IN THE DISTRICT OF COLUMBIA COURT OF APPEALS

No. 86-678

WILLIAM THOMAS, et al.,

Appellants,

vs.

THE WASHINGTON TIMES, INC

Appellee

APPEAL FROM THE SUPERIOR COURT OF

THE DISTRICT OF COLUMBIA

CIVIL DIVISION

BRIEF FOR APPELLEE

ALLEN J. FARBER

LUCINDA J. BACH

Schwalb, Donnenfeld, Bray & Silbert

A Professional Corporation Suite 300 East

1025 Thomas Jefferson St., N.W.

Washington, D.C. 20007

(202) 965-7910

COUNSEL FOR APPELLEE

TABLE OF CONTENTS

Title Page

I. Statement of the Case 2

II. Statement of the Issue 3

III. Legal Argument 3

A. The Complaint Violates Rule 8 of the Superior Court Rules. 4

B. The Complaint fails to State a Claim for Intentional Emotional Distress. 5

C. The Complaint is Legally Insufficient to Support an Action for Libel. 7

1. The article is not of and

concerning Appellants.

2. The article in question is not sus

ceptible of defamatory meaning. 7

3. The article contains protected

opinion. 9

D. The Complaint Fails to Sate a Calim for

Civil Conspiracy 13

IV. Conclusion 13

TABLE OF AUTHORITIES

Cases Cited Page

Afro-American Publishing Co. v. Jaffe

366 F.2d 649, 654 (D.C. Cir. 1966) (en bane) 9

Avin v. Verta

106 A.2d 145 (Mun.Ct.App. D.C. 1956) 4

Bielitski v. Obadiak

15 Sask. 153, 65 D.L.R. 627 (1922) 5

Blackwelder v. Millman,

522 F.2d 766, 771-72 (4th Cir. 1975). 7

Duncan v. WJLA-TV, Inc.

10 Media L. Rep. (BNA) 1935, 1937 (D.D.C. 1984) 8

Eltra corporation v. Ringer,

579 F.2d 294, 298 (4th Cir. 1978) 7

Fowler v. Curtis Publishing Co.

78 F.Supp. 303, 304 (D.D.C. 1948), aff'd.

182 F.2d 377 (D.C. Cir. 1950) 8

Gertz v. Robert Welch, Inc.

418 U.S. 323, 339-40 (1974) 10

Great Atlantic & Pacific Tea Co. v. Roch

160 Md. 189, 153 A.22 (1933) 5

Gregory v. McDonnell Douglas Corp.

552 P.2d 425, 428 (Cal. 1976) 11

Halberstam v. Welch

705 F.2d 472, 479 (D.C. App. 1983) 13

Howard University, 484 A. 2d at 989 9

Johnson v. Johnson Publishing Company

271 A.2d 696, 697 (D.C. 1970). 9

Marinopoliski v Irish,

445 A.2d 339 (D C.App. 1982) 7

National Foundation for Cancer Research

Inc. v. Council of Better Business Bureaus, Inc.

705 F.2d 98, 100-01 (4th Cir. 1983) 12

Olinger v. American Savings & Loan Assoc

409 F.2d 142, 144 (D.C. Cir. 1969) 9

*Oilman v. Evans

750 F.2d 970, 975 (D.C. Cir. 1984),

cert. denied U.S

105 S.Ct. 2662 (1985).. - 10,11,12

*Peebles v. Rudolph

121 A.2d 264 (Mun.Ct.App. D.C. 1956) 4

Phillips v. Evening Star Newspaper Co.

424 A. 2d 78, 83 (D.C. 1980),

cert. denied 451 U.S. 989 (1981) 9

Pierce, 427 F.Supp. at 186 12

Sere v. Group Hospitalization, Inc.

443 A.2d 33, 37 (1982) 5

Service Parking Corn. v. Washington Times Company

92 F.2d 502, 504 (D.C. Cir. 1937) 7, 8

Simpkins v. Brooks,

49 A.2d 549 (D.C.App. 1946) 7

Spelson v. CBS, Inc.

581 F.Supp. 1195, 1197-99 (N.D.L. 1984),

aff'd. 757 F.2d 1281 (7th Cir. 1985) 11

Summerlin v. The Washington Star Co.

7 Media L. Rep. (BNA) 2460, 2461 (D.D.C. 1981) 8

*Waldon v. Covington

415 A.2d 1070 (1982) 5, 6

Authorities Cited

Restatement (2nd) of Torts, § 46 (1965) 5, 6

Cases principally relied upon are denoted by an asterisk *.

I.

