UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
September 29, 2006
KATHLEEN A. BENZ, PLAINTIFF,
THE WASHINGTON NEWSPAPER PUBLISHING COMPANY, LLC AND JOHN F. BISNEY, DEFENDANTS.
The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiff Kathleen Benz commenced this action against defendants, The Washington Newspaper Publishing Company, LLC, publisher of the Washington Examiner ("the Examiner") and John F. Bisney ("Bisney"), alleging defamation, invasion of privacy, and intentional infliction of emotional distress, related to a gossip column published in the August 19, 2005 issue of the Examiner and for articles with similar content posted on various websites. Pending before the Court are defendants' respective motions to dismiss. Upon consideration of the motions, the responses and replies thereto, the Examiner's motion is DENIED IN PART and GRANTED IN PART, and Bisney's motion is DENIED IN PART and GRANTED IN PART.
I. FACTUAL BACKGROUND
Plaintiff is an assignment editor at the Washington, D.C. office of the Cable News Network ("CNN"). Am. Compl. ¶ 6. Defendant Bisney is a former CNN radio correspondent and a former colleague of plaintiff. Id. ¶ 11. In November 2002, plaintiff and Bisney developed a social friendship. Id. ¶ 16. During the period of their friendship, Bisney repeatedly expressed his desire to have a romantic and sexual relationship with plaintiff. Plaintiff, however, insisted on and maintained a platonic relationship with him. Id. ¶¶ 21-22, 56-57.
Their friendship ended in May 2005 when plaintiff learned that Bisney, without plaintiff's knowledge or permission, obtained access to her email account, read her emails, and established and maintained websites in the name of the plaintiff. Id ¶¶ 17, 69, 84-86. On those websites, Bisney posted personal and private information and photographs of plaintiff. Id. Bisney also wrote a "fake" article*fn1 about the plaintiff and sent it to her.*fn2 Id. ¶¶ 64-65. The article named various men whom plaintiff has allegedly dated. Id. ¶ 65. Of all the men mentioned, plaintiff has actually only dated Gary Williams, Paul Bosserman, Julian Epstein, and John Daggitt. Id. ¶ 66.
On June 1, 2005, plaintiff filed for a temporary restraining order against Bisney in the District of Columbia Superior Court. Id. ¶¶ 103-04. On July 11, 2005, plaintiff and Bisney entered into a "Binding Settlement Agreement and Release," which provided that "[t]he parties agree that they will not intentionally contact or communicate with each other." Id. ¶¶ 106, 107.
In July 2005, more articles about plaintiff, authored by Bisney, appeared on the internet.*fn3 Id. ¶¶ 109, 112, 117, 120. In August 2005, Bisney used plaintiff's name, her home and work telephone numbers, her home address, and email address to respond to personal advertisements seeking sexual relations on a website. Id. ¶ 142. As a result, plaintiff received numerous phone calls and email messages from individuals who believed that plaintiff wanted to engage in sexual relations with them. Id. ¶ 143.
On August 19, 2005, the Examiner published an article in the gossip column entitled "Controversial Love for CNN Producer"*fn4 by Karen Feld. Id. ¶ 162. Prior to publishing this article, Ms. Feld did not speak to the plaintiff. Id. ¶ 166. Once the article was published, plaintiff contacted Ms. Feld and told her that the article was substantially false. Id. ¶ 176. On September 30, 2006, the Examiner published an article by Karen Feld entitled "Correction."*fn5 Id. ¶ 180. On September 2, 2005, plaintiff filed this civil action against defendants the Examiner and Bisney alleging defamation, invasion of privacy and intentional infliction of emotional distress*fn6.
II. STANDARD OF REVIEW
The Court will not grant a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). See also Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) (stating that a court may dismiss a complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations"). Accordingly, at this stage of the proceedings, the Court accepts as true all of the complaint's factual allegations. See Does v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985). Plaintiff is entitled to "the benefit of all inferences that can be derived from the facts alleged." Kowal, 16 F.3d at 1276.
