ROSEMARY M. COLLYER, District Judge.
This case was stayed for years because a crucial witness asserted his Fifth Amendment rights. That issue resolved, the parties now address the merits of Plaintiff's allegations that it was defamed by a 60 Minutes segment originally aired on May 4, 2003. All Defendants move for summary judgment, arguing that the segment was not defamatory as a matter of law and that Plaintiff is unable to prove the material falsity of any alleged defamation. Defendant CBS Broadcasting, Inc., moves for summary judgment on additional grounds pertaining to the media. Plaintiff cross-moves for partial summary judgment. The motions are now ripe for decision following oral argument. The Court will grant the Defendants' joint motion as it finds the challenged statements are protected by the First Amendment.
This matter is rooted in a 60 Minutes news report entitled "Terrorist Hunter" which originally aired nationwide on May 4, 2003 (the "Broadcast"). The Broadcast focused on Defendant Rita Katz and her efforts to uncover people and entities that provided financial support to Islamic extremists from within the United States. References were interwoven throughout the Broadcast that Ms. Katz turned over information from her investigations to the United States government, which often acted on that information. It is the latter half of the Broadcast, which focused on Ms. Katz's investigation of entities operating out of an office building at 555 Grove Street in Herndon, Virginia, from which this action springs. Plaintiff Mar-Jac Poultry, Inc. ("Mar-Jac") alleges that the Broadcast directly or indirectly created the impression that Mar-Jac engaged in money laundering in a knowing effort to support terrorism. As referenced in the Broadcast, the government relied on Ms. Katz's findings, at least in part, to execute various search warrants in furtherance of an investigation of terrorist financing at 555 Grove Street and at Mar-Jac's offices in Georgia.
Defendant CBS produces and broadcasts 60 Minutes, including the May 4, 2003 "Terrorist Hunter" segment. Bob Simon was the 60 Minutes correspondent who interviewed Rita Katz in the Broadcast.
Mar-Jac is a producer and processor of poultry products in Gainesville, Georgia. From 1984 to 1996, Mar-Jac Poultry, Inc., was wholly owned by Mar-Jac, Inc. From 1984 to 1990, Mar-Jac, Inc., was wholly owned by the Saar Foundation, and from 1990 to 1996, the Saar Foundation owned
Saar Foundation was established as a charity in 1983 and was initially funded by members of the wealthy al-Rajhi family of Saudi Arabia. Id. ¶ 4. In 1995, a member of the al-Rajhi family requested the resignation of three Saar board members, who he allegedly believed shared a different vision of Islamic thinking, and promoted Dr. M. Yaqub Mirza to become Saar's president. Id. ¶ 7. In 1996, Saar came under some scrutiny in the United States about potential ties with radical Islamic groups. Thereafter, Saar began a process of transferring funds to the Humana Charitable Trust, an offshore trust in the Channel Islands, managed by a corporate trustee which was controlled by Dr. Mirza and an attorney who represented the al-Rajhi family. Saar ultimately dissolved in 2000. See id. ¶ 10.
At all times relevant to this litigation, Dr. Mirza was an officer, director, or managing agent of Mar-Jac or its holding company, Saar, and the Safa Trust. Id. ¶¶ 18-19. The Safa Trust is a non-profit organization, funded in part by the al-Rajhi family, and was established as an endowment for the International Institute of Islamic Thought. Id. ¶ 13. The International Institute of Islamic Thought is an Islamic think tank funded in large part by Safa. Id. ¶ 117. Mena Corp was a wholly owned subsidiary of Safa Trust. Id. ¶ 9. Roughly from 1984 to 1997—by way of loans, donations, or other arrangements—millions of dollars flowed between Mar-Jac (and/or its holding companies) and Saar, Safa, Heritage Education Trust, Mena Corp., and/or International Institute of Islamic Thought. See id. ¶¶ 87-89, 90, 92, 94, 102-07, 119-20.
