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JEWELL v. NYP HOLDINGS

September 30, 1998

RICHARD JEWELL, Plaintiff, against NYP HOLDINGS, Inc. d/b/a THE NEW YORK POST, Defendant.


The opinion of the court was delivered by: PRESKA

LORETTA A. PRESKA, United States District Judge:

 Plaintiff Richard Jewell ("Jewell") brings this diversity action for libel against defendant NYP Holdings, Inc. d/b/a The New York Post ("NYP"). The NYP moves for summary judgment pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 56 and for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, the motion is granted in part and denied in part.

 TABLE OF CONTENTS

 BACKGROUND

 I. The July 31 Column & Headline

 II. The July 31 Article

 III. The August 1 Article & Headline

 IV. The August 1 Photograph

 V. The August 1 Cartoon

 VI. The August 2 Article

 VII. The August 2 Photograph

 VIII. The NYP's Motion

 DISCUSSION

 I. Overview

 II. Choice of Law

 III. Defamatory Meaning

 A. The July 31 Column & Headline

 B. The July 31 Article

 C. The August 1 Article

 D. The August 1 Photograph

 E. The August 2 Article

 F. The August 2 Photograph

 IV. Substantial Truth

 V. The Republication Defense

 A. The AP Wire Service Reports

 B. The CNN Broadcasts

 C. The AJC Articles

 VI. The Opinion-Fact Dichotomy

 A. The Broader Context in Which the Statements Were Published

 B. The July 31 Column & Headline

 C. The July 31, August 1 and August 2 Articles and the August 1 Cartoon

 
1. The July 31 Article
 
2. The August 1 Article & Headline
 
3. The August 1 Cartoon
 
4. The August 2 Article

 VII. The Incremental Harm Defense

 VIII. Libel Per Se

 A. Indictable Offense

 B. Work Performance

 CONCLUSION

 BACKGROUND

 In the early morning hours on July 27, 1996, a bomb exploded in Centennial Olympic Park in downtown Atlanta, Georgia during the centennial olympic games. One person was killed and one-hundred and ten others were injured. See Complaint P 12. *fn1" Having suffered the collective tragedies of the bombing of the World Trade Center on February 26, 1993 and the Murrah Federal Building in Oklahoma City on April 19, 1995, the nation's sense of domestic security was rapidly eroding. Some seventy-two hours after the explosion, on the afternoon of July 30, 1996, the Atlanta Journal-Constitution ("AJC"), in a special extra edition, published an article identifying Jewell as "the focus of the federal investigation." See id. P 30; Kathy Scruggs & Ron Martz, FBI Suspects "Hero" Guard May Have Planted Bomb, Atlanta Journal-Constitution, July 30, 1996 (extra addition), at 1X ("The First July 30 AJC Article"); annexed as Ex. A to the Affidavit of Andrea Peyser, sworn to on October 3, 1997 ("Peyser Aff."). Publication to a similar effect by the NYP quickly followed. This lawsuit arises from these events.

 Initially, from the evening of July 27 to the morning of July 30, Jewell's actions were described by the national and international print and broadcast media as heroic. See Complaint P 20. Although reluctant to grant interviews with the media, Jewell did so on a limited basis in an effort to accommodate the desires of one of the olympics' corporate sponsors. See id. P 30. This media attention focused on Jewell's role in the events immediately prior to the explosion.

 Approximately twenty minutes before the bomb exploded, Jewell reported the existence of an unattended package in the Centennial Olympic Park to Tom Davis ("Davis"), a member of the Georgia Bureau of Investigation. See id. P 14. Shortly after Davis and Jewell unsuccessfully attempted to ascertain whether anyone owned the package, Davis called his command post, reported a suspicious package and requested the dispatch of a bomb inspection team. See id. P 16. Almost immediately thereafter, an anonymous 911 call was placed to the Atlanta Police Department in which the caller stated: "There is a bomb in Centennial Park. You have thirty minutes." See id. P 13. Prior to the explosion which occurred some twenty minutes after this call, Jewell attempted to evacuate individuals from the area surrounding the location of the suspicious package. See id. PP 18-19. Although the explosion killed one person and injured numerous others, a number of people were moved away from the site with Jewell's assistance. See id. P 19.

