Enclosed is the text of the Order that grants PP’s Motion For Judgment on the Pleadings. This is the same Judge that denied the same motion for Geraldo. As you will see in the order, the judge understands that he is splitting hairs by letting them off the hook. For that reason, I think I have a real chance getting this overturned on appeal. But, until then, I have decided to include both Gloria Feldt, Kim Gandy and PP and NOW as defendants in the conspiracy count that the judge has given me the opportunity to amend in the Geraldo case. This means that I would in effect incorporate all the accusations I made against PP in this lawsuit into a conspiracy count in the Geraldo lawsuit that the judge has already indicated he would give serious consideration. Under those circumstances, as I proceed with discovery in the Geraldo case, I would be able to depose, etc. all the PP and NOW cows as well. While I already have excellent evidence showing a conspiracy through the media, I have little doubt there is reams of evidence showing Feldt pulled out all the stops to make as big a splash as possible with the Nuremberg Files site so as to get ready for the upcoming Oregon trial. I hope all the Oregon trial folks are keeping this in prayer because it is a great way to put the facts on the table showing how Feldt and the old girls network pulled off a massive misinformation campaign to set the stage for the Oregon trial.
(Any typos are mine because I scanned the text).
________________________
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA NEWNAN DIVISION
NEAL HORSLEY,
d/b/a CHRISTIANGALLERY.COM, d/b/a BESTCHOICE.COM, d/b/a THE CREATOR’S RIGHTS PARTY,
Plaintiff,
V. CIVIL ACTION NO. 3:99-CV-136-JTC
GLORIA FELDT, PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., KIM GANDY, and THE NATIONAL ORGANIZATION FOR WOMEN,
Defendants.
ORDER This case is before the Court on the Motion for Judgment on the Pleadings of Defendants Gloria Feldt and Planned Parenthood Federation of America, Inc. [#33-1] the Motion for Judgment on the Pleadings of Defendants Kim Gandy and the National Organization for Women [#46-1], and Plaintiff Neal Horsley’s Motion for Subpoenas [#40-1].
1. FACTUAL BACKGROUND
Plaintiff Neal Horsley brings this libel and slander action against Defendants Gloria Feldt and Planned Parenthood Federation of America, Inc. (“Planned Parenthood”) based on statements made by Defendant Feldt at a 1998 news conference. Plaintiff brings a similar claim against Defendants Kim Gandy and the National Organization for Women (“NOW”‘) for statements made by Defendant Gandy in a 1998 televised debate. An antiabortion activist and founder of the Creator’s Rights Party, Plaintiff created and operated a number of anti-abortion Internet Web sites. One of these Web sites, www.christiangallery.com, listed the names, addresses, and Social Security numbers of individual doctors and nurses who were known to perform abortions.
In October, 1998, Dr. Bernard Slepian was shot and killed while standing in the kitchen of his home in Buffalo, New York. Dr. Slepian was a medical doctor who performed abortions as a part of his practice. His murder attracted national and international media attention. Prior to his murder, Dr. Slepian’s name and address had not been posted on Plaintiff’s Web site; however, Plaintiff subsequently added it and crossed it off.
On October 24, 1998, Defendant Gloria Feldt, acting in her capacity as President of Defendant Planned Parenthood, held a news conference to discuss the murder. According to Plaintiff, portions of this news conference were nationally broadcast by CNN Live News. During the broadcast, Defendant Feldt allegedly stated that:
his [Dr. Slepian’s] name had been on a list–you can look it up on the web, christiangallery.com-a list of doctors who are subject to surveillance and murder. His name was already crossed out.
(Compl. 12). Later that day, Defendant Feldt’s statements appeared in an Associated Press article. According to Plaintiff, the article noted that:
Gloria Feldt also told a news conference in midtown Manhattan that the name of the physician, Dr. Barnett Slepian, had appeared on a list of abortion doctors marked for death that was circulated on the Internet … Feldt said she didn’t know how long the Internet target list that included Slepian’s name has existed, or whether either he or the police were aware of it…
(Compl. 9-10).
Two days later, Plaintiff voluntarily participated in a televised debate on CNN Today with anchor Jeanne Meserve and Defendant Kim Gandy, the Executive Vice President of Defendant NOW. During a heated exchange between Plaintiff and Defendant Gandy, Defendant Gandy responded to comments made by Plaintiff as follows:
You have the blood of these doctors on your hands, because you have incited and you have inspired and conspired with others to result in what exactly has happened, that these doctors have been murdered. And until the United States government starts treating these, instead of treating them as isolated incidents, starts treating them as the conspiracy that they are and starts putting the same resources into these murderers that went into the Olympic bombings, that went into the World Trade Center bombings, we are going to see this continue to happen. Doctors and clinical workers will die.
(Compl. 34).