The real property described in the Broadcast was the office building at 555 Grove Street, which was constructed in 1987. Thereafter, most, if not all, of Mar-Jac's beneficial owners maintained offices at 555 Grove. Id. ¶ 16. At all times relevant to this litigation, the 555 Grove Street property was owned by either Grove Corporate Plaza, Inc., which in turn was owned by Saar, or by the Heritage Education Trust. Id. ¶ 17. As referenced in the Broadcast, on March 20 and 21, 2002, the federal government executed search warrants at approximately twenty different locations, including the 555 Grove Street building, Mar-Jac's offices in Georgia, and the homes of three of Mar-Jac's corporate directors. Id. ¶ 49. Mar-Jac acknowledges that Ms. Katz was an influencing source behind the government's search warrants. See id. ¶ 50; Am. Compl. [Dkt. # 127] ¶¶ 20-22.
CBS aired the Broadcast on May 4, 2003. The "Terrorist Hunter" segment was one of several and lasted for approximately thirteen minutes. It opened with correspondent Bob Simon sitting in a chair while behind him ran the title "Terrorist Hunter" superimposed over a picture of a woman whose face was covered by a veil. Mr. Simon began: "Ever since 9/11, Washington's been trying to trace and shut down terrorist financing. It's been relying on tips from all sorts of shadowy figures in shadowy places. But one tipster government officials say has been especially valuable is a professional researcher who's spent more than five years investigating links to Muslim terrorism here in the United States." Defs.' Mem. [Dkt. # 186], [Ex. 21] 60 Minutes "Terrorist Hunter" Broadcast
Mr. Simon underscored that Ms. Katz had provided information to the "FBI, the Treasury Department, Customs, the [Immigration and Nationality Service], even the White House." Id. Ms. Katz, who is a native of Iran, then described her routine of tracking down the websites of terrorist organizations like al-Qaida to provide immediate information to the government, which would then shut down the website. See id. Mr. Simon explained, "It's a game of cat and mouse. She can't tell us how to play it for reasons of national security." Id. Ms. Katz also explained how she investigated charities based in the United States that she suspected of providing financial support to terrorist groups. The Broadcast took a notedly personal turn by exploring the genesis of Ms. Katz's obsession with routing out terrorists: when she was a young girl growing up in Iraq, her father was accused of spying for Israel and was hung by Saddam Hussein's forces. See id. at 15. Her mother fled the country with her children. Id.
Mr. Simon then explained that Ms. Katz began her career as a "terrorist hunter" by going undercover to help expose a Texas-based charity that provided support to children of "martyrs," i.e. suicide bombers. See id. at 16. Because the "charity" was receiving federal funds from the U.S. Agency for International Development, Ms. Katz asserted that she "contacted the White House, and it was stopped." Id. 16. Mr. Simon revealed that the charity was ultimately shut down and a clip was shown of a press conference in which President George W. Bush announced that the Department of Treasury had frozen the assets and accounts of the charity. Id. Mr. Simon also presented, as Ms. Katz's belief, that many American corporations, by matching donations of employees, had at times innocently and unknowingly donated funds to charities which supported terrorism. See id. at 17.
In a voice-over, Mr. Simon narrated that in April 2001 Ms. Katz had videotaped al-Qaida sympathizers in a demonstration in New York City, as footage of her recording was displayed, but the federal government was not interested in her tape. Mr. Simon noted: "But that changed after 9/11. Suddenly, Sarah says, the FBI was interested not only in the tape but in all her work. And the government began cracking down on the charities she'd been investigating." Id. Mr. Simon then explained that Ms. Katz continued going undercover, dressed as an observant Muslim woman, into allegedly radical mosques. See id. The relevant segment of the Broadcast continued:
Broadcast Tr. at 17-19. It is from this piece that Mar-Jac, identifying itself as the chicken farm mentioned in the segment, argues that Ms. Katz directly or indirectly accused it of engaging in money laundering in a knowing effort to support terrorism.
Mar-Jac raises seven claims arising from the Broadcast: (1) libel; (2) slander; (3) negligence; (4) product disparagement in violation of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-372(a)(8); (5) vicarious liability (against SITE, IG LLC, and CBS); (6) punitive damages; and (7) costs. Mar-Jac filed its suit in the District Court for the Northern District of Georgia on June 6, 2003. That court transferred the matter to the District of Columbia on November 21, 2003, after determining the suit was related to another case pending before this Court at that time. See generally Heritage Education Trust v. Katz, No. 03-cv-1362 (D.D.C. removed June 23, 2003). Heritage Education Trust subsequently was dismissed pursuant to voluntary stipulation in 2005.
