The opinion of the court was delivered by: Reggie B. Walton United States District Judge
On March 9, 2005, the plaintiffs filed this action seeking to prevent the defendants from further using their images in an advertising campaign which challenged various public policy positions taken by the American Association of Retired Persons ("AARP") regarding Social Security reform and the military. Complaint ("Compl.") ¶ 1. Currently before the Court are the defendants' motions to dismiss, and the plaintiffs' opposition thereto.*fn1 For the reasons set forth below, the Court grants the defendants' motions, dissolves the stipulated order for a preliminary injunction, and dismisses this case.
I. Factual and Procedural Background
On March 3, 2004, the plaintiffs were among 300 citizens of Multnomah County, Oregon who were married pursuant to a newly established right to same-sex marriage in that county. Compl. ¶ 9. While at City Hall awaiting their opportunity to marry, the plaintiffs, Steve Hansen and Richard Raymen, kissed. A photographer from a Portland, Oregon newspaper, the Tribune, captured the kiss in a photograph he took. Id. The photograph was subsequently published in both the Tribune newspaper on March 4, 2004, and later on the Tribune's website. Id. At some later point in time, the Tribune's website photograph was used without permission*fn2 as part of an advertisement created by defendant Mark Montini. Id. ¶ 10. The advertising campaign was created for a nonprofit organization, United Senior Association, Inc., which does business under the name USA Next. Id. ¶¶ 7, 10. The advertisement, which features the photograph of the plaintiffs kissing, was part of a campaign by USA Next challenging various public policy positions purportedly taken by the AARP. Id. ¶ 14. Specifically, the advertisement contains two pictures. The first is a picture of an American soldier, who presumably is in Iraq, with a red "X" superimposed over it, and the second is the photograph of the plaintiffs with a green checkmark superimposed over it. The caption under the advertisement reads: "The Real AARP Agenda," id. ¶ 13, suggesting that the AARP opposes the United States military efforts abroad and supports the gay lifestyle. This advertisement ran on the website of The American Spectator magazine from February 15, 2005, to February 21, 2005. Id. ¶ 10.
According to the plaintiffs, the purpose of the advertising campaign was "to incite viewer passions against the AARP because of its alleged support of equal marriage rights for same-sex couples and its alleged lack of support of American troops." Id. ¶ 14. Moreover, the plaintiffs opine that the "advertisement also conveys the message that the plaintiffs . . . are against American troops . . . and are unpatriotic." Id. ¶ 15. The plaintiffs contend that the advertisement attracted media attention, which then caused an even wider distribution of the advertisement throughout the media. Id. ¶ 16. The plaintiffs assert that because of the advertisement, they "have suffered embarrassment, extreme emotional distress, and the invasion of their privacy."
Id. ¶ 20. In addition, the plaintiffs represent that as a result of the false and misleading inference "communicated by the [a]dvertisement about [the] plaintiffs, their reputations as patriotic American citizens has been severely damaged." Id.
Seeking to prevent further use of their images in the advertisement, on March 9, 2005, the plaintiffs filed this action alleging four common-law causes of action-libel; invasion of privacy by portraying their images in a false light; invasion of privacy by appropriating their likeness; and intentional infliction of emotional distress. Id. ¶¶ 27-62. The complaint also seeks permanent injunctive relief and monetary damages. Id. at 13-14. On that same day, the plaintiffs filed a motion for a temporary restraining order and a motion for a preliminary injunction. The Court immediately heard arguments on the plaintiffs' motion for a temporary restraining order on March 9 and March 10, 2005. In light of the expedited hearing, neither defendant had the opportunity to submit substantive legal memoranda in opposition to the plaintiffs' motion and defendant Montini was not present at the argument. At the conclusion of the hearing on March 10, 2005, this Court orally granted the plaintiffs' motion from the bench and later issued a memorandum opinion consistent with that ruling on March 16, 2005. Following the Court's ruling, the parties entered into a stipulated preliminary injunction, alleviating the need for this Court to rule on the plaintiffs' motion for a preliminary injunction. The defendants now seek dismissal of this action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.*fn3
On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the alleged facts. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (citing Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). "[T]he complaint need only set forth 'a short and plain statement of the claim,' Fed. R. Civ. P. 8(a)(2), giving the defendant fair notice of the claim and the grounds upon which it rests." Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing Conley, 355 U.S. at 47). "Such simplified 'notice pleading' is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48. While many well-plead complaints are conclusory, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. Moreover, in deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference into the complaint, and matters about which the Court may take judicial notice. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997). A court may dismiss a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46 (footnote omitted). III. Legal Analysis
The defendants challenge each claim in the plaintiffs' complaint. The Court will address each challenge separately.*fn4
A. The Plaintiffs' Libel Claim