STATEMENT OF THE CASE

Plaintiffs, William Thomas and a group identified only as Peace Park (White House) Anti-Nuclear Vigils, (hereinafter "Plaintiffs") filed their Complaint against The Washington Times, Inc. on February 6, 1986. The Complaint purported to state claims for civil conspiracy and intentional infliction of emotional distress based upon an article published in The Washington Times which described the actions of a group called Young Americans for Freedom in removing placards from Lafayette Park during the early morning hours on July 4, 1985.

Defendants moved to dismiss pursuant to Rules 12(b)(5) and 12(b)(6) of the Rules of the Superior Court of the District of Columbia on the grounds that: (1) service of process was not effected in accordance with Superior Court Rule 4 of the Rules of Civil Procedure; (2) no entity named "Washington Times, Inc." exists; and (3) the Complaint failed to state a claim upon which relief could be granted.

Plaintiffs thereafter purported to cure the deficiences in service of process by re-serving the Complaint. However, the Complaint continued to name as Defendant a non-existent entity, "Washington Times, Inc." Although Plaintiffs had the opportunity at that time to amend the Complaint to state a claim for which relief could be granted, Plaintiffs chose not to do so. The newly served Complaint did not alter the substantive allegations in the original Complaint. Thus, it also failed to state a claim upon which relief could be granted.

On April 3, 1986, Judge Hannon granted Defendant's motion to dismiss. On April 25, 1986, Plaintiffs filed a notice of appeal, and thereafter, on May 8, 1986, filed a motion for summary reversal of Judge Hannon's decision. Defendant, The Washington Times, Inc., (hereinafter "Defendant") opposed the motion for summary reversal and moved to dismiss the appeal. This Court denied both motions by order dated July 22, 1986.

As set forth in more detail below, Judge Hannon's dismissal of this action was proper. Plaintiff has not stated a claim upon which relief can be granted. Moreover, even if permitted to amend the Complaint, it is clear that Plaintiffs could prove no set of facts which would entitle them to relief based upon the aforementioned article. Accordingly, Judge Hannon's decision should be affirmed.

II. STATEMENT 0F THE ISSUE

Whether the Superior Court of the District of Columbia properly dismissed the Complaint.

III. LEGAL ARGUMENT

Plaintiffs have at all times labelled their Complaint as one for damages based upon intentional infliction of emotional distress and civil conspiracy. After Defendant moved to dismiss it on the grounds, inter alia, that the Complaint failed to state a claim for either of the above torts, Plaintiffs refiled the identical Complaint, but argued in opposition to the motion to dismiss that they also sought to recover for defamation. Plaintiffs asserted that, through typographical error, one sentence of the Complaint had been mistakenly deleted. According to plaintiffs, that sentence alleged that the article in question was defamatory. Assuming for purposes of argument that the Complaint seeks recovery for defamation, it is nonetheless legally insufficient to state a claim for any of the aforementioned torts. 1/

  1. The Complaint Violates Rule 8 of the Superior Court Rules.

 

In addition to the fact that the Complaint fails to state a cause of action for any of the numerous torts purportedly alleged by Plaintiffs, it also violates Rule 8 of the Rules of the Superior Court of the District of Columbia. That rule requires that a Complaint contain a "Short and plain statement of the claim" and that each averment of a pleading be "simple, concise, and direct. " This Court has previously held that failure to comply with Rule 8 is ground for dismissal. Peebles v. Rudolph, 121 A.2d 264 (Mun.Ct.App. D.C. 1956); Avin v. Verta, 106 A.2d 145 (Mun.Ct.App. D.C. 1956). As the Court in Peebles states:

Viewed in its most favorable light the Complaint is a confusing recital of evidentiary matter making uncertain whether appellant's claim, if he has one, sounds in tort or contract. ... [o]ne who has a legal grievance should state it clearly, simply and directly and failure to do so warrants a dismissal.

121 A.2d at 265. A similar result is proper here.

1/ In Paragraph 6 of the Complaint, Plaintiff alleges: "that in pursuit of said 'good' copy for its 'patriotic' Fourth of July weekend editions, The Washington Times virtually 'cooked up' a story by sending Masty to report on and participate in an assault of the plaintiffs and their property as abovesaid, and to disto (sic). " However, appellants now claim that the last part of that sentence was erroneously deleted. Appellants state that the sentence should have been completed as follows: "distribute to the public an intentional, wrongful, malicious, libelous, and defamatory representation of that morning's" July 4, 1985 events. It is obvious that the language which appellants claim was mistakenly omitted does not match that which is contained in paragraph 6.