Following an initial stay of discovery in 2004, Defendants began limited discovery of Mar-Jac's financial and operational records. See Order (June 4, 2004) [Dkt. # 23]. An issue quickly arose when counsel for Dr. Mirza notified Defendants that he intended to invoke his Fifth Amendment privilege against self-incrimination to avoid deposition. Ultimately, the Court quashed the deposition subpoena to Dr. Mirza based on the record and representations of counsel, see Order (July 30, 2004) [Dkt. # 42], and stayed the case per consent motion on August 23, 2004. See Minute Entry Order 8/23/2004. For years, Defendants argued that Dr. Mirza's testimony was critical to their defense and that the case should be dismissed for lack of prosecution if he were unwilling or unable to respond to discovery. Rather than dismissal, the Court continued the stay,
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law." Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
The Court of Appeals for the District of Columbia Circuit has instructed that, because defamation cases pose a threat to freedom to the press even if a defendant ultimately prevails, district courts should apply close judicial scrutiny and properly dispose of defamation cases against the news media through summary procedures when and as soon as possible. See Coles v. Washington Free Weekly, Inc., 881 F.Supp. 26, 30 (D.D.C.1995), aff'd, 88 F.3d 1278 (D.C.Cir.1996); McBride v. Merrell Dow & Pharms., Inc., 717 F.2d 1460, 1466 (D.C.Cir.1983).
In a diversity case, such as this one, a federal court applies the substantive law of the forum state, including the forum state's choice of law rules, unless federal constitutional or statutory law is contrary. See Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 1218, 113 L.Ed.2d 190 (1991); Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 491, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). This Court generally applies the District of Columbia's choice of law analysis. YWCA v. Allstate Ins. Co., 275 F.3d 1145, 1150 (D.C.Cir.2002). However, when venue has been transferred per 28 U.S.C. § 1404(a), a transferee court is obligated to apply state law that would have applied had there been no
This matter was initially filed in District Court for the Northern District of Georgia in Gainesville. See Mar-Jac Poultry, Inc. v. Katz, et al., No. 2:03-cv-92 (N.D. Ga. filed June 6, 2003). It was transferred here on November 12, 2003, pursuant to 28 U.S.C. § 1404(a), in the interests of justice because a related matter was then pending here. See id., Order (Nov. 12, 2003) [Dkt. #34] at 6-8. As a result, the Georgia District Court did not decide whether it had personal jurisdiction over defendants Rita Katz and SITE. Id. at 4-5.
Mar-Jac argues that Georgia state law governs its tort claims while Defendants assert that there is no conflict between Georgia and D.C. tort law, and that the same result, i.e., summary judgment for Defendants, follows the application of either forum's law. In Georgia, "tort actions are adjudicated according to the law of the place where the wrong occurred." Wallace v. Harrison, 166 Ga.App. 461, 304 S.E.2d 487, 489 (1983); see also Sargent Indus., Inc. v. Delta Air Lines, Inc., 251 Ga. 91, 303 S.E.2d 108, 110 (1983). "The law of the place where the tort or wrong has been committed is the law by which liability is to be determined. The place of the wrong is the place where the injury was sustained rather than where the acts were committed." Cash v. Armco Steel Corp., 462 F.Supp. 272, 274 (N.D.Ga.1978) (citation omitted); see also Best Canvas Products & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 621 (11th Cir. 1983).
Mar-Jac's injuries, if any, were sustained in Georgia as it is located in Georgia and its operations occur in Georgia. See Restatement (Second) of Conflict of Laws, § 150, comment f (1971) (noting that in multi-state defamation cases the principle place of business of a corporation is the place where a company's reputation will usually be "most grievously affected"); see also Adventure Outdoors, Inc. v. Bloomberg, 519 F.Supp.2d 1258, 1280 (N.D.Ga.2007) (noting, "where publication occurs simultaneously in several states," such as by a nationwide news broadcast, "courts will consider the `most significant relationship' test, which generally points to the plaintiff's domicile").
