Petition for Writ of Certiorari — Dodds v. American Broadcasting Co.
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d8. 601 OCT?
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In The
Supreme Court of the United States
~
October Term, 1998
HONORABLE BRUCE W. DODDS,
Petitioner,
vs.
AMERICAN BROADCASTING COMPANY, INC., a
Delaware Corporation,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
A. BARRY CAPPELLO
Counsel of Record
CAPPELLO & McCANN LLP
Attorneys for Petitioner
831 State Street
Santa Barbara, California 93101-3227
(805) 564-2444
148829 @ Counsel Press LLC
FORMERLY LUTZ APPELLATE SERVICES
(800) 274-3321 * (800) 359-6859
i
QUESTION PRESENTED
Must a sitting judge defamed by implication in a television
news journal broadcast demonstrate the defendant’s intent to
convey the defamatory implication under a subjective standard
applied by the Ninth Circuit, where the defamatory implication
is inescapable and the result of conscious choices made by the
defendant in combining the'audio and visual elements of the
program?
ii
PARTIES TO THE PROCEEDING
The petitioner, the Honorable Bruce W. Dodds, was the
plaintiff-appellant below. The respondent, American
Broadcasting Company, Inc., was the defendant-appellee below.
There are no other parties to this litigation.
— ——
TABLE OF CONTENTS
Questions Presented ......... Susuenemsnssheseats
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UMUUUNENE GE SUNOUUNCUNOD icc cece cnesccscsscets
Constitutional and Statutory Provisions Involved ....
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Reasons for Granting the Writ ....................
I. This Case Presents An Important Question Of
Constitutional Law On Which The Circuits Differ
And Which Must Be Settled By This Court. ..
a RR ag rE Na ey a A a
12
iv
TABLE OF CITED AUTHORITIES
Page
Cases:
Chapin v. Knight-Ridder, 993 F.2d 1087 (4th Cir. 1993)
PETS Pe Pe EEE Ee EO eS SOT 6, 8
Cochran v. Indianapolis Newspapers, Inc., 175 Ind. App.
548, 372 N.E. 2d 1211 (Ind. App. 1978) ......... 10
Dodds v. American Broadcasting Company, Inc., 143
Fe See Cee Gs NOE i Fn kc dau Pi va daaeeans 1,4,7
Dodds v. American Broadcasting Company, Inc., Civ. No.
DSBS OW Ce cn e'n base wedi ik iowa weds |
Eastwood v. National Enquirer, Inc., 123 F.3d 1249 (9th
UE SOUS nec ticasas mau away seese sh hasan bee 7
Lasky v. American Broadcasting Companies, Inc., 631
¥. Bea. SRS CED, a BOO. 0 cic asscesccens 11
Masson v. New Yorker Magazine, Inc., 501 U.S. 496
RRDEN orcs nad ical cues assessed eae i ake 8
Newton v. National Broadcasting Co., Inc., 930 F.2d 662
(9th Cir. 1990), cert. denied, 502 U.S. 866 (1991)
RENE Be EE Pe Oe Taree ee CR Te ON 4,5, 6,7
New York Times Co. v. Sullivan, 376 U.S. 254, 84S. Ct.
FED ab hae a bho ind eee co 9
Saenz v. Playboy Enterprises, Inc., 841 F.2d 1309 (7th
OS ESE RPE ree et eed ee eee re 8, 10
(iinet callinsliiaiintadl Serre ©
RU Eis OS
Table of Cited Authorities
Page
Southern Air Transport, Inc. v. American Broadcasting
Companies, Inc., 877 F.2d 1010 (D.C. Cir. 1989) .. 11
Standing Committee v. Yagman, 55 F.3d 1430 (9th Cir.
ROP ED 66 8 ENCE: Me ebG RS Oa e RR EAR eas 7
Weller v. American Broadcasting Companies, Inc., 232
Cal. App. 3d 991; 283 Cal. Rptr. 644 (Cal. Ct. App.
ROPES. « vaied Faas de bea ha 65 Fo eee he 11
White v. Fraternal Order of Police, 909 F.2d 512 (D.C.
SO SONOE 0 es bio Vek eae a eee ea 6, 8
Woods v. Evansville Press Company, Inc., 791 F.2d 480
CFU: BO ov does oe eae tee 8
Statutes:
Be Sess AUS i 5 db hide ea |
United States Constitution:
PUNE RI oo hei oko oe 1,8
APPENDIX
Appendix A — Opinion For The United States
Court Of Appeals Ninth Circuit Decided May 27, 1998
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vi
Table of Cited Authorities
Page
Appendix B — Order And Judgment Of The United States
District Court For The Central District Of California
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Appendix C — Order Of The United States District Court
For The Central District Of California Filed December
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Appendix D — Order Of The United States Court Of
Appeals For The Ninth Circuit Filed July 9, 1998 . 77a
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1
Petitioner, the Honorable Bruce William Dodds,
respectfully requests that a writ of certiorari be issued to review
the judgment and opinion of the United States Court of Appeals
for the Ninth Circuit, filed May 27, 1998, on which rehearing
en banc was denied on July 9, 1998.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Ninth Circuit is reported at Dodds v. American Broadcasting
Company, Inc., 143 F.3d 1053 (9th Cir. 1998), and appears in
Appendix A. The district court in Dodds v. American
Broadcasting Company, Inc., Civ. No. 95-6694 SVW (JRx),
issued two unpublished opinions: an Order Granting
Defendant’s Motion for Summary Judgment, which appears in
Appendix B; and an Order denying in part and granting in part
a motion to dismiss, which appears in Appendix C.
STATEMENT OF JURISDICTION
The judgment of the United States Court of Appeals for
the Ninth Circuit (“Court of Appeals”) was entered on May 27,
1998. The Court of Appeals denied a timely petition for
rehearing and suggestion for rehearing en banc on July 9, 1998
(Appendix D).
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States Constitution
provides in relevant part: “Congress shall make no law ...
abridging the freedom of speech, or of the press; . . .”
2
STATEMENT OF THE CASE
In October, 1994, on its weekly “PrimeTime Live”
television news journal, respondent American Broadcasting
Company, Inc. (“ABC”) broadcast a purported investigation
into judicial behavior that was “bizarre,” “outrageous” and
“downright scandalous;” and into judges who were
“lawbreakers, sellouts and just plain crazy.” Three judges were
singled out for particular censure. One was petitioner, the
Honorable Bruce W. Dodds, then a senior judge of the Santa
Barbara County Superior Court.
Among other things, the segment implied that Judge Dodds
was so devoid of rational thought that he used a crystal ball to
make judicial decisions.'
The first reference to the crystal ball was a litigant’s
comment that Judge Dodds “often use[d]” the crystal ball, “even
in adoption cases.” ABC knew, but did not state, that the speaker
had never seen Judge Dodds use a crystal ball, and that her
case was not an adoption case.
The bulk of the segment was devoted to another litigant’s
— Ms. Chris Johnson’s — story of how Judge Dodds allegedly
forced her to settle her and her son’s case against the Catholic
church. Ms. Johnson’s son had been molested by a priest when
he was eleven, and had attempted suicide. According to Ms.
Johnson, after telling her son that the molestation “only
happened twice” and “was no big deal,” Judge Dodds pressured
them into settling for only $60,000 when they “might have
collected millions.” Sympathetically referring to the conference
as Ms. Johnson’s “ordeal,” ABC elicited her story of how Judge
1. In fact, Judge Dodds has a toy crystal ball, given to him as a
gift, which he uses for levity, only. It is not taken into the courtroom
and it is not used to decide any matters whatsoever.
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3
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2
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3
Dodds “used” a crystal ball to confirm his assessment of what
her case was worth.’
What ABC did not say — expressly “chose” not to tell the
viewers — were the following facts: Johnson’s son was almost
18 years of age at the time of the conference, not eleven;
Johnson was highly religious, and considered the toy crystal
ball an “evil” manifestation of the “occult:” Johnson had also
accused the judge of threatening her life and conspiring with
the Catholic church; ABC had not confirmed the story with
Johnson’s son or any attorney at the conference;’ and, while
ABC knew that the conference was not binding, it also knew
that it did not make that fact clear to the audience.
ABC further stated that “lawyers, litigants and his former
clerk all say Dodds often used the crystal ball to support his
decisions.” This statement was accompanied by a visual shot
of Judge Dodds on the bench, although ABC knew that no
witness had ever suggested that Judge Dodds used the toy crystal
ball in making judicial decisions.
ABC also showed film of its reporter following Judge
Dodds and asking questions about the crystal ball, to which
Judge Dodds did not respond: “Judge, is it true that you have a
crystal ball? Judge couldn’t you at least answer any questions
at all? You are a public official. Your Honor. You have no
comments?” ABC did not mention that it knew that Judge Dodds
was precluded from commenting at the time, but set up the
questioning sequence for filming anyway.
2. Judge Dodds denied Ms. Johnson’s story of what happened at
the conference.
3. The appellate court mistakenly believed that ABC had consulted
with attorneys present at the conference; in fact, the evidence was to the
contrary.
4
Judge Dodds demanded a retraction, which ABC denied.
After becoming aware of the retraction demand, ABC did not
ensure the integrity of its files. Although he was aware of the
retraction demand, the producer of the show destroyed his notes
on the program.
Judge Dodds filed this suit based on both direct and implied
defamatory statements. The trial court eliminated all but three
of the alleged defamatory statements on a motion to dismiss.
On ABC’s subsequent motion for summary judgment, petitioner
abandoned his claims of defamation as to all but the statements
related to the crystal ball. The trial court found that petitioner
had failed to present sufficient evidence of actual malice as to
those statements, and granted summary judgment.
On appeal, the Ninth Circuit held that Judge Dodds had to
satisfy a two-pronged test to prevail on his implied defamation
claim as to the crystal ball. First, he had to show that the words
were reasonably capable of sustaining the alleged implied
meaning. As to this prong, the appellate court found that “a
reasonable juror could find that ABC was stating by implication
that Judge Dodds in fact decided issues by consulting the crystal
ball.” Dodds v. American Broadcasting Company, Inc., 145 F.3d
1053, 1064 (9th Cir. 1998) (App. A, at 22a.) It based this finding
on four factors: (1) that references to the crystal ball did not
specify that the judge only used the ball to support his decisions;
(2) that ABC accompanied a spoken reference to the crystal
ball with a visual image of the judge on the bench where,
presumably, he was deciding cases; (3) that the context of the
piece, i.e., the focus on “outrageous” behavior, supported such
an implication; and (4) that the reporter opened the segment by
referring to the accusation that Judge Dodds justified his
decisions [by using the ball]. /d. at 21a-22a.
Second, the Court applied the Ninth Circuit rule established
in Newton v. National Broadcasting Co., Inc., 930 F.2d 662,
Neston
ee
5
681 (9th Cir. 1990), cert. denied, 502 U.S. 866 (1991). Under
Newton, petitioner had to show that a jury could reasonably
find by clear and convincing evidence that ABC intended to
convey the defamatory impression. As to this prong, the
appellate court considered only one piece of evidence: the fact
that ABC originally slated petitioner in a category entitled “how
judges decide.” Jd. at 22a. However, the Court of Appeals
reasoned that, since the final show did not contain an actual
category titled “how judges decide,” a reasonable juror could
not find an intention to make the defamatory implication.
The appellate court also found that the segment itself did
not contain any language demonstrating that ABC endorsed
the defamatory implication. The court concluded that there was
“no evidence” that the show’s producers intended to convey
the impression that petitioner used the crystal ball to make his
decisions. Jd. at 222-24a.
In concluding that there was “no evidence” of intent, the
Court of Appeal inexplicably ignored all of the evidence which
had led it to conclude that the defamatory impression arose in
the first place: i.e., the context of the piece; the conscious choice
to place a visual shot of the petitioner on the bench with a
Statement referring to the crystal ball; and the open-ended
rcferences to the crystal ball.
The appellate court likewise ignored the fact that, tecause
ABC had originally categorized Judge Dodds as showing “how
judges decide,” a jury could easily — and reasonably — infer
that ABC had pre-committed itself to building a show which
indeed used Judge Dodds to show how judges decided, and
that ABC had set up footage to support the implication that
Judge Dodds decided cases by consulting a crystal ball. The
court also ignored additional circumsiantial evidence of intent
to defame, including, inter alia, the facts that the producer
6
destroyed his notes on the program after he knew that Judge
Dodds had demanded a retraction (and ABC permitted the
destruction), and that ABC acknowledged that it intended
certain loaded words to apply to Judge Dodds.
Finally, the Ninth Circuit refused to reconsider Newton’s
requirement that intent to make the defamatory implication be
determined under a subjective test as opposed to an objective
test, i.e., liability based on the “reasonable viewer’s” perception.
The appellate court reasoned that an objective standard would
improperly allow a finding of actual malice where a journalist
was merely negligent in misleading the public. The court noted
that other Circuits employed a “similar actual intent
requirement” in cases involving defamation by implication. /d.,
citing Chapin v. Knight-Ridder, 993 F.2d 1087, 1093 (4th Cir.
1993) and White v. Fraternal Order of Police, 909 F.2d 512,
520 (D.C. Cir. 1990).
Having concluded as it did, the appellate court affirmed
the trial court’s granting of summary judgment. Petitioner’s
request for rehearing and suggestion for rehearing en banc were
thereafter denied. This petition followed.
REASONS FOR GRANTING THE WRIT
I.
THIS CASE PRESENTS AN IMPORTANT QUESTION
OF CONSTITUTIONAL LAW ON WHICH THE
CIRCUITS DIFFER AND WHICH MUST BE SETTLED
BY THIS COURT.
The Ninth Circuit now requires a public figure plaintiff to
demonstrate the defendant’s subjective intent to defame, as part
of the actual malice test. Newton, supra 930 F.2d at 680-681;
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7
Eastwood v. National Enquirer, Inc., 123 F.3d 1249, 1256 and
n.20 (9th Cir. 1997); this case, Dodds, 145 F.3d at 1604. Under
this test, the fact that the implication is “clear and unescapable”
is not evidence of actual malice. Newton, supra, 930 F.2d at
680.4
In this case, the Ninth Circuit test has immunized a network
defendant who broadcast what any reasonable juror would
consider a hit piece on a sitting judge. It attacked Judge Dodds
with a defamatory implication truly horrifying to the public,
i.e., that a judge, the theoretical bastion of reason and justice,
decided sensitive matters such as adoption and molestation
cases by consulting a crystal ball.°
4. Even if there were no conflict among the Circuits, this Court
could grant this petition. The Newton subjective test must be scrutinized
as a matter of constitutional interpretation, because it generates
apparently inconsistent results. Compare, Newton (the fact that the
defamatory implication was inescapable, and evidence of the producer's
deliberate choices which led to that implication, did not establish intent,
930 F.2d at 680, 685); Eastwood (specific editorial choices demonstrated
the intent to convey the defamatory implication, 123 F.3d at 1256); and
Dodds (choice of audio/visual combinations, context of segment, and
evidence of a pre-commitment to showing petitioner as “deciding” cases
with a crystal ball were “no evidence” of intent to convey defamatory
statement, 145 F.3d at 1064). These inconsistent results and analyses
would be obviated by the application of an objective test. An objective
test would take into account the reality of television, i.e., the conscious,
intentional joining of video and audio to reach the audience, as well as
the nature of defamatory implications. It would aiso foster responsible,
rather than undisciplined, journalism, without unduly chilling the
exercise of First Amendment rights.
5. The Ninth Circuit has not been protective of jurists as a general
rule. See, e.g., Standing Committee v. Yagman, 55 F.3d 1430 (9th Cir.
1995), finding that the statements that the judge had a penchant for
sancuoning Jewish lawyers, that the judge was dishonest, and that the
judge was drunk on the bench, did not justify sanctions.
8
The Seventh Circuit also requires a showing of intent as
part of the actual malice determination, but its test differs from
that of the Ninth Circuit in critical respects. First, it permits a
finding of intent if the statement could reasonably have only
the defamatory meaning ascribed to it. Woods v. Evansville
Press Company, Inc., 791 F.2d 480, 488 (7th Cir. 1986). Second,
it also permits a finding of intent if there is evidence to show
that the publisher was aware that the reader could reasonably
interpret the statement to contain the defamatory implication.
Id. at 487; see also Saenz v. Playboy Enterprises, Inc., 841
F.2d 1309, 1318 (7th Cir. 1988) (plaintiff can establish that the
defendant was reckless toward the implications). This
formulation of the rule thus suggests an objective standard,
squarely conflicting with the Ninth Circuit rule.
