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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 892

## Text

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

10
1l
1l
14
16

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

22

21

27

27

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

ll

28
24

18,20

18,21,44

27

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

oe

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).

ae

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

my

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
\e

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
more readily to the accusations against
Neary because state veterinarians rendered
“opinions” about Neary’s treatment of the
animais based on a "fact" investigation.
This case and Neary are identical in the

sense that “opinion" rested wholly on the

~29—

investigation of "facts" which the Plaintiff
alleged were false and defamatory.

This Court recently expressed continu-
ing disapproval of "slipshod and sketchy
investigatory techniques" which manifest "an
intent to avoid the truth." arte- 8

Communications, Inc. v. Connaughton, supra,

109 S.Ct. 2698-99. ABC’s Caras was deeply
involved with his good friend, Derby, in a
contrived® story lambasting Petitioner,

creating more "life and death" answers to

slanted questions and a more obvious por-
trayal of Jones’s callous disregard for his
elephant herd.

ABC’s plain message was that Jones was
an avaricious "Entrepreneur" seeking to add

to his already sizeable wealth at the ex-

‘There was no urgency to the timing of the 1987
"sequel." Caras had plenty of time to seek out 4 de
facto “expert” and Downs and Walters, sophisticated
and renowned media personalities, knew the impact of
their inflammable treatment of the "Save the Ele-
phants” would be devastating.

: -30-

I OT Oa Gy ORL SORE TRE SOON pe AP. REE

pense of the elephant herd contrary to "the
advertised intent when they were brought
here" from Zimbabwe. The false imputation
was one of fact, not opinion. The holding
of the lower courts used “Humpty Dumpty’s
language" in reaching a contrary conclusion
and deptived Petitioner of Due Process of
Law.

“Save the Elephants" essentially broad-
cast the following false assertions of fact
concerning Jones in the 1987 "20/20" pro-
gram:

ABC Falsely Stated That
Jones Did Not Keep His Word

Downs [voice-over] And in 1984,
these baby elephants walked into
our hearts when 20/20 reported how
this Florida millionaire airlifted
them to safety. Now the herd must
be disbanded, and their future is
in doubt. Are we all at fault?

Pat Derby, Elephant Expert: What
we do to animals in general is not
wonderful; what we do to elephants
is horrible.

Downs [voice-over]: Roger Caras
asks if the dream has gone sour,

a

and why it’s time again to save
the elephants.

Walters: Well, later in this
program, we'll follow up on the
fate of some baby African ele-
phants to whom a promise was not
kept.

Downs: .--, but next, they say
elephants never forget, but some-
times people, unfortunately, do.
Roger Caras reports why it may be
time once again to "Save the Ele-
phants." Stay with us. [commer-~
cial break]

SAVE THE ELEPHANTS

Downs: It’s been almost three
years now since 20/20 first re-
ported on this man, eccentric
Florida millionaire and inventor
of the Nautilus exercise machines,
Arthur Jones, and his daring air-
lift rescue of a herd of baby
African elephant marked for death.
It was one of the most talked
about segments we’ve done here.
But, as ABC News nature and wild-
life correspondent Roger Caras
tells us, what we thought was the
happy ending to this elephant
story is actually, according to
the experts, the beginning of a
sad and painful journey.

Arthur Jones, Entrepreneur: I
simply could not live with myself
if I idly stood by and watched the
African elephant become extinct.

Roger Caras [voice-over]: That's

how Florida millionaire Arthur
Jones explained his mission in
1984, when 20/20 first reported
this story. Jones wanted to res-
cue baby elephants in Zimbabwe
from a cull, or thinning of the
herd, like this one. [videoclip
of elephants being shot] This was
the dramatic scene in 1984, when
Jones took one of his three 707s
across the Atlantic and into the
heart of the African continent.
His commitment seemed both emo-

tional and financial. ...
* * *

Mr. Jones: We’‘re going to give
them an opportunity to survive and
to build a self-sustaining herd of
African elephants in this country.

Caras [voice-over]: For two anda
half years, the Zimbabwe orphans
lived the good life here on Arthur
Jones’ estate in central Florida.
But all of that’s coming to an
end. The herd is being dispersed.

