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DAVIS

October 15, 1985

NATHANIEL DAVIS, FREDERICK D. PURDY, and RAY. E. DAVIS, Plaintiffs, against CONSTANTIN COSTA-GAVRAS, UNIVERSAL CITY STUDIOS, INC., and MCA, INC., Defendants.


The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

 Plaintiffs filed this libel action in January 1983 in the Eastern District of Virginia. The suit was subsequently transferred to the Southern District of New York. Davis v. Costa-Gavras, No. 83-0019-A (E.D. Va. March, 25, 1983). Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332 (1982). In this district the matter was originally assigned to Judge Abraham D. Sofaer and upon his resignation from the bench reassigned to me. While I did not attend any of the pre-trial conferences herein, I reviewed the court files and the extensive notes kept by Judge Sofaer and his staff. Plaintiffs are two State Department officials, Nathaniel Davis and Frederick D. Purdy, and a naval officer, Captain Ray E. Davis, who were stationed in Santiago, Chile in September 1973 during the military coup which deposed the Government of Salvador Allende Gossens. While stationed in Chile, Nathaniel Davis served as United States Ambassador, Frederick D. Purdy as United States Consul to the Santiago Consulate, and Captain Ray E. Davis as Commander of the United States Military Group and Chief of the United States Navy Mission to Chile.

 The coup in September 1973 was violent, and resulted in the death or disappearance of many people. Among the victims was a United States citizen named Charles Horman, who disappeared from his Santiago home a few days after the military takeover. A body with fingerprints that matched Horman's was subsequently discovered in Chile. The circumstances surrounding the disappearance and death of Horman attracted the attention of the author Tom Hauser, who researched and wrote what purports to be a nonfiction account of Horman's death, entitled The Execution of Charles Horman: An American Sacrifice ("Execution"). Harcourt Brace Jovanovick, Inc. ("HBJ"), published Hauser's work in hardcover in 1978. The book, republished in paperback by The Hearst Corporation ("Hearst"), was the basis for the motion picture "Missing," directed by Constantin Costa-Gavras ("Costa-Gavras") and released by Universal City Studio's Inc., ("Universal"), a wholly owned subsidiary of MCA, Inc. ("MCA").

 The film, set in Santiago, Chile, dramatizes the search for Horman carried on by Horman's wife, Beth, and father, Ed, in the weeks following Horman's arrest and execution. Through the use of flashbacks, the film also depicts the events immediately preceding Horman's disappearance. Although necessarily a dramatization, the film purports to be factual and historically accurate. The movie was billed in advertisements carried by all leading newspapers as "[b]ased on a true story." See Richards Affidavit, Exh. A. And in the opening scenes of the film, a narrator reads a statement that is flashed on the screen: "This film is based on a true story. The incidents and facts are documented. Some of the names have been changed to protect the innocent and also to protect this film." Combined Continuity Transcript of Motion Picture Missing at 4 (hereinafter cited as "Transcript"). The film, moreover, conveys the impression of historical accuracy by depicting a real-life event -- the coup in Chile which deposed Allende's government -- and by using the names of actual cities in Chile, including Santiago and Vina del Mar, see, e.g., id. at 10, 141, and referring to actual persons, including Charles, Ed, and Beth Horman, Mayor Koch, and Senator Magnuson. See id. at 43.

 Plaintiffs named as defendants the author Hauser, publishers HBJ and Hearst, and filmmakers Costa-Gavras, Universal, and MCA; they claim that defendants, through publication of the books and release of the film, falsely accused them of "order[ing] or approv[ing] the order for the murder of Charles Horman." Complaint PP4, 23, 32, 39, 46. In an opinion and order dated February 7, 1984, motions for summary judgment by the defendants Hauser and HBJ were granted, Davis v. Costa-Gavras, 580 F. Supp. 1082 (S.D.N.Y. 1984); in an opinion and order dated October 16, 1984, defendant Hearst's motion for summary judgment was granted. Davis v. Costa-Gavras, 595 F. Supp. 982 (S.D.N.Y. 1984). The remaining defendants, Costa-Gavras, Universal, and MCA, then moved this court pursuant to Rule 12(c), Fed. R. Civ. P., for judgment on the pleadings on the ground that the motion picture "Missing" is not, as a matter of law, reasonably susceptible of the defamatory meaning ascribed to it by plaintiffs. In the alternative, defendants contend that the complaint should be dismissed as to two of the plaintiffs, Nathaniel Davis and Frederick D. Purdy, on the same ground. It is this latter motion which was sub judice when the case was reassigned to me and is the subject of this decision.