Plaintiff contends that defendant, the Examiner, committed defamation when it published an article about the plaintiff in the August 19, 2005 gossip column. Plaintiff also alleges that defendant Bisney committed defamation when he posted "fake" articles he wrote about the plaintiff on various websites (hereinafter referred to as "the internet articles"). The August 19, 2005 article in the Examiner is similar in content to Bisney's internet articles.*fn7
According to the plaintiff, these articles are defamatory because they allege that plaintiff uses her position at CNN to meet and become romantically and sexually involved with "power players," i.e. wealthy, influential men; that she "hooked up" with porn king Mark Kulkis; and that hooking up with Kulkis was part of her pattern of using her position in the media to meet prominent men for personal and professional gain. These articles, which plaintiff alleges are false*fn8, have harmed her reputation professionally and in her community. See Howard Univ. v. Best, 484 A.2d. 958, 988 (D.C. 1984).
In response, the Examiner argues that there is nothing defamatory about a single woman being "linked romantically" with single men. Since none of the men mentioned in the column are married, there is no implication of sexual misconduct or impropriety. Moreover, the Examiner argues, the phrase "hooked up" is not capable of defamatory meaning because it just means that Mark Kulkis and plaintiff met on a social basis. Finally, the plain meaning of the statement that plaintiff "uses her position" to meet the "right people" is that plaintiff is a CNN producer, who, by definition, must use her position to meet the right people, i.e. those in a position to supply her with information for interviews and news stories. To the extent that the Examiner article is similar to the internet articles, Bisney adopts the Examiner's arguments as to why the internet articles are not defamatory.
A. Legal Framework
A publication is defamatory "if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community." Howard Univ., 484 A.2d. at 988. "Whether a statement is capable of defamatory meaning is a question of law." Weyrich v. The New Republic, 235 F.3d 617, 627 (D.C. Cir. 2001). If a statement is reasonably capable of any defamatory meaning then the Court cannot rule, as a matter of law, that it was not libelous. Id. A statement found to be defamatory "must be more than unpleasant or offensive." Klayman v. Segal, 783 A.2d 607, 613 (D.C. 2001). It must be "odious, infamous or ridiculous."*fn9 Id.
The Court must consider the document as a whole, and must examine the alleged defamatory statements within context. Id. at 614 ("[c]ontext serves as a constant reminder that a statement in an article may not be isolated and then pronounced defamatory..."). Further, words should be given their plain and natural meaning, and "the statements at issue should not be interpreted by extremes, but should be construed as the average or common mind would naturally understand them." Id. at 616. The plaintiff has the burden of proving the defamatory nature of the challenged statement. Id. at 613. Finally, when the Court is presented with a Rule 12(b)(6) motion to dismiss a defamation action, the Court must assume the falsity of the statements at issue and that the statements were made by the defendants with knowledge of their falsity or reckless disregard for their truth. Id. at 614.
B. The Examiner's August 19, 2005 Article is Capable of Defamatory Meaning
The article in the Examiner opens with a statement that plaintiff "uses her position to meet all the 'right' people." The next sentence declares that "[s]he's been linked romantically with power players" and then lists the names of eight men with whom plaintiff has had romantic liaisons. Next, the article turns to plaintiff's most recent relationship and states that she "has hooked up" with "porn king Mark Kulkis."
When statements such as "uses her position to meet the 'right' people"; "linked romantically with power players"; and "hooked up" with a "porn king" are considered within the context of the article as a whole and the words are given their ordinary meaning, the Court finds that an average, ordinary reader could likely comprehend that plaintiff uses her position at CNN for personal gain. Plaintiff is a single, professional woman in her mid-30s. An allegation that she is using her position in the media to meet and engage in romantic and sexual relations with certain prestigious and powerful men, in order to advance her career and social status, arguably makes the plaintiff appear "odious, infamous and ridiculous." The Court is further persuaded that the article's characterization of the plaintiff and her alleged pattern of practice tend to injure plaintiff's reputation in her profession and her overall standing in her community. See Howard Univ., 484 A.2d. at 988. Therefore, the article is reasonably capable of defamatory meaning.
The Examiner argues that the phrase "linked romantically" merely means that the plaintiff has been rumored to have had romantic relationships or love affairs with the men mentioned, and that there is nothing defamatory about dating or even sex between two consenting adults in this day and age in a major metropolitan area. The Court disagrees. The phrase "linked romantically" cannot be read in isolation from the laundry list of prominent men with whom plaintiff has allegedly been involved, the description of plaintiff using her position to meet these right men, nor the statement that she hooked up with a porn king. When all of these statements are examined together within context, the article paints a picture of an opportunistic woman who will use her job in the media and sex to get what she wants. Such an image conveys a lack of certain moral and ethical restraint on the part of the plaintiff.