 The tone of the media coverage changed dramatically with the breaking story published by the AJC on July 30. As noted above, that article identified Jewell as the "focus of the federal investigation." See The First July 30 AJC Article; Peyser Aff. Ex. A. The article also indicated that Jewell fit the profile of a "lone bomber" and that the profile "generally includes a frustrated white man who is a former police officer, member of the military or police 'wannabe' who seeks to become a hero." Id. A second article was also published in this special edition and reported similar information. See Kent E. Walker, Bomb Suspect Had Sought Limelight, Press Interviews, Atlanta Journal-Constitution, dated July 30, 1996 (extra edition), at 3X; annexed as Ex. B to the Peyser Aff.

 With respect to the NYP, and broadly speaking, the Complaint pleads libel concerning two different aspects of the NYP's reporting. First, libel in connection with Jewell's alleged responsibility for the bombing of Centennial Olympic Park. Second, libel with respect to Jewell's prior work history and job performance. Jewell claims that the NYP libeled him in one column, three articles, two photographs and one cartoon.

 I. The July 31 Column & Headline

 Jewell claims that a July 31 column in the NYP written by Andrea Peyser ("Peyser") libeled him in various respects ("July 31 Column"). A copy of this column, along with the front page of the NYP from this date, is annexed as Ex. E to the Peyser Aff. This column contains, in addition to its headline, the following allegedly libelous statements: *fn2"

 
Who checked 'Rambo' crossing guard's record?
 
Richard Jewell, the Olympic security guard who's reportedly turned into a prime suspect for Saturday's deadly bombing, had a reputation for being the Village Rambo in Habersham County -- a rural area in the North Georgia mountains that actually sees snow in winter.
 
He was a fat, failed former sheriff's deputy who spent most of his working days as a school crossing guard, and yearned to go further. But he lost his job on the county force, after six years[,] when he wrecked a squad car.
 
Jewell got another chance in April 1995, when he was hired as a security guard for tiny Piedmont College in Demorest, a town with just a few hundred residents. It was, to put it mildly, a disaster.
 
The final straw came after Jewell got up in the middle of the night and set up a road block around the campus, hunting for people driving under the influence, said a source speaking on condition of anonymity. "He was let go after that," said the source.
 
"He was a straight arrow who overdid everything," college president Ray Cleere told me yesterday.
 
It was Cleere who telephoned the FBI on Sunday, after watching endless TV broadcasts featuring his former employee. Something about Jewell, taking credit for saving lives in Centennial Park, didn't sit right with the college president.
 
It wasn't that Jewell was brutal. But on a campus of 1,000 students, where the worst imaginable problems might involve open beer containers and loud music, Jewell seemed desperate to stand out as a hero.
 
"But these aren't the streets of New York. We have a small, country town with a small liberal-arts college. He over-investigated everything."
 
As an example, Cleere said disputes that could be resolved with a little adult mediation often turned into federal cases.
 
"Kids who get into scuffles -- that does not require investigation," he said.
 
That the main suspect in a major act of terrorism is a home-grown failure is both a relief -- and a major embarrassment -- to this city's real law-enforcement people.
 
The scary part is, as the minutes ticked by, it was Jewell, this disgraced former deputy and fired campus security guard, who was in charge.

 Complaint PP 41-42. *fn3"

 II. The July 31 Article

 Jewell claims libel with respect to certain statements published in a July 31 article ("July 31 Article"). This article was written by Robert Hardt, Jr. ("Hardt") and Kyle Smith ("Smith"). A copy of this article, along with the front page of the NYP from this date, is annexed as Ex. A to the Affidavit of Kyle Smith, sworn to on October 3, 1997 ("Smith Aff."). Jewell claims that the following statements are allegedly libelous: *fn4"

 
Cleere said Jewell had been given the option of resigning or being fired in May because he was overly enthusiastic about his police duties and liked the limelight.
 
The Journal-Constitution reported Jewell had sought interviews with CNN, NBC and other news outlets.

 Complaint PP 58-59.

 III. The August 1 Article & Headline

 In an article written by Smith and Hardt on August 1 ("August 1 Article"), annexed, along with the front page of the NYP from this date, as Ex. D to the Smith Aff., Jewell claims that the NYP libeled him with respect to the following statements:

 
Investigators say they're closing in on "hero" security guard Richard Jewell as the Olympics bomber after searching his apartment for hours and carting off boxes of possible evidence.
 
"We're pretty confident it's him, but we're most concerned with making sure our case is airtight," said a source close to the probe of the man suspected of planting the bomb that killed two people and injured 110 others.
 
No charges have been filed, but probers say it may just be a matter of time.
 