Even were the Court to apply the District of Columbia's choice of law analysis, the law of Georgia would apply. The District of Columbia applies a "governmental interest analysis" which requires a court "to evaluate the governmental policies underlying the applicable conflicting laws and to determine which jurisdiction's policy would be most advanced by having
While the Court applies Georgia law to the alleged torts, the defamation claims raise significant federal constitutional questions. All Defendants advance defenses which are grounded in the Constitution, and while a court should generally avoid constitutional questions if there is another ground on which a matter or claim can be disposed, see Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936), First Amendment jurisprudence has become "inextricably linked" with defamation common law. Lane v. Random House, 985 F.Supp. 141, 149 (D.D.C.1995). Starting with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court has "dramatically altered" the defamation common and statutory laws of the states which ultimately "created an entirely new system of liability for defamation." Pierce v. Capital Cities Commc'ns, Inc., 576 F.2d 495, 505 (3d Cir.1978) (citation omitted).
Counts I and II of Mar-Jac's Amended Complaint allege libel and slander, including libel and slander per se, arising from the Broadcast. See Am. Compl., Counts I, II. Georgia has legislated its definitions for defamation actions. Libel is a published "false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." O.C.G.A. § 51-5-1. Slander, or oral defamation, is actionable per se under Georgia law if the statement imputes the commission of a crime to another. Id. § 51-5-4(a)(1). A charge calculated to injure a person in his trade, office, or profession also constitutes slander per se. Id.
"Defamation via a radio or television broadcast (or a `defamacast,' as it has become generally known) includes elements of both libel under O.C.G.A. § 51-5-1, and slander under O.C.G.A. § 51-5-4." Strange v. Henderson, 223 Ga.App. 218, 477 S.E.2d 330, 332 (1996). Defamation consists of "(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm." Mathis v. Cannon, 276 Ga. 16, 573 S.E.2d 376, 380 (2002) (internal quotation marks omitted).
Damages are inferred when a plaintiff proves defamation per se, whereas a plaintiff must plead and prove special damages to prevail on a claim of defamation per quod. See Southland Corp. v. Garren, 138 Ga.App. 246, 225 S.E.2d 920, 923 (1976); Strange, 477 S.E.2d at 332. "Special damages necessary to support an action for defamation, where the words are not actionable in themselves must be the loss of money, or of some other material temporal advantage capable of being assessed in monetary value." Webster, 456 S.E.2d at 701. "The loss of income, of profits, and even of gratuitous entertainment and hospitality will be special damage if the plaintiff can show that it was caused by the defendant's words." Id. Mar-Jac has pleaded special damages. See Am. Compl., Prayer for Relief (2).
"As a general rule, the question of whether a published statement is defamatory is a question for the jury." Mead v. True Citizen, Inc., 203 Ga.App. 361, 417 S.E.2d 16, 17 (1992); see also Wolf v. Ramsey, 253 F.Supp.2d 1323, 1349 (N.D.Ga.2003). A court faced with a motion for summary judgment must determine whether a statement is "not defamatory, that it is defamatory, or that it is ambiguous and the question is one for a jury." Mead, 417 S.E.2d at 17. Only when "the statement is not ambiguous and can reasonably have but one interpretation, the question is one of law for the judge." Thomason v. Times-Journal, 190 Ga.App. 601, 379 S.E.2d 551, 552 (1989).
An allegedly defamatory statement(s) must be construed in the context
A statement can be defamatory either because of what is expressly stated or because of an implied meaning. Defamation by implication "stems not from what is literally stated, but from what is implied." White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C.Cir.1990). "[A]s a defamatory statement may be made in indirect terms or by insinuation, the publication thereof must be construed as a whole. In doing so, the courts will not hunt for a strained construction in order to hold the words used as being defamatory." S. Business Machs. v. Norwest Fin. Leasing, 194 Ga.App. 253, 390 S.E.2d 402, 409 (1990) (quoting Thomason, 379 S.E.2d at 553) (citations and internal quotations omitted); see also White, 909 F.2d at 519 ("In entertaining claims of defamation by implication, courts must be vigilant not to allow an implied defamatory meaning to be manufactured from words not reasonably capable of sustaining such meaning.").
