The Court also finds that the letters cannot be understood to accuse the plaintiff of bribery. Viewing the facts in the light most favorable to plaintiff, the Court finds that the letters may be interpreted to suggest that procedures were subverted to protect plaintiff in this case. The Court finds, however, that the letters are not actionable in this regard for three reasons. First, the possibility that procedures were subverted to protect plaintiff is suggested by an accurate presentation of the concededly true facts. This is not a case where the selective presentation of relevant information or the clever juxtaposition of facts leads a reader to a defamatory conclusion. The defamatory inference, if any, arises from the true facts themselves. Second, even if the letters can be interpreted to convey that standard procedures were subverted to protect plaintiff, at worst, the letters can be understood to characterize the plaintiff as the unwitting beneficiary of others' wrongdoing. Nothing in the letters expressly or impliedly indicates that plaintiff requested, caused, or participated in any wrongdoing; in fact, the letters cannot even be reasonably understood to express that he was aware of any wrongdoing.
Finally, considering the factors set forth in Ollman,20 the Court finds that, even if arguendo the letters could be construed to have the meaning alleged, the letters would be entitled to protection as expressions of opinion.
Having considered whether the letters convey the general meanings alleged by plaintiff, the Court also considers briefly the specific statements to which plaintiff's counsel drew the Court's attention at oral argument. Plaintiff alleges that a defamatory meaning arises from the statement that it was "highly unusual" for a sample that was well above the low cut-off point on the EMIT test to come back unconfirmed and from Officer Richardson's statement that he was "shocked" to see plaintiff sitting as a member of an Adverse Action panel. The Court finds that both of these statements clearly are expressions of opinion as to the reliability of the EMIT test; accordingly, these statements are not actionable.
The Court also finds the letters are not actionable because plaintiff, as a matter of law, cannot meet the burden of establishing actual malice by clear and convincing evidence in this case. Where, as here, all the facts in the letters are concededly true, it is a legal impossibility for plaintiff to prove that the statements were published with knowledge that they were false or with reckless disregard of whether they were false or not.
The plaintiff's claims against the media defendants are somewhat simpler to analyze. To the extent that the Post articles and the NBC broadcast republish the allegations in the FOP's letters, the same analysis set forth above applies for purposes of determining whether the Post articles and the NBC broadcast are capable of a defamatory meaning.
With respect to the media defendants, however, plaintiff raises two additional arguments. First, plaintiff contends that the failure of both the Post and NBC to present information on the alleged unreliability of the EMIT tests renders the articles and the broadcast actionable. Second, the plaintiff argues that several of the Post articles are inaccurate and untrue because plaintiff's first urine sample, which tested positive on the EMIT test performed at the Police and Fire Clinic, was not subsequently confirmed by the CompuChem laboratory.
The Court finds neither argument persuasive. Plaintiff's contention that a press report about the results of a laboratory test must be accompanied by reliability data on the testing procedure is unprecedented. The Court is unaware of any authority which would support such a claim.
Plaintiff also contends that several of the Post articles are defamatory because they indicate that the second urine test was negative, but give no indication that the first test was later unconfirmed. Considering the articles in context, the Court cannot agree that this creates a defamatory meaning. Although the articles in question do not indicate that the confirmatory test on plaintiff's first urine sample was negative, the articles also do not state that the first test was confirmed. Rather, the articles make no mention of the first test even being sent for confirmation.
The Court also finds that, considered in light of plaintiff's theory, the Post's failure to mention the results of the confirmatory test on plaintiff's first urine sample could not logically constitute a significant omission. To the extent a reader would believe the results of any testing performed by the CompuChem lab to discount the meaning of a positive EMIT test, the reader, presented with the facts set forth in the Post, would have concluded that the EMIT test performed on plaintiff's first urine sample was unreliable.
On the other hand, if a reader were to conclude that the second sample was negative because it had been tampered with, surely a reader would have reached the same conclusion regarding the first sample, had the fact been reported.