 As originally drafted, plaintiffs' complaint was ambiguous as to whether plaintiffs alleged a single false and defamatory statement -- that plaintiffs ordered or approved the order for the murder of Charles Horman -- or multiple false and defamatory statements, including not only statements of complicity in murder, but also accusations that plaintiffs were callous, incompetent, and faithless to their offices. Judge Sofaer afforded plaintiffs an opportunity to amend their complaint "[i]f plaintiffs intend to prove at trial that the [passages of the film] complained of have other false and defamatory implications." Order, October 9, 1984. At a status conference held on October 29, 1984 at plaintiffs' request, Judge Sofaer explored with plaintiffs' counsel the question whether plaintiffs intended to challenge any additional defamatory statements allegedly made by the film. The plaintiffs agreed to file an amended complaint which would precisely set forth any additional defamatory statements of which they complained. The plaintiffs filed an amended complaint on December 18, 1984, which, despite minor additions and alterations, realledged a single defamatory statement as the sole basis for this lawsuit: that the firm accused plaintiffs of ordering or approving the order for the murder of Charles Horman. Amended Complaint PP16, 23, 32. Plaintiffs subsequently confirmed by letter that "plaintiffs' Amended Complaint indeed does not contain any new allegations of defamation . . . ." Letter from Robert Kasanof, counsel to plaintiffs, to this court (January 10, 1985).

 With the complaint thus clarified and the issue squarely joined, defendants have renewed their motion for judgment on the pleadings on the ground that the movie "Missing" is not reasonably susceptible of the sole defamatory meaning ascribed to it in the amended complaint. For the reasons set forth below, defendants' motion is granted with respect to plaintiffs Nathaniel Davis and Frederick D. Purdy, but denied with respect to Captain Ray E. Davis.

 A statement is defamatory if it tends to diminish the esteem, respect, goodwill, or confidence in which the plaintiff is held, or if it tends to excite adverse, derogatory, or unpleasant feelings or opinions about the plaintiff. See Prosser, Handbook of the Law of Torts § 111, at 739 (1971). Defendants have conceded that, if "Missing" stated or implied that the plaintiffs ordered or approved the order for the murder of Charles Horman, that statement would be defamatory as a matter of law. See Memorandum of Points and Authorities of Defendants Constantin Costa-Gavras, Universal City Studios, Inc., and MCA, Inc., in Support of their Motion for Judgment on the Pleadings at 13 (hereinafter cited as "Defendants' Memorandum"). To be actionable, a defamatory statement must be "of and concerning" the plaintiff. The test is whether a reasonable person, viewing the motion picture, would understand that the character portrayed in the film was, in actual fact, the plaintiff acting as described. See Youssoupoff v. Metro-Goldwyn Mayer Pictures, 50 Times L.R. 581 (Eng. Ct. of App. 1934), reprinted in 99 A.L.R. 864, 866-67; Note, Clear and Convincing Libel: Fiction and the Law of Defamation, 92 Yale L.J. 520, 524 (1983). Defendants have conceded, for purposes of this motion only, that the three American officials depicted in "Missing" -- Consul Putnam, Captain Tower, and the Ambassador -- were intended and understood to represent the plaintiffs in this case. See Defendants' Memorandum at 3, 17; Reply Memorandum of Points and Authorities of Defendants Constantin Costa-Gavras, Universal City Studios, Inc., and MCA, Inc., in Support of their Motion for Judgment on the Pleadings at 5 (hereinafter cited as "Defendants' Reply Memorandum"). Thus, the sole question to be decided on this motion is whether the film is reasonably susceptible of the meaning ascribed to it by plaintiffs.

