The opinion of the court was delivered by: JUNE L. GREEN
This matter is before the Court on defendants' Motion for Summary Judgment. On August 6, 1993, plaintiff filed a complaint charging the defendants with libel and false light invasion of privacy. Plaintiff claims that statements made by defendant Daniel Schorr during the April 11, 1992 broadcast of "Weekend Edition" on National Public Radio were false and defamatory; he asserts that Schorr's statements exposed the plaintiff as a homosexual and constitute libel per se. In their Summary Judgment Motion the defendants claim that Mr. Buendorf is a "public official" and therefore he must show, by clear and convincing evidence, that the defendants acted with "actual malice" in airing the statements which falsely characterized Mr. Buendorf as a homosexual. The Court must determine whether the plaintiff's complaint of libel and invasion of privacy will survive defendants' summary judgment attack based upon the theory that plaintiff is a "public official." See New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964).
Plaintiff Larry Buendorf is the Special-Agent-in-Charge of the Secret Service detail which protects Gerald Ford, the former President of the United States. Complaint, at 1. He currently holds a Top Secret Security Clearance, and he is held out by the United States of America to be a person in which it puts its trust and confidence. Id.; See Plaintiff's Answer to Interrogatory, at No. 22, p. 10-11. He is married, has one daughter and is a heterosexual. See Complaint, at 4. Mr. Buendorf's reputation is important to him; he feels it is critical for him to have a reputation for being heterosexual, moral, law-abiding, sexually normal, disease-free, blackmail-proof, free from public ridicule and worthy of respect. See Plaintiff's Answer to Interrogatory, at No. 28, p. 13.
Defendant National Public Radio, Inc. (NPR) is a not-for-profit corporation, organized under the laws of the District of Columbia, with its principal place of business in Washington, D.C. See Complaint, at 1. "Weekend Edition" is a news magazine program that lasts two hours and is broadcast by NPR. See, Deposition of Daniel Schorr at 82. Daniel Schorr is a Senior News Analyst for NPR and he was acting in that capacity during NPR's "Weekend Edition" program on April 11, 1992. See Answer, at 2. He is a resident of the District of Columbia. Id. Scott Simon is a Senior Host for NPR and he was acting in that capacity during NPR's "Weekend Edition" program on April 11, 1992. Id. Mr. Simon is a resident of the District of Columbia. Id.
b. The Erroneous Statement
On Friday, April 10, 1992, Daniel Schorr and "Weekend Edition" editor Steve Tripoli met to discuss the content of the "Weekend Edition" Saturday program, for April 11, 1992. See, Schorr Deposition at 84, 91. During that meeting, Schorr told Tripoli that "over a long period of time [he had] become increasingly concerned with the way in which the media trample on the privacy of people." Id. at 93. He said this in response to evaluating two news stories of the week that invaded the privacy of two public figures: tennis star Arthur Ashe was disclosed as having the AIDS virus by USA Today, and other news agencies revealed that while presidential candidate Jerry Brown was Governor of California, his home was used for "pot parties" in his absence. Id. Schorr told Tripoli that "those two things come together for me in something that I would like to talk about." Id.
The news stories regarding Arthur Ashe and Jerry Brown reminded Mr. Schorr of a similar story involving an assassination attempt on President Ford in 1975. See, Schorr Deposition at 105-106. He remembered that somebody deflected the assassin's gun and later, was identified in the press as a homosexual. Id. It bothered Mr. Schorr that an individual "becomes identified in the press as a homosexual just because he is a hero. The privacy he had before should not be lost when you do [sic] good things." Id.
Mr. Schorr instructed his research assistant to "get me the name of that guy who saved President Ford's life." See, Schorr Deposition at 114. When Mr. Schorr asked his research assistant to find the information, he did not recall that there were two assassination attempts on President Ford during September 1975. Id. Later that day, the research assistant returned with a copy of a September 13, 1975 issue of Facts on File. Id. at 115-118.
The copy of the September 13, 1975 issue of Facts on File recounted the first assassination attempt on President Ford, and it named plaintiff, Larry Buendorf as the Secret Service agent who deflected the gun and detained Lynnette "Squeaky" Fromme. See, Defendants' Motion for Summary Judgment, Exhibit I; Schorr Deposition, at 117-118; Schorr Deposition, Exhibit 1. It reads in pertinent part: "The agent whose instant reaction possibly saved the President's life, Larry Buendorf, 37, said Ford was about two feet from Fromme when the agent sighted the gun." See, Defendants' Motion for Summary Judgment; Exhibit I; Facts on File, September 13, 1975, p. 661. Mr. Schorr mistakenly believed that Larry Buendorf was the individual who foiled the assassination attempt of President Ford, and later was exposed as a homosexual. See generally, Schorr Deposition at 115-119, 169, 171.
But Mr. Schorr did not remember that there were two assassination attempts on President Ford during September 1975. See id. at 139. The first assassination attempt happened on September 5, 1975, in Sacramento, California. See, Defendants' Motion for Summary Judgment; Exhibit I; Facts on File, September 13, 1975, p. 661. On that occasion, Secret Service Agent Larry Buendorf grabbed the gun from Lynnette "Squeaky" Fromme and detained her. Id. The second assassination attempt occurred on September 22, 1975, in San Francisco, California, when a woman named Sara Jane Moore tried to assassinate President Ford. See Complaint, at 3; no. 12. That assassination attempt was foiled when a bystander named Oliver Sipple pushed the assailant's arm and deflected the path of the bullet away from President Ford. See Id. In the aftermath of the incident, several newspapers exposed Oliver Sipple as a homosexual. See, e.g., Sipple v. Chronicle Publishing Co., 154 Cal.App.3d 1040, 201 Cal. Rptr. 665 (1st Dist 1984); Sipple v. Des Moines Register & Tribune Co., 82 Cal.App.3d 143; 147 Cal.Rptr. 59 (1st Dist 1978).
Mr. Schorr mistakenly thought Larry Buendorf, not Oliver Sipple, was exposed as being a homosexual by print media in 1975. See, Schorr Deposition, at 127. He intended to draw a parallel between the current news events regarding Arthur Ashe and Jerry Brown and the situation where an individual was exposed as a homosexual after having saved the President's life. Id. By using Arthur Ashe, Jerry Brown and Larry Buendorf as examples of where the press over-stepped its bounds, Mr. Schorr planned to discuss questions of "journalistic ethics" on the next day's broadcast of "Weekend Edition Saturday." See, Schorr Deposition, Exhibit 3.
Well, this is an interesting episode. You know it's one of two episodes this week that raised very -- quite painful questions about journalistic ethics. You know, there's a great deal of soul-searching going on in the press about the propriety of disclosing that Arthur Ashe has AIDS. The facts are not in doubt, but still there is an invasion of privacy of somebody who says he is a private person with a private family.
You know it reminds me a little bit of a kind of Catch-22 -- you will not remember the name of Larry Buendorf -- in 1975, became a public figure because he saved the life of President Ford. He deflected the gun of Squeaky Fromme . . .
. . . who was trying to shoot him . . .
. . . and then he was exposed as being a homosexual.