* * *

Ms. Derby: It’s his responsibili-
ty. That herd was brought over
here as a herd, and it should
remain a herd.
* * *

Caras: Barbara, it’s no different
than geing to a pound and adopting
a dog or a cat. If you’re rich
enough to go to Africa and bring a
herd of elephants then your re-
sponsibility [is] for the life of
the animals, and elephants live 60
to 70 years. He’s a very rich

oi.

man. He should endow these ani-
mals, give them to a university,
keep them together so they can be
studied and they can be cared.for
long after he’s dead and we’ re
dead.
_ * * ee as a

Walters: You know, we forget,
isn’t it cute, we’re going to have
all these elephants, and -we’re
going to adopt these dogs or these
cats, but we don’t think of the
next day. Thank you for bringing
this to our attention. Let’s hope
that something can be done about
it.

ABC Falsely Brand ones

Jones told ABC that he had lost legal
control of his company and any elephants
sold from the herd at Jumbolair had been
sold by one Travis Ward during the time Ward
controlled Nautilus.’

In its 20/20 broadcast, ABC duly recit-

ed Jones’s statement and then proceeded to

Tplaintiff was the founder of Nautilus. It
started doing business in 1970. Jones developed and
invented all of Nautilus’s exercise equipment. He
sold Nautilus to Ward to devote more time to revolu-
tionary medical machines diagnosing lumbar, problems
and lower back injuries. Jones was. preparing to
introduce the products on the market place when ABC
broadcast “Save the Elephants."

-34-

vouch for statements of Derby and Caras
calling Jones a liar:

Caras [voice-over]: But Ward says
that they didn’t control anything
until August 1986. They never
sold any elephants, and the agree-
ments to sell them to a part-time
animal dealer named David Meeks
was signed by Jones’ foreman,
Ralph Kramer, in July.

Ms. Derby: Ralph Cramer told me,
when I was in Florida in May, that

Arthur (Jones) had told him to
dispose of as many of the ele-
phants as he could.

Caras [voice-over]: Jones says he

doesn’t know how many more he will

sell.

ABC had the 16 June 1986 contract
between Ward and Jones in its possession
prior to the broadcast. The agreement to
sell elephants to Meeks was signed by Cramer
as “Nautilus Representative," not "Jones’
foreman." Indeed, ABC flashed the agreement
on the video portion of the broadcast at the

same instant Caras stated on the audio

voice-over that Jones says "he doesn’t know

;

4 % . as : 2 . ~
Ee Ee Oe Re ee eee ae Te ee ee ee oy oa

how many more he will sell." The agreement
showed it was between Meeks and Nautilus.
ABC also did not disclose Jones’s intention
to maintain a herd of 30 to 50 African

elephants.

ABC Falsely Portrayed Jones As A Hypocrite

Arthur Jones, Entrepreneur: I
simply could not live with myself
if 1 idly stood by and watched the
African elephant become extinct.

Roger Caras {voice over]: That’s
how Florida millionaire Arthur

Jones explained his mission in
1984, when 20/20 first reported
his story.

Roger Caras. [voice over]: °
-After a hair-raising 22 hour
flight, they arrived at Jones’s
ranch for, it was assumed, the
rest of their lives. At least,
that was the impression Jones

gave.
* * *

Mr. Jones: We're going to give
them an opportunity to survive and
to build a self-sustaining herd of
African elephants in this country.

: You know, and some-
times I’m not even responsible for
the past, Roger, don’t try to hold
me responsible for the future.

Caras [voice over}: . . . and
Arthur Jones, commenting on ele-
phant ownership in general, said
the advice of Confucius might

apply:

Mr. Jones: "He who chooses to
ride the tiger should carefully
determine in advance how he in-
tends to dismount. "

* * *

Walters: He who chooses to bring
over a herd of elephants should
carefully think of what he’s going
to do after he has them in his
backyard, shouldn't he?