B. The Complaint Fails to State a Claim for Intentional Infliction of Extreme Emotional Distress.

Although Plaintiffs purport to state a claim for intentional infliction of extreme emotional distress, the Complaint utterly fails to allege the necessary elements of that tort. To state a claim for intentional infliction of extreme emotional distress, a Complaint must allege: (1) "extreme and outrageous. conduct on the part of the Defendant which (2) intentionally or recklessly (3) causes the Plaintiff "severe emotional distress." Sere v. Group Hospitalization, no., 443 A.2d 33, 37 (1982); Restatement (2nd) of Torts, § 46 (1965). Both the Restatement of Torts and District of Columbia cases make clear that:

liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

The Restatement of Torts explains that liability for intentional infliction of emotional distress "clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.. Restatement (2d) of Torts, § 46 (1965).

In Waldon v. Covington, 415 A.2d 1070 (1982), the Court analyzed cases allowing recovery for intentional infliction of emotional distress, and concluded that "the outrageousness of the defendant's conduct is self-evident in each instance."Id., at 1077. See e.q., Bielitski v. Obadiak, 15 Sask. 153, 65 D.L.R. 627 (1922) (defendant's false story that plaintiff's son had hung himself was spread around and got back to plaintiff as the truth); Great Atlantic & Pacific Tea Co. v. Roch, 160

Md. 189, 153 A.22 (1933) (defendant's employee delivered a dead rat wrapped up as a loaf of bread to plaintiff).

The allegations in this case are insufficient as a matter of law to sustain an action for intentional infliction of extreme emotonal distress. They fall far short of alleging the sort of outrageous conduct necessary to state a claim for intentional infliction of extreme emotonal distress. Rather, the Complaint alleges only that Defendant's alleged agent, reporter Steve Masty, participated in a "raid" on Plaintiffs and their property in Lafayette Park in the pre-dawn hours of July 4, 1985. Plaintiffs further allege that The Washington Times "cooked up" a story by sending their reporter to report on the "raid. " Even if Plaintiffs' allegations are accepted as true, it is clear that the events Complaint of do not go "beyond all possible bounds of decency and" cannot be "regarded as atrocious and utterly intolerable in a civilized community." Restatement (2d) of Torts, § 46.

Moreover, applying a balancing test, as did the Court in Waldon v. Covington, this Court should conclude that "the advantage to society of preventing such harm as defendant is here alleged to have inflicted on plaintiffs is minimal when compared with the chilling effect of imposing liability in this kind of situation." 415 A.2d at 1078. Thus, Plaintiff's claim for intentional infliction of emotional distress was properly dismissed.

C. The Complaint is Legally Insufficient to Support an Action for Libel.2/

1. The article is not of and concerning Plaintiffs.

The article upon which Plaintiffs base their claims of defamation identify neither Mr. Thomas nor the Peace Park (White House) Anti-Nuclear Vigils. Even if the article as a whole could be susceptible of defamatory meaning, which it cannot, no claim for defamation could be stated because the article is not of and concerning Plaintiffs. Rather, the article refers only to an indeterminate group of individuals who happened to be present at Lafayette Park during the early morning hours on July 4, 1985.

It is for the Court to determine, as a matter of law, whether the allegedly defamatory statements are reasonably capable of bearing an application to Plaintiffs. In this case, it is obvious that the article at issue cannot reasonably be construed as applicable to appellants.

To state a claim for defamation, Plaintiffs must demonstrate that the allegedly defamatory statements specifically apply to or are "of and concerning" them. Service Parking Corp. v. Washington Times Company, 92 F.2d 502, 504 (D.C. Cir. 1937); Provisional Government of the Republic of New Afrika v. American Broadcasting Companies, Inc., 609 F.Supp.

2/ Plaintiff did not assert below that his Complaint sought relief for defamation; accordingly Defendant's briefs did not address the issue. Plaintiff now seems to assert for the first time a claim for defamation. For the reasons set forth herein, Plaintiff's claim is fatally defective. It is axiomatic that the judgment below is to be affirmed if the correct result was reached irrespective of the reasoning. Marinopoliski v. Irish, 445 A.2d 339 (D.C.App. 1982); Simpkins v. Brooks, 49 A.2d 549 (D.C.App. 1946); Eltra Corporation v. Ringer, 579 F.2d 294, 298 (4th Cir. 1978); Blackwelder v. Millman, 522 F.2d 766, 771-72 (4th Cir. 1975).