Additionally, although the Fourth and District of Columbia
Circuits require evidence that the defendant intends or endorses
the defamatory implication, their intent determinations are not
part of the actual malice test. Instead, these Circuits require
the showing of intent to establish that the language is susceptible
of bearing the defamatory meaning. Chapin, supra, 993 F.2d
at 1092-93; White, supra, 909 F.2d at 520.
To the extent that the Fourth and District of Columbia
Circuits consider the issue as bearing on whether the meaning
is defamatory, the constitutional malice test is not implicated.
See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 522
(1991) (whether the quotation was defamatory was an issue of
state law, not First Amendment law). Because the issue is not
constitutional malice, then the intent test of the Fourth and
District of Columbia Circuits conflicts with the tests of the
Ninth and Seventh Circuits.
The issue of intent in defamation by implication cases is
of critical importance at this juncture. This is the electronic
9
age. Television production is highly sophisticated, including
the production of “news.” Networks vie for audience share as
they fashion slick “news journals” with a far from neutral slant.
Sound bites and visual cues are linked together and gone within
seconds, leaving the viewer/listener with only a powerful
sensory impression. That fast “take” cannot be diminished by
reviewing, or by additionally scrutinizing, the report, as the
viewer can do with the printed page.
The possibilities of electronic media were unimaginable
only a few decades ago, when this Court decided New York
Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964). Also
unimaginable was the ease with which this media form could
abuse the First Amendment protections carefully carved out
for the press by judicial interpretation. In particular, it was
impossible to conceive of the post-computer age media
journalist’s potential for implied defamatory statements.
Defamation by implication has always raised unique
problems for courts attempting to strike a proper constitutional
balance between free speech and the individual’s right to be
secure in good name and reputation. As one court explained:
An implication or impression . . . is a ‘created’
statement flowing from the positioning of explicit
statements. While it may or may not have been
conceived in the head of the author, it is nevertheless
born when the page is printed. Logic fails when one
defamed by such a “created” statement is required
to show knowledge of or reckless disregard for its
falsity, when in fact it can rarely be proven that the
author even knew of the implication.
As a result, the actual malice standard, as now
applied, rewards a publisher or reporter for
10
communicating a statement in a surreptitious and
invidious manner by implication. This is especially
repugnant where, as here, the implication creates
an appearance of fact rather than of mere opinion.
Such result defeats the very purpose of the recent
protections afforded to media expression concerning
public figures — free flow of information vital to
responsible decision-making in a democratic
society.
Cochran vy. Indianapolis Newspapers, Inc., 175 Ind. App. 548,
563, 372 N.E. 2d 1211, 1222 (Ind. App. 1978). See also Saenz
v. Playboy Enterprises, Inc., 841 F.2d 1309, 1314 (7th Cir.
1988) (rejecting requirement that defamatory statements
specifically libel the plain«ff, stating: “A legal fiction denying
the existence of clearly discernable, though not explicit charges,
exposes public officials to baseless accusations and public
mistrust while preinoting an undisciplined brand of journalism
both unproductive to society and, as we see it, unprotected by
constitutional considerations.”).
Striking the proper balance became additionally
complicated with the advent of the electronic, computer-media
age. Implications easily arise from a televised voice-over
referring to one subject, connected with “flash” shots of emotive
power, such as a shot of a judge being led away in handcuffs,
or a shot of a judge ruling from the bench. A television broadcast
can create a defamatory impression simply by joining a true
statement with a skeptical tone of voice or a contradictory visual
image. And the problem of defamatory implication is
particularly acute when the broadcast is ostensibly a news
broadcast:
Unlike hyperbole or satire, the publication of
implied defamatory statements against the
1]
background of apparently objective and neutral
reporting is almost certain to be understood as
factual. Moreover, the implied defamatory facts in
this context may be given even more credence by
the listener where, as here, the reports profess to be
objective, yet subtly imply that the publisher tends
to believe the sources alleging the defamatory facts.
_ Weller v. American Broadcasting Companies, Inc., 232 Cal.
App. 3d 991, 1004; 283 Cal. Rptr. 644 (Cal. Ct. App. 1991)
(finding defamatory implication reasonable). See also Southern
Air Transport, Inc. v. American Broadcasting Companies, Inc.,
877 F.2d 1010, 1015 (D.C. Cir. 1989) (“the television medium
offers the publisher the opportunity, through visual presentation,
to emphasize certain segments in ways that cannot be
ascertained from a mere reading of the transcript.” (internal
quotation marks omitted); Lasky v. American Broadcasting
Companies, Inc., 631 F. Supp. 962, 970 (S.D. N.Y. 1986)
(juxtaposition of the varying segments into audio and video
mosaic conveys the meaning or meanings intended).
Most critically important, with respect to any question of
intent, the television broadcast involves a conscious mixture
of more than one multi-dimensional element. This means that
the television defendant, even more than the news print
defendant, must deliberately choose and match the components
of the published material, based on his or her professional
understanding of how the mixture will be understood by the
reasonable viewer.
It is time for this Court, as a matter of first impression, to
reassess the duty of the electronic media as it exercises its
phenomenal powers. With the exercise of rights should come
accompanying duties. At the very least, a broadcast defendant
should be held accountable for what it actually does: i.e., it
12
carefully and intentionally considers the reasonable
implications of its statements on the viewers, before publishing.
And, where the defamatory implication it leaves is clear, the
defendant should bear the burden of its patent insinuations: that
clarity of implication should be considered evidence of the
defendant’s intent.
CONCLUSION
This petition should be granted because there is a clear
conflict among the Circuits on the rule to apply in defamation
by implication cases. Because the issue of intent is of great
importance, and likely to recur, this Court should settle the
conflict among the Circuits and establish whether the intent
determination is constitutional; whether it forms part of the
actual malice determination; and, if it does, whether it may be
met by an objective standard.
For the foregoing reasons, a writ of certiorari should issue
to review the judgment and opinion of the Ninth Circuit Court
of Appeals.
Respectfully submitted,
A. BARRY CAPPELLO
Counsel of Record
CAPPELLO & McCANN LLP
Attorneys for Petitioner
831 State Street
Santa Barbara, California 93101-3227
(805) 564-2444
APPENDIX
la
APPENDIX A — OPINION FOR THE UNITED STATES
COURT OF APPEALS NINTH CIRCUIT
DECIDED MAY 27, 1998
United States Court of Appeals,
Ninth Circuit.
No. 96-56300
Honorable Bruce W. DODDS,
Plaintiff-Appellant,
V.
AMERICAN BROADCASTING COMPANY, INC., a
Delaware Corporation,
Defendant-Appellee.
Argued Oct. 9, 1997.
Decided May 27, 1998.
State court judge brought defamation action against
broadcaster of program which included numerous comments
on judge’s performance. The United States District Court for
the Central District of California, Stephen V. Wilson, J., granted
summary judgment for broadcaster on three claims, and
dismissed remaining claims. Judge appealed. The Court of
Appeals, Reinhardt, Circuit Judge, held that: (1) neither
statement that judge often used crystal ball to support his
decisions nor implied statement that judge used crystal ball to
make his decisions was defamatory; (2) implied statements that
were subject of dismissed claims were not actionable; and (3)
2a
Appendix A
expressions of opinion regarding public official’s “fitness” for
the position constitute protected speech.
Affirmed.
Steven M. Perry, Los Angeles, CA, for defendant-appellee.
Appeal from the United States District Court for the Central
District of California Stephen V. Wilson, District Judge,
Presiding
Before: REINHARDT and TASHIMA, Circuit Judges, and
FITZGERALD, Senior District Judge.*
REINHARDT, Circuit Judge:
It has been said by supporters of the Honorable Bruce
Dodds, a California state court judge, that he is “tough,” “short,”
“abrupt,” “direct,” “rude,” “impatient,” and “gruff ' Dodds v.
Commission on Judicial Performance, 12 Cal.4th 163, 48
Cal.Rptr.2d 106, 906 P.2d 1260, 1265 (1995). It has been said
by others less sympathetic to his cause that he uses a crystal
ball in deciding cases and that he is “anything but a respectable
superior court judge.” Perhaps understandably, the latter
remarks, broadcast nationwide on a news magazine program
by the American Broadcasting Company (“ABC”), were the
source of considerable consternation to Judge Dodds. In an
effort to clear his name and unsully his reputation, he brought
a defamation action against ABC, alleging that the network
* The Honorable James M. Fitzgerald, Senior United States District
Judge for the District of Alaska, sitting by designation.
3a
Appendix A
acted with actual malice in broadcasting numerous comments
regarding his performance as a judge. He asserted that ABC’s
broadcast portrayed him as a criminal and as someone who is
unfit for judicial service. We consider in this appeal whether
the district court properly granted summary judgment in favor
of ABC as to the crystal ball comment and whether it properly
dismissed the remainder of the claims Judge Dodds now
appeals.
BACKGROUND
While Judge Bruce Dodds was being investigated by the
California Commission on Judicial Performance (“the
Commission”) on allegations of judicial misconduct, the ABC
news magazine program “Prime Time Live” profiled him and
two other judges in a segment entitled “Who’s Judging the
Judges.” The program was broadcast on television stations
across the country in October 1994. According to one of the
show’s producers, the purpose of the segment was to examine
critically the disciplinary processes for judges who have been
accused of misconduct, using three individual judges as
examples. Although it purported to focus on the disciplinary
process, much of the segment was devoted to detailing the
misconduct itself.
The basic format of this type of show is familiar to most
T'V viewers: a news reporter interviews various people about a
certain topic, and then combines clips of interviews and
narration in order to construct a newsworthy report. Usually
there are several segments in each program. In the program at
issue, ABC news anchor Diane Sawyer introduced the segment
that gave rise to this case by explaining that fellow ABC news
reporter Cynthia McFadden was going to report on “judges
4a
Appendix A
whose conduct seems downright scandalous.” Immediately
following this introduction, the segment cut to clips of three
individuals commenting on the behavior of unidentified judges;
the first individual described a judge, shortly to be revealed < .
Judge Dodds, as “a court jester... anything but a respectable
superior court judge,” while the next two individuals explained
that they had been victims of other judges’ sexual misconduct.
McFadden elaborated on the theme of the show: “Last year,
12,000 complaints were filed against state court judges, yet
more than 85 percent of these complaints were dismissed with
little or no investigation. . . . [W]e decided to take a closer look.”
McFadden introduced Professor Geoffrey Hazard, a highly
regarded expert in the area of legal ethics, explaining that the
professor “says there’s a troubling tension between having an
independent judiciary and reviewing the judges’ behavior.”
Professor Hazard then stated: “The problem of who judges the
judges is, particularly in a democracy, perhaps as difficult a
question as there can be.” McFadden noted that many
complaints against judges are frivolous, and that “(t]he trick is
to identify the serious ones.” The segment then featured stories
on three different judges from different parts of the country.
The segment first told the story of a judge in Indiana who
had been accused of sexually molesting juveniles and was
awaiting trial on other criminal charges. In that report, a young
man explained how he had met the judge when he was in court
as a juvenile offender and how the judge had taken an interest
in him. Approximately two years later, the youth said, the judge
began demanding sex from him. McFadden reported that
although the judge had also been accused of similar conduct
with other young men who had been in the juvenile justice
system, nothing happened until the youth featured on the
;
7
Sa
Appendix A
program helped police arrange a sting operation. She stated
that at the time of the broadcast, the judge was facing trial on
charges of solicitation of a prostitute and drug dealing.
Following this story, which concluded with shots of the
judge being led off in handcuffs, the segment turned to Judge
Dodds. McFadden introduced the story by asserting:
In the past four years, I’ve covered about 250 trials, most
of them gavel to gavel. I’ve often been struck by the way that
judges justify their decisions on thorny points, often with
wisdom drawn from experience, or with a superior grasp of the
law. But never the way a judge in California has been accused
of.
This portion of the segment cut first to a newsclip of Dodds
denying any wrongdoing. Then McFadden explained that “[flor
the past several years, a stream of complaints” had been lodged
against Judge Dodds concerning his lack of “judicial
temperament.” The segment then featured clips of interviews
with people who had dealt with Judge Dodds and reports by
McFadden regarding the allegations of misconduct against the
judge. McFadden stated, for example, that a former court clerk
had declared in a sworn statement that Judge Dodds would read
newspapers and magazines while he was on the bench, and that
he had screamed and spit in court.
Two litigants who had appeared in Judge Dodds’s
courtroom also recounted their negative experiences. Cindy
Hart, whose divorce case was heard by the judge, stated that he
had acted disrespectfully towards her and that when she took
the witness stand to testify, he had said: “All I have to do is
look at her to see she has psychological problems.”
6a
Appendix A
The report then focused on another litigant, Christine Johnson,
who had appeared in front of Judge Dodds during the preceding
year. Johnson and her son had sued the Catholic church, alleging
that a priest had sexually molested the son. She described how the ~
judge belittled their claim during a settlement conference and how
he told her that because there were only two incidents of sexual
molestation, it was “no big deal, and juries don’t like to hear about
things that aren’t very juicy.” McFadden then explained how Judge
Dodds had pressured Johnson into accepting a low settlement offer:
According to Johnson, Judge Dodds kept a crystal ball on the
conference table in his chambers, where the parties engaged in
settlement negotiations. After telling her what he thought her case
was worth, Judge Dodds pressed a button on the crystal ball. The
crystal ball responded “yes,” confirming Dodds’ settlement figure,
and the judge then said to Johnson “There it is. That’s it. That’s
what you get.” McFadden stated that “(IJawyers, litigants, and
[Dodds’s] former clerk all say Dodds often used the crystal ball to
support his decisions.”
McFadden unsuccessfully attempted to interview J udg2 Dodds
about the allegations and the segment included footage ©” the judge
refusing to talk with her. Following this clip, McFadden explained
that Judge Dodds had refused the interview because “state law
prevented him from talking about the case.” She then stated that
ABC personnel had actually seen the crystal ball on a table in
Judge Dodds’s chambers. In conclusion, McFadden noted that the
commission investigating Judge Dodds, later referred to by Sawyer
as “the secret commission,” did not call as witnesses any of the
women who had been interviewed by ABC.
Immediately following the report on Judge Dodds, the segment
turned to a story on a South Carolina magistrate who had sexually
mc ‘ested litigants for years. All told, 20 women came forward
F
*
4
x
a
aie
Ta
Appendix A
with complaints about the magistrate’s abusive behavior. The
magistrate was eventually arrested and charged with multiple
counts of assault and battery and official misconduct. He
pleaded no contest to all the charges, but was only sentenced
to 400 hours of community service and a $500 fine, despite the
fact that he could have been sentenced to a 35-year term of
imprisonment and a fine of $35,000. One of his victims
expressed her outrage at the punishment, quipping that “[t]he
penalty for molesting an alligator in this state is higher than
the penalty that [the magistrate] got for molesting a woman.”
McFadden ended her part of the program with the
following:
Experts say whether judges get away with abusing their
public office depends on three factors — how vigorously
complaints are investigated, whether secrecy is used to protect
judges from serious charges and whether the political climate
is such that judges are punished fairly.
Diane Sawyer then offered two final notes. With respect
to the Dodds part of the story, she first stated that the judge
denied all the allegations against him; second, she stated that
the Commission would neither confirm nor deny that an
investigation of Judge Dodds was underway.' Sawyer concluded
1. The Commission eventually found that Judge Dodds had engaged
in misconduct and recommended that he be censured publicly. Dodds,
48 Cal.Rptr.2d 106, 906 P.2d at 1260. As the California Supreme Court
reported:
[t]he bases for the Commission’s recommendation [were] (1) that
[Dodds] obstructed a law enforcement investigation, (2) that [Dodds]
(Cont'd)
8a
Appendix A
the segment by reporting that a number of civil actions had
been instituted in South Carolina against the sexually abusive
magistrate and that the FBI had commenced an investigation.
Immediately after the program aired, Judge Dodds sought
a retraction from ABC. ABC refused and Dodds brought suit
(Cont'd)
“has frequently given the appearance of rudeness and prejudgment in
his handling of cases,” and (3) that [Dodds] made an offensive remark
in chambers about two lawyers who had appeared before him.
Id. 906 P.2d at 1263.
With respect to the obstruction of justice charge, which related to
an incident in which Judge Dodds witnessed another judge letting the
air out of a tire on a car parked in the other judge's parking space, the
California Supreme Court determined that although Dodds’s conduct
was “unjudicial and prejudicial,” it did not constitute wilful misconduct.
