[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 28, 2002
No. 01-15821 THOMAS K. KAHN
_________________________ CLERK
D. C. Docket No. 99-00142-CV-JTC-3
NEAL HORSLEY,
d.b.a. Pathway Communications,
d.b.a. Christiangallery.com,
d.b.a. Bestchoice.com,
d.b.a. The Creator’s Rights Party,
Plaintiff-Appellee,
versus
GERALDO RIVERA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
____________________
(May 28, 2002)
Before BIRCH, HILL and HALL*, Circuit Judges.
*
Honorable Cynthia Holcomb Hall, U.S. Circuit Judge for the Ninth
Circuit, sitting by designation.
HALL, Circuit Judge:
Defendant/appellant Geraldo Rivera appeals the district court’s
determination that a statement Rivera made to plaintiff/appellee Neal Horsley
during the course of a television program hosted by Rivera is not protected as a
matter of law by the First Amendment of the United States Constitution nor by
applicable state law. Rivera asserted that Horsley was an “accomplice to murder.”
Because we find that Rivera’s allegedly defamatory statement is absolutely
protected as rhetorical hyperbole by both the First Amendment and applicable state
defamation law, we reverse.
FACTS
Horsley brought this action against Rivera for libel and slander based on an
allegedly defamatory statement that was made during the course of a 1998
television interview.
An anti-abortion activist and founder of the Creator’s Rights Party, Horsley
created and operated a number of anti-abortion web sites on the Internet. One of
these web sites listed the names, addresses and Social Security numbers of
individual doctors who were known to perform abortions.
In October 1998, Dr. Bernard Slepian, a medical doctor who performed
abortions as part of his practice, was shot and killed while standing in the kitchen
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of his home in Buffalo, New York. His murder attracted national and international
media attention. Horsley claims that Dr. Slepian’s name and address were not
posted on his web site prior to the murder; however, subsequently, Horsley added
this information to his list of doctors known to perform abortions and then
graphically crossed out Dr. Slepian’s entry (Horsley struck an “X” through the
entry for Dr. Slepian’s name).
On October 27, 1998, four days after the murder of Dr. Slepian, Horsley
voluntarily appeared as a participant on the “Upfront Tonight” news and talk-show
program hosted by Rivera, broadcast live by the CNBC cable network (the
“Program”). At the beginning of the segment of the Program dealing with
Horsley’s activities, Rivera introduced Horsley, described his anti-abortion web
site, and reminded viewers of the recent murder of Dr. Slepian: “The victim of the
most recent attack, Dr. Slepian, was well known to abortion opponents. His name
and address were posted on a bizarre anti-abortion Web site called The Christian
Gallery. Its title page drips with computer-generated blood. Neal Horsley is the
owner of that Web site and founder of the so-called Creators Rights Party.” Rivera
concluded his introduction by addressing Horsley:
Rivera: Now I understand that, technically, you’ve spoken out against the
death – of the murder of Dr. Slepian. You said, “We want to make
one thing clear, that we don’t want to see anybody die.” Yet by
crossing out his name on the hit list as he was murdered, as you have
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for others who have been killed, it seems to me, sir, that you are, in
fact, encouraging others to strike out with violence.
Horsley: What it seems like to you is not at all what we’re doing. I’ve been
saying for five years that we are gonna be facing a pattern of
escalating domestic terrorism in this nation. You call this program a –
a war against abortion. The fact is, a war is what happens when
government gives its citizens permission to kill other people. And the
government of the United States of America gave the citizens of this
nation permission to kill unborn babies. That’s when the war started.
What I’m trying to do is put an end to this war by trying to overturn
Roe v. Wade.
Rivera: Overturn is a – is a constitutional fight. It may be a courtroom fight.
But in listing these people’s names and their addresses and their
Social Security number, what you are doing, in my opinion is aiding
and abetting a homicide.
