Opinion
Civil Action No. 1:04-CV-1029-CAP.
February 28, 2005
ORDER
This matter is now before the court on the defendants' motion to dismiss [Doc. No. 4], motion to file excess pages [Doc. No. 5], motion for hearing [hoc. No. 10], and the plaintiffs' motion for oral argument [Doc. No. 8]. For the reasons set forth below, the defendants' motion to file excess pages [Doc. No. 5] and motion to dismiss [Doc. No. 4] are GRANTED, while the defendants' motion for hearing [Doc. No. 10] and the plaintiffs' motion for oral argument [Doc. No. 8] are DENIED.
Factual Background
Because this matter is before the court on a motion to dismiss, the court accepts as true the facts alleged in the complaint and construes them in the light most favorable to the plaintiff.See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992).
On March 14, 2003, the premium television network Showtime exhibited an episode of the "Penn Teller: Bullshit!" television series ("Episode") The Episode, entitled "Creationism", concerned an ongoing public debate before the Cobb County, Georgia, School Board regarding creationism versus evolution and whether either or both should be taught in Cobb County's public schools. The debate before the Cobb County School Board received widespread local and national media attention.
As the material for the Episode was being gathered, the plaintiffs were contacted and offered the opportunity to give an interview to explain their positions in favor of the teaching of creationism. One of the plaintiffs, Russ Brock, had already appeared before the School Board at its public hearing to advocate for the teaching of creationism.
According to the plaintiffs, when they met with the defendants to discuss the television series and consider the interviews, the defendants represented that the series had not yet been named and that it was a program about topics that Americans are passionate about. After agreeing to sit for the interviews, the defendants asked the plaintiffs to sign releases. While reviewing the releases, the plaintiffs noticed language indicating that the taped interviews might be used for satirical or humorous purposes. The plaintiffs requested an explanation of this language from the defendants, and the defendants responded by saying that the releases were a standard form that is used for all types of television programs. The defendants then told the plaintiffs "not to worry" because the television program was "nod that kind of show." Pls.' Compl. at ¶ 23 [Doc. No. 1]. The defendants assured the plaintiffs that the television series was not a satirical show and that the interviews would not be used for satirical or humorous purposes. Based on these representations, the plaintiffs agreed to sit for the taped interviews. Plaintiff Russ frock was paid $300 for the interview, but none of the other plaintiffs were paid.
As it turned out, the show was already entitled "Bullshit'", and the content of the Episode was a combination of interviews and film clips from the media's coverage of the public hearings before the Cobb County School Board, together with acerbic commentary by Penn Teller. Penn Teller's commentary was highly critical of the plaintiffs' views on the teaching of creationism in public schools. Penn Teller, in an often harsh and sarcastic manner, repeatedly voiced their opinion that the teaching of creationism in public schools would violate the United States Constitution's mandate of the separation of church and state. The plaintiffs complain that, instead of being a program about things that Americans are passionate about, as represented by the defendants, "the program was an aggressive, irreverent expose of the beliefs of Christianity and Creationism, and a personal attack on plaintiffs for their desire to have both Creationism and Evolution taught as alternate theories in the Public School System of Cobb County." Pls.' Compl. at ¶ 33 [Doc. No. 1].
A year after the Episode initially aired, the plaintiffs brought this action, complaining that the broadcast placed the plaintiffs in an unfavorable light and that the plaintiffs were misled as to the content of the Episode at the time that they agreed to be interviewed: The plaintiffs' nine-count complaint asserts a variety of claims including fraud in the inducement, invasion of privacy, intentional infliction of emotional distress, misappropriation of the plaintiffs' likenesses, breach of contract, promissory estoppel, libel, and unjust enrichment. The plaintiffs particularly bemoan Penn Teller's comments ridiculing plaintiff Myrna Feldman's wig and the fact that it was on in a crooked manner, as well as Penn Teller's comments claiming, according to the plaintiffs, that the plaintiffs were "un-American" and "mentally unsound, infirm and/or unwise." Pls.' Compl. at ¶ 34 [Doc. No. 1]. The plaintiffs further claim that, as a result of the airing of the Episode, the plaintiffs "have each been embarrassed and suffered public ridicule and humiliation. Additionally, each Plaintiff has endured emotional distress and damage to their personal relationships as a result of this broadcast." Pls.' Compl. at ¶ 36 [Doc. No. 1].
Legal Analysis
I. The Defendants' Motion to File Excess Pages and Motion to Dismiss
The defendants have filed a motion to dismiss the plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12 (b) (6). In connection with this motion, the defendants filed a motion to file excess pages, which is granted. Generally, a complaint against a party must not be dismissed under Federal Rule of Civil Procedure 12(b)(6) unless the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. U.S. Fire Ins. Co. v. Caulkins Indiantown Citrus Co., 931 F.2d 744, 747 (11th Cir. 1991). Therefore, in assessing the merits of a 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). Also, this court applies the traditional pleading requirement of Federal Rule of Civil Procedure 6(a) to the instant motion to dismiss, requiring only "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103 (1957).