Id. at 1269. With respect to the in-chambers offensive remark about
two lawyers, the court dismissed the charge on the ground that the
California Constitution precluded discipline for offenses occurring “
‘more than 6 years prior to the commencement of the judge's current
term.’ ” Id. at 1270 (quoting Cal. Const. art VI, § 18(c)). The California
Supreme Court agreed, however, with the Commission's finding that
Judge Dodds’s “rudeness and prejudgment in the handling of cases, as
exhibited on four occasions, constituted prejudicial conduct,” id. at 1269,
and that it brought “disrepute on the judicial office.” Id. at 1270. The
court then noted that “[t]he record in this case is replete with evidence
that [Dodds] is a talented judge who is often sought for his ability to
settle difficult cases.” Id. at 1271. It then concluded by saying “ ‘[t}he
purpose of these proceedings is not to punish errant judges but to protect
the judicial system and those subject to the awesome power that judges
wield.’ We conclude that public censure in this case would not further
this purpose.” Id. (citations omitted) (quoting Furey v. Commission on
Judicial Performance, 43 Cal.3d 1297, 240 Cal.Rptr. 859, 743 P.2d 919
(1987)). It therefore vacated the punishment.
9a
Appendix A
against the network for slander and intentional infliction of
emotional distress. In his complaint, he alleged that
approximately 13 direct or implied statements made during the
broadcast were slanderous and false and that ABC had depicted
him as a criminal and unfit for office. The complaint further
alleged that ABC was negligent aad reckless because it
broadcast the statements without regard for their truth or
falsehood. ABC moved to dismiss the complaint pursuant to
Fed.R.Civ.P. 12(b)(6). After a hearing, the district court granted
the motion in part and denied it in part, dismissing as not
actionable ten of the allegedly defamatory statements. In doing
so, the district court narrowed the statements Judge Dodds had
complained of down to the following three: (1) the statement
that Dodds uses a crystal ball to support his decisions; (2) the
statement that he consistently reads newspapers and magazines
while he is on the bench; and (3) the statement that he screamed,
yelled, and spit in the courtroom.
Subsequently, after additional discovery and depositions,
ABC moved for summary judgment on the claims regarding
the three remaining statements. Judge Dodds opposed ABC’s
motion only with respect to the statement that he used a crystal
ball, which as the district court explained, boiled down to an
argument that ABC, “by stating that he uses a crystal ball to
support his decisions. . . impl[ied] that he only makes decisions
based on a crystal ball.” Because the district court found that
Dodds had failed to produce sufficient evidence to support a
finding that ABC acted with actual malice, it granted ABC’s
motion for summary judgment.
Judge Dodds appeals the district cou. i’s grant of summary
judgment as to the crystal ball claim, as well as the district
court's dismissal of seven of the ten dismissed claims. He does
10a
Appendix A
not challenge the grant of summary judgment as to the
statements that he read the newspaper and magazines on the
bench and that he screamed, yelled, and spit in the courtroom;
nor does he appeal the dismissal of three of the claims the
district court dismissed.
DISCUSSION
Judges provide an easy and attractive target for unwarranted
verbal assaults by all kinds of people, some of whom are simply
frustrated by life or desirous of shifting the blame for their
own failures to others, and some of whom find it to their
personal advantage for one reason or another to criticize the
judiciary or the judicial system. Judges are assaulted verbally
by litigants, lawyers, state and federal public officials, the
media, and even their superiors on the bench. The attacks range
from the political (such as attacks on “activist” judges) to the
highly personal, see, e.g., Standing Committee v. Yagman, 55
F.3d 1430, 1433-35, 1434 n. 4 (9th Cir.1995), from the bizarre
to the outrageous. Sprinkled among these assaults, however,
are legitimate expressions of criticism that constitute an
essential part of the examination of the workings of an important
government institution — an institution that must remain fully
open to public scrutiny.
Wise judges, even when wounded by unfair assaults, have
learned that the best policy is ordinarily to dismiss the attacks
as part of the baggage of their jobs. Abusive criticism simply
goes with the territory. Often it is best not to dignify the assaults
or to fall into the traps set by one’s critics. See United States v.
Flynt, 756 F.2d 1352 (9th Cir.1985). Thin-skinned judges
sometimes make the problem worse by seeking retribution for the
insults, instead of maintaining the dignity their office demands.
eines deiiandRicaatiic element
RASA Bee
lla
Appendix A
That is not to say that the bench is helpless or that the bar
should not speak forcefully in defense of the bench when judges
are unjustly maligned. Doing so is indeed an important part of
the bar’s responsibility. It is all too often the case, however,
that when the judge himself enters the fray as an active
combatant what was already an unfortunate episode tends to
become an ugly and demeaning public spectacle. Id. Similarly,
judges must remain conscious of the bar’s right of free speech,
which may involve expressions that are distasteful, if not
reprehensible. See Yagman, 55 F.3d at 1444-45.
Nevertheless, judges, like all other persons, have rights
and may choose to answer or litigate when they believe that
they have been wronged. Among their options is the filing of
an action for defamation, as Judge Dodds did here. However,
as we have already indicated, along with the advantages of
public office come some limitations on the rights enjoyed by
the average citizen.
It is well established that the First Amendment provides
broad protection for journalistic expression that is critical of
the conduct of public officials, including judges. One protection
is that because Dodds is a public figure, ABC’s broadcast
concerning his alleged judicial misconduct wil] expose the
network to liability under state defamation laws only if ABC
acted with “actual malice.” See New York Times v. Sullivan,
376 U.S. 254, 280, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
This high standard of proof shields journalists who expose
misconduct by public officials from liability and thereby guards
against the chilling effect that state defamation laws may have
on the free flow of information with respect to matters of public
concern. Id. at 279, 84 S.Ct. 710. Another important protection
is that the media and the public are free to express their opinions
l2a
Appendix A
regarding the fitness or qualifications of public officials,
including judges, to hold office, as long as in doing so they do
not make statements of fact that are otherwise actionable. See
Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28
L.Ed.2d 35 (1971). The right to express such opinions lies at
the heart of the democratic process, and it is, indeed, an
oft-exercised form of free speech.
I. SUMMARY JUDGMENT
In order to survive ABC’s motion for summary judgment,
Dodds must establish that a reasonable jury could find by clear
and convincing evidence that ABC published the challenged
statements with knowledge of their falsity or with reckless
disregard for their truth or falsity. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); see also Masson v. New Yorker Magazine, Inc., 501
U.S. 496, 511, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). With
respect to “reckless disregard,” Judge Dodds must demonstrate
that a genuine issue of fact exists with respect to whether ABC
subjectively doubted the veracity of the statements. Bose C orp.
v. Consumers Union, 466 U.S. 485, 513, 104 S.Ct. 1949, 80
L.Ed.2d 502 (1984). Our assessment regarding whether
summary judgment is proper is influenced by the burden of
proof Dodds would bear at trial. Anderson, 477 U.S. at 254,
252-54, 106 S.Ct. 2505 (“When determining if a genuine factual
issue as to actual malice exists in a libel suit brought by a public
figure, a trial judge must bear in mind the actual quantum and
quality of proof necessary to support liability under New York
Times.”).
We agree with the district court that Judge Dodds did not
meet his burden and that ABC was therefore entitled to summary
| >
—— a en
tte
13a
Appendix A
judgment. Dodds failed to establish that a jury could reasonably
find by clear and convincing evidence that ABC acted with
actual malice with respect to the statement that he often uses a
crystal ball.
The Crystal Ball
Judge Dodds’s opposition to the district court’s award of
summary judgment is based on his objection to ABC’s assertion
that he used a crystal ball in the decision-making process. Dodds
maintains that two distinct defamatory statements arose from
the broadcast: (1) that he often used the crystal ball to support
his judicial decisions, and (2) that he regularly used the crystal
ball to make his judicial decisions, either of which could form
a basis for his defamation claim.”
The first direct reference to the crystal ball was uttered in
the segment’s introduction by Cindy Hart, an interviewee who
had been a litigant in Judge Dodds’s courtroom. Hart declared
that “[hJe uses a crystal ball often, even in adoption cases.”
Although Judge Dodds was not specifically identified as such,
he was clearly the subject of Hart's statement. The second direct
statement was made during Judge Dodds’s part of the segment
by another former litigant, Christine Johnson, who told ABC
during an interview that the judge “had a crystal ball on the
settlement conference table where he asked us to sit.” Johnson,
who was suing the Catholic Church on behalf of her son, then
described her experience with Judge Dodds and his use of the
crystal ball to support the settlement figure he proposed. Finally,
in a third direct statement about the crystal ball, McFadden
2. For purposes of this opinion, we assume that the statements
would be defamatory under California State law, that is that they are
demonstrably false and that they caused damage to Dodds’s reputation.
l4a
Appendix A
asserted: “Lawyers, litigants and his former clerk all say Dodds
often used the crystal ball to support his decisions.” There was,
of course, also the indirect reference in McFadden’s
introduction of the part of the segment relating to Judge Dodds.
Judge Dodds chailenges McFadden’s direct statement that
he often used the crystal ball to support his decisions, as well
as the statement he argues is implied in the direct statement of
Hart that he regularly used the crystal ball to make his
decisions.°
As we noted above, Judge Dodds could prevail by showing
either that ABC knowingly published false statements or that
ABC acted with reckless disregard for the truth — that is, by
showing that ABC had “ ‘obvious reasons to doubt the veracity’
of its reporting, but engaged in ‘purposeful avoidance of the
truth.” " Eastwood v. National Enquirer, Inc., 123 F.3d 1249
(9th Cir.1997) (quoting St. Amant v. Thompson, 390 U.S. 727,
732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), and Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct.
2678, 105 L.Ed.2d 562 (1989)). We are guided in our analysis
by the Supreme Court’s reasoning in Harte-Hanks, which
elaborated on the high standard of proof required to show that
a defendant acted with reckless disregard.
3. If the only crystal-ball related statement at issue in this case
were Johnson's, Dodds’s admission during his deposition that he recalled
using the ball during her settlement conference (but only for levity) would
be dispositive of this claim because he would have failed to establish
the falsity of the statement. However, Dodds alleges that ABC’s
broadcast of the other material effectively implied that he often used
the crystal ball, an assertion he denies. We believe that a reasonable
juror could conclude that the statements carry the implication that Dodds
regularly used a crystal ball to support his decisions.
a eT
15a
Appendix A
A “reckless disregard” for the truth .. . requires
more than a departure from reasonably prudent
conduct. There must be sufficient evidence to permit
the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication. The
standard is a subjective one--there must be sufficient
evidence to permit the conclusion that the defendant
actually had a high degree of awareness of probable
falsity. As a result, failure to investigate before
publishing, even when a reasonably prudent person
would have done so, is not sufficient to establish
reckless disregard. In a case such as this involving
the reporting of a third party’s allegations,
recklessness may be found where there are obvious
reasons to doubt the veracity of the informant or
the accuracy of his reports.
Id. at 688, 109 S.Ct. 2678 (internal quotations and citations
omitted) (emphasis added).
In light of this standard, we discuss Judge Dodds’s claim
with respect both to the direct statement that he uses the crystal
ball to support his decision and the implied statement that he
uses the crystal ball to make his decisions, beginning with the
former.
A.
In support of his claim based on McFadden’s assertion that
he often used a crystal ball to support his decisions, Judge Dodds
contends that there was sufficient evidence from which a
reasonable juror could find that ABC had actual knowledge as
to the falsity of this statement. He relies principally on a
16a
Appendix A |
common-sense argument: ABC was aware that the crystal ball
was a toy and “this fact plain!y suggested that the crystal ball
toy would not be used as support for any judicial decision,”
particularly in view of the fact that the ball responded in the
negative half of the time. Judge Dodds also points out that
McFadden admitted in her deposition that she thought it possible
that he was using the crystal ball for “levity.” In essence, he
argues that no one could honestly believe that a sitting judge
would use a toy in the context of serious judicial proceedings.‘
He concludes by saying that ABC must have known that he did
not use the crystal ball to support his decisions and consequently
must have known that its statement to that effect was false.
For several reasons, we are not persuaded by this argument.
Significantly, we note that numerous sources informed ABC
that they were personally aware of Judge Dodds’s use of the
crystal ball in the manner suggested by the litigants who actually
appeared in the broadcast. These additional sources included
other litigants, a former clerk, and attorneys who had dealings
with Judge Dodds. In addition, although its methods of
obtaining the information left something to be desired, ABC
confirmed that a crystal ball sat on Judge Dodds’s table in |
chambers; one of the show’s producers took advantage of an :
open door to the chambers and forced his way inside where it
sat in plain view. The fact that the crystal ball was obviously a
toy is of little consequence. People, even judges, do peculiar
things and engage in bizarre conduct. That, in fact, was precisely
ABC’s point about Judge Dodds. Moreover, it would have been
just as (if not more) absurd and unbelievable if ABC’s
4. We note that the persuasiveness of this argument is significantly
undercut by Dodds’s own admission during his deposition that he had
in fact used the crystal ball during the settlement negotiations involving
Johnson.
i
17a
Appendix A
investigation indicated that Dodds had been using a “real”
crystal ball to support his decisions.
Alternatively, Judge Dodds asserts that ABC’s sources were
unreliable and that its investigation was shoddy. From this
evidence, he argues, a reasonable jury could conclude that ABC
acted with reckless disregard for the truth. To prevail under
this theory, Dodds must show that ABC had “ ‘obvious reasons
to doubt the veracity’ of its reporting,” but deliberately avoided
learning the truth. Eastwood, 123 F.3d at 1251 (quoting St.
Amant, 390 U.S. at 732, 88 S.Ct. 1323). Toward this end, he
contends that in addition to the fact that the crystal ball was a
toy, there were other obvious reasons for ABC to question the
truth of its reporting. In particular, he asserts that ABC’s sources
were patently unreliable, in spite of which the network failed
to conduct a more extensive investigation.
With respect to ABC’s sources, Judge Dodds first contends
that Christine Johnson was not trustworthy. In particular, he
maintains that ABC should have been suspicious of Johnson’s
Statements on account of her deep religious convictions.
However, although her religious beliefs may have had some
effect on her view toward the use of a crystal ball, toy or not,
they were not an indication that she was in any way unreliable
or that she did not truthfully report the details of the incident
to ABC. In any event, even if the network had had cause to
doubt her story, the fact that the information she provided to
ABC was consistent with the information ABC obtained from
its other sources would have been sufficient to dispel whatever
doubts might have existed. ABC additionally contacted the
attorneys who had represented Johnson in her lawsuit to confirm
with them her recollection of the settlement conference.
Furthermore, ABC knew that Johnson had made identical
18a
Appendix A
allegations regarding the crystal ball in a letter of complaint
that she had submitted to the California Commission on Judicial
Performance immediately after the incident.
Judge Dodds also challenges the trustworthiness of Cindy
Hart, another former litigant, arguing that she was biased against
him because she was unhappy with the results of her divorce.
It is true that Hart was angry about how she had been treated in
the course of her proceedings before Judge Dodds. It is also
true that her statement that Judge Dodds used the crystal ball
even in adoption cases was not based on first-hand knowledge,
but was instead based on her own research into Dodds’s judicial
activities. ABC did not, however, simply rely on unverified
statements made by a disgruntled litigant. Other sources
confirmed the existence of the crystal ball and Hart’s statements
concerning Judge Dodd’s use of the crystal ball in the context
of adoption cases were corroborated by at least one other source,
an adoption caseworker.
According to Judge Dodds, the former court clerk was also
unreliable because in a sworn declaration regarding her
observations of Dodds’s courtroom behavior, she omitted any
mention of the crystal ball. Dodds maintains that “one would
expect her to allege Judge Dodds’ most serious judicial defects
[but she] said nothing about a crystal ball.” Yet considering
the context in which she made the declaration it was
apparently submitted in connection with Cindy Hart’s ongoing
divorce litigation, as evidence of Dodds’s ill temper--it does
not seem all that unusual that the former clerk would leave the
crystal ball stories out. The ABC producer who researched the
report interviewed the former clerk in person and found her to
be credible. Moreover, ABC had no reason to doubt that the
clerk was telling the truth.
19a
Appendix A
Judge Dodds nonetheless asserts that ABC failed to pursue
other avenues of information, in reckless disregard of its
obligations. For example, he faults McFadden for not contacting
the local bar association or interviewing other judges. He also
asserts that McFadden should have inquired into whether the
crystal ball was real ora toy, arguing that if she hac discovered
it was a toy and that it did not always respond favorably, she
would have learned that he did not actually use the ball to justify
his decisions. In addition, McFadden admitted at her deposition
that she was not as concerned about the underlying truth of the
interviewees’ statements as she was about how complaints
against judges were processed.