Caras: Barbara, it’s no different
than going to a pound and adopting
a dog or a cat. If you're rich
enough to go to Africa and bring a
herd of elephants then your re-
sponsibility [is] for the life of
the animals, and elephants live 60
to 70 years. He’s a very rich
man. He should endow these ani-
mals, give them to a university,
keep them together so they can be
studied and they can be cared for
long after he’s dead and we're
dead.
' * + 7

: You know, we forget,
isn’t it cute, we’re going to have
all these elephants, and we're
going to adopt these dogs or these
cats, but we don’t think of the
next day. Thank you for bringing
this to our attention. Let’s hope
ag something can be done about
t.

=37<

LC hm » eal sted Ve ee eG Oe Pe. ee ee ee Sa ee Nae eee eee ne

The fact was, as ABC knew at the time

of the 1987 broadcast, that Jones had ar-

ranged to endow the elephant herd and have
the University of Florida take care of them
| (Ex F, 138-139, 142). Caras told Derby that
Jones had provided for the elephants in his
will (Derby Dep. p. 166).

Underscoring ABC’s defamatory and false
assertions of fact was clear evidence of the
network’s “actual malice." From producer,
Lynn Murray, to moderators Downs and Wal-
ters, to “wildlife” reporter, Caras, there
was a pre-conditioned and determined intent
to "get" Jones. Caras enployed his friend,
Derby, vouching for her pronouncements, to
portray the Petitioner as the stores vil-
lain. Derby made the following devastating

and derogatory statements about Jones:

-39.

Pat Derby, Elephant Expert:® What
we do to animals in general is not

wonderful; what we do to elephants
is horrible.

These are extremely social
animals. They live for each oth-
er, literally, and when you pull a
baby elephant out of that situ-
ation, that’s stressful in itself.
I’ve known of elephants to die
just from that.

So many dumped elephants
become quote "rogues," because
they’re mishandled, they’re the
victims of improper diet, of every
kind of atrocity in the world.
Their only way to retaliate, they
do one of two things, they either
attack or they run.

Today, anyone with the money
to purchase an elephant can get an
elephant. There is no provision
for quality of life. There is no
provision for expertise. We have
no, absolutely no, laws which
protect the elephants or the peo-
ple.

It’s his responsibility.

That herd was brought over as a

herd, and it should remain a herd.
* ” *

I really feel they should

have been destroyed in Africa.

Spowns announced “according to the experts” the

elephants faced “the beginning of a sad and painful

journey.” Derby was the only supposed expert.

~39-

FD A | ee Oe Oe PON pre, EL TIE as ey

It’s a quick death. They would
have been with their own herd.
They would not have known. To
send them into anything else is

not kind.

Derby was identified as oer "Elephant
Expert” only on the video «portion of "Save
the Elephants." Downs referred to’ her as
"experienced elephant handler” on the audio.
ABC failed to inform the viewer of Derby’s
true lack of expertise. Derby and Caras
were good friends, calling each other "five
or ten times" a year. Derby watched the
1984 program, did not like it, called the
National Humane Society and objected (Derby
Dep. i51, 152, 165).

Despite her continuing friendship and
contacts with Caras, Derby testified that
she had "no idea" how 20/20 producer Lynn
Murray came to call her in California in
1987 to do an interview concerning the sale

of some of the elephants at Jumbolair. ABC

paid Derby’s airfare to New York and her

~40-

fC ee

hotel bill. After her interview with Carag
for the show, Derby spent the weekend with
Caras and his wife (Derby Dep., p. 77, 96-
97, 123-124, 165-166, 176-178).

Although Derby stated that she knew of
instances when elephants died just because
they had been split from a herd, ABC did not
tell its viewers that sometime prior to the
broadcast, Derby arranged a swap with Jones,
placing an elephant she had with the herd at
Jumbolair in exchange for one of the baby
elephants (Derby Dep., p. 102).

Derby admitted sie: was no elephant
expert. She had never been to Africa, never
studied elephants in a national habitat, and
had never written a book or article about
elephants (she had studied English litera-
ture at college but did not have a degree)
(Dep. 17-19, 65-66).