"Obviously, his profile is right-on," the source said. *fn5"
 
"This is something I want to put in my Olympic scrapbook," said Mike Pugliese.
 
"Everybody here should be glad they finally got this guy. It's good they made progress like this while the Games are still going on. I think it makes people feel safer and better."
 
Cleere, who wouldn't tell reporters why Jewell was forced to leave, called the FBI to tell them that the former employee had been too zealous about his duties and sought attention.

 Complaint P 74. Jewell also claims that the front page of the August 1 edition of the NYP ("August 1 Headline") libeled him by publishing, underneath his photograph, the following headline: "Noose tightens around Olympic bomb suspect." Complaint P 90. *fn6"

 IV. The August 1 Photograph

 The August 1 edition of the NYP also published a photograph of Jewell wearing camouflage hunting clothing and holding a machine gun. Below the picture appeared the following caption: "DRESSING THE PART: Suspect security guard Richard Jewell clearly fits the profile of the bomber, say federal investigators." Above the picture appeared the following headline: "FEDS 'HOME IN' ON BOMB SUSPECT." This headline appeared under the banner which the NYP used during its coverage of this event: "TERROR IN AMERICA." A copy of this photograph and the accompanying text is annexed as Ex. D to the Smith Aff. ("August 1 Photograph"). *fn7" See Complaint PP 102-03.

 V. The August 1 Cartoon

 Jewell also claims that a cartoon published in the August 1 edition of the NYP libeled him ("August 1 Cartoon"). See Complaint PP 115-16. A copy of the cartoon is annexed as Ex. A to the affidavit of Jan F. Constantine, sworn to on October 17, 1997. The cartoon depicts an individual sitting behind a desk with two signs on the wall behind him -- a sign stating "Olympic Security" and a sign stating "Now Hiring." The individual appears to be reviewing an employment application. Seated at the desk in front of the individual is a man with a long white beard, wearing a hat that resembles a turban. This man is carrying a large, round bomb. Standing behind this man is another applicant wearing a black ski mask. Wrapped around his waist is a belt of dynamite and in his hand is a plunger-type detonation device. Standing behind this man is a third individual whose full identity is obscured because approximately two-thirds of his body is not depicted in the cartoon, but who nonetheless appears to be Fidel Castro. This individual has a black beard, is wearing some sort of cap, and is carrying a long cylindrical bomb. *fn8"

 VI. The August 2 Article

 In the August 2 edition of the NYP, Hardt and Smith published another article ("August 2 Article") which contains the following allegedly libelous statements.

 
Investigators vowed last night they were not backing off naming "hero" security guard Richard Jewell the No. 1 suspect in the Olympic bombing. *fn9"
 
The FBI took heat for seeming to lack enough evidence to arrest Jewell three days after leaking word that he was a suspect -- but a law enforcement source said the feds continued to build a case against him.
 
"Any reports about us losing interest are just off right now," the source said.
 
"They're not right. On a scale of 1 to 10 of our interest right now, he's still a 10 and will remain a 10 until we find something else of interest.
 
"If he's not the guy, he's one sick puppy."
 
The source also revealed that Jewell had exercised his right not to incriminate himself when he was called in to FBI offices for questioning Tuesday.
 
"He came in but he didn't talk. He said he didn't want to talk unless his lawyer was present. I don't know why he came in."
 
A law-enforcement officer who knew Jewell has told the FBI the burly security guard once said he possessed an anarchist manual. Such books sometimes contain detailed bomb-making instructions.
  
Another law-enforcement source said Jewell's arrest was not imminent.
  
"It's at least a matter of days," the source said. There's a lot of stuff to go through.

  Complaint P 125. A copy of this article, along with the front page of the NYP from this date, is annexed as Ex. F to the Smith Aff. *fn10"

  VII. The August 2 Photograph

  Jewell also claims that a photograph in the August 2 edition of the NYP libeled him ("August 2 Photograph"). See Complaint PP 140-43. A copy of the photograph is annexed as Ex. F to the Smith Aff. The photograph is of a man, purported to be Jewell, standing behind and leaning against three bars. Jewell claims that the individual in the August 2 Photograph is not himself. See Complaint P 142. Underneath the photograph, the following caption appears: "JEWELL WATCH: Jewell peers from stairway of his Atlanta home yesterday." *fn11"

