attention his parents devoted to the plaintiff and his brother after the murders, and plaintiff's romantic relationship with the defendant's sister, both teenagers at the time.
Accordingly, assuming that plaintiff can point to specific passages in the Book which can meet the requirements of a false light invasion of privacy action, as described above, that issue will remain for trial as against defendant Mewshaw only. Plaintiff may make both a false light claim and a libel claim regarding the same material, as the two actions require different elements of proof. While injury to reputation must be shown on the libel claim, to recover on a false light theory, plaintiff must show publication of private information which places him in a false light, which would be offensive to the ordinary person, and which publication has caused him mental suffering.
Plaintiff's libel claim suffers from the same deficiency as his false light claim: that he has not specified which passages in the Book he alleges to be false and defamatory. He makes the general claim that "A fair reading of the book portrays plaintiff as a co-conspirator or accessory with his brother, Wayne Dresbach in the commission of the crime for which Wayne Dresbach was tried and convicted." Complaint at 3, P 18. More specifically, plaintiff alleges that six misstatements of fact so identify the plaintiff. They are: 1. That plaintiff knew of the intent of Wayne Dresbach to kill their parents prior to the murder. 2. That plaintiff told Wayne Dresbach to "shoot him again". 3. That plaintiff did not prevent the murder of his mother. 4. That plaintiff did not help Wayne Dresbach in jail. 5. That plaintiff received the inheritance from their parents and would not share any of the funds with Wayne Dresbach. 6. That plaintiff left the Washington, D.C. area without advising Wayne Dresbach of a forwarding address. The first statement does not appear in the Book, except insofar as it quotes where plaintiff stated in public records that his brother told him of his intention to kill their parents, but that he did not believe it. The third and fourth statements are not specifically made in the Book, and plaintiff does not point to which false or misleading passages would create this impression. The fifth and sixth statements are confirmed as accurate in plaintiff's deposition testimony. The second statement is attributed in the Book to Wayne Dresbach. The Book does not purport to be fact that plaintiff said "Shoot him again", but rather that Wayne Dresbach said he said it. Wayne Dresbach has signed a statement verifying matters attributed to him in the Book. Therefore the statement in the Book cannot, strictly speaking, be said to be false. The Book does not neglect to include plaintiff's version of the events as contained in the public records (which is all the author had available to him since plaintiff refused to be interviewed by him for the Book), which contradicts this aspect of Wayne's version.
Therefore none of the specific statements claimed to be in the Book stand up under analysis as viable bases for a libel claim as the record presents at this point. In plaintiff's Opposition to the Motion for Summary Judgment, rather than further particularizing the claim, Lee Dresbach relies upon the generalized "inference" created by a "fair reading of the book" that "plaintiff knew of the impending crime, did nothing to prevent it, desired it to take place, profited by it, abandoned his brother, failed to share the inheritance and concealed his whereabouts from his brother." Plaintiff's Opposition at 10. Plaintiff in his Affidavit denies that these inferences are true. The Court concludes from a reading of the Book that it cannot be said as a matter of law that these inferences cannot be drawn from the Book, or that some of them are not false and defamatory. Under the circumstances, though plaintiff has failed to make a proper showing in his pleadings, summary judgment will not be granted at this stage based upon the alleged lack of defamatory material in the Book. However, denial of summary judgment will be predicated upon a proper showing by plaintiff of exactly which passages in the Book are false and defamatory and lead to the inferences claimed.
The determination of whether the negligence or the actual malice standard applies here, that is, whether plaintiff is a public or a private figure, is a question of law to be decided by the judge, and not the jury. Waldbaum v. Fairchild Publications, Inc., 201 U.S. App. D.C. 301, 627 F.2d 1287, 1293 n.12 (D.C. Cir.), cert. denied, 449 U.S. 898, 101 S. Ct. 266, 66 L. Ed. 2d 128 (1980). Assuming that plaintiff will be able to specify defamatory passages in the Book, the public figure determination must be made at this point in order to determine whether summary judgment is appropriate on the issue of fault. As alluded to regarding the false light claim, plaintiff is a private figure, to whom the negligence standard of liability applies.
The Supreme Court has defined "public figure" for the purpose of libel claims in Gertz v. Robert Welch, Inc., supra.
Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such pervasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
Id., 418 U.S. at 345, 94 S. Ct. at 3009. Private individuals are entitled to a greater degree of protection from defamation than public figures, first because they usually have less access to the channels of effective communication to counteract false statements, and more importantly, because public officials and public figures have generally voluntarily exposed themselves to increased risk of injury from defamatory falsehoods by the positions they have assumed. Gertz, supra, 418 U.S. at 344-45, 94 S. Ct. at 3009-10.
The application of these principles in this Circuit has required the Court, in order to find that a plaintiff is a public figure for limited purposes, (it is not claimed that plaintiff here is a public figure for all purposes), to first isolate a public controversy which is a real dispute whose outcome affects the general public or some segment of it in an appreciable way, and which is actually being publicly discussed; and then determine whether the plaintiff has thrust himself into the forefront of that controversy so as to become a factor in its ultimate resolution. Waldbaum v. Fairchild Publications, Inc., supra. Defendants claim that the crime, prosecution and rehabilitation of Wayne Dresbach formed a part of the public controversy over child abuse, violent youth, rehabilitation, and the problems of the criminal justice system in general; and that plaintiff, as the only surviving witness of the killings, an important witness at Wayne's trial, and the innocent victim of a home life that drove his brother to murder their parents, is an involuntary public figure. If in fact this situation meets the first test set forth in Waldbaum, a public controversy, it still cannot be said that plaintiff thrust himself into the forefront of that controversy so as to become a factor in its ultimate resolution. A fourteen year old child at the time, he merely described what he witnessed when required to do so by police and the Court. He never took a position on any issue, and was not the object of controversy himself. At most, he was casually mentioned as Wayne's brother in some of the newspaper articles about the murders. His trial testimony was not determinative or controversial, since Wayne repeatedly confessed the murders himself. Referring to the rationales for the public/private distinction put forth in Gertz, plaintiff did not, by his involvement in the events described in the Book, gain any special access to the channels of communication to enable him to rebut falsehoods about him. And he certainly did not voluntarily expose himself to the risk of defamatory falsehoods. "A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention .... A libel defendant must show more than mere newsworthiness to justify application of the demanding burden of New York Times." Wolston v. Reader's Digest Association, Inc., 443 U.S. 157, 167-68, 99 S. Ct. 2701, 2708, 61 L. Ed. 2d 450 (1979).
Defendants' comparison of this case with Street v. National Broadcasting Co., 645 F.2d 1227 (6th Cir. 1981), is faulty. That case involved a televised play about the rape trial of the "Scottsboro boys", which was a subject of intense national attention when it took place 40 years ago. Plaintiff was a white woman who claimed to have been raped by nine black youths. Controversy raged around the truth of her accusation and the ability of our courts to render even-handed justice. The Court found that the trial was a contributing factor in changing public attitudes about the right of black citizens to equal treatment under law and in changing constitutional principles governing the right to counsel and the exclusion of blacks from the jury. Plaintiff, as the sole prosecutrix, was found to have played a major role in the public controversy. Although as an alleged rape victim, she did not voluntarily thrust herself into the controversy, (unless her story was fabricated, which the Court would not decide at that juncture), she gave press interviews and aggressively promoted her version of the case outside of the courtroom. Plaintiff was a public figure because she "played a major role, had effective access to the media and encouraged public interest in herself." Id., 645 F.2d at 1235. The Court found that she remained a public figure for the purposes of that controversy even forty years later. A pivotal role in the trial and voluntary exposure to the media are totally absent in our case.
As plaintiff was not a public figure even at the time of the trial in 1961, there is no need to determine whether the passage of time changed his status.
As a private individual, plaintiff must prove negligence on the part of defendants in the publication of false defamatory statements. The ability of the plaintiff to withstand summary judgment on the negligence issue has already been discussed in connection with the false light claim. The reasoning and the dispositions are exactly the same for the libel claim. Summary judgment will be granted in favor of defendant Doubleday & Co., Inc., but denied with respect to defendant Mewshaw.
As plaintiff is now required to make a further submission in support of his false light and libel claims, which must be determined by the Court to be adequate to defeat defendant's summary judgment motion before the case can proceed to trial, the currently scheduled trial date of September 21, 1981, will be continued. Defendant Doubleday will be dismissed from the case entirely.