Notwithstanding Judge Dodds’s assertions to the contrary,
we conclude that any failures or omissions in ABC’s conduct
with respect to the reliability of its sources fall far short of that
required to establish that it acted with reckless disregard for
the truth. In St. Amant, 390 U.S. at 732-33, 88 S.Ct. 1323, for
example, the Supreme Court held that a journalist does not act
with reckless disregard for the truth when he relies on a source
whose trustworthiness is unknown, so long as the journalist
makes at least some attempt to verify the source’s story. Other
than fairly vague and routine reasons to question their motives,
however, ABC had no particular cause to doubt the veracity of
the people whom it interviewed. There is nothing in the record
to suggest that Johnson, Hart, and the former clerk were prone
to exaggeration or lying or would deliberately engage in such
conduct.
Wholly aside from the question of the crystal ball, Judge
Dodds is correct that ABC could have done a more thorough
and responsible job in general in determining the facts before
presenting its report regarding him. That, however, is not the
20a
Appendix A
test for determining whether the network acted with actual
malice in the context of defamation of a public figure.
Moreover, we note that ABC probably would have satisfied its
burden even if it had initially had reasons to doubt the veracity
of its informants. It did not engage in purposeful avoidance of
the truth, but rather sought out the best possible source to refute
the allegations, either by providing direct evidence or supplying
the names of persons who could do so. That source was Judge
Dodds. Dodds, however, refused to answer the investigator's
questions or to furnish any information at all, as was his
prerogative.
In sum, Judge Dodds has succeeded, at most, in raising a
factual issue regarding whether ABC was negligent in failing
to conduct a more rigorous investigation of its story in general
and its sources in particular. Mere negligence, however, is
insufficient to demonstrate actual malice. Masson, 501 U.S. at
510, 111 S.Ct. 2419. McFadden’s admitted lack of concern
regarding the truth of the statements would only satisfy the
requirements of New York Times if she had a “high degree of
awareness” that the statements were probably false.
Harte-Hanks, 491 U.S. at 688, 109 S.Ct. 2678. Dodds failed to
present any evidence that such was the case, and in any event,
whatever McFadden’s own lack of concern may have been,
ABC satisfied any obligation it may have had by checking the
information it received with a number of knowledgeable
individuals and by providing Judge Dodds with the opportunity
to refute the charges and supply any useful evidence he may
have possessed, including the names of any favorable
witnesses.°
5. The parties have not briefed the question whether, as Dodds
apparently contended, state law precludes judges from commenting on
(Cont'd)
|
2la
Appendix A
B.
Having concluded that ABC did not act with reckless
disregard in broadcasting the statements regarding Judge
Dodds’s use of the crystal ball to support his decisions, we
next consider whether a factually incorrect (and defamatory)
implication arose from these statements; namely that Judge
Dodds used the crystal ball to make his decisions. If so, we
must examine whether ABC can be held liable for such an
implied statement. In order to prevail on his claim that ABC’s
direct statements impliedly defamed him by indirectly stating
that he used the ball to make his decisions, Judge Dodds must
show that the words ABC uttered were reasonably capable of
sustaining that meaning. More important, he must show that a
jury could reasonably find by clear and convincing evidence
that ABC “intended to convey the defamatory impression.”
Newton v. National Broadcasting Co., Inc., 930 F.2d 662, 681
(9th Cir.1990).
As to the first requirement, it may well be that when the
segment 1s viewed in its entirety, the implication Judge Dodds
suggests can readily be drawn from the totality of the
crystal-ball-related statements. The first reference to the crystal
ball was Hart’s general assertion that Judge Dodds “often uses”
the crystal ball. Hart did not specify that the judge uses it only
(Cont'd)
allegations of misconduct or even responding publicly to public charges
when some or all of the allegations are being investigated by the
Commission. Accordingly, we will not undertake to evaluate the
correctness of this assertion. We note, however, that at the end of the
segment Diane Sawyer stated that Judge Dodds had denied all of the
allegations, and also that the segment contained a newsclip of his earlier
denial of them.
22a
Appendix A
to support his decisions. And, as Judge Dodds points out, the
visual accompanying the third statement (McFadden’s
statement that “[l]awyers, litigants and his former clerk all say
Dodds often used the crystal ball to support his decisions”)
showed Dodds on the bench where, presumably, he was
deciding cases. Given the context of the piece, which focused
on “outrageous judicial behavior,” and given McFadden’s
assertion in her introduction of Judge Dodds’s story that she
had witnessed hundreds of trials and had “often been struck by
the way that judges justify their decisions on thorny points .. .
but never the way [Dodds] ha[d] been accused of.” a reasonable
juror could find that ABC was stating by implication that Judge
Dodds in fact decided issues by consulting the crystal ball.
It is not enough, however, to show that this implication
was reasonable. Judge Dodds mus further establish that ABC
intended to convey the defamatory implication — and he must
do so with “convincing clarity.” Newton, 930 F.2d at 682. His
strongest argument in this respect is that during the production
process, ABC had slated him in a category entitled “how judges
decide.” But this evidence is wholly undercut by the undisputed
facts. The category was proposed, and the report on Judge
Dodds initially slated for it, well before ABC began conducting
its interviews about him; however, after ABC completed those
interviews it decided not to use any such Category in the finished
program. We do not think a reasonable juror could find that
ABC's initial contemplation of a plan that it subsequently
abandoned supports a conclusion that it intended to make the
defamatory implication in the show that it actually produced.
There is, in short, simply no evidence that the show’s producers
intended in the actual broadcast to convey to viewers the
impression that Judge Dodds used the crystal ball to make his
decisions. Nor does the segment itself contain any language
eT, atm ald SrA allel i. 8 Nidal alah th Migs
23a
Appendix A
demonstrating that ABC endorses any such defamatory
implication.
Judge Dodds asks us to reconsider Newton ‘s requirement
that the test is a subjective one — that the network must have
actually intended to convey the defamatory impression — and
urges us to adopt in its place an objective, “reasonable viewer”
Standard. Under such a standard, a media defendant would be
liable so long as the ordinary viewer would have perceived the
implication, irrespective of the defendant’s actual intent to
convey the defamatory statement.
Recently, however, we reaffirmed our rule that subjective
or actual intent is required and that “there is no actual malice
where journalists unknowingly mislead the public.” Eastwood,
123 F.3d at 1256. Moreover, all the courts of appeal that have
considered cases involving defamation by implication have
imposed a similar actual intent requirement. See, e.g., Chapin
v. Knight-Ridder, 993 F.2d 1087, 1093 (4th Cir.1993) (“The
language must not only be reasonably read to impart the false
innuendo, but it must also affirmatively suggest that the author
intends or endorses the inference.”); White v. Fraternal Order
of Police, 909 F.2d 512. 520 (D.C.Cir.1990) (“[I]f the
communication, by the particular manner or language in which
the true facts are conveyed, supplies additional, affirmative
evidence suggesting that the defendant intends or endorses the
defamatory inference, the communication will be deemed
capable of bearing that maning.”) (emphasis in Original); see
also Partington v. Bugliosi, 56 F.3d 1147, 1152 n. 9 (9th
Cir.1995) (discussing Chapin and White). Furthermore, we
continue to believe that the Newton test requiring a clear and
convincing showing of subjective or actual intent strikes the
proper balance between protecting victims of defamation and
24a
Appendix A
protecting against the possible chilling effect that results from
overly broad applications of our defamation laws.
Il. DISMISSED CLAIMS
Judge Dodds also asserts that the district court erred in
dismissing seven of his original 13 claims pursuant to
Fed.R.Civ.P. 12(b)(6). The statements in question were not
direct assertions of fact, but rather were, according to Dodds,
implied either by a part of or the entirety of the show. The
statements Judge Dodds contends ABC “made” were as follows:
(1) his conduct was the same as that of an accused
or convicted felon;
(2) he is one of the three worst judges in the country;
(3) he has participated in a secret cover-up of his
improprieties;
(4) he constantly pressures parties to settle cases
for less than they are worth;
(5) he is hiding from public view;
(6) he is eluding discipline because serious
allegations are not vigorously investigated, secrecy
is used to protect him from serious charges, and the
political climate protects him; and
(7) he is “unfit” to serve as a judge.
ABC asserts that it never made the defamatory statements —
in other words, that what it reported in the segment cannot
25a
Appendix A
reasonably be understood to convey the alleged defamatory
implications. Alternatively, it argues that even if the statements
it made could reasonably be so understood, they are not
actionable because they constitute opinions regarding Judge
Dodds’s performance as a judge rather than assertions of fact
susceptible of being proven true or false.
In Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110
S.Ct. 2695, 111 L.Ed.2d 1 (1990), the Supreme Court canvassed
its cases concerning the relationship between the First
Amendment and state defamation laws. While the Court refused
to create a strict dichotomy between opinion and fact, as the
defendants had urged, it recognized that there can be no liability
for defamation if a defendant’s direct statement “ ‘cannot
reasonably be interpreted as stating actual facts’ about an
individual” that are provably false. Id. at 20, 110 S.Ct. 2695
(quoting Hustler Magazine v. Falwell, 485 U.S. 46, 50, 108
S.Ct. 876, 99 L.Ed.2d 41 (1988)). Under Milkovich, therefore,
Judge Dodds must show that a reasonable juror could conclude
that the allegedly defamatory implications constituted provably
false assertions of fact.
Accordingly, because Judge Dodds’s claims are based on
statements he alleges are implied in the broadcast, he faces
three obstacles to establishing liadility, in addition to having
to show that the statements are defamatory. Two of the
obstacles--establishing that a reasonable juror could find that
the broadcast either directly or impliedly made the statements,
and establishing that the statements are factual in nature and
susceptible of being proved true or false — present insuperable
problems for Dodds at the motion to dismiss Stage. As we
discussed above, the third obstacle — establishing actual malice
— serves to defeat the crystal ball claim (as well as two others
26a
Appendix A
not appealed) at the summary judgment stage. After carefully
reviewing the claims that were dismissed, and are now appealed,
we agree with the district court that the statements upon which
they were based are not actionable, either because they are not
implications the segment reasonably can be understood to
convey or because they are not assertions of fact and thus cannot
be proved to be false.
A. Dodds’s conduct is the same as that of a felon.
ABC made no explicit statement asserting that Judge Dodds
had engaged in conduct that was equivalent to the actions of a
felon, but he contends that the network intended to convey this
message. He relies principally on the fact that the segment
s-ndwiched his story in between stories on two other judges
each of whom was accused of serious felonious activities. In
particular, he asserts that “the broadcast could have been seen |
by a reasonable viewer as saying that [he] was liable for conduct
not even discussed” and that the broadcast “left the impression
that [he] had committed undisclosed felonies.” We disagree.
Judge Dodds relies on Weller v. American Broadcasting
Companies, Inc., 232 Cal.App.3d 991, 283 Cal.Rptr. 644
(1991), in support of his contention that ABC implied that he
had engaged in criminal activities. The broadcasts at issue in
Weller, however, were of an entirely different character. The
plaintiff in that case had been the subject of an investigation
by the ABC affiliate station in San Francisco. Over the course
of several weeks, the station broadcast numerous pieces
regarding the plaintiffs role in an allegedly fraudulent sale of
two antique candelabra to a local museum. In those broadcasts,
the reporter linked the plaintiff to a convicted felon and clearly
suggested that the plaintiff had played a role in the fraud.
27a
Appendix A
Here, however, ABC made no suggestion that Judge Dodds
was connected to any criminals or to any criminal activity.
Although ABC’s decision to include his Story in the same
segment with stor.es about two other judges whose actual or
alleged conduct was criminal may well have been irresponsible,
and unfair to Judge Dodds, we agree with the district court that
the implication cannot reasonably be drawn that Judge Dodds
was involved in any criminal activity.
B. Dodds is one of the three worst judges in the country.
Judge Dodds maintains that by focusing its story on him
and two other judges, ABC intended to convey to its viewers
that it had selected the three worst judges in the country to
profile. While we think it could reasonably be inferred that
Judge Dodds’s conduct was among the most disturbing that
ABC had uncovered, we do not believe it is a reasonable
inference that the three judges featured in the segment were
the three worst in the country. A reasonable viewer would not
have understood that ABC, by selecting three judges to profile,
was making a statement to that effect. Moreover, even if ABC
had made such a statement, it would be in the nature of an
opinion rather than the type of factual assertion that can be
proved to be demonstrably false.
C. Dodds participated in a cover-up.
In the portion of the segment profiling Judge Dodds, ABC
included shots of a closed door accompanied by McFadden’s
discussion of the Commission’s investigation of the judge.
McFadden stated that several people who had formally
complained about Judge Dodds’s behavior were not asked to
28a
Appendix A
testify before the Commission. He argues that a reasonable
implication of this is that he was participating in a cover-up of
his activities. We do not believe that a reasonable factfinder
could conclude that ABC’s statements conveyed any such
implication. Although the inference might reasonably be drawn
that the Commission was acting in secrecy, perhaps improperly,
there was no implication that Dodds himself was a participant
in any cover-up. Therefore, the statement was not actionable.
D. Dodds pressures parties to settle cases
for less than they are worth.
In connection with Christine Johnson’s statements that
Judge Dodds pressured her into settling her case against the
Catholic Church for far less than what it was worth, Judge
Dodds asserts that ABC implicitly stated that he “wrongfully
and constantly pressures cases to settle for less than they are
worth.” Part of this statement — that he pressures parties to
settle their cases — is not defamatory. In fact, Judge Dodds is
sought after because of his settlement skills. See Dodds, 48
Cal.Rptr.2d 106, 906 P.2d at 1270. Exerting pressure on parties
is part of the settlement process; or at least it is a technique
used by many settlers. The allegation that Judge Dodds exerts
this pressure wrongfully in order to get parties to settle for less
than their cases are worth is not actionable. We agree with the
district court that the term “wrongful” as used in this context is
vague and not susceptible to proof as to its truth or falsity. The
“worth” of cases and whether a judge tries to settle cases for
less than their worth are largely subjective questions involving
difficult and complex legal and practical judgments.
Accordingly, that part of the allegation does not constitute an
assertion of fact that can be proved false.
eae
29a
Appendix A
E. Dodds is hiding from public view.
Judge Dodds contends that ABC’s statement that he refused
to comment, coupled with the film clip of him walking away
from McFadden as she attempted to interview him, conveys
the implication that he was in hiding from the public. We do
not think this factual assertion can reasonably be inferred from
the segment. ABC stated that Judge Dodds was prohibited from
talking to the media about the pending disciplinary proceedings,
and there was no suggestion that his refusal to talk to ABC was
the result of his hiding out. Moreover, presenting footage of a
public official refusing to answer questions about scandalous
charges does not constitute defamation of the official. To the
contrary, it is simply a regular part of the nightly news these
days.
F. Dodds is eluding discipline.
Judge Dodds asserts that the statement that he is eluding
discipline, like the statement that he is participating in a cover
up, was implied by means of the closed-door shots and the
description of the disciplinary committee as being engaged in
a secret investigation. We cannot agree, however, that the
segment can reasonably be understood as conveying such an
implication. ABC’s message in this respect was rather that
Judge Dodds may avoid being punished for his errant behavior
not because of his own efforts to elude discipline, but because
of a faulty disciplinary system. Accordingly, the statement is
not actionable.
G. Dodds is unfit to serve as a judge.
ABC did not state that Judge Dodds was unfit to serve as a
judge, but Judge Dodds contends that this is a reasonable
30a
Appendix A
implication arising from statements that relate to his use of the
crystal ball and statements that suggest that his conduct was
equivalent to that of an accused or convicted felon. For at least
two reasons we hold that the implied statement that Judge Dodds
is unfit for judicial office is not actionable. First, according to
Judge Dodds, the implication of unfitness arises from one set
of comments and one alleged subsidiary implication, both of
which we have already considered and disposed of in a manner
that precludes him from prevailing on this claim. Given that
we have held that the alleged implication that Judge Dodds’s
conduct was the same as a felon’s did not arise and that the set
of comments regarding the crystal ball was not made with actual
malice, Dodds cannot convert these two nonactionable items
into an implied actionable statement by asserting that they
compel a defamatory conclusion.® As we have previously stated,
an opinion based on an implication arising from disclosed facts
is not actionable when the disclosed facts themselves are not
actionable. See Partington, 56 F.3d at 1156 (“[W]hen a speaker
outlines the factual basis for his conclusion, his statement is
protected by the First Amerdment.”); see also Yagman, 55 F.3d
at 1439 (“A statement of o)inion based on fully disclosed facts
can be punished only if the stated facts are themselves false
and misleading.”). Thus, even if ABC had ended its story on
6. While the crystal ball claim was not determined to be
nonactionable until summary judgment, the dismissal of the “unfitness”
claim on a 12(b)(6) motion does not constitute reversible error. In the
first place, because the other alleged basis for the implication of unfitness
has been found not to support the meaning Dodds attaches to it, it is
only the crystal ball claim that could give rise to the alleged defamatory
implication. Thus even if the dismissal was premature, it was not
prejudicial because we have held that the crystal ball claim is
nonactionable. Moreover, the motion to dismiss was in any event
properly granted for the second reason explained in the text infra.