1. The Gravamen of the Plaintiffs' Cause of Act ion is Defamation
Though they couch their claims in terms of, among other things, fraud in the inducement, breach of contract, and promissory estoppel, the gravamen of the plaintiffs' cause of action is defamation. See Raskin v. Swann, 216 Ga. App. 478, 479, 454 S.E.2d 809, 811 (1995). The Supreme Court has divided claims related to speech against the media into two categories based on the damages sought:
If a party seeks damages for harm to reputation or state of mind, the suit can only proceed if that party meets the constitutional requirements of a defamation claim. If a party seeks damages for non-reputational harms, which include lost jobs and diminished employment prospects, then the First Amendment does not bar suit as long as the claims are brought under generally applicable' laws.Steele v. Isikoff, 130 F.Supp.2d 23, 29 (D.D.C. 2000) (citingHustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876 (1988) and Cohen v. Cowles Media Co., 501 U.S. 663, 111 S.Ct. 2513 (1991)).
In paragraph 36 of their complaint, the plaintiffs state, "As a result of the broadcast of episode 8 of the "Bullshit" series, Plaintiffs have each been embarrassed and suffered public ridicule and humiliation. Additionally, each Plaintiff has endured emotional distress and damage to their personal relationships as a result of the broadcast." This paragraph makes it clear that the plaintiffs are seeking damages due to the harm that the broadcast of the episode caused to their respective reputations and states of mind. In each of their claims, the plaintiffs incorporate paragraph 36 and then merely state, "Plaintiffs have each been damaged." Pls.' Compl. at ¶¶ 45, 49, 53, 56, 59, and 63 [Doc. No. 1]. Finally, in paragraph 70, the plaintiffs state that they "have been injured as a proximate result of Defendants' actions and are entitled to recover money damages from them."
Other than these paragraphs, the plaintiffs make no other mention of any damages they have suffered. At no point in their complaint do the plaintiffs allege that they suffered any non-reputational economic damages, such as those associated with lost wages or lost employment opportunities. Clearly, then, the plaintiffs are complaining of what amounts to damages to reputation or state of mind, and, therefore, they must meet the constitutional requirements of a defamation claim in order to survive the defendants' motion to dismiss.
2. The Plaintiffs' Claims Do Not Meet the Constitutional Requirements of a Defamation Claim
In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726 (1964), the Supreme Court held that the First Amendment prohibits a public official from recovering damages for defamatory statements regarding matters of public concern unless he shows that the statements were false and that they were made with actual malice, that is, with knowledge that the statements were false or with reckless disregard of whether they were false or not. At the outset of its analysis, the Court emphasized the importance of the freedom of speech:
Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.Id. at 270, 84 S.Ct. at 721.
Three years later, the Court extended the New York Times rule to plaintiffs who are not public officials but are nevertheless public figures. Curbs Publishing Co. v. Butts, 388 U.S. 130, 163-74, 87 S.Ct. 1975, 1995-2001 (1967). Chief Justice Warren, in his concurring opinion, reasoned that public figures, like public officials, often contribute to the resolution of important public issues:
Increasingly in this country, the distinctions between governmental and private sectors are blurred. This blending of positions and power has also occurred in the case of individuals so that many individuals who do not hold office at the moment are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.Id. at 163-64, 87 S.Ct. at 1996. Under Curtis Publishing Co., public figures are barred from obtaining relief for defamation unless they can demonstrate that the statements at issue are false and were made with actual malice.
In addition, when the speech at issue relates to a matter of public concern, even a private figure is required to prove both falsity and fault (as determined by state law) before recovering damages for defamation. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106 S.Ct. 1558, 1563 (1986).
The court notes that the defendants argue that the plaintiffs are public figures because they injected themselves into the public controversy concerning the place of creationism and evolution in public school curriculum. Without ruling on this issue, the court will assume for the purposes of this order that the plaintiffs are private-figure citizens and will apply the less forbidding standard of Hepps regarding what the plaintiffs must demonstrate in order to make a defamation-type claim for damages to reputation and state of mind.
As an initial matter, the court finds that the speech at issue is clearly of public concern. The debate regarding the teaching of creationism alongside evolution in public schools implicates the Establishment Clause of the First Amendment's requirement of the separation of church and state, a fact demonstrated by the recent litigation of the Cobb County School Board's placement of stickers commenting on evolution in certain science textbooks.See Selman v. Cobb County Sch. Dist., Civ. No. 1-02-CV-2325-CC, 2005 WL 83829 (N.D. Ga. January 13, 2005). This debate concerns the boundaries of the federal, state, and local governments' power and the rights of all citizens of the United States, and, therefore, it is an issue that affects each citizen of this country. It is hard for this court to imagine a subject matter that would be of more public concern than the one at issue in this case. Thus, the court finds that the speech at issue, i.e., the opinions expressed regarding the teaching of creationism alongside evolution in public schools, to be of public concern.