The Court finds, as a matter of law, that the statements that form the basis of plaintiff's claims of defamation against the Post and NBC, viewed in the light most favorable to plaintiff and considered in the context of the undisputed facts, are not capable of being proven to be false and are not capable of a defamatory meaning.
IV. PRIVILEGE THEORIES
All of the defendants also assert defenses of privilege. The Court considers whether defendants, in the alternative, are entitled to summary judgment on the basis of any privilege asserted. Because the privilege theories differ between the FOP and the media defendants, the Court considers the privilege theories asserted by each separately.
The FOP argues that its letters are entitled to an absolute privilege because the letters were the first step in a quasi-judicial or administrative proceeding. Alternatively, FOP argues that it is entitled to "numerous well-established conditional privileges." Memorandum of Points and Authorities in Support of Defendant Fraternal Order of Police's Motion to Dismiss at 24.
"It is well-settled that defamatory statements published incidental to judicial proceedings are absolutely privileged, providing the statements are relevant to the proceeding." Mazanderan v. McGranery, 490 A.2d 180, 181 (App. D.C. 1984). "The application of absolute privilege has been extended to encompass quasi-judicial proceedings conducted by administrative bodies." Id. The scope of this absolute privilege has been expanded even further to cover statements made pursuant to an arbitration proceeding. See Sturdivant v. Seaboard Serv. Sys., 459 A.2d 1058, 1059-60 (App. D.C. 1983).
In Mazanderan, the Court held that the appellee's letter to the Public Vehicles Division of the D.C. Department of Mass Transportation complaining about the allegedly abusive behavior of appellant, a taxi driver, was absolutely privileged. In that case, the appellee's letter "served as a formal complaint against appellant, as a result of which the Hacker's License Appeal Board conducted a hearing." 490 A.2d at 181. Copies of the letter were also sent to the Immigration and Naturalization Service ("INS") (as the letter also raised a question about the driver's immigration status), and to a District of Columbia police officer who had been called to the scene of the incident. The Court held that "publication by copy to the police officer and the INS was also absolutely privileged." Id. The Court finds that applying the principles set forth in Mazanderan to the facts of this case, the FOP's letters to the Mayor and the United States Attorney are absolutely privileged.
Plaintiff argues that the Mazanderan case is inapposite because communications concerning alleged misconduct of a police officer to his superior under District of Columbia law, are entitled to only qualified privilege. Plaintiff refers the Court to Mosrie v. Trussell, 467 A.2d 475 (App. D.C. 1983), in support of this proposition.
The Court notes, on one hand, that the reach of Mazanderan is broad and that District of Columbia law has greatly expanded the communications which are protected by an absolute privilege. On the other hand, however, the Court is hesitant to expand the scope of an absolute privilege beyond the reach of decided case law. The Court finds it unnecessary to resolve the question of absolute privilege because the Court determines that the letters are entitled to at least a qualified privilege under Mosrie and because the Court finds that plaintiff cannot defeat the qualified privilege in this case.
In addition to the privilege recognized in Mosrie, the Court also finds another important common law privilege to be implicated in this case -- a publisher's privilege to act in his own interest. The undisputed facts in this case establish plaintiff clearly was afforded opportunities and courtesies which were not being afforded to other individuals whose urine tested positive, regardless of whether plaintiff was aware that he was being afforded these opportunities. The FOP, therefore, had a legitimate interest in bringing the disparate treatment of police officers to the attention of one with authority to correct the problem.
It is well-established that this common law privilege is lost if the publisher says "more than reasonably appears to be necessary, or if the publication is made to a person who apparently is in no position to give legitimate assistance. . . ." Prosser on Torts § 115 at 826 (footnotes omitted). The Court is satisfied that the letters state only that which reasonably appears to have been necessary. That the letters relate the events surrounding plaintiff's urinalysis testing in detail demonstrates only that FOP showed concern for accuracy. The Court also finds that publication to the United States Attorney for the District of Columbia and the Mayor of the District of Columbia was proper, particularly where the publisher was concerned that corruption within the Police Department extended to the highest ranks.