  VIII. The NYP's Motion

  The NYP moves to dismiss the Complaint for a variety of reasons and argues that the statements, photographs and cartoon do not support a cause of action in libel because the following affirmative defenses warrant dismissal: (1) some of the statements are incapable of a defamatory meaning; (2) some of the statements are substantially true; (3) Peyser and Smith lawfully relied upon information obtained from other sources (the so-called "wire service" defense); (4) many of the statements are non-actionable statements of opinion; (5) those statements which are actionable should nonetheless be dismissed under the incremental harm defense; and (6) Jewell has failed to plead special damages and the statements at issue are not libel per se. *fn12"

  In connection with the wire service defense, the NYP's moving papers included affidavits from Peyser and Smith setting forth factual material not found in the Complaint with respect to the merits of the defense. Accordingly, I granted Jewell the right to take Peyser's and Smith's depositions limited to matters concerning this defense and converted this portion of the motion into one for summary judgment. As to the remainder of the defenses asserted by the NYP, the motion is brought pursuant to Fed. R. Civ. P. 12(b)(6).

  DISCUSSION

  I. Overview

  It is beyond peradventure that the primary "sting" of the publications complained of is that Jewell is the "individual who was guilty or likely guilty of criminal involvement in the Centennial Olympic Park Bombing[,]" Complaint P 88, and if, as it now appears, that charge is untrue, it is defamatory if uttered with the requisite state of mind. See infra note 18. Despite its length, the present motion does not raise this core issue. Rather, it raises a variety of pleading defenses (and the wire service defense) -- sometimes several defenses for each individual statement complained of. Although this motion has resulted in a minor narrowing of the Complaint and the issues that must be resolved, the effort invested in it by the parties and the judicial resources required to resolve it (evidenced by an opinion in excess of one hundred pages) do not contribute in the least to the overall resolution of this action; the core issue of state of mind still awaits.

  II. Choice of Law

  The parties did not address this matter, but briefed this motion under the assumption that New York law applies. That assumption is correct, but a few words as to why that is so are warranted. Jewell is a citizen of the State of Georgia. The events which gave rise to the allegedly libelous articles published by the NYP took place there as well. The NYP is incorporated under the laws of the State of Delaware and has its principal place of business in New York, where the allegedly libelous articles were published and primarily circulated. With these facts in mind, I turn to the substantive choice of law analysis.

  Ordinarily, a federal court sitting in diversity applies the forum state's choice of law rules to decide which state's substantive law applies. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). In Weinstein v. Friedman, 1996 U.S. Dist. LEXIS 3672, 94 Civ. 6803 (LAP), 1996 WL 137313, at *8-*9 (S.D.N.Y. March 26, 1996), aff'd, 112 F.3d 507 (2d Cir. 1996), I discussed in some detail New York's choice of law rules with respect to defamation actions. In brief, a court considers nine contacts in order to determine which law to apply:

  
(1) the state of the plaintiff's domicile; (2) the state of plaintiff's principal activity to which the alleged defamation relates; (3) the state where the plaintiff in fact suffered greatest harm; (4) the state of the publisher's domicile or incorporation; (5) the state where the defendant's main publishing office is located; (6) the state of principal circulation; (7) the place of emanation; (8) the state where the libel was first seen; and (9) the law of the forum.

  Davis v. Costa-Gavras, 580 F. Supp. 1082, 1091 (S.D.N.Y. 1984) (citing Palmisano v. News Syndicate Co.,, 130 F. Supp. 17, 19 & n.2 (S.D.N.Y. 1955)). Here, the first two factors tip in favor of applying Georgia law. As to the third factor, it is difficult to determine, in light of the absence of discussion regarding this issue, where Jewell suffered (assuming that he suffered) the greatest harm, although the likely answer is Georgia inasmuch as Jewell resided there during the events at issue and continues to do so to this date. At the same time, to the extent that he suffered injury, that injury was nationwide given the extensive coverage this matter received. Regardless, the remaining six factors all point towards application of New York law. See, e.g., Levin v. McPhee, 917 F. Supp. 230, 235-36 (S.D.N.Y. 1996) (holding, where plaintiff was a non-domiciliary of New York, that New York law applied because the authors and publishers resided in New York and the first publication was also in New York), aff'd on other grounds, 119 F.3d 189, 195 n.4 (2d Cir. 1997) (finding that plaintiff had failed to appeal the choice-of-law ruling); Weinstein, 1996 U.S. Dist. LEXIS 3672, 1996 WL 137313, at * 9 (same result under similar circumstances). Accordingly, New York law applies.