A plaintiff can assert a defamation per se claim even when the alleged defamation is by implication. "A slanderous charge is actionable per se, whether the words directly or indirectly, by intimation or innuendo, contain slander." Wolff v. Middlebrooks, 256 Ga.App. 268, 568 S.E.2d 88, 90 (2002) (citation omitted). "The slanderous charge is just as effectively harmful, and therefore actionable per se ... whether the harmful effect results from words which directly and unequivocally make a charge or whether it results from words which do so indirectly or by inference." Id. "It is the harmful effect of defamatory language as it is understood which renders it actionable per se, and not its directness or unequivocal nature." Id.; see also Harcrow v. Struhar, 236 Ga.App. 403, 511 S.E.2d 545, 546 (1999) ("Whether stated directly or by implication or innuendo, it is libelous per se to falsely state that a person is guilty of a crime."); Mead, 417 S.E.2d at 17. However, a court must look to the "plain import of the words spoken" to determine whether they are defamatory per se, and only those which are "recognized as injurious on their face—without the aid of extrinsic proof" may be defamatory per se. Bellemead, LLC v. Stoker, 280 Ga. 635, 631 S.E.2d 693, 695 (2006) (internal citations and quotation marks omitted).
Mar-Jac argues that the Broadcast directly or indirectly "asserted that Mar-Jac engaged in money laundering activities,
Mar-Jac alleges that the Broadcast conveyed a defamatory implication that Mar-Jac intentionally engaged in money laundering, through a process of manipulating the numbers of dead chickens, in a knowing effort to fund terrorist activities. See Am. Compl. ¶¶ 26-33. Thus, Mar-Jac alleges that the Broadcast was libelous per quod because it tended to expose Mar-Jac to "public hatred and/or contempt" under O.C.G.A. § 51-5-1 and libelous per se under O.C.G.A. § 51-5-4(a)(1) and (a)(3) because it both created the impression that Mar-Jac engaged knowingly in the crime of money laundering to support terrorists and referred to Mar-Jac's business in a manner calculated to injure it. See Am. Compl., Count I. Mar-Jac alleges slander per quod and slander per se under O.C.G.A. § 51-5-4(a)(1) and (a)(3) for the same reasons. See id., Count II.
Mar-Jac moves for partial summary judgment, contending that the statements in the Broadcast were "of and concerning" Mar-Jac and that the Broadcast conveyed a defamatory meaning about Mar-Jac. Pl.'s Mem. at 2. All Defendants cross-move and argue that Mar-Jac's defamatory implication fails as a matter of law because the challenged statements were not "of and concerning" Mar-Jac; that Ms. Katz's statements cannot reasonably be understood to make any defamatory assertion; that the speculative, hypothetical, and uncertain nature of Ms. Katz's comments about the relationship between "money laundering" and "chickens" forecloses any finding that those remarks give rise to an actionable defamatory implication; and that Defendants could not be said to have endorsed or intended any defamatory implication. Setting aside the question of material falsity for present purposes, Defendants can prevail only if the Court finds that the Broadcast is not reasonably capable of conveying the defamatory meaning proffered by Mar-Jac. At this stage, Mar-Jac need only show that the Broadcast is ambiguous and could reasonably convey a defamatory meaning about it.
Although Mar-Jac's name is never spoken aloud in the Broadcast, its name is displayed several times throughout the piece. As the segment delved into the "terrorist financing ring" that Ms. Katz believed she had discovered at 555 Grove Street, see Broadcast Tr. at 18, Ms. Katz referred to a chart to demonstrate how she claimed money flowed from Saudi Arabia to the "Saar Network" and ultimately to terrorist entities. See Pl.'s Mem., [Ex. E] Chart. While Ms. Katz gestured generally towards the chart, Mr. Simon explained that according to Ms. Katz, money flowed from Saudi Arabia to "a web of charities, think tanks, and businesses." See Pl.'s Mem., [Ex. C] Recording of 60 Minutes "Terrorist Hunter" Segment ("Recording") at 9:43; Broadcast Tr. at 18. Simultaneously, the camera zoomed in on a portion of the chart which defined the "Saar Network" as constituting the "Saar Foundation, International Institute of Islamic Thought (IIIT), Mar-Jac Poultry, Muslim World League, and Safa Trust." Recording at 9:43. Mr. Simon continued that the charities, think tanks and businesses were located "at 555 Grove" as the camera showed "Saar Network" and, underneath, "555 Grove St." Recording at 9:46.
