IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
No. 97-50699
Summary Calender
______________
ROBERT A. LEVY,
Plaintiff-Appellant,
VERSUS
GANNETT COMPANY, INC.,
Defendant-Appellee.
_______________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-97-CV-79)
_______________________________
May 27, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Robert Levy sued Gannett Company (“Gannett”) for publishing an
edited version of his letter to the editor of the El Paso Times.
The district court dismissed for failure to state a claim. Finding
no error, we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I.
Levy sought the nomination for a congressional seat in a
primary election held on March 12, 1996. On February 29, Levy
faxed the following letter to the El Paso Times:
I read with interest the letter of Jack Koehn in the
Times, (No Vote a Good Vote) and I agree with him
concerning the influence of money in politics.
It is tempting to think of opting out of the system,
but I don't believe that solves anything. The answer is
to encourage and vote for those candidates who are
working to get money out of politics by not accepting
campaign contributions.
The motto of my campaign for Congress is “Money-Free
and No Bull Politics.” I accept no campaign
contributions, and I anticipate that my total expenses
after the filing fee and up to the primary will be $2500
or less.
If my campaign succeeds, it would send a loud
message to Washington and might give other like minded
legislators the courage to vote to get the money out of
politics.
In the primary election, Levy received 1.2% of the vote.
A week after the primary, the Times published Levy's letter.
The text was substantially the same, except for the final sentence,
which had been edited to read: “My campaign did not succeed in its
primary objective, but it did send a loud message to Washington and
might give other like-minded legislators the courage to vote to get
the money out of politics.” Levy promptly asked the newspaper to
publish a retraction and apology. The paper suggested that he
submit a letter to the editor. Levy declined and sued.
Levy's complaint alleges three theories of recovery: libel,
2
breach of contract, and invasion of privacy. He seeks $150,000 in
compensatory damages and $1 million in punitive damages. He
appeals the dismissal and the refusal to permit him to amend his
complaint.
We review de novo the dismissal for failure to state a claim.
Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 618 (5th
Cir. 1992). Dismissal should be granted only when it appears that
no relief could be given under any set of facts that could be
proven consistent with the allegations. Id. We review the
refusal to permit amendment for abuse of discretion. Shivangi v.
Dean Witter Reynolds, Inc., 825 F.2d 885, 890 (5th Cir. 1987).
II.
Levy claims that the Times libeled him by editing his letter's
final sentence. Specifically, he argues that “the newspaper
cleverly twisted [his] letter around to make it look as if [he] had
submitted it after the election, with delusional concerns about his
own importance.” He claims that he was damaged because the edited
epistle “destroyed [his] reputation for political astuteness in the
community and compromised his ability to present himself in the
future as a candidate for public office.”
In Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653
(Tex. 1987), the court explained that in a libel action, “the
initial question for determination is a question of law to be
3
decided by the trial court: were the words used reasonably capable
of a defamatory meaning.” Id. at 654 (footnote omitted). The
trial court must “construe[ ] the statement as a whole in light of
surrounding circumstances based upon how a person of ordinary
intelligence would perceive the entire statement.” Id. at 655.
The district court determined that Gannett's “statement” was
incapable of a defamatory meaning as a matter of law. We agree
that, given the circumstances, a person of ordinary intelligence
could not perceive the edited sentence as defamatory. The court
properly dismissed Levy's libel claim.
III.
Levy's breach of contract claim is premised on language
appearing in the Times concerning letters to the editor:
The El Paso Times accepts letters dictated over the
phone, by mail or facsimile. Space limitations require
that letters be edited and condensed. We recommend
letters be less than 200 words. Letters over 200 words
will be edited or may be rejected. Writers and callers
must provide a full name, street address and daytime
telephone number at which they can be reached. Addresses
and telephone numbers are not published. Letters that
cannot be verified will not be used.
Levy argues that this language constituted an offer to enter into
a unilateral contract, and that a contract was formed when he
submitted his letter. He contends that Gannett breached this
contract by failing to verify the language of the edited letter
prior to publication.
4
The district court properly concluded that this language did
not constitute an offer. Gannett manifested no intent to enter
into a legally binding contract. There was no consideration
exchanged, nor was any type of mutual obligation imposed. “[A]
contract in which there is no consideration moving from one party,
or no obligation upon him, lacks mutuality, is unilateral, and
unenforceable.” Texas Farm Bureau Cotton Ass'n v. Stovall,
253 S.W. 1101 (Tex. 1923). The language appearing in the Times
simply explains the requirements for submissions to the newspaper;
it cannot reasonably be characterized as an offer to the general
public to enter into unilateral contracts. The district court did
not err in dismissing the breach of contract claim.
IV.
Levy claims that the Times invaded his privacy by
appropriating his personality for commercial use. The use to which
his name was put, he alleges, was twofold: The Times sought “to
sell more newspapers based on 'news' that a candidate had made
ridiculous statements about his own importance” and “to prevent
[Levy] from again making a meaningful run for public office.”
It is uncertain whether a cause of action for commercial
appropriation even exists in Texas, but we need not explore this
uncharted ground to decide this case. The district court
characterized as “patently absurd” the idea that the Times edited
5
Levy's letter for commercial gain. We conclude that this was a
charitable assessment and that Levy's claim was properly dismissed.
V.
Levy claims that the district court abused its discretion in
refusing to permit him to amend his complaint. He argues that,
given the opportunity to amend, he would have alleged malice, and
special damages, and that he was subjected to public ridicule for
the edited sentence. The parties dispute whether Levy actually
requested leave to amend, but even assuming that he did, the
district court did not err in denying his request. Although FED.
R. CIV. P. 15(a) provides that leave to amend “shall be freely given
when justice so requires,” leave to amend is not automatic. We may
affirm denials of motions to amend when amendment would have been
futile. Avatar Exploration, Inc. v. Chevron, U.S.A., Inc.,
933 F.2d 314, 321 (5th Cir. 1991). That was the case here. We
“sympathize with [Levy's] feelings of aggravation about this
incident, but life is full of aggravations of all sorts.” Sorenson
v. Ferrie, 134 F.3d 325, 331 (5th Cir. 1998) (DeMoss, J.,
concurring).
AFFIRMED.
6