Soon after Defendants Feldt and Gandy made these statements, Plaintiff began receiving threatening e-mails and letters. Many of these messages contained death threats against Plaintiff and/or his family. One such letter purportedly contained the deadly Anthrax virus. As a result of this specific letter, Plaintiff was hospitalized and treated by the hazardous materials unit. Plaintiffs business and political party also suffered serious setbacks after these statements were made. Internet Service Providers canceled their contracts with Plaintiff and refused to provide him access to the Internet. Without this access, Plaintiff could not operate his Web site design and creation business or use the Internet to gain support for his Creator’s Rights Party.
H. JUDGMENT ON THE PLEADIINGS
Plaintiff filed the present lawsuit against Defendants for libel and slander, asserting that they made false and malicious defamatory statements against him by implying or directly accusing him of being an accomplice in the death of Dr. Slepian. Plaintiff also contends that Defendants’ defamatory statements set in motion a “chain of events that damaged the plaintiff, elicited hundreds of death threats … cost him employment, and other damages that continue to accrue to this day.” (Compl. 1). Additionally, Plaintiff asserts a claim against Defendants for conspiracy to commit libel and slander, alleging that the false accusations made by Defendants indicate a “degree of cooperation’ between them. (Compl. 53).
Defendants deny these claims and have moved for Judgment on the Pleadings. They assert that the statements made during the press conference and interview are constitutionally-protected expressions of opinion and rhetorical hyperbole that “cannot reasonably be interpreted as stating actual facts about an individual.” Milkovich v. Lorain Journal Co.. 497 U.S. 1, 20, 1 1 0 S. Ct. 2695, 2706 (1990). Because the statements involve a matter of public concern, Defendants also argue that they are protected by the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721 (1964).
Considering the context in which they were made, Defendants’ statements are “uninhibited, robust’ debate on a public issue and “cannot reasonably be interpreted as stating actual facts” about Plaintiff. Milkovich, 497 U.S. at 20, 1 10 S. Ct. at 2706. A reasonable listener would not have thought that Defendants were implying or literally charging Plaintiff with the commission of a criminal offense. See Greenbelt Cooperative Publishing Asoc. v. Bresler. 398 U.S. 6, 14, 90 S. Ct. 1537, 1542 (1990) (newspaper’s description of developer’s conduct as “blackmail” not actionable because no reasonable reader would have thought that the speaker or article was charging Bresler with the commission of a crime). Therefore, Plaintiff has failed to state a libel and slander claim against Defendants and the Motions for Judgment on the Pleadings are granted.
A. Standard
Judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure “is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts.” Hawthorne v. Mac Adjustment Inc_, 140 F.3d 1367, 1370 (I Idi Cir. 1998). Generally, courts in the Eleventh Circuit treat Rule 12(c) motions for judgment on the pleadings and Rule 12(b)(6) motions for failure to state a claim identically and apply the same standards. See Amicredit Accel2tance, L.L.C. v. Hendrix, 32 F. Supp. 2d 1361, 1364 n. I (S.D. Ga. 1998). “@en ruling on a Rule 12(b)(6) motion to dismiss or on a Rule 12(c) motion for judgment on the pleadings, a court must examine the complaint in the light most favorable to the non-moving party, accept the well-pleaded factual allegations as true, and construe all allegations in favor of the plaintiff.” Id. at 1364. If upon reviewing the complaint it is clear that the plaintiff would not be entitled to relief under any set of facts that could be proved consistent with the allegations, the Court should dismiss the complaint. See awthome, 140 F.3d at 1370.
B. Libel and Slander Claim
While federal and state courts have not adopted a wholesale defamation exemption for anything that might be labeled “opinion,” the United States Supreme Court provides full constitutional protection to (1) statements of opinion relating to matters of public concern that do not “contain a provably false factual connotation;” and (2) rhetorical hyperbole that “cannot reasonably be interpreted as stating actual facts about an individual.” Milkovich, 497 U.S. at 20, 1 10 S. Ct. at 2706. These constitutional protections are rooted in the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times, 376 U.S. at 270, 84 S. Ct. at 72 1, and they ensure that public debate will not suffer from lack of “imaginative expression.” Milkovich, 497 U.S. at 20, 110 S. Ct. at 2706. Moreover, these protections reflect “the reality that exaggeration and non-literal commentary have become an integral part of social discourse.” Levinsky’s. Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128 (Ist Cir. 1997).
These constitutional protections, however, do not extend to statements of opinion which imply the assertion of an objective, defamatory fact. Milkovich, 497 U.S. at 1820, 1 10 S. Ct. at 2705-706. Statements of opinion are actionable if they “can reasonably be interpreted as stating or implying defamatory facts about plaintiff… [that] are capable of being proved false.” Eidson v. Beny, 202 Ga. App. 587, 588, 415 S.E.2d 16, 17 (1992). See also, Restatement (Second) of Torts, 566 (“a statement [of opinion] is actionable only if it implies the allegation of undisclosed defamatory facts as the basis of opinion.”).