The same applies to the phrase "hooked up...with porn king Mark Kulkis." The Examiner argues that phrase is not defamatory because it merely means that plaintiff and Mark Kulkis met on a social basis.*fn10 However, when that phrase is read in context, the Court is persuaded that it does not merely mean that plaintiff and Mark Kulkis met on a social basis. Rather, it implies that plaintiff engaged in some conduct relating to sex with "porn king Mark Kulkis" as part of her pattern of using her CNN position to meet such men.
Further, the Court is not persuaded by the Examiner's argument that the plain meaning of the statement that plaintiff "uses her position" to meet the "right people" is that plaintiff is a CNN producer who, by definition, must "use her position" as a journalist to meet the "right" people, i.e. those in a position to supply her with information for interviews. The understanding the Examiner attributes to the phrase in question can only be achieved if the phrase is read in isolation. When it is examined in context with the article in its entirety, the Court finds that the meaning of that phrase is not so innocuous. Rather, the meaning that readily comes to the surface is that plaintiff is using her position as a CNN producer, not to further any journalistic endeavors, but to meet and become romantically involved with wealthy, influential men.*fn11
The Examiner also contends that only "serious sexual misconduct" may give rise to defamatory meaning. The Restatement (Second) of Torts ("Restatement") § 574 (1977), however, states that "any statements that impute any form of unchastity to a woman, married or single" have been defined as "serious sexual misconduct." Because the article alleges plaintiff of unchaste conduct, it, by definition, has also alleged plaintiff of "serious sexual misconduct." See Restatement § 574. The Examiner's argument is therefore, unavailing, and the plaintiff has shown at this juncture that the article in the Examiner is capable of defamatory meaning.
Finally, the Examiner argues that the fact that the article appeared in a gossip column should inform the Court as to how a reasonable reader would understand the article. The Examiner maintains that a reader would not take seriously the allegations made in a gossip column, with its "breezy" tone and casual language, as an allegation made in a more serious investigative report. Because the article appeared in a gossip column, argues the Examiner, it is less likely that a reader would understand it to be an allegation of unprofessional conduct.
The Court agrees that the tone of a gossip column could certainly be different from a serious investigative report; however, the August 19, 2005 article focused on the plaintiff and implied certain conduct on the part of the plaintiff that made plaintiff appear "odious, infamous and ridiculous." See Weyrich,, 235 F.3d at 627. Therefore, even though the article appeared in the gossip column, the Court finds that it is capable of defamatory meaning.*fn12
C. The "Correction" Published in the Examiner on September 30, 2005 is Not Reasonably Capable of Defamatory Meaning
Plaintiff alleges that the "Correction" published in the Examiner on September 30, 2005, again stated defamatory allegations, namely that she used her position at CNN to obtain romantic relationships. The Court disagrees.
When the "Correction" is read as a whole, it is clear that the Examiner did not make any statements that are capable of defamatory meaning. In fact, the Examiner corrected, with apologies, any statements in the August 19, 2005 article that were determined to be false. Specifically, the "Correction" states that the Examiner "did not intend to suggest any improper relationship or misuse of her position at CNN." Because a reasonable person of ordinary intelligence would understand the "Correction" as just that, a correction to the inaccuracies contained in the August 19, 2006 article, the Court concludes that the September 30, 2005 "Correction" is not reasonably capable of defamatory meaning as a matter of law. It does not make plaintiff appear "odious, infamous or ridiculous."
Before finding that the statements in the "Correction" are not actionable, the Court must also examine whether the statement places plaintiff in a "highly offensive" false light. See Weyrich, 235 F.3d at 628 ("We remind the District Court that, before finding that a statement is not actionable, because it is not reasonably capable of defamatory meaning, it must also satisfy itself that the statement does not arguable place appellant in a 'highly offensive' false light."). The "Correction" regrets any errors made in the August 19, 2005 article that may have placed plaintiff in a false light and apologizes for any offense taken. As such, the Court concludes that there is nothing in the "Correction" that would place plaintiff in a highly offensive false light.
D. Defendant Bisney's Internet Articles are Reasonably Capable of Defamatory Meaning
There are many similarities between the August 19, 2005 article in the Examiner and Bisney's internet articles.*fn13 Not only do the defendants' articles relay the same information as to plaintiff's alleged romantic relationships, but the tone and the context in which the information is presented are similar as well. Having already determined that the August 19, 2005 article in the Examiner is reasonably capable of defamatory meaning, the Court finds Bisney's internet articles, when considered as a whole and in context, are also reasonably capable of defamatory meaning.