104, 108 (D.D.C. 1985); Duncan v. WJLA-TV, Inc., 10 Media L. Rep. (BNA) 1935, 1937 (D.D.C. 1984); Summerlin v. The Washington Star Co., 7 Media L. Rep. (BNA) 2460, 2461 (D.D.C. 1981); Riss & Co. v. Assoc. of American Railroads, 187 F.Supp. 323, 325 (D.D.C 1960); Fowler v. Curtis Publishing Co., 78 F.Supp. 303, 304 (D.D.C. 1948), aff'd. 182 F.2d 377 (D.C. Cir. 1950). As stated in Service Parking Corp., 92 F.2d at 504, "the defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff. Even when a statement is clearly defamatory as to someone, "if the words have no personal application to the plaintiff they are not actionable by him." Michigan United Conservation Clubs v. CBS News, 485 F.Supp. 893, 897, (W.D.Mich. 1980), aff'd. 665 F.2d 110 (6th Cir. 1981).

The general rule of group libel is that defamatory language concerning a large or indeterminate group or class of persons cannot support an action by an individual member or members of that group or class unless the individual(s) can demonstrate that the language has special application to him or her. Fowler, 182 F.2d at 378, aff'g. 78 F.Supp. at 304; Service Parking Corp., 92 F.2d at 505-06; Provisional Government of the Republic of New Afrika, 609 F.Supp. at 108. The general rule is based, in part, on the reasoning that a statement relating to a group or class as a whole does not necessarily apply to every single member of the group or class.

In this case, Plaintiffs cannot demonstrate that the article in question, which does not identify either Mr. Thomas or any member of the Anti-Nuclear Peace Park Vigil by name, has special application to any of them. Rather, the article contains only vague, general descriptions of some of those present at Lafayette Park. Because Plaintiffs have not and cannot demonstrate that the allegedly defamatory article is of and concerning them, or any of them, they have failed to state a legally sufficient libel claim, and the Complaint was properly dismissed.

2. The article in question is not susceptible of defamatory meaning.

The article in question, which identifies none of the Plaintiffs, is also not, as a matter of law, capable of defamatory meaning. In addition to demonstrating that allegedly defamatory statements are of and concerning them, Plaintiffs must also demonstrate that the article in question is defamatory. A statement (or in this case an article, since Plaintiffs have not identified any particular language as defamatory) is not considered defamatory unless "it tends to injure plaintiff in his trade, profession, or community standing, or lower him in the estimation of the community." Afro-American Publishing Co. v. Jaffe, 366 F.2d 649, 654 (D.C. Cir. 1966) (en banc); Olinger v. American Savings & Loan Assoc., 409 F.2d 142, 144 (D.C. Cir. 1969). In addition, a publication will not be considered defamatory unless it imputes conduct that would render the subject liable to punishment or make him or her odious, infamous, or ridiculous. Howard University, 484 A. 2d at 989; Phillips v. Evening Star Newspaper Co., 424 A. 2d 78, 83 (D.C. 1980), cert. denied 451 U.S. 989 (1981); Johnson v. Johnson Publishing Company, 271 A.2d 696, 697 (D.C. 1970).

If, after examination of the article in question, there is only one reasonable interpretation of its meaning, it is for the court and not a jury to determine whether or not the words are defamatory. Johnson, 271 A.2d at 697. In this case, it is clear that the article in question, entitled "Capitol Sketch," is nothing more than a tongue-in-cheek portrayal of a bizarre sequence of events involving a colorful cast of characters, which unfolded in the early morning hours of July 4, 1985. No reasonable reader would construe the article to be defamatory of Plaintiffs, even if Plaintiffs had been identified in the article.

3. The article constitutes orotected opinion.

In addition to the above, the article in question is comprised of statements of opinion which are absolutely protected by the First Amendment and cannot form the basis for a libel action. The First Amendment bestows upon statements of opinion an absolute privilege from defamation actions. As set forth in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974):

Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.

It is for the Court to determine as a matter of law whether the allegedly libelous statements are protected opinion. Ollman v. Evans, 750 F.2d 970, 975 (D.C. Cir. 1984), cert. Denied ____U.S. _____, 105 S.Ct. 2662 (1985). In Ollman, the Court articulated four factors to be used in analyzing the "totality of circumstances" in which a statement is made to determine whether it merits First Amendment protection. This four-factor test is to guide a Court's consideration of whether an average reader would view the allegedly defamatory statements as opinion.

The first Ollman factor to be considered is "the common usage or meaning of the specific language of the challenged statement. Id., at 979. Thus, the Court must determine whether the statement has a precise core meaning for which a consensus of understanding exists or whether the statement is indefinite and ambiguous. This consideration is critical since readers are considerably less likely to infer facts from an indefinite or ambiguous statement than from one with a commonly understood meaning.

