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WASHINGTON v. SMITH

July 26, 1995

MARIAN E. WASHINGTON, Plaintiff,
v.
JOSEPH C. SMITH, et al., Defendants.



The opinion of the court was delivered by: PRATT

 Defendants in this action have filed several motions to dismiss or, in the alternative, for summary judgment. We treat them as motions for summary judgment because we consider material outside the pleadings. Upon consideration of the matter, the Court concludes that plaintiff's claims are not actionable. Accordingly, defendants' motions for summary judgment are granted.

 I. Background

 A well-known sports coach, and later commentator, once said "if I were smart enough to know what I'd do two weeks from now, I'd be smart enough to be a sportswriter." *fn1" The statements at issue here involve an even longer time frame and center around a sportswriter's preseason attempt to predict the likely contenders for the 1992-1993 women's college basketball championship. Plaintiff Marian E. Washington is the long-time coach of the Kansas Jayhawks women's team. The parties agree that plaintiff is a prominent member of the coaching community. *fn2" Plaintiff's claims arise from a brief paragraph in "Dick Vitale's 1993-94 College Basketball Preview" magazine (hereafter "Preview"). Defendant Vitale's Ex. A, p. 1. Defendant Joseph C. Smith, president of defendant Women's Basketball News Service ("WBNS"), agreed to write the Preview's women's basketball section. Smith allegedly made the following negative statement concerning plaintiff's chances in the 1993-1994 season:

 
Talk about talent, the Jayhawks are loaded with Angela Aycock and Charisse Sampson leading the way. But playing to their ability is usually sabotaged by suspect coaching. This season should prove no different.

 Complaint P 61. The remaining defendants *fn3" are accused of "maliciously and recklessly using the defamatory statements ... from Defendants Smith and [WBNS] to formulate defamatory statements that were knowingly false" that were printed in the Preview. Complaint P 62. What appeared on page 137 of the Preview is the following:

 
KANSAS
 
The Jayhawks are loaded with talent, with swingman Angela Aycock and guard Charisse Sampson leading the list. But coach Marian Washington usually finds a way to screw things up. This season will be no different.

 Defendant Vitale's Ex. A, p. 6.

 Plaintiff claims that the allegedly defamatory statements created the misleading inference that she is an incompetent coach. She is suing defendants for defamation, invasion of privacy, and intentional infliction of emotional distress. In addition, plaintiff is suing defendant Smith on a second count of intentional infliction of emotional distress because Smith allegedly maintains a "Hit List" of women basketball coaches in an attempt to "drive women basketball coaches from the coaching profession in order that they may be replaced by male coaches." Complaint PP 95, 97. Defendants counter with various arguments favoring dismissal. The Court need address only the First Amendment issues for purposes of this motion.

 II. Analysis

 A. Standard of Review

 Fed. R. Civ. P. 56(c) permits a court to grant summary judgment where, as is the case here, the evidence in the record indicates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

 Whether a statement is capable of conveying a defamatory meaning is a threshold question for the Court to determine as a matter of law. Tavoulareas v. Piro, 260 U.S. App. D.C. 39, 817 F.2d 762, 779-80 (D.C. Cir. 1987) (en banc), cert. denied, 484 U.S. 870, 98 L. Ed. 2d 151, 108 S. Ct. 200 (1987). It is then for the jury to determine by a preponderance of the evidence whether the communication was in fact so understood by its recipient. Moldea v. New York Times Co., 304 U.S. App. D.C. 406, 15 F.3d 1137, 1142 ("Moldea I"), modified on other grounds, 22 F.3d 310, 306 U.S. App. D.C. 1 (D.C. Cir. 1994) ("Moldea II"), cert. denied, U.S. , 115 S. Ct. 202, 130 L. Ed. 2d 133 (1994). We consider ...


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