3la
Appendix A
Judge Dodds by explicitly stating that he was unfit for judicial
office, a reasonable viewer would have understood that the
network was expressing an opinion it had formed on the basis
of the (nonactionable) information it had presented, and the
opinion would be protected by the First Amendment.’ See
Partington, 56 F.3d at 1 156; see also Yagman, 55 F.3d at 1439
(“When the facts underlying a statement of Opinion are
disclosed, readers will understand they are getting the author’s
interpretation of the facts presented.”); Moldea, 22 F.3d at 317
(stating that an assertion, even if verifiable, is not actionable if
it is “supported by revealed premises” that are not false). In
the case of a public figure, the rule we have described is
applicable not only where the underlying facts are not actionable
because they are nondefamatory but also where they are not
actionable because there is an absence of actual malice.
Second, and more important, we hold in the alternative
that statements of opinion concerning whether a person who
holds high public office is fit for that office or is competent to
serve in that position are protected under the First Amendment,
whether or not those statements are supportable, verifiable, or
based on facts or premises that are disclosed. This is particularly
true where the subject of the comments holds elective office
(as does Judge Dodds) or is a candidate for such office, although
the rule clearly applies equally to all state and federal judges,
elected, appointed, or otherwise. See Gertz v. Robert Welch,
Inc., 418 U.S. 323, 345, $4 S.Ct. 2997, 41 L.Ed.2d 789 (1974)
(noting that “those classed as public figures have thrust
7. Even were we to consider the other statements that Dodds does
not raise on appeal, including the segment in its entirety, we would reach
the same conclusion because none of the specific statements was
independently actionable and the segment as a whole conveys a message
that is too debatable and subjective to meet the Milkovich standard.
32a
Appendix A
themselves to the forefront of particular public controversies
... they invite attention and comment”).
In Partington, we held that statements concerning an
- attorney’s performance during a particular trial were protected
by the First Amendment. While we expressly reserved the
question “whether the First Amendment would protect more
general statements regarding a lack of professional ability,” 56
F.3d at )152 n. 7, we hesitated only with respect to statements
concerning the general competence of private individuals. See
also id. at 1158 n. 16. However, a statement that someone who
holds high public office, including judicial office, is unfit to
serve in that position clearly reflects a subjective opinion
regarding an important public policy matter and is part of the
ongoing political debate that is protected by the First
Amendment. Opinions as to whether an officeholder deserves
or is qualified to hold his position are often expressed in
hyperbolic and offensive terms. See Monitor Patriot, 401 U.S.
at 275, 91 S.Ct. 621 (noting that political speech may include
“ ‘exaggeration [and] vilification of men who have been, or
are, prominent in church or state’) (quoting Cantwell v.
Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213
(1940)). Oftimes political statements are neither mature nor
enlightening; sometimes they are even erroneous. Nevertheless,
such statements constitute the type of speech that “must be
protected if the freedoms of expression are to have the
‘breathing space’ that they ‘need to survive.’ New York
Times, 376 U.S. at 279, 84 S.Ct. 710 (quoting N.A.A.C.P. v.
Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)).
Part of our American heritage is the right of all citizens to
express their views about politicians, officeholders, and
umpires, frequently in highly unfavorable terms. Indeed, were
we to conclude otherwise, millions of citizens and hundreds of
33a
Appendix A
political pundits would currently be committing libelous and
slanderous acts on a daily basis.
In concluding that expressions of opinion regarding a public
official’s “fitness” for the position constitute protected speech,
Wwe note that our holding does not change the rule that subsidiary
Statements that contain false and defamatory factual assertions
are actionable, if made with actual malice. Here, however, as
we have explained, there are no such subsidiary statements that
qualify. The district court properly dismissed the claim that is
based on the “implication” that Judge Dodds is not fit for
judicial service.
CONCLUSION
For the reasons stated above, we affirm the district court’s
order as to the dismissed claims that Judge Dodds appeals. We
also affirm its order of summary judgment as to the one claim
covered therein.
AFFIRMED.
END OF DOCUMENT
34a
APPENDIX B— ORDER AND JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE CENTRAL DISTRICT
OF CALIFORNIA FILED JULY 30, 1996
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CV 95-6694 SVW (JRx)
HON. BRUCE W. DODDS,
Plaintiff,
Vv.
AMERICAN BROADCASTING COMPANY, INC., a
Delaware corporation,
Defendant.
ORDER GRANTING DEFENDANT’S MCTION FOR
SUMMARY JUDGMENT
I. BACKGROUND
Plaintiff, the Honorable Bruce W. Dodds, is a judge of the
Superior Court for the County of Santa Barbara. On October 6,
1994, defendant American Broadcasting Company, Inc.
(“ABC”) broadcast a television show called “PrimeTime Live.”
The show included a segment entitled “Who’s Judging the
Judges?” that depicted plaintiff and two other judges in an
unflattering light. After the show aired, plaintiff demanded a
retraction. Defendant failed to air the requested retraction, and
plaintiff filed this action. Plaintiff's complaint pleads causes
of action for slander per se and infliction of emotional distress,
all based upon defendant’s broadcast.
35a
Appendix B
Defendant filed a motion to dismiss. In an Order filed on
December 22, 1995 (“December 22 Order’) , the Court denied
the motion, but struck many of plaintiff's allegations for failure
to state a claim upon which relief could be granted. The only
remaining allegations concerned plaintiff's alleged use of a
crystal ball; screaming, yelling, and spitting; and reading
newspapers and magazines while on the bench. A detailed
description of the broadcast may be found in the December 22
Order.
Defendant filed a motion for summary judgment that was
originally scheduled to be heard on July 1, 1996. In an Order
filed on June 24, 1996, the Court continued such hearing until
July 15, 1996 for docket-management reasons unrelated to the
€x parte application for a continuance filed by plaintiff on June
20, 1996. Plaintiff sought a continuance of the motion pursuant
to Fed. R. Civ. P. 56(f) in order to take additional discovery.
The Court continued the hearing until July 29, 1996, and ordered
that a new opposition and reply be filed to address such
additional discovery. Defendant’s motion came on for hearing
on July 29, 1996. In his opposition to defendant’s motion,
plaintiff stated that he was dropping his allegations based on
defendant’s reporting of statements made by his former court
clerk, Ellen Wall. At the July 29 hearing, plaintiff confirmed
that of the three allegations remaining after the December 22
Order, he was pursuing only the allegation regarding the crystal
ball.
The crystal ball issue relates to the allegations that
defendant slandered plaintiff by stating that he uses a crystal
ball to support his decisions and by implying that he “only
makes decisions based on a crystal ball.” Complaint at 9(c)
(emphasis added).
36a
Appendix B
The broadcast showed Cindy Hart, a litigant who had had
a case before plaintiff, saying that plaintiff “uses a crystal ball
often, even in adoption cases.” Transcript at 1. Cynthia
McFadden, an ABC reporter, later stated that “lawyers, litigants
and his former clerk all say Dodds often used the crystal ball to
support his decisions.” /d. at 3. The following exchange
involved Christine Johnson, another litigant: “He had a crystal
ball on the settlement conference table where he asked us to
sit. [McFadden:] Did he use this crystal ball? [Johnson:] Yes,
he did. He said, ‘This is what I think your case is worth,’ and
then he pressed a button on the crystal ball and it answered,
‘Yes’ and he said,: ‘There it is. That’s it. That’s what you get.”
Id.
Although plaintiff has opposed the motion with evidence
and legal argument, he also seeks another Rule 56(f)
continuance, this time on the ground that he has not been
permitted to depose Diane Sawyer, who anchored the segment.
The Court has carefully considered the parties’ submissions
and oral argument, and for the reasons that follow, grants
defendant’s motion.
Il. DISCUSSION
ABC makes three arguments. (1) plaintiff has failed to
present evidence from which a rational jury could find by clear
and convincing evidence that ABC acted with actual malice;
(2) most or all of the broadcast is privileged under Cal. Civ.
Code 47(d) regardless of ABC’s intent; and (3) plaintiff is
collaterally estopped from disproving that the gist or sting of
the show was substantially true by virtue of the California
supreme court’s opinion in his bar discipline case. The Court
PT Dew Gin te ONE RR eR 8g ita me aa
37a
Appendix B
agrees with the first argument, and disagrees with the second
and third.
A. Actual Malice
Plaintiff concedes that he is a public figure. He therefore
must prove that ABC acted with “actual malice” in broadcasting
the crystal ball allegation. E.g., Newton v. National
Broadcasting Co., Inc., 930 F.2d 662, 668 (9th Cir. 1990).
“Actual malice” doesn’t mean ill will; it is a constitutional term
of art. To meet this constitutional standard, plaintiff must prove
that ABC either “realized that [its] statement was false or that
[it] subjectively entertained serious doubt as to the truth of [its]
statement.” /d. (quoting Bose Corp. v. Consumers Union of
United States, 104 S. Ct. 1949, 1965 n. 30 (1984)) (other
citations omitted).
“Actual malice” is a subjective standard: “Even an extreme
departure from accepted professional standards of journalism
will not suffice to establish actual malice: nor will any other
departure from reasonably prudent conduct, including the
failure to investigate before publishing. Only the existence of
‘sufficient evidence to permit the conclusion that the defendant
actually had a high degree of awareness of... probable falsity’
will suffice to meet the subjective test.” Jd. at 669 (quoting
Harte-Hanks Communications, Inc. y. Connaughton, 109 S. Ct.
2678, 2696 (1989)) (other internal quotation omitted). The
Supreme Court has made it “clear that reckless conduct is not
measured by whether a reasonably prudent man would have
published, or would have investigated before publishing. There
must be sufficient evidence to permit the conclusion that the
defendant ia fact entertained serious doubts as to the truth or
his publication. Publishing with such doubts shows reckless
38a
Appendix B
disregard for truth or falsity and demonstrates actual malice.”
St. Amant v. Thompson, 88 S.Ct. 1323, 1325 (1968).
At this summary judgment stage, plaintiff “must show that
the evidence in the record could support a reasonable jury
finding by clear and convincing evidence that the allegedly
defamatory statements were made with actual malice.”
McFarlane v. Esquire Magazine, 74 F.3d 1296, 1301 (D.C. Cir.
1996) (citing Anderson v. Liberty Lobby. Inc., 106 S. Ct. 2505,
2513-14 (1986)). See also Gertz v. Robert Welch, Inc., 94 S.
Ct. 2997, 3008 (1974) (actual malice must be demonstrated by
“clear and convincing proof’); New York Times v. Sullivan, 84
S. Ct. 710, 728-29 (1964) (proof must be with “convincing
clarity”); Newton, 930 F.2d at 668 (“clear and convincing
evidence”); Hoods v. Evansville Press Co., Inc., 791 F.2d 480,
484 (7th Cir. 1986).
All of the people involved in creating the segment for ABC
declare that they did not subjectively doubt the truth of the
crystal ball allegation. Plaintiff has no evidence that any of the
people involved with the show knew the crystal ball allegation
to be false or subjectively entertained serious doubts as to its
truth or falsity. Instead, he seeks refuge in a narrow window in
this subjective test left open by the Supreme Court in dicta in
St. Amant:
The defendant in a defamation case brought by a public
official cannot, however, automatically insure a favorable
verdict by testifying that he published with a belief that
the statements were true. The finder of fact must determine
whether the publication was indeed made in good faith.
Professions of good faith will be unlikely to prove
persuasive, for example, where a story is fabricated by the
39a
Appendix B
defendant, is the product of his imagination, or is based
wholly on an unverified anonymous telephone call. Nor
will they be likely to prevail when the publisher’s
allegations are so inherently improbable that only a reckless
man would have put then in circulation. Likewise,
recklessness may be found where there are obvious reasons
to doubt the veracity of the informant or the accuracy of
his reports.
88 S. Ct. at 1326. Plaintiff also relies on the Supreme Court’s
differentiation of “purposeful avoidance” of the truth from
innocent ignorance of the falsity of a statement. See Harte-
Hanks, 109 S. Ct. at 2691 (“inaction [which] was a product of
a deliberate decision not to acquire knowledge of facts that
might confirm the probable falsity of [the] charges” will support
a finding of actual malice).
Most of the St. Amant dictum is simply inapplicable. Dodds
has no evidence that ABC “fabricated” anything, “imagined”
anything, based anything on a single phone call or anonymous
report, or ever deliberately decided not to pursue a particular
line of inquiry because it didn’t want to know the truth. And
the allegation, while possibly somewhat “inherently
improbable,” was not published without any investigation or
confirmation.
In his papers and at the July 29 hearing, plaintiff
emphasized the additional investigation that ABC could and
possibly should have conducted. But “actual malice” isn’t a
negligence standard, so the question is not whether ABC
conducted a reasonable investigation, but whether ABC’s
investigation was so risible, and the allegations it reported so
outrageous, as to render its conduct assimilable to publishing
BERL rs aa ee Pe ee,
40a
Appendix B
“inherently improbable” allegations without any investigation,
thus bringing its conduct within the narrow window of the Sr.
Amani dictum.
ABC did, conduct some investigation; after it had talked
to several people who confirmed that plaintiff had a crystal
ball and used it in some manner, and after it had gone in and
seen the crystal ball sitting in plaintiff's office, the allegation
published by ABC was far from improbable.
And while there may have been some reason to doubt the
veracity or accuracy of Hart and Johnson’s accounts (they were
disgruntled litigants and Johnson was very religious and thought
crystal balls were “evil”), ABC didn’t just rely on them blindly
and exclusively. Plaintiff's argument in his papers that ABC
didn’t do any investigation is simply wrong. In fact, ABC spoke
to at least two lawyers who confirmed that plaintiff used a
crystal ball. Longhini Tr. 170-71; 205-06.' ABC spoke to the
attorneys involved in Johnson’s case. ABC spoke to plaintiff's
former clerk, who said that pia.-itiff “did make use of the crystal
ball” and that he “would say that he was right, and use this
thing to demonstrate it.” /d. at 206-07. ABC confirmed firsthand
that plaintiff had a crystal ball on his desk. And ABC spoke to
an adoption caseworker who confirmed that plaintiff had used
the crystal ball in an adoption case. McFadden Tr. at 55-57;
Longhini Tr. at 172.
Plaintiff has no evidence that any of ABC’s employees are
lying about any of these matters, and his mere hope that the
jury will disbelieve them is insufficient to withstand summary
1. Plaintiff's opposition also states baldly that Johnson “was not a
credible source since she made up the allegations about the crystal ball.”
Opp. at 4 n.8. There is no evidence that she “made up” her allegations.
4la
Appendix B
judgment. Newton, 930 F.2d at 680 (“[t]he district court also
erred in relying on the proposition that the jury could have based
a finding of actual malice on a determination that the journalists’
testimony about their state of mind was not credible,” since
the “ ‘discredit[ing] [of] testimony is not considered a sufficient
basis for drawing a contrary conclusion’ ”) (quoting Bose, 104
S. Ct. at 1966).
The Court concludes that this is not a case where it would
be appropriate to say that the sources relied upon were so
untrustworthy, what they said was so improbable, and the
investigation was so negligible, that ABC can be said, without
any evidence, to have subjectively entertained serious doubts
as to the truth of its statements. Nor is there any evidence that
ABC “purposefully avoided” the truth. While the evidence
could support a finding that ABC was not as concerned as a
reasonable actor should have been with discovering the truth
— in other words, that ABC should have done more
investigation — there is nothing whatever in the record
indicating tha: ABC ever took any action intentionally designed
to avoid discovering the truth.