Derby admitted that her solemn state-

ment on 20/20 about knowing of [separated]

se fon

elephants dying from stress was based only
upon what third persons allegedly. told her,
not on first-hand information or observation
(Derby Dep., p. 27-34). According to Jénes,
Derby held herself out “as being totally
inexperienced, totally lacking knowledge and
seeking knowledge" concerning elephants
(Jones Dep. 6/19/87, p. 52). None of this
came out in the broadcast, only Derby’s
condemnation of Jones.
Ominous Letter From The Humane Society

Plaintiff's reputation was immediately
harmed by the 20/20 broadcast. He received
“hate” calls and letters from persons and
organizations concerned about animal cruel-
ty. On 22 April 1987, the Humane Society of
the United States wrote him an ominous and
threatening letter:

April 22, 1987
Arthur Jones
Jumbolair

P.O. Box 788
Anthony, FL 32617

-42-

Dear Mr. Jones:

We are writing to you con-
cerning the recent 20/20 report
dealing with the African elephants
that are in your care.

The Humane Society of the
United States (HSUS) recognizes
your original humanitarian gesture
of transporting this herd of Afri-
can elephants to your private land
in Florida. This attempt to pre-
serve the lives of these animals
was originally reported on the ABC
news program 20/20.

However, it was brought to
our attention by the March 12,
1987 20/20 report that you have
begun to disband this herd by
selling the animals to circuses in
Mexico or to any other willing
person. The HSUS and its members
are deeply concerned with the
welfare of these animals. We urge
you to set up a endowment to guar-
antee that these beautiful animals
can live out their lives on your
property. Furthermore, we want to
stress the need to begin resolving
this problem as soon as possible.

We urge you again to take
quick action to rectify this situ-
ation and look forward to an early
response detailing your plans for
the remaining African elephants.

Sincerely yours,

ot.

yi

David I. Herbert
Captive Wildlife Specialist

The District Court concluded that ABC’s

assertion in "Save the Elephants" either
were not defamatory or, if defamatory, were
expressions of "opinions." Consequently,
despite immediate harm to Jones, he was left
unable to remedy the damage by "malleable
and spongy" legal analysis enabling “any
judge or reviewing court to label any clear-
ly libelous statement of fact as a statement
of opinion...." Scott v. News Herald,
supra, 496 N.E.2d at 723. Like Milkovich

presently under review in this Court, this

case calls for the redefinition of the legal
guidelines for distinguishing fact from the
opinion. The economically powerful news
media in the United states should not re-
ceive absolute immunity from lies and false-
hood under the recurrent premise that any

deliberate “hatchet job” it perpetrates on

-~44-

an individual’s reputation is constitution-
ally protected "opinion."

The ABC broadcast of "Save the Ele-
phants," viewed in its entirety, and without
any design to overlook its sting or to
characterize portions of it as "opinion,"
not “fact,” defamed the Plaintiff. The
broadcast imputed dishonesty and hypocrisy.
ABC accused Jones of “dumping” the elephant
herd to "a fate worse than death." The
Plaintiff was accused of exposing the herd
to a doomsday future of improper diet,
cruelty, mishandling and neglect, in short,
to “every kind of atrocity in the world."
The overall impact of “Save the Elephants”
cannot be diluted by labeiing it as an
"opinion" of the libeler.

CONCLUSION

For the reasons stated, Petitioner

prays that this Court grant this petition

and determine that Jones hau the legal right

ag9=

to remedy the harm inflicted by ABC in "Save
the Elephants" to Petitioner’s good name,
self-worth and reputation in this important
libel case.

Respectfully submitted,

SINCLAIR, LOUIS, SIEGEL,
HEATH, NUSSBAUM &

ZAVERTNIK, P.A.

Attorneys of record for
Petitioner

1125 Alfred I. duPont Bldg
Miami, FL 33131

(305) 374-0544

Cpe Lou's

PAUL A. LOUIS

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.
169 East Flagler Street
Miami, Florida 33131

(305) 374-0544

Of Counsel

WY oe

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and
correct copy of the foregoing brief has been
furnished by mail to Gregory G. Jones, Esq.,
Carlton, Fields, Ward, Emmanuel, Smith,
Cutler & Kent, P.A., One Harbour Plaza, P.O.
Box 3239, Tampa, Florida 33601, on this o¥th
day of May, 1990.

By

=47<

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0966%3A1. Public record. Not legal advice.