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Law Firm of Daniel P. Foster, P.C. v. Turner Broadcasting System Inc.

decided: April 13, 1988.


Appeal and cross-appeal from a judgment of the United States District Court for the Southern District of New York, John F. Keenan, Judge, granting defendant-appellee-cross-appellant's motion for summary judgment and denying plaintiffs-appellants-cross-appellees' motions for summary judgment and for an extension of time for discovery, and denying both parties' motions for sanctions. Plaintiffs-appellants-cross-appellees contend that they were libeled by three news broadcasts by defendant-appellee-cross-appellant, which in turn claims that the broadcasts were not defamatory and in the alternative were substantially true, and seeks sanctions in its cross-appeal.

Kearse, Miner and Mahoney, Circuit Judges.

Author: Mahoney

MAHONEY, Circuit Judge:

Plaintiffs below, The Law Firm of Daniel P. Foster, P.C. (the "Firm") and The Texas Farm Workers Union, Inc. ("TFWU"), bring this appeal from a judgment entered on a memorandum and order of the United States District Court for the Southern District of New York, John F. Keenan, Judge, denying their motion for summary judgment and granting the motion of defendant Turner Broadcasting System ("TBS") for summary judgment dismissing the complaint. TBS cross-appeals from the denial of Rule 11 sanctions below.

Plaintiffs' complaint alleged that plaintiffs were defamed by three news broadcasts concerning a search conducted by the Federal Bureau of Investigations ("FBI") and the Bureau of Alcohol, Tobacco and Firearms (the "Bureau") at the Firm's offices at 1107 Carroll Street, Brooklyn, New York. The district court found that the reports were not defamatory, and in any event were substantially accurate. In addition, the court denied all parties' motions for sanctions under Fed. R. Civ. P. 11, and denied plaintiffs' motion for further discovery as unlikely to provide any information that would alter the court's conclusions.

We affirm.


This case stems from three news reports by Cable News Network, Inc. ("CNN"), a wholly owned subsidiary of TBS,*fn1 concerning searches of the offices of the Firm at 1107 Carroll Street, Brooklyn, New York conducted by agents of the FBI and the Bureau on February 17, 1984. The searches were conducted under authorization of warrants issued by Judge Henry Bramwell and Magistrate Nina Gershon of the United States District Court for the Eastern and Southern Districts of New York, respectively. The warrants were issued after FBI Special Agent Neil E. Herman provided an affidavit asserting that an ongoing investigation by the FBI indicated that a revolutionary group called the Provisional Party of Communists ("PPC") was headquartered at 1107 Carroll Street in Brooklyn, New York.*fn2 The affidavit stated that the FBI expected to find a cache of weapons, together with documents pertaining to a planned uprising against the United States government, through a search of that building and several other New York City area locations. According to the FBI inventories prepared as a result of the February 17 search, the agents seized from the Firm's office, inter alia, a disassembled handgun, firearm parts, a mace cannister, a hand grenade (unloaded), ammunition, various knives and razors, a machete, a sword, a blackjack, a bayonet, handcuffs, court officer and police shields or badges, weapon manuals and instructions, and records of weapon purchases.

CNN broadcast three television news reports concerning the FBI searches and seizures as part of its regular news coverage. The first of these reports was aired on February 17, 1984, the day the warrants were executed. In it, a CNN reporter, Tom Hendricks, narrated what had transpired at 1107 Carroll Street that day. He reported that no one had been arrested and no explosives were found in connection with the searches and seizures, and that "there were strong denials of any wrongdoing." He stated that the building's inhabitants "describe themselves as leftist organizers, worker rights groups and mutual benefit associations, and at least one union, the Texas Farm Workers. . . . gathered in New York over the weekend for a series of meetings on how to improve the plight of workers," who were "not terrorists and planned no violence." In addition, a statement by FBI Associate Director Kenneth Walton indicated that planned "violent acts" by the PPC, the group allegedly housed there, prompted the FBI's search. Finally, an unidentified attorney "hired to represent the activists" described the search as "outrageous" and "unconscionable."

The second CNN report concerning the incident occurred the next day, February 18, 1984. That report included another segment of the Walton interview taped the day before, and additional statements by the attorney, who stated that he had represented the occupants of the building "off and on since 1972," describing them as "civil rights workers." Hendricks commented that there had been no violence during the searches, although resistance had been expected, and that "truckloads of contraband were seized including an unspecified number of weapons, according to the FBI." CNN reiterated that no explosives were found and no arrests were made. Hendricks concluded this report by stating that the "activists" he had talked to at the various search locations denied being part of a dangerous plot and asserted they were not even Communist Party members, but that the FBI still maintained that the evidence it seized supported its claim that a "dangerous organization has been stopped."

The third and last news report of the incident was broadcast on February 20, 1984, and consisted primarily of interviews with several people at 1107 Carroll Street who were sharply critical of the FBI raid, said there was no association between the tenants of that building and the PPC, and described the tenants as peaceful. The broadcast began, however, with the following:

Reporter: In the Friday raid while no explosives were found and no arrests made, the FBI claimed it had foiled:

Kenneth Walton: An effort to topple the Government of the United States, if you will. The national headquarters was 1107 Carroll Street in Brooklyn.

Reporter: It is the address of a lawyer's office, where now no one admits to ever even hearing of the organization called the ...

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