Another consideration relates to the supposed implied -
assertion that plaintiff “only makes decisions based ona crystal
ball,” Complaint at §9(c) (emphasis added), rather than using
the crystal ball to support his decisions as the broadcast
explicitly stated. Plaintiff does not dispute that it is his burden
to present evidence from which a jury could find by clear and
convincing evidence that ABC in fact “intended that the
[broadcast] be read to contain the defamatory innuendos the
plaintiff attributes to it.” Woods v. Evansville Press Co., Inc.,
791 F.2d 480, 486-87 (7th Cir. 1986). To withstand summary
judgment, plaintiff would thus have to present evidence from
42a
Appendix B
which a jury could find both that ABC knew the inference to
be false (or seriously doubted its truth) and that it intended the
inference to arise.
In Newton, Wayne Newton argued that a show broadcast
by NBC defamed him by implying that he had bought a Las
Vegas hotel in Part with Mafia funds. NBC argued that it had
not intended to imply any such thing. The district court was
unpersuaded by NBC’s argument, holding that NBC “should
have foreseen” that that inference would arise and that it was
“clear and inescapable.” The Ninth Circuit reversed. It held
that the foreseeability of the inference was irrelevant under the
subjective actual malice test, and that the fact (if it was a fact)
that the inference could be drawn from the show did not
establish that NBC acted with actual malice in broadcasting
the show because relying on that “substituted [the court’s] own
view as to the supposed impression left by the broadcast for
that of the journalists who prepared the broadcast.” 930 F.2d at
681. The Court rejected in unequivocal terms the argument
relied upon by the district court and urged by plaintiff in this
case:
[S]ince the implication it took from the broadcast was ‘clear
and inescapable’ to the court, it concluded that the jury
could properly find that NBC and its journalists intended
to leave that impression. Such an approach eviscerates the
First Amendment protections established by New York
Times. It would permit liability to be imposed not only for
what was not said but also for what was not intended to be
said.
Id.
43a
Appendix B
ABC’s witnesses testified that they did not intend to imply
that plaintiff used the crystal ball to make decisions. Plaintiff
has no contrary evidence. (One ambiguous reference in
preliminary notes written before any of the interviews for the
broadcast were even conducted is insufficient to defeat
summary Judgment. Those notes put “Judge Dodds/crystal ball”
under the heading “How Judges Decide” in a rough sketch of
possible angles for a show on judges.) Plaintiff's argument that
this implication is plain from Hart’s statement during the
broadcast is, first, the same argument the Ninth Circuit rejected
so categorically in Newton and, second, wrong on the facts.
Saying someone “used” a crystal ball doesn’t say anything about
how he used it. The word is broad enough to cover using it
purely for levity during heated settlement conferences (a
practice to which plaintiff admits), using it as the sole means
of decisionmaking, or anywhere in between. Given the Ninth
Circuit’s holding in Newton, it cannot be said that ABC’s
broadcast made the statement that plaintiff “only makes
decisions based on a crystal ball.”
The Court thus holds that plaintiff has failed to meet his
burden of producing evidence from which a jury could find by
clear and convincing evidence that defendant acted with actual
malice in broadcasting the crystal ball allegation. Defendant is
therefore entitled to summary judgment on ail of plaintiff's
claims. See Hustler Magazine v. Falwell, 108 S. Ct. 876 (1988)
(constitutional protection embodied in actual malice rule
extends to claims for infliction of emotional distress as well as
for slander and defamation).
B. Civ. Code § 47(d)
ABC also relies on Cal. Civ. Code § 47(d), which provides
an absolute privilege for a “fair and true report” of a “judicial
44a
Appendix B
proceeding.” This privilege extends to out-of-court statements
about what happened in court, not just in-court statements.
Dorsey v. National Enquirer, Inc., 973 F.2d 1431, 1437 (9th
Cir. 1992). It is not affected by malice or any other mental
state. McClatchy Newspapers, Inc. v. Superior Court, 234 Cal.
Rptr. 702, 710 (Cal. App. 5 Dist. 1987). A report is “fair and
true” if its “gist or sting” is accurate, even if some of its details
are not. Dorsey, 973 F.2d at 1436. “Judicial proceeding” is also
defined broadly. See id. at 1434-35.
ABC argues that Johnson’s statements, reported by ABC,
concerned matters occurring in a judicial proceeding and is
privileged as a “history of the proceeding.” Jd. at 1437. But
since what occurred during the settlement conference involving
Johnson is in dispute (she says plaintiff used the crystal ball,
plaintiff can’t remember using it and denies that he would have
said what Johnson says he said), the Court cannot determine as
a matter of law that the “report” was “fair and true.” The
California cases make it clear that this issue may be decided
by the court only where there is no genuine dispute about what
occurred during the judicial proceeding. /d. at 1435 (“The ‘fair
and true’ issue is one of law when there is no dispute as to
what occurred in the judicial proceeding reported upon or as to
what was contained in the report’ ”) (quoting McClatchy, 234
Cal. Rptr. at 711) (other citations omitted) Here there is such
a dispute. The Court therefore rejects ABC’s argument that
summary judgment is required by Civ. Code § 47(d).
C. Collateral Estoppel _
The California supreme court recently issued its decision
reviewing the findings and conclusions of the Commission on
Judicial Performance, which had conducted an investigation
45a
Appendix B
plaintiff. Dodds v. Comm’n on Judicial Performance, 48
Cal.Rptr.2d 106 (Cal. 1995). The Commission conducted
hearings and concluded, inter alia, that clear and convincing
evidence showed that plaintiff had “frequently given the
appearance of rudeness and prejudgment in his handling of
cases.” /d. at 109. The supreme court agreed with this finding
of fact (it rejected the Commission’s conclusion of law that
plaintiff be publicly censured). The principal issue in the
proceeding before the supreme court was plaintiffs alleged
obstruction of justice arising out of an incident in which he
observed one of his fellow judges letting the air out of a tire of
a car parked in the other judge’s space. Neither the Commission
nor the supreme court addressed plaintiff's use of a crystal ball.
The gist or sting of the obstruction of justice finding has
nothing to do with the crystal ball allegation at issue here. Nor
was the crystal ball, or anything like it, mentioned in the part
of the Commission’s conclusions regarding plaintiff's rudeness
and prejudgment.’ The gist of the Commission’s findings, and
of the supreme court’s opinion, is that plaintiff is rude, tough,
unjudicious, intemperate, undisciplined, and unfair as a judge.
The gist or sting of the crystal ball allegation is that plaintiff is
an eccentric who engages in, as ABC put it, “bizarre behavior.”
The gist or sting of defendant’s broadcast is therefore not
substantially similar to that of the supreme court’s opinion.
Therefore, the fact that plaintiff is estopped from contradicting
the findings and conclusions of the supreme court does not affect
his ability to prove ABC’s allegation false.
2. Plaintiff tries to make hay out of the fact that the Commission
didn’t “sustain” any claims relating to a crystal ball, apparently hoping
the Court will infer that the Commission rejected such claims, including,
perhaps, Johnson’s account. In fact, the Commission did not consider
any such claims, and Johnson did not testify before it.
46a
Appendix B
D. Other Issues
Plaintiff places much weight on the fact that Longhini, the
chief producer, destroyed all of his contemporaneous notes
about the show, which makes it harder for plaintiff to show
that Longhini knew the crystal ball allegation was false or
doubted its truth. Plaintiff argues that the fact that Longhini
destroyed these materials is “circumstantial evidence” of actual
malice on his part. The only authority plaintiff cites for this,
Herron v. King Broadcasting Co., 109 Wash.2d 514 (Wash.
1987), was revised upon reconsideration and no longer makes
any mention of this issue. See 112 Wash.2d 762 (Wash. 1989).
Longhini explains in his declaration the following: He
worked for ABC on PrimeTime Live from 1993 to 1995. The
show in question was broadcast on October 6, 1994. He left
ABC in July 1995, for reasons unrelated to this case. Thereafter,
while remodeling his home office in October or November
1995, he threw away ail of his ABC materials, not just those
relating to this show. He did not know of this suit at that time.
Plaintiff has no evidence to contradict any of this, but he
does point out that while Longhini may have been unaware of
the lawsuit, he did know that plaintiff had sent a retraction
demand to ABC. Plaintiff adds that ABC acknowledged that it
is “good procedure” for a producer to retain notes and files for
some period of time. He argues that because he has been denied
access to these documents, summary judgment would be unfair.
This amounts to a contention that because plaintiff has been
prevented from proving his case by documentary evidence that
could have been obtained from one individual, the jury should
simply find for him without any evidence. The fact that
Longhini destroyed all of his ABC records does not tend to
A EA UE NE ee a
PEROT
47a
Appendix B
make it more likely that at the time of the broadcast, ABC knew
that the crystal ball allegation was false or subjectively
entertained serious doubts as to its truth. The Court rejects this
argument.
Plaintiff's last-ditch argument is that summary judgment
should be denied under Rule 56(f) to allow him to depose Diane
Sawyer. ABC has refused to permit him to depose her, and he
says her deposition is the only discovery remaining that he
wants to take. Plaintiff says that deposing Sawyer will establish
three things: (1) she wrote or edited her own material for the
broadcast; (2) she didn’t do any investigation of anything in
the broadcast; and (3) she knew the allegations in the broadcast
were substantially untrue, or acted in reckless disregard of their
truth or falsity.
The other ABC employees deny writing Sawyer’s parts and
say she wrote them, so plaintiff is probably correct as to (1).
Plaintiff is probably correct as to (2) as well, since there is no
evidence that Sawyer did any investigation for the segment
involving plaintiff. But this doesn’t get plaintiff anywhere,
because even if Sawyer didn’t do any investigation, many other
ABC employees did, and it was not so reckless for her to rely
on what they told her as to justify attributing actual malice to
her. As to (3), plaintiff has no basis at all for saying that
deposing Sawyer is likely to reveal such evidence, and if she
did not do any investigation, it is extremely unlikely that she
knew anything about the truth or falsity of anything.
A party seeking a Rule 56(f) continuance must show that
he has diligently pursued discovery, must point to the “particular
facts” which he expects the requested discovery to reveal, and
must explain why such facts would preclude summary
48a
Appendix P
judgment. E.g., Mackey v. Pioneer Nat. Bank, 867 F.2d 520,
$24 (9th Cir. 1989). The Court concludes that plaintiff has not
identified any “particular facts” which deposing Sawyer would
reveal. “The burden is on the party seeking to conduct additional
discovery to put forth sufficient facts to show that the evidence
sought exists.” Volk v. D.A. Davidson & Co., 816 F.2d 1406,
1416 (9th Cir. 1987). It’s too easy for plaintiff just to recite the
legal standard which he must satisfy and then say that deposing,
Sawyer will enable him to meet it; more specific information
is required. Plaintiff has offered no information whatever with
respect to why he thinks Sawyer would testify that she knew
the allegations to be false or doubted their truth, and he has no
basis for so contending. The Court rejects plaintiff's Rule 56(f)
objection.
Ill. CONCLUSION
For the foregoing reasons, the Court holds that plaintiff
has failed to present evidence from which a jury could find by
clear and convincing evidence that defendant acted with actual
malice in broadcasting the crystal ball allegation. The Court
therefore GRANTS defendant’s motion for summary judgment
as to all of plaintiff's claims.
IT IS SO ORDERED.
DATED: July 30, 1996
s/ Stephen V. Wilson
STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE
49a
Appendix B
SEVEN M. PERRY
MUNGER, TOLLES OLSON
355 South Grand Avenue
Los Angeles, California 90071-1560
(213) 683-9100
ae ee
Attorneys for Defendant
AMERICAN. BROADCASTING COMPANIES, INC.
UNITED STATES DISTRICT COURT
: CENTRAL DISTRICT OF CALIFORNIA
CASE NO. 95-6694 SVW (JRx)
HON. BRUCE W. DODDS,
Plaintiff,
st
AMERICAN BROADCASTING COMPANY, INC., a
Delaware cornoration,
Defendant.
[PROPOSED] JUDGMENT
Defendant American Broadcasting Companies, Inc., having
) moved for summary judgment in Case No. 95-6694 SVW (JRx)
pursuant to Rule 56, and the Court having considered the papers
filed by both parties and the arguments of counsel and being
fully advised,
PF ee ee ee a ee ee he Me + 16%
50a ms
Appendix B
IT IS HEREBY ORDERED that defendant’s motion for
summary ee: is pines in its peat for the reasons set
forth in the State at Ai feta rtttd attic
efLaw Couri Order of july 3 30, 1996 filed coheetady
herewith, and that defendant be awarded its costs of suit, and
that judgment be entered forthwith in the defendant’s favor.
DATED: July 30, 1995
s/ Stephen V. Wilson
UNITED STATES DISTRICT JUDGE
Presented by:
MUNGER, TOLLES & OLSON
By s/ Steven M. Perry
Steven M. Perry
Attorneys for Defendant
AMERICAN BROADCASTING
COMPANIES, INC.
Sla
APPENDIX C — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA FILED DECEMBER 22, 1995
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. CV 95-6694 SVW (JRX)
HONORABLE BRUCE W. DODDS
Plaintiff,
v.
AMERICAN BROADCASTING COMPANY. INC., a
Delaware corporation,
Defendant.
ORDER
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
Background
Defendant American Broadcasting Company (“ABC”)
broadcasts a newsmagazine show called “PrimeTime Live.”
(“PrimeTime”) On October 6, 1994, PrimeTime aired a segment
entitled “Who’s Judging the Judges?” The segment featured
pieces on three judges, including one on Plaintiff, the Honorable
Bruce W. Dodds, Senior Judge for the Superior Court of the
County of Santa Barbara. The piece on Dodds was not flattering
and Dodds now sues for slander per se and infliction of
emotional distress based on overt and implied statements about
him in the broadcast.
52a
Appendix C
The segment was premised on the notion that judges are
protected from normal review and discipline even when they
commit serious transgressions and that this protection can lead
to flagrant abuses of the judicial power. The segment featured
pieces on three judges. The first was a judge from Indiana who
was an alleged pederast who used his position in the juvenile
justice system to pressure sex from children. The second piece
was on Dodds and generally made him out to be a judge who
thinks he is a god in the courtroom and who uses little law or
reason in his decisions. The final piece was on a Judge from
South Carolina who used his position to sexually assault and
harass female parties.
The pieces consisted of interviews with parties accusing
the three judges of wrong-doing, statements by ABC reporter
Cynthia McFadden about what others had told her or what others
had said about these judges, unsuccessful attempts by
McFadden to speak with Judge Dodds and the South Carolina
judge, and observations by McFadden and anchor Diane
Sawyer. Following the piece, Sawyer stated that Judge Dodds
denied all the allegations against him. After the piece aired,
Dodds allegedly asked for a retraction but ABC did not air one.
Legal Analysis
I. Standard for 12 (b)(6) Motion
In considering a motion to dismiss under F. R. C. P.
12(b)(6), the allegations of the complaint are taken as true, all
reasonable inferences are drawn in favor of the Plaintiff, and
the pleading is liberally construed in favor of the Plaintiff.
NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986);
Rusell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). The
53a
Appendix C
motion is granted only if it appears beyond doubt that Plaintiff
can prove no set of facts in support of the claim which would
entitle him to relief. Conley v. Gibson, 355 US. 41, 45-46
(1957)
Normally, a court is limited to the allegations in the
pleadings in considering a 12(b)(6) motion. However, where
documents are attached to the pleading, a court can consider
those documents and need not assume the truth of the allegations
in the pleadings where the documents contradict the allegations.
Roth v. Garcia Marquez, 942 F.2d 617, 625n.1 (9th Cir. 1991).
Moreover, a court may augment the pleadings by judicial notice
of facts. Mack v. South Bay Beer Distributors, Inc., 798 F.2d
1279, 1281 (9th Cir. 1986).
Here, Plaintiff attached a transcript of the PrimeTime show
to the pleadings. Thus, the Court can and has considered the
transcript in deciding this motion. In addition, counsel for ABC
stipulated at hearing to allow Plaintiff to “attach” a videotape
of the segment to the complaint. The Court watched the video
at the hearing and considers the video in this motion.
Judicial Notice
ABC also asked the Court to take judicial notice of the
“Findings, Conclusions, and Recommendations” of the
Commission on Judicial Performance. The Court can take
judicial notice that Dodds was under investigation by the
Commission at the t’me of the broadcast and that the
Commission was investigating charges similar to those alleged
in the PrimeTime show and that the Commission made certain
findings. However, the Court is not bound by the Commissions’
findings of fact since they are not finalized findings and the
specific findings are irrelevant to this moiion.
S4a
Appendix C
III. The Alleged Defamatory Statements
Because many of ABC’s defenses apply to more than one
alleged statement, the Court will lay out the alleged statements,
review the basic law to be applied, and then apply that law to
each statement to see which statements are actionable.