Horsley: Well, you’re entitled to your opinion, and certainly every – everybody
has one, but what I’m doing is doing exactly what we say. We’re
trying to accumulate evidence because our hearts’ desire – is to see
the day come when we can prosecute these people who make a living
killing God’s children. That’s what we want to do. And we have the
right, as American citizens, to try to change the law through legal
means so that we can, in fact, see the day come when these people
could be brought to the bar of justice.
Rivera: You know, you speak of justice and yet you cross out a man’s name.
He’s shot dead in front of his family, a bullet coming through the
window of his home; a coward’s attack. How can you sit there with a
straight face and pretend such righteousness?
Horsley: I’m not pretending righteous – I’ve got blood of these children on my
hands. As a citizen of the United...
Rivera: You may have the blood of this doctor on your hands, Mr. Horsley.
Horsley: Well, I – the – the point is that 3,000 babies a day are dying. And as a
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citizen of the United States of America, I have a choice. I can stand
by and collaborate with that slaughter or I can do what I can do to stop
it. It’s not against the law for me to keep a list of people who are – are
practicing – making a living killing babies. That’s all I’ve been doing.
Rivera: Would you dare say that to Dr. Slepian’s widow? Would you dare say
that to his children?
Horsley: I say that now. That’s exactly what I’m doing. I say that to every
abortion doctor and every family of every abortionist in the country,
that we really want to see you brought to justice. We want to see you
tried, because what you’re doing is killing God’s children.
Rivera: And where – and where in your faith – where in the Christian faith
does it – does it justify what you do by – by giving information that
would allow a murderer access...
Horsley: What we’re...
Rivera: ...that would allow a target to be made more vulnerable than ever?
Where in the Bible does it give you that right?
Horsley: The – the Yellow Pages gives the same information that we give. And
the Bible says that God ordains government to enforce the law, to
protect the lives of – of people who are being slaughtered
unmercifully, and that’s what’s happening to these babies. And – and
everybody can ignore ‘em, but there are people here who are not
going to ignore the slaughter of these children.
Rivera: And how about the slaughter of this man? This man who...
Horsley: It’s a tragedy. I’ve said it’s a tragedy.
Rivera: ...they say in the Buffalo area was a – a man who mercifully ga – gave
birth or helped women give birth in difficult conditions; who was
generous of spirit; who was a compassionate man; who helped many
more babies be born than he ever performed the – the – the procedure
of abortion. What about him?
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Horsley: I’m not trying to...
Rivera: Does that makes [sic] 3,001? Is his death less than theirs?
Horsley: I had nothing to do with his death, nor am I trying to justify...
Rivera: How can you say that? You crossed out his name on that damn list.
Horsley: Because...
Rivera: How dare you?
Horsley: Because I’m keep – I’m keeping a list of the people who are being
killed, because I’ve been saying all along, it’s not just babies who are
at risk. Geraldo, my life is at risk. Your life is at risk. This whole
nation’s very existence is at risk.
Rivera: You are an accomplice to homicide, Mr. Horsley.
Horsley: You are, too, because you’re – you’re showing exactly the same
information. You’re telling people about The Nuremberg Files list.
You’re a collaborator just like I am, if that’s true.
Rivera: If giving you publicity is, then I feel ashamed. I feel deeply ashamed
of myself.
Horsley: Well, you should be because you – that’s how you sell – that’s how
you sell your time.
Rivera: Oh, go on, sell our time.
Horsley: You sell your time. That’s what you’re doing. That’s why you’ve got
me on here, because people are tuning in. You know it. They know
it.
Rivera: Because people want to see the real face of a – of an accomplice to
homicide, and they’re looking at your face now. And they understand
what you’re doing.
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Horsley: Well, you can call me what you want to call me.
Rivera: And don’t think to fool with rhetoric, with your empty rhetoric. You
have – you have set back the pro-life movement. You – take to people
like the Reverend Falwell, and they look at you with disdain. They
look at you with disgust for what you are doing.
Horsley: I don’t care what they look at me as.
Rivera: And you pretend to use the Constitution to shield your activities.
Horsley: What I care about is the fact there are 3,000 babies being slaughtered
every day, and I’m gonna do my best to see it stopped.