Under Hepps, when the speech at issue is of public concern, it is a "constitutional requirement that the [private citizen plaintiff bear the burden of showing falsity, as well as fault, before recovering damages." 475 U.5. at 776, 106 S.Ct. at 1563. In that case, the Court noted that the determination of whether a defendant was at fault in publishing the statements at issue is closely connected to demonstrating that the statements were false: "As a practical matter, then, evidence offered by plaintiffs on the publisher's fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted." Id. at 778, 106 S.Ct. at 1565. Thus, the crucial burden on a plaintiff in making a defamation or defamation-type claim is to show the falsity of the statements made.
In this case, the plaintiffs have failed to state a claim upon which relief can be granted because they have failed to allege in their complaint that any of the statements pertaining to the plaintiffs made during the episode were false. Even liberally construing their complaint in the best possible light far purposes of the defendants' motion to dismiss, the court can find no set of facts that the plaintiffs could prove that would demonstrate that the statements made during the Episode were false.
The episode consists of essentially two kinds of statements. The first type are those made by the plaintiffs themselves during the Episode. The second type are those statements made by the people, including Mr. Jillette, criticizing the plaintiffs' views. As to the first type, the statements made by the plaintiffs during the Episode cannot form the basis of a defamation claim because the plaintiffs actually made those statements. The Episode shows a portion of Mr. Brock's speech made during the Cobb County School Board's public hearings on whether it should permit the teaching of creationism. There is no dispute that Mr. Brock made these statements during the hearing. The Episode also shows portions of interviews with the plaintiffs in which the plaintiffs stated their support for the teaching of creationism alongside the teaching of biology in public schools. There is no dispute that the plaintiffs made these statements during their interviews. Furthermore, the plaintiffs do not allege that the depictions of their statements were in any way inaccurate or false. Thus, the plaintiffs' claims cannot be premised upon the statements that they made since these statements reflect their own opinion.
As to the second type, the nonverbal gestures of Mr. Teller and the statements by Mr. Jillette and the others featured on the show who oppose the teaching of creationism are opinions, which constitute the core of the type of speech that is to be protected under the First Amendment. "The dissemination of the individual's opinions on matters of public interest is for us, in the historic words of the Declaration of Independence, an 'unalienable right' that 'governments are instituted among men to secure."' Curtis Publishing Co., 388 U.S. at 149, 87 S.Ct. at 1998. "One of the prerogatives of American citizenship is the right to criticize public men and measures — and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation." Baumgartner v. United States, 322 U.S. 665, 673-74, 64 S.Ct. 1240, 1245 (1944). Furthermore, opinions cannot be proven false for purposes of defamation: "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007 (1974). Accordingly, in order for an alleged defamatory statement to be actionable, it must express or imply a statement of fact that is capable of being proven false.Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 2707 (1990).
In this case, Mr. Jillette and the others on the show simply expressed their opinions regarding the views of the plaintiffs, though the court recognizes that these opinions were sometimes harsh. But just as the plaintiffs are entitled to express their beliefs regarding Christianity and their opinion that creationism should be taught in public schools, Mr. Jillette, Mr. Teller, and the others on the Episode are entitled to express their beliefs that the plaintiffs' views are wrong. The emphatic and often mocking manner in which Mr. Jillette and the others criticized the plaintiffs' views did not transform these protected opinions into actionable defamation.
The plaintiffs' primary complaint is not that any of the statements made in the Episode were false, but that the show advocated a viewpoint different from theirs and, in doing so, criticized their position in an "aggressive" and "irreverent" manner. Pls.' Compl. at ¶ 33 [Doc. No. 1]. But the Supreme Court has rejected the notion that harsh criticism of a viewpoint can constitute actionable defamation. As the court pointed out inMilkovich, "the statement, 'in my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin,' would not be actionable." 497 U.S. at 20, 110 S.C. at 27. The hypothetical Jones, like the plaintiffs, may feel that this statement was a personal attack on him, but statements of this kind are simply not actionable. Because the plaintiffs have failed to allege that any of the statements contained in the Episode are false and because the plaintiffs cannot prove the falsity of the complained of statements given that those statements are opinions, the plaintiffs' defamation-type claims fail as a matter of law, and their complaint fails to state a claim for which relief can be granted. For all of these reasons, the court grants the defendants' motion to dismiss.
II. The Defendants' Motion for Hearing and the Plaintiffs' Motion for Oral Argument
The court finds that oral argument on the motion to dismiss is unnecessary, and, therefore, the defendants' motion for hearing and the plaintiffs' motion for oral argument are denied.
Conclusion
For the foregoing reasons, the court hereby
(1) GRANTS the defendants' motion to file additional pages [Doc. No. 5];
(2) GRANTS the defendants' motion to dismiss [Doc. No. 4];
(3) DENIES the defendants' motion for hearing on the motion to dismiss [Doc. No. 10]; and
(4) DENIES the plaintiffs' motion for oral argument on the motion to dismiss [Doc. No. 8].
Since this order resolves all issues in this case, the clerk is directed to close this file.
SO ORDERED.