Accordingly, the Court concludes that NBC is not protected by the privilege.
NBC presents a closer question when it argues that its reference to CTU's bankruptcy should be protected by the Section 74 of the Civil Rights Law. The Broadcast only makes a single reference to CTU's bankruptcy: "The company has been in bankruptcy since 1991 -- the Feeney's say because they lose money helping American parents." (Tr. at 10.) Plaintiffs argue, first, that if the information on the bankruptcy was the product of DATELINE'S research outside of court records, it is not protected under Section 74. Second, they argue that the statement in the Broadcast is not fair and true. As of March 23, 1993, the date of the Broadcast, CTU was no longer in bankruptcy; CTU's reorganization plan was confirmed on August 20, 1991, and the bankruptcy proceeding was terminated on April 24, 1992. NBC argues that plaintiffs are attempting to rely on a technicality; for all intents and purposes, the reference in the Broadcast represents a fair and true report of the bankruptcy proceeding. It is true that NBC's error in reporting ongoing bankruptcy proceedings does not necessarily make the privilege unavailable. On the other hand, the Broadcast could be perceived to raise questions of possible financial impropriety that may in some minds be confirmed by the inaccurate report of extended bankruptcy proceedings. Accordingly, the Court finds that the bankruptcy allegation survives a motion to dismiss.
NBC's next line of argument is that the Graysons' statements are "protected opinions supported by clearly disclosed and undisputed facts."
(Defendant's Mem. at 29-30.) Under New York and Supreme Court case law, there is constitutional immunity for broadcasting "statements of opinion relating to matters of public concern that do not contain a provably false factual connotation." Immuno AG. v. J. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270, 1273, 566 N.Y.S.2d 906 (1991) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695, 2706, 111 L. Ed. 2d 1 (1990) (other citations omitted), cert. denied, 500 U.S. 954 (1991)). Thus, statements in the Broadcast that cannot "reasonably [be] interpreted as stating actual facts" about plaintiffs are protected. Milkovich, 110 S. Ct. at 2706 (quoting Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 879, 99 L. Ed. 2d 41 (1988)). The "key inquiry," therefore, is whether the Graysons' statements "would reasonably appear to state or imply assertions of objective fact." Immuno AG, 567 N.E.2d at 1273. In undergoing this inquiry, "the courts are obliged to consider the communication as a whole, as well as its immediate and broader social contexts, to determine whether the reasonable listener or reader [or viewer] is likely to understand the remark as an assertion of provable fact." Gross v. New York Times Co., 82 N.Y.2d 146, 623 N.E.2d 1163, 1169, 603 N.Y.S.2d 813 (1993).
Many of the Graysons' comments are indeed non-actionable opinion. For instance, Ginger Graysons' statement that "[the rescue mission] screwed up my husband's life, screwed up my life, screwed up our whole--the whole family's life" is not, as plaintiffs would have it, a "statement of verifiable fact." (Tr. at 13; Plaintiffs' Mem. at 34.) Instead, the reasonable viewer would construe the comment as simple opinion. Any statements by the Graysons implying a belief in plaintiffs' incompetence would be similarly interpreted. See Rinaldi, 366 N.E.2d at 1306 (statement that judge is incompetent is protected opinion where author sets forth basis for that opinion). However, there is a decidedly different tenor to the assertions that imply financial impropriety: "The Graysons say they now regret ever getting involved with the commandos, and they are beginning to wonder if the Feeneys told them the truth; especially about what happened to all the money the Graysons gave them." (Tr. at 13.) While none of these statements appears to provide plaintiffs with a smoking gun to support a defamation claim, they may, by their tone and pregnant implications, be perceived to paint a negative picture of plaintiffs' financial integrity. The Court finds that some of these statements, interpreted in the light most favorable to plaintiffs, could be taken to imply the existence of nondisclosed facts. See Davis, 754 F.2d at 86. The New York Court of Appeals has held that a complaint, "which encompasses actionable assertions of fact as well as nonactionable opinions and conclusions, is sufficient to withstand a motion to dismiss [under the New York CPLR]." Gross, 623 N.E.2d at 1165. By the same token, this complaint survives a motion to dismiss under Rule 12(b)(6).
Summary Judgment Motion
Styled as a motion for summary judgment, NBC seeks a determination by the Court that the statement concerning the circumstances of Donald Feeney's departure from the Army is substantially true. The Broadcast only makes one reference to Feeney's departure from the Army:
Ross: Feeney was forced to leave the military in 1986 for less-than-satisfactory service -- what Feeney calls some "minor financial improprieties."