The plaintiffs contend that the advertisement in which their image appears projects the view that the AARP supports a gay lifestyle and does not support the United States military efforts abroad. Compl. ¶ 14. And by using their images in the advertisement, the plaintiffs opine that a reasonable person would attribute the views purportedly held by the AARP about the military to the plaintiffs. Id. ¶ 15. Thus, the plaintiffs assert that the defendants have portrayed them as unpatriotic Americans who do not support the United States military. Id. ¶ 28. Moreover, the plaintiffs assert that due to the manner in which they have been portrayed in the advertisement, they have been subjected to "hatred, contempt and ridicule, and [that the defendant's conduct has] diminished the esteem, respect, goodwill and confidence in which the plaintiffs are held." Id. ¶ 30. Accordingly, the plaintiffs contend that they have been defamed and thus have established a claim for libel. Pls.' Opp'n at 5. The defendants' argue, however, that the plaintiffs have failed to state a claim for libel. Specifically, they contend that the advertisement is not capable of a defamatory meaning, either directly or by inference, and that no reasonable person could interpret the advertisement as suggesting that the plaintiffs are unpatriotic Americans. USA Next's Mem. at 11-13; Montini Mem. at 18-23.*fn5
Under Oregon law, libel can be established by demonstrating that a communication is capable of a defamatory meaning. Beecher v. Montgomery Ward & Co., Inc., 517 P.2d 667, 669 (Or. 1973). In determining whether a communication is defamatory, the Oregon Supreme Court applies the test set forth in the Restatement of Torts. Id.; King v. Menolascino, 555 P.2d 442, 443 (Or. 1976); see Bellairs v. Beaverton School Dist., No. Civ. 04-770, 2004 WL 1900417, at *2 (D. Or. Aug. 23, 2004); Restatement (Second) Torts § 559 (1976). Under the Restatement, "'[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the communication or to deter third persons from associating or dealing with him.'" King, 555 P.2d at 443 (quoting Restatement (First) Torts § 559 (1938)). Accordingly, "[t]o establish actionable defamation, [the] plaintiffs must prove that [the] defendant made a defamatory statement that was false and that was communicated to a third party." Brown v. Gatti, 99 P.3d 299, 305 (Or. Ct. App. 2004) (citing Reesman v. Highfill, 965 P.2d 1030 (Or. 1998); Wallulis v. Dymowski, 918 P.2d 755 (Or. 1996); Fowler v. Donnelly, 358 P.2d 485 (Or. 1960)). "[A] statement can be [either] facially defamatory or 'defamatory by implication,' that is, a statement from which a reasonable person could draw a defamatory inference."Brown, 99 P.3d at 305. "Whether a particular statement is capable of a defamatory meaning is a legal question for the court rather than a fact question for the jury." Id. at 306; see Bellairs, 2004 WL 1900417, at *2. In a case of defamation by implication, the Court must "examine the connection between the statement and the defamatory inference to determine whether 'the inference that the plaintiff seeks to draw from the facially nondefamaotry communication is reasonable." Brown, 99 P.3d at 305. If the Court determines that the statement is capable of a defamatory meaning, dispositive motions must be denied, and a jury must decide whether a defamatory meaning was understood by the recipients. Beecher, 517 P.2d at 669.
After now having had the opportunity to throughly scrutinize the advertisement in question, this Court simply cannot conclude that it is capable of a defamatory meaning. As already discussed, the advertisement contains two pictures. The first is a picture of an American soldier, who is presumably serving overseas, with a red "X" superimposed over it, and the second is the photograph of the plaintiffs with a green checkmark superimposed over it. The caption under the advertisement reads: "The Real AARP Agenda." Compl. ¶ 13. First, there is nothing on the face of this advertisement that is defamatory to the plaintiffs. Rather, it is apparent from the advertisement as a whole that the only message the advertisement sends is that the AARP allegedly supports gay marriage and does not support the United States military. Facially, nothing in the advertisement suggests, as the plaintiffs posit, that they are "unpatriotic American citizens who do not support the United States military while our nation is at war." Id. ¶ 9. Moreover, a reasonable person could not infer a defamatory connotation from viewing the advertisement. This Court simply cannot make the leap suggested by the plaintiffs that simply because their image was used in one portion of the advertisement that the advertisement implies that they themselves subscribe to the AARP's policy positions on the military, which is represented in a separate portion of the advertisement. In addition, the advertisement does not lead to the inference that all individuals who are either gay or support same-sex marriage are anti-military and unpatriotic. The link the plaintiffs are trying to make is simply too tenuous. See, e.g., Reesman, 965 P.2d at 1035 (concluding that a statement that a corkscrew climb "is definitely frowned upon by FAA authorities" does not reasonably imply that the maneuver was improper and thereby does not imply a pilot was unsafe); Anderson v. Guard Publ'g Co., 489 P.2d 944 (Or. 1971) (concluding that newspaper story stating that the plaintiff and her husband were getting a divorce and that her husband shot a man sitting in the car with the plaintiff was not defamatory because any inference that the plaintiff was conducting herself improperly with the man would be too tenuous to form a basis for liability). In fact, the advertisement conveys no message of positions either supported or not supported by the plaintiffs. Rather the only connotations that can be derived ...