 The question whether a communication is capable of bearing the particular defamatory meaning ascribed to it by a plaintiff is one of law for the court to decide. See, e.g., El Meson Espanol v. NYM Corporation, 521 F.2d 737, 739 (2d Cir. 1975); Lorentz v. R.K.O. Radio Pictures, 155 F.2d 84, 87 (9th Cir.), cert. denied, 329 U.S. 727, 91 L. Ed. 629, 67 S. Ct. 81 (1946); Bordoni v. New York Times Company, Inc., 400 F. Supp. 1223, 1230 (S.D.N.Y. 1975) (Weinfeld, J.). In resolving this question, the movie must be viewed as a whole, and the challenged passages given their "natural import and their plain and ordinary meaning." Bardoni, 400 F. Supp. at 1230. The communication complained of will be given a "fair" rather than a "broad" interpretation, Drug Research Corporation v. Curtis Publishing Company, 7 N.Y.2d 435, 199 N.Y.S.2d 33, 36, 166 N.E.2d 319 (1960). And the court will neither "strain to find a defamatory interpretation where none exists," Cohn v. NBC, 50 N.Y.2d 885, 430 N.Y.S.2d 265, 408 N.E.2d 672, cert. denied, 449 U.S. 1022, 101 S. Ct. 590, 66 L. Ed. 2d 484 (1980), nor "interfere with the jury's role by treating as nondefamatory a statement that a reasonable juror may fairly read in context as defamatory." Sharon v. Time, Inc., 575 F. Supp. 1162, 1165 (S.D.N.Y. 1983). *fn1" If the court determines that the challenged communication is reasonably susceptible of the defamatory connotation alleged by plaintiffs, it becomes the function of the jury to assess whether that was the sense in which the film was likely to be understood by the average viewer. See Mencher v. Chesley, 297 N.Y. 94, 102, 75 N.E.2d 257, 260 (1947). Similarly, if the communication at issue is reasonably susceptible of more than one meaning, one innocent and the other defamatory, it is for the jury to determine which meaning was actually conveyed. See Rudin v. Dow Jones & Company, 510 F. Supp. 210, 213 (S.D.N.Y. 1981); Rovira v. Boget, 240 N.Y. 314, 316-17, 148 N.E. 534 (1925). The standard is not whether the statements are exclusively susceptible of the meaning alleged by the plaintiffs, but whether such an understanding is a reasonable one. McBride v. Merrell Dow and Pharmaceuticals, Inc., 230 U.S. App. D.C. 403, 717 F.2d 1460, 1465 (D.C. Cir. 1983).

 A libel action is "personal to the plaintiff and cannot be founded on the defamation of another." Prosser, Handbook of the Law of Torts § 111, at 744 (1971); see also Arcand v. Evening Call Publishing Company, 567 F.2d 1163, 1164 (1st Cir. 1977) (an individual member of a group has no civil action for defamation of the group unless he can show "special application of the defamatory statement to himself.") (quoting Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 263 (1950)); Fowler v. Curtis Publishing Company, 78 F. Supp. 303, 304 (D.D.C. 1948) ("It is well established that only a party concerning whom the defamatory matter is published may maintain an action for libel"). Thus, plaintiffs Purdy, Nataniel Davis and Ray Davis can maintain a libel suit based on the claim that "Missing" charges American complicity in the Horman murder only if the film can reasonably be understood to accuse them each as individuals of such complicity. Because the movie "Missing" depicts Captain Tower, Putnam, and the Ambassador differently, employing them in different scenes, and drawing a number of important distinctions among them, each plaintiff's claim to have been defamed by "Missing" must be assessed separately.