In the case at bar, Defendant Feldt held a press conference to discuss Dr. Slepian’s death. She used this forum to publicly criticize the local police in the Buffalo area whom she believed had not “stepped up to the plate and protected providers of women’s health care” because of a “fundamental anti-choice philosophy” within the department. Defendant Feldt also mentioned Plaintiff’s Web site during this press conference, describing the “target list” of doctors who were “subject to surveillance and murder.”
Given the context in which these statements were made, no reasonable person could conclude that Defendant Feldt asserted or implied that Plaintiff was an accomplice or conspirator in Dr. Slepian’s murder. Instead, these statements reflect Defendant Feldt’s personal opinion that Plaintiffs Web site and other “lists of this sort” helped foster a violent anti-abortion climate; a climate which she believes local law enforcement should have recognized. While these opinions may overstate the nature of Plaintiffs Web site, they are not actionable because they do not imply the assertion of an objective, defamatory fact. Therefore, they are not capable of the defamatory meaning Plaintiff attempts to attribute them and the Motion for Judgment on the Pleadings filed by Defendants Feldt and Planned Parenthood is granted.
Defendant Gandy also criticized Plaintiff and his Web site for the role they played in creating and fostering a violent anti-abortion climate. During a heated debate between the two, Plaintiff compared medical doctors who perform legal abortions to “Nazis” who should be put on trial for making a living “slaughtering babies.” (Compl. 1 34). In response to these statements, Defendant Gandy asserted that Plaintiff had “the blood of these doctors” on his hands because he “incited,” “inspired” and “conspired” with others to cause their murders. Id. Given the context in which these statements were made and the fact that both parties used harsh, figurative language to convey their opinions, no reasonable listener would construe Defendant Gandy’s statements as a legal charge that Plaintiff was an accomplice to murder. Defendant Gandy’s statements are similar to the statement in the Greenbelt case referring to a developer’s negotiating position as “blackmail.”
Noting that the published reports “were accurate and full,” the Court reasoned that “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating position extremely unreasonable.”
Milkovich, 497 U.S. at 17, 1 10 S. Ct. at 2705 (quoting Greenbelt, 398 U.S. at 13-14, 90 S. Ct. at 1541-42); see also Webster v. Wilkins, 217 Ga. App. 194, 195, 456 S.E.2d 699, 700-701 (1995) (assertion that plaintiff mother was “unfit to have a kid” was not actionable and was not interpreted in a legal sense). Gandy’s statements indicate that she believed Plaintiff’s action was extremely unreasonable and even dangerous, but a casual listener would have perceived it as rhetorical hyperbole, not an accusation of the crime of murder. Therefore, these statements are not defamatory and the Motion for Judgment on the Pleadings filed by Defendants Kim Gandy and NOW is granted.
C. Conspiracy Claim Plaintiff asserts that Defendants participated in a conspiracy to defame him. However, in order to recover on a claim for conspiracy to commit libel or slander, Plaintiff must prove that one of the alleged co-conspirators actually made libelous or slanderous statements. Safety-Kleen Corp. v. Smith, 203 Ga. App. 514, 515, 417 S.E.2d 171, 173 (1992). In this case, Plaintiff failed to prove that any of the Defendants committed libel or slander. See Part II, Subsection B of this Order. Therefore, Plaintiff’s claim for conspiracy to commit libel and slander fails as a matter of law. Id.
III. CONCLUSION Based upon the foregoing, the Motion for Judgment on the Pleadings filed by Defendants Gloria Feldt and Planned Parenthood [#33-11 and the Motion for Judgment on the Pleadings filed by Defendants Kim Gandy and NOW [#46- 1 ] are GRANTED and the case is DISMISSED with prejudice. Plaintiffs Motion for Subpoenas [#40-11 is DENIED as moot.
SO ORDERED, this 8 day of February, 2001
JACK T. CAMP UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA NEWNAN DIVISION
NEAL HORSLEY,
Plaintiff, CIVIL ACTION FILE NO. 3:99-cv-136-JTC
vs.
GLORIA FELDT, PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., KIM GANDY, and THE NATIONAL ORGANIZATION FOR WOMEN,
Defendants
JUDGMENT This action having come before the court, Honorable Jack T. Camp, United States District Judge, for consideration of the defendants’ motions for judgment on the pleadings, and the court having granted said motions, it is Ordered and Adjudged that the plaintiff take nothing- that the defendants recover of the plaintiff their costs of this action, and the action be, and the same hereby, is dismissed with prejudice.
Dated at Newnan, Georgia, this 12th day of February, 2001.
This can be found in html format athttp://www.christiangallery.com/PPorder.html