Several seconds later, Mr. Simon explained that "one especially inventive idea the Saudis came up with according to Sarah was chickens," as the camera again focused on the names of the five entities, thereby clearly broadcasting the name "Mar-Jac Poultry" again. Id. at 10:02. Footage of a commercial truck transporting caged chickens was then shown as Mr. Simon stated, "They bought a chicken farm in Georgia." See Recording at 10:03 to:10. Although the parties agree that the truck bore the Mar-Jac name and logo, the writing on the truck door is not easily legible, if at all. See id. at 10:05. However, if there were any doubt that the "chicken farm" was Mar-Jac, it was dispelled when Mr. Simon spoke of a federal customs agency task force raid at 555 Grove Street and other locations, concluding, "And, yes, they raided the chicken farm, too,"
The inquiry is not complete. It is not enough that Mar-Jac was identified in the Broadcast, but the question remains whether the proffered allegation of intentional money laundering was "of and concerning" Mar-Jac itself. Defendants argue that, at most, Ms. Katz suggested that Mar-Jac was an unknowing conduit for terrorist financing and that any statements imputing intent were directed solely at Mar-Jac's beneficial owners, such as the Saudis, the al-Rajhi family, the Saar Foundation, or Safa Trust. Thus, Defendants contend, any allegation that money flowed through Mar-Jac as part of an alleged Saudi terrorist financing ring would not constitute an allegation of willful conduct by Mar-Jac itself. Defendants highlight that Ms. Katz stated that the "small" group of people who set up the "ring" did so with money from Saudi Arabia and that they were part of a group of people in Saudi Arabia and Virginia, not Georgia. See Defs.' Opp'n [Dkt. # # 204, 206] at 26. Defendants also point to the statements in the Broadcast that framed the money laundering theory, contending that it was the Saudis who "came up with" the "especially inventive idea" to use chickens to launder money, and that it was the Saudis who "bought a chicken farm in Georgia." See id. (quoting Broadcast Tr. at 18).
To be sure, the Broadcast contained no direct statement that Mar-Jac knowingly engaged in money laundering. Accordingly, as it agreed at oral argument, Mar-Jac advances a claim of defamation by implication alone, not a claim of direct defamation. While direct references to Mar-Jac occurred in the Broadcast, as noted above, none of them included a direct accusation that it knowingly engaged in money laundering. The chart referenced Mar-Jac as part of the Saar Network, but it is left to inference that Mar-Jac knowingly engaged in money laundering, instead of being an innocent pass-through, merely a suspect, or completely uninvolved in any scheme. Mar-Jac alleges that it was defamed by the implication that it "knowingly" engaged in money laundering but it appears to pin the "knowingly" element on its assertion that millions of chickens could not be killed, or falsely reported dead, without active complicity by those engaged in the poultry business itself.
A reasonable jury might conclude that the allegedly defamatory "words used really contain no reflection" on Mar-Jac itself, as opposed to other alleged malfeasors, and were therefore not "of and concerning" Mar-Jac, see Cox Enters., 426 S.E.2d at 653, or that the Broadcast did not imply that Mar-Jac knowingly engaged in money laundering to assist terrorists or terrorist groups but was only a conduit. However, the Court cannot conclude as a matter of law that no reasonable viewer could interpret the Broadcast to imply that Mar-Jac knowingly engaged in money laundering to aide terrorists. See Mead, 417 S.E.2d at 17; see also Maples v. Nat'l Enquirer, 763 F.Supp. 1137, 1141 (N.D.Ga.1990); White, 909 F.2d at 518. Summary judgment cannot be granted to Defendants that the complained-of statements were not defamatory under Georgia law; since the Broadcast is somewhat ambiguous, a jury would have to decide its meaning. Similarly, partial summary judgment cannot be granted to Mar-Jac because it is ambiguous whether the Broadcast is "of and concerning" Mar-Jac and whether the Broadcast was, in fact, defamatory.
