 230 Cal.

Rptr. 281 (1986).° On remand, Neary, a

California rancher, recovered $7 million in

his libel suit. The rancher had purchased

848 pregnant heifers and took them to his

20,000 acre ranch. Thereafter, 95 cattle

and more than 400 calves died. The state,

through its veterinarians, blamed Neary for

inadequate care. Neary blamed the state for

5a defamation plaintiff need not show prejudice

in the eyes of all members of the community or his

associates attributable to a libel. A substantial

and respectable minority who would tend to be preju-

dicially influenced by a false publication is suffi-

cient. Restatement (Second) of Torts Section 559

(1977); see also Afro-American Publishing. Co. v.

Jaffee, supra, 366 F.2d at 654, no. 10; McBride v.

Merrell Dow and Pharmaceuticals, Inc., supra, 717

F.2d at 1465. There are an estimated 7,000 animal

protection groups in the United States with combined

membership of 10 million and budgets totalling $50

million. See, Newgweek Magazine, “The Battle Over

Animal Rights," December 26, 1988, pages 50-57.

-28-

using a chemical spray, toxaphene, on the

herd. Neary made statements imputing abuse

of the animals to the state and its veteri-

narians on CBS’ newsmagazine "60 Minutes."

See, Traynor, "Defamation Law: Shock Ab-

sorbers For Its Ride Into The Groves Of An

Academe,",16 Journal of College and Univer-

sity Law 373, footnotes 1 and 2 (Winter

1990).

The allegations of animal abuse of

heifers made against Neary are no different

than ABC’s accusations that Jones was dis-

banding his herd of Zimbabwe elephants “to a

fate worse than death." Indeed, the label

of "opinion" could have been applied much