  III. Defamatory Meaning

  The NYP argues, with respect to a number of different statements noted above, that they are not capable of a defamatory meaning as a matter of law. As is set forth below generally as a matter of law and specifically with respect to each statement complained of, it is the context of the statements that is dispositive here. Many of the statements complained of are not defamatory when viewed in isolation; for example, the reference to Jewell as a "crossing guard." However, when viewed in the context of the publications in question, which suggest that Jewell was responsible for a "major act of terrorism" and a "deadly bombing," as to most of the statements, I cannot say as a matter of law that no reasonable juror could find the statements defamatory. Therefore, for the reasons that follow, the motion to dismiss is granted in part and denied in part.

  It is the duty of the courts, in the first instance, to determine whether "the statement alleged to have caused plaintiff an injury is reasonably susceptible to the defamatory meaning imputed to it." Levin, 119 F.3d 189, 195 (emphasis added) (citing James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 874, 353 N.E.2d 834, 837-38 (1976)). It remains the exclusive duty of the jury to determine whether a plaintiff has in fact been defamed. See id. This separation of roles leads to an important limitation on the nature of the inquiry I am required to make:

  
On a motion to dismiss or for summary judgment, the issue is not whether the court regards the language as libelous, but whether it is reasonably susceptible of such a construction. The court may not . . . interfere with the jury's role by treating as nondefamatory a statement that a reasonable juror may fairly read in context as defamatory.

  Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986) (internal quotation marks and citation omitted); see also Bardey v. Brooke-Hitching, 167 A.D.2d 141, 141, 561 N.Y.S.2d 455, 455-56 (1st Dep't 1990). A statement is "reasonably susceptible" of a defamatory meaning when it "'tend[s] to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number in the community.'" Levin, 119 F.3d at 195 (quoting Tracy v. Newsday, Inc., 5 N.Y.2d 134, 136, 182 N.Y.S.2d 1, 3, 155 N.E.2d 853, 854 (1959)); see also Fairley v. Peekskill Star Corp., 83 A.D.2d 294, 296, 445 N.Y.S.2d 156, 158 (2d Dep't 1981) (statement is capable of a defamatory meaning if it "'tend[s] to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive one of their confidence and friendly intercourse in society'" (quoting Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 102, 186 N.E. 217, 218 (1933))). In making this evaluation, I must read the words naturally, in context and as an average reader would:

  
In analyzing the words in order to ascertain whether a question of fact exists for resolution upon trial, the court will not pick out and isolate particular phrases but will consider the publication as a whole. The publication will be tested by its effect upon the average reader. The language will be given a fair reading and the court will not strain to place a particular interpretation on the published words. The statement complained of will be read against the background of its issuance with respect to the circumstances of its publication. It is the duty of the court, in an action for libel, to understand the publication in the same manner that others would naturally do. The construction which it behooves a court of justice to put on a publication which is alleged to be libellous is to be derived as well from the expressions used as from the whole scope and apparent object of the writer.

  James, 40 N.Y.2d at 419-20, 386 N.Y.S.2d at 874-75, 353 N.E.2d at 838 (internal quotation marks and citation omitted); see also Levin, 119 F.3d at 195; Golub v. Enquirer/Star Group, Inc., 89 N.Y.2d 1074, 1076, 659 N.Y.S.2d 836, 837, 681 N.E.2d 1282, 1283 (1997). *fn13"

  A. The July 31 Column & Headline

  The NYP claims that the following statements, or underscored portions thereof (which are set forth below in the passages from which they appear so that the full context of the statement can be measured), in the July 31 Column are not actionable because they are not reasonably susceptible of a defamatory meaning:

  
Who checked 'Rambo' crossing guard's record?
  
He was a fat, failed former sheriff's deputy who spent most of his working days as a school crossing guard, and yearned to go further. But he lost his job on the county force, after six years, when he wrecked a squad car.
  
The final straw came after Jewell got up in the middle of the night and set up a road block around the campus, hunting for people driving under the influence, said a source speaking on condition of anonymity. "He was let go after that," said the source.
  
"He was a straight arrow who overdid everything," college president Ray Cleere told me yesterday.
  
It wasn't that Jewell was brutal. But on a campus of 1,000 students, where the worst imaginable problems might involve open beer containers and loud music, Jewell seemed desperate to stand out as a hero.
  
"But these aren't the streets of New York. We have a small, country town with a small liberal-arts college. He ...

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