Even if the Broadcast were capable of bearing Mar-Jac's defamatory implication and could be found defamatory under Georgia law, the Court must still determine whether the Broadcast was nonetheless protected by the First Amendment. See White, 909 F.2d at 523 (noting that "once the publication has been found capable of a defamatory meaning[] [a] defendant may escape liability if the defamatory meaning is established as true or as constitutionally protected expression"). The Broadcast touched upon a topic of significant public concern, as it discussed one woman's efforts to reveal alleged use of U.S. monies to support terrorist groups, a topic of continuing public anxiety. "[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (internal quotation omitted). The Broadcast centered on the illicit financing of terrorism from sources in the United States in the years following September 11, 2011, and Ms. Katz's efforts to
But no reasonable jury could find that Ms. Katz's statements about laundering money through misreporting dead chickens were anything but rank speculation, surmise or hyperbole, engendered, perhaps, by her thrill at being involved in an uncover capacity.
There is no wholesale constitutional protection for expressions of opinion; opinions are actionable when a reasonable trier of fact could interpret the statement to imply an assertion of objective fact that is defamatory. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). To ensure space for "imaginative expression" and "rhetorical hyperbole," a statement of opinion is actionable only if it implies an explicit or implicit factual foundation and therefore is "objectively verifiable." Id. at 20-22, 110 S.Ct. 2695; see also Washington v. Smith, 80 F.3d 555, 556 (D.C.Cir.
Therefore, the Court looks to whether the Broadcast contained such "loose, figurative, or hyperbolic language which would negate the impression that [Ms. Katz] was seriously maintaining that [Mar-Jac] committed the crime" of money laundering to aide terrorists or terrorism groups. Milkovich, 497 U.S. at 21, 110 S.Ct. 2695; see also White, 909 F.2d at 522 ("The test is intended to protect the use of loose, figurative or hyperbolic language which would preclude an impression that the author was seriously maintaining a provable fact."). In doing so, the Court must also look to "the general tenor" of the Broadcast to determine whether context would negate any impression that Ms. Katz seriously asserted that Mar-Jac had, in fact, knowingly engaged in money laundering to aide terrorism. Milkovich, 497 U.S. at 21, 110 S.Ct. 2695; Weyrich v. New Republic, Inc., 235 F.3d 617, 624 (D.C.Cir. 2001) ("In deciding whether a reasonable factfinder could conclude that a statement expressed or implied a verifiably false fact about appellant, the court must consider the statement in context."). Ultimately, a "statement of fact is not shielded from an action for defamation by being prefaced with the words `in my opinion,' but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable." Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.1993) (citing Milkovich, 497 U.S. at 17-21, 110 S.Ct. 2695 (1990)).
The Court finds that Ms. Katz's statement that if one wanted, one could report ten million dead chickens a year, was clearly hyperbolic, speculative, and as surmise did not imply a verifiably false fact. Her further statement "[t]hat's what we're trying to find out," Broadcast Tr. at 18, indicating that "we" (she and the government) were still investigating whether "money lost" was going to terrorist sources, when viewed in context of the entire Broadcast, also negated the possibility that a reasonable juror would conclude that Ms. Katz implied a factual assertion that Mar-Jac had knowingly laundered money to assist terrorists.
Ultimately, it is the "defamatory implication—not the underlying assertions giving rise to the implication—which must be examined to discern whether the statements are entitled to full constitutional protection." White, 909 F.2d at 523. Mar-Jac does not allege only that it was defamed through an implication of money laundering by falsely reporting dead chickens but that the defamation was to imply that Mar-Jac engaged in money laundering by falsely reporting dead chickens in knowing support of terrorist groups or terrorism. Although the implication of money laundering is sufficiently factual to be proven true or false, the cumulative effect of Ms. Katz's speculative language within the context of the Broadcast makes clear that she was only presenting an hypothesis, and not implying that she was in possession of objectively verifiable facts. See Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 729 (1st Cir. 1992) (holding that although the connotation of deliberate deception may be sufficiently factual to be verifiable, the "sum effect of the format, tone and entire content of the articles is to make it unmistakably clear that Kelly was expressing a point of view only"). Looking at the Broadcast as a whole, any defamatory implication that money flowed through Mar-Jac to terrorists was presented as mere speculation. Any further implication that Mar-Jac acted knowingly in laundering money to assist terrorists or terrorist groups remained so unspoken that it, too, could only be—at best—speculation and surmise. Accordingly, the challenged statements in the Broadcast are protected
As the Court finds the defamation counts fail under the First Amendment, the remaining counts of the Amended Complaint must be dismissed too. Count III alleges negligence in that Defendants allegedly "owed a duty to avoid causing harm to others by refraining from making and broadcasting false, libelous, slanderous and/or defamatory statements," Am. Compl. ¶ 37. Because the Broadcast was not defamatory, as alleged by Mar-Jac, it follows that Defendants breached no duty to refrain from defamation. Count III will be dismissed.