IV. INVASION OF PRIVACY*fn14
A. Plaintiff Has Stated a Claim for False Light Against Defendants the Examiner and Bisney
Plaintiff has alleged that both defendants the Examiner and Bisney have violated her privacy by placing plaintiff in a false light. The Examiner argues that plaintiff's false light claim should be dismissed because the statements in the article, even if false, would not be "highly offensive to a reasonable person." See Weyrich, 235 F.3d at 628. Defendant Bisney incorporates his arguments against the defamation claim to the false light claim.
A false light invasion of privacy claim requires a showing of (1) publicity (2) about a false statement, representation or imputation (3) understood to be of and concerning the plaintiff and (4) which places the plaintiff in a false light that would be highly offensive to a reasonable person. Klayman, 783 A.2d at 614. "Whereas an action for defamation redresses damage to one's reputation, the tort of false light is intended to remedy mental distress from having been exposed to public view." Lane v. Random House, Inc., 985 F. Supp. 141, 149 (D.D.C. 1995). However, "[t]here is a great deal of overlap between the causes of action for defamation and false light." Moldea v. New York Times Co. 15 F.3d 1137, 1151 (D.C. Cir. 1994). "Publicity that is actionable in a false light claim generally will be actionable in defamation as well." Id. Because the torts of defamation and invasion of privacy false light are so similar, a plaintiff may only recover on one of the two theories based on a single publication, but is free to plead them in the alternative. Weyrich, 235 F.3d at 628.
The Court's reasons as to why the Examiner's August 19, 2006 article and Bisney's internet articles are capable of defamatory meaning are applicable to the Court's finding that those articles would be highly offensive to a reasonable person. Those articles, which implied that plaintiff, a professional, single woman in her 30s, used her job in the media to obtain romantic and sexual relationships with "power players" for personal gain, and that linked her in a sexual relationship with a "porn king," would be highly offensive to a reasonable person. Accordingly, plaintiff has pleaded sufficient facts to make out a claim for false light invasion of privacy against both of the defendants.
B. Plaintiff has Stated a Claim for Public Disclosure of Private Facts against Defendants the Examiner and Bisney
The Examiner argues that invasion of privacy by public disclosure of private facts claim should be dismissed because the sine qua non of this claim is that the facts made public are intimate, private and true. Since plaintiff has alleged in her complaint that most of the statements in the August 19, 2005 article are false, by plaintiff's own admission, this claim must be dismissed. Further, for the statements in the column that are true--the identities of the men plaintiff actually dated--those statements are not "highly offensive to a reasonable person of ordinary sensibilities." Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. 1989).
Defendant Bisney adopts the Examiner's arguments and adds that with regard to plaintiff's home and work numbers and her home and email addresses posted on a website seeking sexual relations, those true facts hardly amount to such facts that would be highly offensive to a reasonable person. Further, Bisney argues, because plaintiff's phone numbers and addresses were already available on the internet, those facts are not private facts, and thus he cannot be held liable for disclosing information already known to the public.*fn15
To recover for public disclosure of private facts, a plaintiff must show (1) the publication of private facts (2) in which the public has no legitimate concern (3) whose publication would cause suffering, shame or humiliation to a person of ordinary sensibilities. White v. Fraternal Order of Police, 707 F. Supp. 579, 587 (D.D.C. 1989). This privacy tort seeks to "redress reputational injuries made all the more painful because the public revelations about deeply private and intimate matters are undeniably true." Doe v. United States, 83 F. Supp. 2d 833, 842 (S.D. TX 2000).
The Examiner is correct that the sine qua non of this claim is that the information revealed to the public is not only intimate and private but also true. Plaintiff has alleged that much of what the article has stated about her is untrue: she does not use her position to meet the "right" people; she has not been romantically involved with Jonathan Ledecky, John McDonough, Mel Karmazin, or Hugh O'Brien, and she has not been involved romantically or otherwise with Mark Kulkis. Since those statements in the column are false, the Court concludes that plaintiff cannot bring a claim for public disclosure of private facts for those statements.