 1. Captain Tower

 The movie "Missing" is reasonably susceptible of the meaning that plaintiff Ray E. Davis, as depicted by Captain Ray Tower, ordered or approved the order for the murder of Charles Horman. The movie makes several statements of fact which, when considered together, give rise to a reasonable inference that Tower ordered or approved Horman's murder. The movie first presents sufficient facts to enable a viewer reasonably to conclude not only that plaintiff Ray Davis was in a position to order the Chilean military to execute Charles Horman, but also that such an execution could not have occurred absent such an order or other, similar indication of official American approval. Second, the movie develops a motive for plaintiff Davis to have ordered Horman's death -- the concern that Horman had learned too much about the American military role in the coup, and the desire to contain that knowledge and prevent its dissemination. Third, the film connects Tower personally to the circumstances surrounding Horman's death and disappearance. A reasonable person viewing the movie could infer from these statements and suggestions, and in particular from the film's depiction of Ray Davis' authority and motive to act, that Davis in fact so acted. Although the movie nowhere directly states that Davis ordered or approved the order for Horman's murder, the court need not presume the jury wholly wanting in common sense and simple logic. A jury is free to draw all reasonable inferences, implications, and insinuations from particular passages of the film, considered in context, and from the film considered as a whole. See Sharon, 575 F. Supp. at 1172 n.5. The fact, moreover, that a reasonable viewer might interpret the film to state that the Chilean Military was alone responsible for Horman's death is irrelevant with respect to the threshold issue of whether the film is reasonably susceptible of the defamatory meaning ascribed to it by plaintiffs. See Mencher, 297 N.Y. at 102; 75 N.E.2d at 260.

 The movie develops Captain Tower's power or authority to order the Chilean Military to execute Horman by portraying Tower as someone with close connections to the recently installed Junta. The movie opens with Horman and a friend, Terry Simon, in a car driven by Ray Tower. We later learn that they are being driven back to Santigo from Vina del Mar, where they were trapped overnight when all roads were closed during the coup. Tower's car is stopped at a check-point by a Chilean soldier, who demands identification. When Tower shows his identification, the soldier apologizes and salutes Tower. See Transcript at 4. The fact of Tower's close connections to the Junta is further developed in a meeting at the Ambassador's office. Following a discussion of what is known about Horman's whereabouts, Tower explains to Beth and Ed Horman, "I may have some further . . . news for you after tonite. I'm having dinner with the uh, . . . Junta's chief of staff, Admiral Huidobro." Id. at 57. Beth responds, "God that one again?Haven't you seem him yet?" Id. In a later scene involving Terry, Beth, and Ed Horman, the point is reiterated:

 Beth:. . . Terry, guess who's having dinner together again tonight?

 Terry: Admiral Huidobro?

 Beth: U-huh

 Terry: You've gotta be kidding me. Again.

 Beth: Again. Can you believe that guy?

 Id. at 71.

 The filmmakers again pick up on the theme of Tower's connections to the Chilean Military when Tower asks Beth if she has "a list of Charles' friends . . . so I [can] extend this investigation." Id. at 58. Upon leaving the meeting, Ed Horman remarks to Consul Putnam, "I'll see that [Captain Tower] gets that list in the morning." Beth responds, "Not from me he won't." Id. at 59. Beth later explains to Ed Horman her refusal to give the list of Charles' friends to Tower: "Ed, five minutes after I give that list to Tower, those friends will probably be arrested by the Military." Id. at 90.

 In a flashback to the day that Horman and Terry were trapped in Vina del Mar, the film depicts Horman in a hotel meeting an American named Andrew Babcock. Responding to Horman's question whether he was a tourist, Babcock explains that he was in Vina del Mar because ". . . the Navy sent me down here to do a job, and, uh, . . . she's done." As a military man enters the hotel, Babcock gets up to leave, saying "Oh, there's a mah man from Milgroup." Charles asks "Milgroup? What's Milgroup?" Babcock responds "Milgroup's just . . . U.S. Military Group." Id. at 67-68. Through this scene the filmmakers strongly suggest American military involvement in the coup and again connect Tower, who is the senior officer of Milgroup, to the recently installed Junta.

 In another flashback, the filmmakers depict Horman in a conversation with the Colonel, the man that Babcock referred to earlier as "mah man from Milgroup." In a conversation with the Colonel at a "going away barbecue" before Horman leaves to go back to Santiago, he asks the Colonel, "So you guys friendly with the local military down here?" The Colonel responds "Oh, some. I took Admiral Huidobro to the United States to buy arms last July." Id. at 142. In an exchange which all but confirms Tower's close affiliation with the Junta, to go back [with Tower this afternoon]?" Charles responds, "Mhm." ...


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