Based on a liberal interpretation of the complaint, Plaintiff
alleges that the following defamatory statements were made
either directly or impliedly during the broadcast.
1. Plaintiff's conduct was the same as that of a convicted
or accused felon.
2. Plaintiff is one of the three worst judges in the country.
3. Plaintiff has participated in a secret cover-up of his
improprieties.
4. Plaintiff is “unfit” to serve as a judge.
5. Plaintiff is a court jester/bciieves he is a god.
6. Plaintiff makes decisions based on a crystal ball.
7. Plaintiff is consistently reading magazines and
newspapers on the bench.
8. Plaintiff is constantly yelling, screaming, and spitting
in court.
9. Plaintiff improperly rushes cases through the system.
55a
Appendix C
10. Plaintiff is disrespectful towards parties and witnesses.
11. Plaintiff constantly and wrongly pressures cases to
settle for less than they are worth.
12. Plaintiff is hiding from public view.
13. Plaintiff is eluding discipline solely because serious
allegations are not vigorously investigated, secrecy is used
to protect him from serious charges, and the political
climate protects him.
IV. Falsity was alleged
ABC makes the incorrect assumption throughout their
papers that Dodds does not allege that any of the above
Statements are false. The complaint clearly states that “the
broadcast and statements were false because ... plaintiff's
judicial conduct is and was proper ... Complaint at 5, § 11.
Since the Court is to interpret the allegations liberally, the Court
deems this statement to be an umbrella allegation that all of
the alleged defamatory statements are false.
V. ABC’s Defenses
The parties do not dispute that Dodds is a public figure
and that the statements were aimed at matters of public concern.
Thus, ABC can avail itself of substantial First amendment
protections. Indeed, since the statements criticize the judiciary,
an argument can be made that the Court should give ABC the
benefit of the doubt as to close questions of constitutional
protection. see Landmark Communications, Inc. y. Virginia ,
435 U.S. 829, 839 (1978) (The operations of the courts and the
56a
Appendix C
judicial conduct of judges are matters of utmost public
concern.); Partington v. Bugliosi, 56 F.3d 1147, 1160 (9th Cir.
1995).
Public figure defamation actions against the media always
present difficult issues requiring a balancing of private and
public interests. On the one hand, “important social values. . .
underlie the law of defamation.” Milkovich at 2707. “[S]ociety
has a pervasive and strong interest in preventing and redressing —
-attacks upon reputation.” Jd. On the other hand, the First
amendment promotes a marketplace of ideas and protects
criticism of the government. The constitutional balance between
these competing interests has evolved in a series of Supreme
Court decisions. New York Times, Co, v. Sullivan, 84 S.Ct. 710
(1964) (Actes! malice required); Gertz v. Robert Welch, Inc.,
94 S.Ct. 3004 (Malice must be shown by clear and convincing
evidence); Philadelphia Newspapers, Inc. v. Hepp, 106 S.Ct.
1558 (1986) (No presumption of falsity in damages actions
against media for matters of public concern); Greenbelt
Cooperative Publishing v. Bresler, 90 S.Ct. 1537 (1970) (No
liability for statements of rhetoric and hyperbole).
In any single case in which an individual public official
appears to have been unfairly attacked by the media, the
developed constitutional doctrines may seem to strike an
improper balance. Indeed, in an individual case, in may be that
the private harm outweighs the public good. But constitutional
lines are drawn with a hearty margin of safety. This “breathing
room” is built-in precisely because of the greater harm that
would ensue if courts were left to fashion the proper balance
within the narrow confines of individual cases. Where, as here,
public figures and public issues are involved, the constitution
looks beyond the individual case to the overall impact such
57a
Appendix C
claims have on free speech. A sufficient margin of safety is
needed to prevent the collective effect of individual defamation
cases from chilling journalism. Thus, the constitutional
restrictions strike the correct balance between individual harm
from defamatory statements and the greater public harm that
would come from a stilted media.
A. Neutral Reporting Privilege
Many of the alleged defamatory statements at issue in this
case were “republished” by ABC. However, defamation law
generally refuses to make a distinction between publishers and
republishers of defamatory statements. see Campbell, The
Developing Privilege of Neutral Reportage, 69 Va. L. Rev. 853
(1983). Nevertheless, some courts have recognized a so-called
“neutral reporting” privilege. This alleged constitutional
privilege immunizes a republisher from liability for defamatory
statements where: 1) the statements are about public officials;
2) the official is embroiled in a public controversy; 3) the
Statements republished are made by participants in that
controversy; and 4) republication was done in an accurate and
neutral manner. Barry v. Time, 584 F.Supp. 1110 (N.D. Cal.
1984); Ward v. News Group International, Ltd., 733 F Supp.
83 (C.D. Cal. 1990). ABC relies, in large part, on this privilege
for its defense.
The privilege has been adopted by the Second Circuit
(Edwards v. National Audobon Society, Inc., 556 F.2d 113 (2d
Cir. 1976)) and has been considered but not rejected or adopted
by the Supreme Court (Harte-Hanks Communications, Inc., vy.
Connaughton, 491 U.S. 657, 695, 109 S.Ct. 2678 (1989), the
Fourth Circuit (Chapin v. Knight-Ridder, Inc. ,993 F. 2d 1087,
1097 (4th Cir. 1993), and the D.C. Circuit (White v. Fraternal
58a
Appendix C
Order of Police, 909 F.2d 512, 528 (D.C. Cir. 1990). The Ninth
Circuit has made no comment on the privilege, although two
Ninth Circuit district courts have discussed it. see Barry v. Time,
584 F. Supp. 1110 (N.D. Cal. 1984); Ward v. News Group
International, Ltd., 733 F.Supp. 83 (C.D. Cal. 1990).
Plaintiff argues that the neutral reporting privilege was
foreclosed by the Supreme Court in Milkovich v. Lorain Journal
Co., 110 S.Ct. 2695 (1990). In Milkovich, the Supreme Court
rejected a constitutional privilege for “opinions.” Plaintiff does
not allege that the neutral reporting privilege is subsumed under
the rejected opinion privilege. Rather, Plaintiff argues that
Milkovich effectively closed the door on the creation of any
new constitutional privileges for defamatory statements. This
is plainly wrong.
Milkovich only addressed a proposed constitutional
privilege for statements which could be categorized as
“opinion” and not “fact.” The Court reasoned that the distinction
developed in prior case law between protected expressions of
“pure” opinion and unprotected expressions which either
directly or impliedly made factual assertions was sufficient to
protect the “marketplace of ideas.” Milkovich never addressed
any other proposed First amendment privileges, including the
proposed neutral reporting privilege, and never said that it was
closing the door on the future development of other
constitutional privileges for defamatory statements. Moreover,
the Court’s reasoning in Milkovich bear: no relation to the
rationale underlying the neutral reporting privilege.
The “opinion” privilege rejected in Milkovich aimed at
protecting a broad class of statements. The neutral reporting
privilege, in contrast, is not aimed at protecting the statement,
59a
Appendix C
but at protecting the speaker/republisher of the statement. The
privilege is premised on the idea that many newsworthy
statements only reach the public via media republishing and
that requiring the media to assess the trustworthiness of the
Original defamer would have a chiiling effect on the
dissemination of such statements. Ward, 733 F.Supp. at 84;
Edwards, supra (Inherent value in nationally known
organization making accusations about a matter of public
concern). In Milkovich, the Court was asked to exempt a whole
category o¢ statements from liability regardless of the context
in which they were made. The Court declined to do so because
it felt that the private harm arising from the statements
outweighed the public value of the statements. The Court never
addressed the value of the media being able to distribute such
statements. Thus, Milkovich was focused on a very different
concern from the issue addressed by the neutral reporting
privilege and should not be read to foreclose the further
development of that privilege.
Assuming then that the neutral reporting privilege exists,
the Court nevertheless finds that it is inapplicable in this case.
When the media republishes defamatory statements, the harm
from the statements is increased. To counter this magnified
private harm, the privilege should be narrowly construed to
instances where the public good of the reporting outweighs the
private harm. In addition, since the rationale of the privilege is
that it increases public access to information to allow the public
to assess what is going on, it should also be narrowly limited to
truly neutral reporting. see Crane vy. Arizona Republic, 729
F.Supp. 698, 711 (C.D. Cal. 1989) (Rafeedie, J.) (Noting that
neutral reporting ‘privilege is narrower than state law “fair and
truce report” privilege.)
60a
Appendix C
The first question is whether the PrimeTime segment
constitutes “neutral” reporting. In Crane, the court stated
that the neutral reporting doctrine does not apply to
“investigative journalism” which reports on things other
than a “pre-existing, ‘raging controversy.’ ” Moreover, the
privilege does not apply where the media republisher
“espouses or concurs in the charges” or “deliberately
distorts” the charges. Jd. at 711.
In Ward v. News Group International, Ltd., 733 F.Supp.
83, the court found that the privilege applied to the
republication by two defendants of the statements of a third.
The posture of the case did not reveal the underlying facts.
However, the court noted that the republication was accurate
and that the story was “very neutral” because it published
the Plaintiff's denial and “emphasiz[ed] the legitimate
business success of Plaintiff and the extensive charity work
he ha[d] done.” /d. at 85. Considering the article as a whole,
“the republication in the context of published denials and
other information [did] not stand as defamatory.” /d.
In Edwards v. National Audobon Society, Inc., 556 F.2d
113 (2d Cir. 1977) — the case first adopting the privilege
— the court found that the reporting was neutral. The article
reported the accusations of the Society that five scientists
were “paid liars.” The article did not espouse the Society’s
accusations and included the scientist’s terse reactions to
the accusations. Moreover, the article was clearly about the
fact that accusations were made, and did not purport to
examine the factual premises for those accusations.
(Headline read “Pesticide Spokesman Accused of ‘Lying’
on Higher Bird Count” and article clearly quoting from a
Society publication.)
6la
Appendix C
In the case at hand, it would be stretching the developed
doctrine to say that ABC’s report was “neutral reporting.” First,
the segment is clearly investigatory in nature.' The report also
implies that ABC concurs with the accusations in the report.’
Ultimately, unlike the situation in Edwards, ABC’s report was
not about the accusations, but about the underlying conduct.
The report is preceded by the statement “Cynthia McFadden
discovers sexual abuse, drug charges, and bizarre behavior,
protected by judicial robes.” Thus, the segment does more than
simply convey accusations made by others; it seeks to determine
the likely truth or falsity of those accusations?
Like the article in Edwards, the segment contains Dodds’
denials of his accusations. However, unlike the article in
Edwards, the overall tenor of the piece negates the value of
those denials by subtly implying that ABC thinks the accusers
are more credible than the accused. The entire segment
condemns the judiciary as untrustworthy, a theme that would
tend to undermine the credibility of blanket denials. Thus, the
Court concludes that the segment is not neutral enough to fall
within the ambit of the developing neutral reporting privilege.
1. The show begins with a “teaser;” “Tonight, a PrimeTime
investigation.” The segment is preceded by McFadden’s statement that
“[ABC/PrimeTime] decided to take a closer look” at “reports of judges
as lawbreakers, sellouts, and just plain crazy.”
2. Sawyer states “Say the word judge and you think of someone
wise and fair and dignified. What you don’t imagine is this.”
3. Particularly noteworthy, for example, is that portion of the piece
on Judge Dodds which features accusations that he uses a crystal ball in
settlements. The piece does not simply report the accusation, but goes
on to “confirm” the accusation by Stating that PrimeTime “found (the
crystal ball] still sitting on a table in Judge Dodds’ chambers.”
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B. “Implied” statements
Many of the statements Dodds is suing on are not overt
statements. Rather, they are statements which Dodds claims
are “implied” from juxtapositions in the report as well as the
tenor of the report taken as a whole.
“Implied” factual assertions are actionable so long as the
implied statements would be actionable if they were uttered
directly. Milkovich, 110 S.Ct. 2695, 2707 (Alleged implied
statement that coach perjured himself was actionable if a
reasonable factfinder could conclude that the overt statements
could imply the alleged factual assertion.) If a defamation claim
is based on allegations of implied defamatory facts, the court
must make a threshold determination whether the published
statements could be understood as implying defamatory content.
Weller v. ABC, 283 Cal.Rptr. 644, 650 n.8 (First Dist. 1991). If
a statement is susceptible of both an innocent and defamatory
meaning, it is for the jury to decide how they were in fact
understood. Jd. However, a claim cannot go forward on the
allegation that the overall “message” of a broadcast is
defamatory. Auvil v. CBS 60 Minutes, 67 F.3d 816 (9th Cir.
1995).
In Weller v. ABC, 283 Cal.Rptr. 644 (1st Dist. 1991), the
court found that news reports could imply that the Plaintiff had
engaged in serious misconduct and thus that a jury would be
permitted to view the broadcast and make their own
determination whether it was defamatory. Weller at 651. The
news reports in that case concerned the sale of an antique
candelabra to a local museum. The report raised questions about
whether the candelabra had been stolen and whether it had been
sold to the museum for a “grossly inflated price.” Although the
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report never stated that Weller had stolen the candelabra, the
court found that such an implication could be drawn where: 1)
the report repeatedly tried to tie Weller to a convicted felon
whom the report implied had stolen the candelabra; 2) the report
concerning Weller was juxtaposed against an immediately
preceding report about the convicted felon; 3) the report falsely
noted that Weller’s shop was only a block from the house of
the woman from whom the candelabra allegedly had been
Stolen; 4) the broadcast stated that Weller was “reportedly”
out of town, suggesting that Weller had a guilty conscience
and was avoiding publicity. Jd. In addition, the court noted that
the report implied that Weller and his associates were
“stonewalling” the reporter. The court concluded that, taking
all of these facts together, a reasonable juror could conclude
that the report implied that Weller was involved in “shady
dealing.”
Weller also dealt with the special problems of applying
traditional defamation concepts to the reality of televised
“news” reports. The court noted that characterizing a news
report as an “ongoing investigative report” did not immunize
the report. “[T]he publication of implied defamatory statements
against a background of apparently objective and neutral
reporting is almost certain to be understood as factual.
Moreover, the implied defamatory facts in this context may be
given even more credence by the listener, where. . . the reports
profess to be objective, yet subtly imply that the publisher tends
to believe the sources alleging the defamatory facts.” “[M]Jerely
couching an assertion of defamatory fact in cautionary language
such as “apparently” or “some sources say” or even putting it
in the form of a question” does not insulate a speaker from a
defamation action anymore than phrasing an assertion as an
“opinion.” Jd. at 652.
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C. Non-factual/Non-specific statements
The First amendment protects statements on matters of
public concern which are incapable of being proven true or
false by reference to a core of objective evidence. Milkovich;
Weller; Standing Committee v. Yagman, 55 F.3d 1430 (9th Cir.
1995). Statements of “subjective fact” such as “he did not try
the case well,” when made in matters of public concern, are
protected. Partington v. Bugliosi, 56 F.3d 1147, 1160 (9th Cir.
1995). However, facts which are objectively verifiable such as
“this product does not perform as advertised” are actionable.
Unelko v. Rooney, 912 F.2d 1049 (9th Cir. 1990) (Statement
about product that “it didn’t work” was actionable where
product made specific claims of how it would improve wet
weather visibility when applied to windshields). Finally, a
statement is actionable even if it asserts that a person or thing
possesses a quality which is not susceptible to precise
measurement, so long as there is an objective way to measure
where that person or thing falls within a reasonable range.
Weller. Whether a statement contains provably false factual
assertions is a question of law for the court to decide. Unelko,
912 F.2d 1049, 1053 (9th Cir. 1990); Weller, 283 Cal.Rptr; at
651, n.9.
In Partington, a lawyer sued the author of the book “And
the Sea Will Tell” for statements in the book criticizing the
lawyer’s performance in a highly publicized murder case. The
court found that readers of a lawyers’ account of a proceeding
would expect the account to contain only “highly subjective
opinions . . . rather than assertions of verifiable, objective facts.
Id. at 1154 citing Moldea v. New York Times, 22 F.3d 310
(D.C.Cir. 1994) (Importance, even after Milkovich, of
evaluating a critical analysis “with an eye toward readers’
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expectations and understanding [of it]”) . Likewise, the court
found that viewers of a docu-drama would not expect the
broadcast to be a wholly accurate portrayal of historical facts.