Mar-Jac also alleges product disparagement in violation of the Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. § 10-1-372(a)(8). Am. Compl., Count IV. "A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he ..., [d]isparages the goods, services, or business of another by false or misleading representation of fact." O.C.G.A. § 10-1-372(a)(8). In its Amended Complaint, Mar-Jac alleges that "Defendants falsely stated or implied that Plaintiff Mar-Jac's poultry business knowingly received monies from persons or entities which were used to fund terrorists or terrorist organizations and/or that some portion of proceeds from Plaintiffs' [sic] poultry business were knowingly used to fund terrorists or terrorist organizations." Am. Compl. ¶ 42. To the extent this cause of action is based on the alleged defamation, it must fail for the same reasons as the defamation claim. See Moulton v. VC3, No. 1:00-cv-434, 2000 WL 33310901, at *3, 2000 U.S. Dist. LEXIS 19916, *10-11 (N.D.Ga. Nov. 6, 2000) (dismissing a claim under O.C.G.A. § 10-1-372(a)(8) because the "entire basis for this claim are the statements which the Court has already held are opinion and, therefore, not defamatory" therefore they "cannot be the basis of an unfair trade practices claim that Defendant made false and misleading representations of fact").
The remaining counts of vicarious liability (Count V), punitive damages (Count VI), and expenses of litigation (Count VII) will
For the reasons discussed above, Defendant Bob Simon will be dismissed by agreement of the parties. The Court will grant the Defendants' Joint Motion for Summary Judgment [Dkt. # 186] as it finds the challenged statements were protected by the First Amendment. All remaining counts of the Amended Complaint will be dismissed. Accordingly, CBS's Supplemental Motion for Summary Judgment [Dkt. # 187] will be denied as moot and Mar-Jac's Motion for Partial Summary Judgment [Dkt. # 188] will be denied. A memorializing Order accompanies this Memorandum Opinion.
As the king of its own (amended) Complaint, Mar-Jac insists that it is not pursuing a conduit theory of defamation. See Pl.'s Opp'n at 7-8 ("Mar-Jac can prove the falsity of the claim that `money flowed through it to terrorists,' but make no mistake: this is not the defamatory accusation that was made in the 60 Minutes broadcast or alleged in Mar-Jac's Amended Complaint."). Counts I and II allege that the defamatory implication was that "Mar-Jac engaged in money laundering activities in a knowing effort to support terrorists and/or terrorist organizations, such as al-Qaeda, Hamas and Islamic Jihad." Am. Compl. ¶ 26 (Count 1); see also id. ¶ 33 (Count 2) (alleging that the Broadcast created the impression that "Mar-Jac knowingly laundered money to fund terrorists and/or terrorist organizations").
Although a plaintiff may proffer alternative defamatory implications, Mar-Jac does not do so here. There may be good reasons: Defendants appear ready to offer evidence to counter a defense of falsity as to whether Mar-Jac was an unknowing "conduit," and such a theory might lose the advantage of Georgia's per se rule of defamation. However, the Court will not analyze an alternative theory of defamation not advanced by the Plaintiff. See Tavoulareas, 817 F.2d at 778 n. 16 ("We should have thought it beyond peradventure that an appellate court in a defamation action should refrain from embracing a defamatory interpretation of the underlying article that has not been pursued by the allegedly defamed individual.").