The defense of qualified privilege is lost if the plaintiff can demonstrate malice. Mosrie v. Trussell, 467 A.2d at 477. "With respect to malice as it relates to qualified privilege in the area of libel, 'all definitions come down to the equivalent of bad faith.'" Ford Motor Credit Co. v. Holland, 367 A.2d 1311, 1314 (App. D.C. 1977) (quoting H.E. Crawford Co. v. Dun & Bradstreet, Inc., 241 F.2d 387, 395 (4th Cir. 1957)). "Put another way, a qualified privilege exists only if the publisher believes, with reasonable grounds, that his statement is true." Mosrie, 467 A.2d at 477. The Court finds that where, as here, the facts contained in the publications are admitted to be true, the plaintiff is unable as a matter of law to defeat the qualified privilege asserted by the defendant.
The plaintiff's arguments to the contrary, viewed in the light most favorable to plaintiff, suggest the existence of ill will on the part of FOP. See Plaintiff's Memorandum of Points and Authorities in Opposition To Defendant Fraternal Order of Police's Motion to Dismiss at 8-11 and 22-23. The law in this jurisdiction, however, is that "the mere existence of ill will on the part of the publisher toward the subject of the publication does not defeat the publisher's privilege if the privilege is otherwise established by the occasion and a proper purpose." Mosrie, 467 A.2d at 477.
The Post and NBC also argue that their reports were privileged. These defendants set forth two theories of privilege: first, a common law privilege to publish reports of official governmental proceedings; and second, the First Amendment privilege of neutral reportage. This Circuit, to date, has neither adopted nor rejected the latter privilege which was articulated in Edwards v. National Audubon Society, Inc., 556 F.2d 113, 120 (2d Cir.), cert. denied, 434 U.S. 1002, 54 L. Ed. 2d 498, 98 S. Ct. 647 (1977). See Ollman v. Evans, 242 U.S. App. D.C. 301, 750 F.2d 970, 989 n.39 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1127, 86 L. Ed. 2d 278, 105 S. Ct. 2662 (1985). Because resolution of the latter issue is not essential in this case, the Court presently considers only whether the media defendants' reports are privileged under the former doctrine.
The common law rule in this jurisdiction is that "the law affords no protection to those who couch their libel in the form of reports or repetition. . . . The repeater cannot defend on the ground of truth simply by proving that the source named did, in fact, utter the statement." Olinger v. American Savings and Loan Ass'n, 133 U.S. App. D.C. 107, 409 F.2d 142, 144 (D.C. Cir. 1969) (per curiam).
Because of the hostility of this rule to the interests fostered by the First Amendment, an important exception has been recognized. In Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 267 U.S. App. D.C. 337, 838 F.2d 1287 (D.C. Cir. 1988), the Court stated:
To ameliorate the chilling effect that the republication rule would have on the reporting of controversial matters of public interest, common law courts, including those of the District of Columbia, recognize a privilege for fair and accurate accounts of governmental proceedings. See Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88-90 (D.C. 1980), cert. denied, 451 U.S. 989, 101 S. Ct. 2327, 68 L. Ed. 2d 848 (1981). Following the Restatement, the District of Columbia common law abandons the concept of "adoption" where a report of an official proceeding is "(a) accurate and complete, or a fair abridgement of what has occurred, and (b) published for the purpose of informing the public as to a matter of public concern." Phillips, 424 A.2d at 88 (quoting Restatement (Second) of Torts § 611 (1977)).
Id. 383 F.2d at 1299.
This jurisdiction has interpreted broadly what constitutes an official proceeding. In Phillips, the Court stated:
The privilege has been held applicable to reports of proceedings before any court, or agency of the court . . ., reports of any other proceedings, judicial in character, which take place before administrative, executive or legislative bodies . . ., and to reports of action by legislative bodies and reports of bodies which are by law authorized to perform public duties . . ., as well as reports of any official proceeding or action taken by any officer or agency of government.