The plaintiff, however, has stated that statements about her romantic relationships with Gary Williams, Paul Bosserman, John Daggit, and Julian Epstein are true. As such, if the public has no legitimate concern in these matters and if the publication of these facts "would cause suffering, shame or humiliation to a person of ordinary sensibilities," then a claim for public disclosure of private facts has been sufficiently pleaded at this time. The Court is persuaded that it is unlikely that an unmarried, professional woman in her 30s would want her private life about whom she had dated and had sexual relations revealed in the gossip column of a widely distributed newspaper, particularly in the context in which the information was revealed. Further, plaintiff's personal, romantic life is not a matter of public concern. Because the Court finds that unwanted publication of such personal, true facts would cause suffering, shame or humiliation to a person of ordinary sensibilities, the plaintiff has sufficiently satisfied the elements of this claim.*fn16
Turning to Bisney's argument, the Court must address whether public disclosure of plaintiff's phone numbers and addresses on an internet site soliciting for sexual relations would "cause suffering, shame or humiliation to a person of ordinary sensibilities." Although plaintiff's phone numbers and addresses may be available to the public on the internet and in phone books, that does not negate the fact that the information are nonetheless private facts. Individuals have a privacy interest in their home addresses and phone numbers. See National Ass. of Retired Fed. Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989) (privacy interests of individuals in avoiding the unlimited disclosure of names and addresses is significant, therefore individuals not only have a large measure of control over the disclosure of their own identities and whereabouts, but people expect to be able to exercise that control); Heights Community Congress v. Veterans Administration, 732 F.2d 526, 529 (6th Cir. 1984) ("The importance of the right to privacy in one's address is evidenced by the acceptance within society of unlisted telephone numbers...and postal boxes, which permit the receipt of mail without disclosing the location of one's residence."). Plaintiff's phone numbers and home address are private facts
In this case, plaintiff's private facts were not published in a website listing CNN producers or in a media bulletin or in any such site. Rather, plaintiff's private facts were used for solicitation purposes. Plaintiff's personal information was provided to individuals seeking to have sex with plaintiff under the information and belief that plaintiff wanted to have sex with them. Such disclosure of one's private facts would be "highly offensive to a reasonable person of ordinary sensibilities." Therefore, the Court concludes that the plaintiff has stated a claim for public disclosure of private facts against defendant Bisney.*fn17
C. Plaintiff has Failed to State a Claim for Intrusion Upon Seclusion Against Defendant Bisney
Intrusion upon seclusion has three elements: (1) an invasion or interference by physical intrusion by use of a defendant's sense of sight or hearing, or by use of some other form of investigation or examination (2) into a place where the plaintiff has secluded herself or into her private or secret concerns (3) that would be highly offensive to an ordinary, reasonable person. Wolf, 553 A.2d at 1217. "It is the nature of the intrusion which initially fixes liability." Id. The types of invasion this tort seeks to address are harassment, peeping through windows or into other locations, opening personal mail, eavesdropping on private conversations, entering plaintiff's home without permission, searching plaintiff's belongings, examining plaintiff's private bank account or other invasions of that nature. Id. at 1217-18.
In Count II of her complaint, plaintiff alleges that defendant Bisney invaded her privacy by intruding upon her seclusion. But plaintiff does not specify how Bisney invaded or interfered with her seclusion by physical intrusion. Plaintiff, however, does allege in her opposition to Bisney's motion that she suffers from a form of herpes, see Pl.'s Opp., p. 21, and that disclosure of this fact by Bisney satisfies the elements of intrusion of seclusion.
Because plaintiff fails to explain whether Bisney learned of this fact by physical intrusion into a place where she secluded herself, the Court is not persuaded that the elements of this claim have been met. Plaintiff does not allege that Bisney learned this fact by eavesdropping on her private conversations or looking through her personal papers. Rather she states that her condition is a private fact that is known to only a few of her close friends, such as Bisney.*fn18 Therefore, if plaintiff told Bisney about her condition, then she cannot claim that he intruded into a place where she secluded herself. Accordingly, at this juncture this claim is dismissed without prejudice.*fn19
For the foregoing reasons, the Court finds that as a matter of law, the Examiner's August 19, 2005 article and Bisney's various internet articles are reasonably capable of defamatory meaning. However, the Examiner's September 30, 2006 "Correction" is not an actionable defamatory statement. Also, plaintiff has sufficiently pleaded invasion of privacy claims of false light and public disclosure of private facts against both defendants. Plaintiff, however, has failed to state a claim for invasion of her privacy by intrusion upon her seclusion against defendant Bisney. Accordingly, that claim is dismissed at this time without prejudice. An appropriate Order accompanies this Memorandum Opinion.