The court also concluded that “assessments of a lawyer’s
trial performance are inherently subjective and therefore not
susceptible of being proved true or false.” /d. at 1157-58. The
court noted with approval the decision of the D.C. Circuit in
Moldea which similarly held that criticism’s of a journalist’s
“sloppy journalism” and unprofessional techniques are not
actionable under Milkovich. “Where the question of truth or
falsity is a close one, the court should err on the side of
nonactionability.” Partington at 1159, quoting Moldea, 22 F.3d
at 317.
In Standing Committee v. Yagman, 55 F.3d 1430 (9th Cir.
1995), the court held that, under Milkovich, statements by a
lawyer that a judge was “dishonest” were not actionable, but a
Statement that the judge was “drunk on the bench” was
actionable.* The court found that the use of the term “dishonest”
was not actionable for three reasons. First, it did not imply any
specific criminal or other wrongful act. Second, it was one of a
string of invectives hurled at the judge by the lawyer and was
thus only another form of hyperbole for expressing the lawyer’s
contempt for the judge. Finally, the court found that the term
could imply “intellectual dishonesty” but that intellectual
dishonesty was a trait which could not be measured against a
“core of objective evidence.” Jd. at 1440-41.
4. Although the latter statement was actionable because it asserted
a specific and objective fact, the court concluded that the statement could
not give rise to sanctions where the Committee had presumed falsity
and had not introduced any evidence to show the :alsity of the statement.
Standing Committee, 55 F.3d a1 1441-42.
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D. Rhetoric/Hyperbole
The First amendment protects statements which cannot
reasonably be interpreted as stating actual facts. Milkovich.
“Even statements that at first blush appear to be factual are
protected by the First amendment if they cannot reasonably be
interpreted as stating actual facts about their target.” Standing
Committee, 55 F.3d at 1438. “Thus, statements of ‘rhetorical
hyperbole’ aren’t sanctionable, nor are statements that use
language in a ‘loose, figurative sense.’ ” Jd. (citations omitted).
Whether a statement could be reasonably understood as an
assertion of fact as opposed to hyperbole or loose figurative
expression is a question of law for the court. Weller, 283
Cal.Rptr. at 651, n.9.
In Standing Committee, supra, the court held that the
following comments about a judge were immune from
disciplinary sanctions because they were hyperbole and rhetoric
which a reasonable person would not believe conveyed actual
facts: Yagman said that Judge Keller was ignorant, ill-tempered,
buffoon, substandard human, right-wing fanatic, bully, one of
the worst judges in the U.S.
E. Opinions Based on Disclosed Truthful Facts
Opinions based on disclosed truthful facts are not
actionable. Standing Committee; Lewis v. Time, Inc., 710 F.2d
549 (9th Cir. 1983) ; Rest. 2d Torts § 566. Under this privilege,
the statement “I think Jones is an alcoholic” is actionable but
the same statement is immunized if it is preceded by the truthful
statements “Jones moved in six months ago. I have seen him
only twice, in his backyard with a drink in his hand.” The second
set of statemcits allows the hearer to assess the validity of the
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conclusion “Jones is an alcoholic.” see Standing Committee,
55 F.3d at 1439. The Court refers to this as the “disclosed facts”
privilege.
VI. Application
1. Plaintiff's conduct was the same as that of a convicted
or accused felon.
Dodds claims that the juxtaposition of the pieces in the
broadcast implies that Dodds’ conduct is “the same as” that of
the accused pederast judge from Indiana and/or the judge
convicted of sexual assault in South Carolina. The Court does
not find that the statements in the broadcast are susceptible of
such an implied assertion. Unlike the reports in Weller implying
a link between Weller and a convicted felon, the pieces in the
PrimeTime segment clearly distinguish the three judges; the
report states that they are thousands of miles apart and also
gives the specific factual underpinnings for the alleged
wrongdoing of each judge. The only assertion of commonality
is that these are all “bad” judges in some way. Such an assertion
is not sufficiently concrete and factual to be actionable. see
Standing Committee.
2. Plaintiff is one of the three worst judges in the country.
This statement is very close to statements made by attorney
Yagman about Judge Keller in Standing Committee. Standing
Committee said that the statement that Judge Keller was “the
worst judge in the United States” was hyperbole and rhetoric
and therefore not actionable. Standing Committee is
distinguishable however, since Yagman hurled his insult in a
stream of outrageous hyperbole and rhetoric. Here, it could be
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argued that the context in which the implied assertion was made
— a network newsmagazine — tends to make it a more factual
assertion. see Weller, supra (Background of purportedly
objective news report lends “factual” air to implied statements).
Nevertheless, the statement is not actionable. The segment
does not purport to draw on any objective survey or rating of
American judges. Rather, the introduction to the segment says
that the Judges depicted are only “some” of the judges whose
“conduct seems downright scandalous.” Transcript at 1, Diane
Sawyer. The term “downright scandalous” is hyperbole, not a
statement of fact.
The most the segment implies is that it is focusing on these
judges because the charges against them are serious and not
frivolous like the majority of complaints abeut judges.
Transcript at 2, Cynthia McFadden. Unlike a direct assertion
that the judge’s conduct was felonious, saying that alleged
misconduct is “serious” does not state a fact which can be
proved false by reference to a “core of objective evidence.”
Moreover, Dodds does not claim that the charges against him
were not “serious,” so McFadden’s statement cannot be
defamatory. Thus, giving Plaintiff the benefit of the doubt, the
Court finds that the alleged implied statement that Dodds was
one of the three worst judges in the United States is not
actionable.
3. Plaintiff has participated in a secret cover-up of his
improprieties.
The Court finds that the segment is not reasonably
susceptible to any implication that Dodds participated in a
cover-up. Unlike the statements in Weller, the statements about
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secrecy here clearly state that it is the State judiciary
commission, not the judge, who is being secretive. Transcript
at 3, McFadden; at 4, Sawyer. Moreover, the tenor of the piece
implies that it is the disciplinary process, not the judges being
disciplined, which is overly secretive and self-serving. For
example, immediately following the statement about the secret
investigation of Dodds is a piece on a South Carolina judge
that it highly critical of an insulated and self-serving judicial
discipline process. Thus, in terms of traditional defamation law,
there is no implication of the “colloquium” element.
4. Plaintiff is “unfit” to serve as a judge.
The piece does imply that Dodds is “unfit” to serve as a
judge. However, an assessment about whether a judge is fit to
serve is not an objectively verifiable assessment, at least where
it is not based on allegations of legal improprieties, corruption,
physical/mental incapacities, or ratings made by bar
associations or similar bodies. For example, in Standing
Committee, the court said that an allegation that Judge Keller
was “dishonest” was not actionable, whereas an allegation that
he was “corrupt” or had taken bribes would be. Here, the implied
statement that Dodds is “unfit” to serve as a judge arises from
allegations about his judicial temperament, his approach to case
management, and his personality in general. Whether such
factors would make a judge “unfit” are matters of subjective
taste, much like the assessment of a lawyer’s abilities deemed
unactionable in Partington.
There could be cases in which an assertion that a judge
was “unfit” would be actionable as an objectively verifiable
fact. For example, if Judge Dodds’ fitness for judicial service
had actually been assessed by a competent body, then the
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assertion would be verifiable. see Gill v. Hughes, 278 Cal.Rtpr.
306 (assertion that surgeon was “incompetent” was provably
false where there was an evidentiary hearing in another
proceeding on surgeon’s competence) . Here, there is no ready
method to determine objectively whether the facts asserted in
ABC’s report would or would not make Judge Dodds “unfit”
for judicial service.
5. Plaintiff is a court jester/believes he is a god.
Such statements are clearly along the lines of the sort of
hyperbole and rhetoric found to be non-sanctionable in Standing
Committee. (Comments that Judge Keller was a “buffoon” and
a “sub-standard human.”) The statement that Dodds thinks he
is a god is clearly stated in a sarcastic manner implying that
Dodds is power-happy, not that he has actual delusions that he
is Zeus, Krishna, or any other deity.
6. Plaintiff makes decisions based on a crystal ball.
The implied assertion that Plaintiff says a viewer would
draw from the show is that Dodds “only makes decisions based
on a crystal ball.” Complaint, 4 9(c):23-24. This is a specific
and verifiable allegation. Moreover, it is an implied assertion
which a reasonable person could draw from the segment,
especially since McFadden introduces the segment by implying
that Dodds uses something other than wisdom and a superior
grasp of the laws to justify his decisions. Transcript at 2,
McFadden.
This assertion should be actionable unless it falls within
the “disclosed facts” privilege. The actual facts in the story
relating to the crystal ball are as follows: 1) a statement that
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Appendix C
Dodds “used” the crystal ball in a settlement conference, 2)
that he has used the ball to “support” his decisions, and 3) that
the ball sits on Dodds’ table in chambers. Dodds denies,
however, that he ever used the crystal bail to support his
decision. In contrast, Dodds asserted at hearing that the ball
was used purely in jesi. Thus, because Dodds denies the truth
of the revealed facts, the implied assertion is not protected by
the disclosed facts privilege and is actionable.
7. Plaintiff is consistently reading newspapers and
magazines on the bench.
This is a specific allegation reasonably implied from factual
assertions made in the broadcast. The segment includes a direct
statement that complaints about Dodds” judicial temperament
include reading newspapers and magazines on the bench. In
addition, the segment implies that such activities happened on
a regular basis; the segment notes that there has been a “stream”
of complaints regarding Judge Dodds’ behavior and purports
to rely on a former court clerk who, audiences may fairly
assume, would have had occasion to see Judge Dodds’ alleged
literary activities on more than one occasion. see Partington
(Court can consider how audience is likely to perceive context
in which statement is presented).
8. Plaintiff is constantly yelling, screaming, and spitting
in court.
Similar to the above statement, this is a specific allegation
reasonably implied from factual assertions made in the
broadcast. Transcript at 2, McFadden (Complaints about
judicial temperament including yelling, screaming, and
spitting). Therefore, the statement is actionable.
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9. Plaintiff improperly rushes cases through the system.
This statement is reasonably implied from the segment.
However, it os not actionable because it is not objectively
verifiable. One could verify whether a judge tends to move his
cases at a rapid pace. However, the mere allegation that a judge
moves his calendar quickly is not, standing alone, a defamatory
comment. The defamatory implication is that Dodds rushed
cases “improperly.” There is no way to objectively verify
whether a judge has acted improperly in moving cases through
the calendar.
10. Plaintiff is consistently disrespectful towards parties
and witnesses.
This is an assertion which a reasonable person could find
is implied from the broadcast. However, the statement is not
actionable. Whether someone is “respectful” is generally a
subjective matier. An argument could be made that, in applying
the term “disrespectful” to judges, a narrow and verifiable
definition could be drawn from judicial disciplinary
proceedings. However, the segment used the term
“disrespectful” outside the context of a disciplinary process
and there is no implication that the statement relied on any
disciplinary findings of disrespect. Therefore, the Court
concludes that the implied statement is not actionable because
it is not sufficiently concrete or factual.
11. Plaintiff wrongfully and constantly pressures cases to
settle for less than they are worth.
This statement may be fairly implied from the segment.
However, like the statement above that Dodds “improperly”
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Appendix C
rushes cases through the system, the assertion that an application
of settlement pressure was “wrongful” is too vague a statement
to be actionable. “Wrongful” can range from “unsuitable” and
“inappropriate” to “impermissible” or “evil.” The New
American Roget’s College Thesaurus In Dictionary Form,
(1985). These words can imply pressuring a settlement because
of a misunderstanding of the claims and facts, pressuring a
settlement because of a personal dislike for a party, or
pressuring settlement because the judge is due a kickback. Thus,
the statement that a judge “wrongfully” pressures’ settlements
is much like the statement that a judge 1s “dishonest” rejected
in Standing Committee as inactionable.°
12. Dodds is hiding from public view.
The report only states that Judge Dodds refused an
interview, stating that state law prevented him from talking
about the case. It also shows him avoiding reporter McFadden
when she approaches him as he gets into his car. However, it is
5. The Court acknowledges that Standing Committee was not a
defamation action, but a disciplinary proceeding. Plaintiffs argue that
Standing Committee cannot serve as a guide in this case because the
attorneys’ statements are afforded a higher level of First amendment
protection than ordinary defamatory statements. This is patently wrong.
Standing Committee relies on a line of cases clearly holding that
attorneys’ statements about judges receive /ess First amendment
protection than ordinary defamatory speech. see U.S. District Court for
E.D. of Wash. v. Sandlin, 12 F.3d 861, 867 (9th Cir. 1993) (Lower
standard of proof and objective malice standard can be applied in
disciplinary action against lawyer far statements critical of judge). Thus,
if Standing Committee deemed statements inactionable under the First
amendment despite a lower standard of protectiun, it is a fortiori that
similar statements are inactionable in a run-of-the-mill defamation action
where the level of protection is higher.
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not reasonable to conclude from this that he is “hiding” from
public view.
In Weller, supra, the court found that the reporting
technique of portraying the target of the report as “stonewalling”
implied that the target “had something to hide.” In Weller, the
reporter sarcastically stated that the target was “reportedly”
out of town, implying that he was not and was just hiding.
“Hiding” implies that Dodds has no legitimate reason not
to speak on camera. The ABC report does not make such an
implication. Unlike the reporter in Weller, McFadden does not
use a sarcastic tone when she states Dodds’ reason for not
speaking with her and the segment does not imply that Dodds’
stated reason was not true. If anything, the report condemned
state laws and procedures which kept judicial investigations
secret, bolstering the credibility of Dodds’ statement that he
was prohibited by law from speaking about the case. The only
thing reasonably implied from the ABC repozt is that such laws
are wrong because judges are public figures who should be
required to submit to public questioning. Such a statement is
not a statement about Dodds, but about the judicial discipline
system. Therefore, the Court finds that no reasonable jury could
find that the PrimeTime segment implies that Dodds is “hiding”
from public view.®
13. Plaintiff is eluding discipline solely because 1) serious
allegations are not vigorously investigated, 2) secrecy is
used to protect him from serious charges, and 3) the
political climate protects him.
6. The Court also notes that earlier in the report, Dodds is shown
on a videotape denying charges by Cindy Hart. This tends to negate any
argument that the segment implies that Dodds is hiding from public view.
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The statement from which the alleged assertion is drawn
in no way states that the three reasons given are the “only”
reasons problem judges are not disciplined. Transcript at 4,
McFadden. Rather, it states that these three reasons are “often”
“factors.” More importantly, there is no implication in the report
that Dodds is “eluding” discipline. If anything, the report makes
it clear that a Commission was investigating Dodds and that
investigation was still pending at the time of the report. Finally,
the Court finds that, even if such a statement were reasonably
implied, it would not be a statement of or concerning Dodds,
but rather another statement condemning the judicial
disciplimary system. Therefore, the Court finds that the alleged
defamatory statement is not actionable.
VII. Intentional Infliction of Emotional Distress Claims
The above conclusions about the constitutional protections
for ABC’s statements in the defamation action apply equally
to Dodd”s claim for intentional infliction of emotional distress.
Hustler Magazine v. Falwell, 108 S.Ct. 876 (1988)
(Constitutional protections for defamatory speech also extends
to claims for intentional infliction of emotional distress
premised on injury from “offensive publication.”). Thus, Dodds
may pursue his claim for emctional distress only as to the
statements regarding 1) the crystal ball, 2) screaming, yelling,
and spitting, and 3) reading newspapers and magazines on the
bench.
VIII. Conclusion
The Court DENIES ABC’s motion to dismiss under
F.R.C.P. 12(b) (6). Dodds has alleged publication of three
actionable statements. Therefore, his claims may proceed at
this point on the basis of those three statements.
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Appendix C
IT IS SO ORDERED.
DATED: 12-21 95
s/ Stephen V. Wilson
STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE
77a
APPENDIX D — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
FILED JULY 9, 1998
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 96-56300
D.C. No. CV-95-06694-SV W
HONORABLE BRUCE W. DODDS,
Plaintiff-Appellant,
v.
AMERICAN BROADCASTING COMPANY, INC., a
Delaware Corporation,
Defendant-Appellee.
ORDER
Before: REINHARDT and TASHIMA Circuit Judges, and
FITZGERALD, Senior District Judge.*
The panel has voted to deny the petition for rehearing and
to reject the suggestion for rehearing en banc. The full court
has been advised of the suggestion for rehearing en banc, and
* The Honorable James M. Fitzgerald, Senior United States District
Judge for the District of Alaska, sitting by designation.
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Appenaix D
no judge of the court has requested a vote on the suggestion for
rehearing en banc. Fed. R. App. P. 35(b).
The petition for rehearing is denied and the suggestion for
rehearing en banc is rejected.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.