The second Ollman factor is the statement's verifiability. In assessing verifiability, a court should consider whether the statement is capable of being objectively characterized as true or false. Insofar as a statement lacks a plausible method of verification, a reasonable reader will not believe that statement has a specific factual content.

Third, the Court should consider the linguistic context in which the subject statement was published. The allegedly defamatory words should be examined in the context of the entire article in which they appear since the surrounding language will influence the average reader's readiness to infer that a particular statement has factual content.

The fourth factor to be considered is the broad social context or setting in which the statement was published. The context in which a statement is initially presented can cause an apparent factual assertion to be understood as a statement of opinion. Gregory v. McDonnell Douglas Corp., 552 P.2d 425, 428 (Cal. 1976).

An individual's comments and views, both lay and professional, about a set of facts or circumstances, are commonly held to be protected opinion. See e.g., Spelson v. CBS, Inc., 581 F.Supp. 1195, 1197-99 (N.D.L. 1984), aff'd. 757 F.2d 1281 (7th Cir. 1985). In addition, characterization of a plaintiff's conduct by another as reasonable or unreasonable is protected opinion. National Foundation for Cancer Research, Inc. v. Council of Better Business Bureaus, Inc., 705 F.2d 98, 100-01 (4th Cir. 1983) (defendant's report concluding that plaintiff did not satisfy standards for charitable organization held to be opinion); Pierce, 427 F.Supp. at 186 (comment during interview that plaintiff's land purchases raised doubts about his honesty and respect of public trust held to be opinion).

In addition, statements in an editorial or column published on the editorial or op-ed page are almost always held to be protected by the First Amendment since the context in which they appear indicates to any reasonable reader that these statements are opinion. Ollman, 750 F.2d at 986-87. The reasonable reader who peruses the op-ed page "is fully aware that the statements found there are not 'hard' news like those printed on the front page or elsewhere in the news sections of the newspaper." Id., at 986. The location or context in which editorial statements are published clearly indicates, therefore, that these statements are opinion.

In this case, even if it could be concluded that the article in question sufficiently identified Plaintiffs and that the article is reasonably susceptible of defamatory meaning relating to Plaintiffs, it is clear that the article is nothing more than Mr. Masty's opinion and commentary on an unusual series of events in the District of Columbia. Because Plaintiffs do not challenge any specific language as defamatory, the court must look at the article as a whole. The article, including its title "Capital Sketch" clearly indicates that it is comprised only of Mr. Masty's subjective impressions of the events. Mr. Masty's impressions are not capable of objective verification. The article is thus protected by the First Amendment and, as a matter of law, cannot form the basis for a libel action. Thus, the action was properly dismissed.

D. The Complaint Fails to State a Claim for Civil Conspiracy

 

Plaintiffs also purport to statement a claim for civil conspiracy.

However, the Complaint utterly fails to alleged the necessary elements of

such a cause of action. Under District of Columbia law, the essential

elements of civil conspiracy are "an agreement to take part in an unlawful

action or a lawful action in an unlawful manner, and an overt tortious act

in furtherance of the agreement that causes injury." Halberstam v. Welch,

705 F.2d 472, 479 (D.C. App. 1983). As the Court explained in that case,

there is no recognized, independent tort action for civil conspiracy in the

District of Columbia. Rather, liability for civil conspiracy depends upon

performance of some underlying tortious act.

In this case, Plaintiffs utterly failed to allege any underlying tort. As set forth above, the purported tort claims for intentional infliction of extreme emotional distress and defamation are fatally flawed. Thus, the Complaint for civil conspiracy also was properly dismissed.

IV. CONCLUSION

For the reasons set forth above, the Complaint in this action was properly dismissed, and the dismissal should be affirmed in all respects.

Respectfully submitted,

/s/Lucinda J. Bach
ALLEN V. FARBER (Bar No. 912865)
LUCINDA J. BACH (Bar No. 375366)
Schwalb, Donnenfeld, Bray & Silbert
A Professional Corporation Suite 300 East
1025 Thomas Jefferson St., N.W.
Washington, D.C. 20007
(202) 965-7910

COUNSEL FOR APPELLEE

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the 6th day of October,1986, she served a true and correct copy of the foregoing by U.S. Mail, with postage fully prepaid, as follows:

Mr. William Thomas
Apartment 410
1440 " Street, N.W.
Washington, D.C. 20005

/s/Lcinda J. Bach______________
LUCINDY J. BACH (Bar No. 375366)

Listing of Cases

Proposition One

Peace Park | People