Rivera: If – if – if you are the face of the pro-life movement, then you have
helped defeat the very movement that you say you cherish.
Horsley: Well, you can say that, but we’ll see what happens over time.
Rivera: Yeah. We’ll see.
Horsley: That’s where it’ll turn.
Rivera: Is my name going to be on your list next?
Horsley: I hadn’t thought about it...
Rivera: Yeah.
Horsley: ...but it – it’s a good idea.
Rivera: Good night. Good night, Mr. Horsley, I’m sure.
Soon after appearing in this interview, Horsley began receiving threatening
emails and letters. Many of these messages contained death threats against Horsley
or his family.
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Horsley filed suit against Rivera for libel and slander, asserting that Rivera
made false and malicious defamatory statements against him by falsely accusing
accusing him of committing a felony -- specifically, of being an accomplice to
murder in the death of Dr. Slepian.1 Rivera moved for judgment on the pleadings,
asserting that the statement he made during the 1998 interview is a
constitutionally-protected expression of opinion based on fully disclosed facts
and/or rhetorical hyperbole. The district court disagreed, and denied Rivera’s
motion, determining that neither the First Amendment nor Georgia defamation law
protected the statement. Rivera then filed a Motion for Reconsideration, or in the
alternative, a Request for Certification for Interlocutory Appeal pursuant to 28
U.S.C. § 1292(b). The district court denied Rivera’s Motion for Reconsideration,
but granted his Request for Certification. This court granted Rivera’s petition for
permission to take an immediate appeal from the orders of the district court, and
Rivera proceeded with this appeal. The district court had jurisdiction pursuant to
28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291.
DISCUSSION
1
Horsley also asserted a claim against Rivera for conspiracy to commit libel
and slander, alleging that Rivera and several prominent people in the news media,
government and political organizations participated in a conspiracy to defame him.
The district court dismissed this claim, and its dismissal has not been appealed.
8
I. Standard of Review
We review de novo the district court’s ruling on a motion for judgment on
the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Cannon v. City of
West Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001). Judgment on the
pleadings under Rule 12(c) 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 (11th Cir. 1998). If upon reviewing the pleadings 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.
White v. Lemacks, 183 F.3d 1253, 1255 (11th Cir. 1999).
II. Merits
Rivera contends that the district court erred in refusing to dismiss Horsley’s
complaint on the ground his statement that Horsley was “an accomplice to
homicide” is protected under both the First Amendment and Georgia law as an
imaginative and figurative expression that could not have been taken by a
reasonable viewer of the Program as a literal assertion of facts. For the reasons set
forth below, we agree.
In assessing Horsley’s claim, it is important to bear in mind that Horsley’s
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theory of defamation is that Rivera’s comments “accused [him] of a felony,” and
that to falsely accuse him of being such a felon holds him up to “contempt, hatred,
scorn, and ridicule in the eyes of the public and discredits [him] in the eyes of most
law-abiding citizens.” Having alleged that Rivera defamed him by stating that he
is chargeable with a felony, Horsley is bound by that construction of Rivera’s
statements. See United States v. Tieco, Inc., 261 F.3d 1275, 1293 (11th Cir. 2001).
It is in this context that we must consider Rivera’s argument.
The First Amendment protections that apply in defamation claims 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 v. Sullivan, 376
U.S. 254, 270 (1964). Consistent with this principle, both the Supreme Court and
this Court of Appeals have long recognized that a defamation claim may not be
actionable when the alleged defamatory statement is based on non-literal assertions
of “fact.” See, e.g., Letter’s Carriers v. Austin, 418 U.S. 264, 284-86 (1974)
(publication of pejorative definition of scab was not actionable in that use of words
like "traitor" could not be construed as representations of fact); Greenbelt Coop.
Publishing Ass’n v. Bresler, 398 U.S. 6, 13-14 (1970) (use of the term "blackmail,"
in characterizing negotiating position of a public figure who was seeking zoning
variances while a city was attempting to acquire another tract from him, was not
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"slander" when spoken in heated public meetings of city council or "libel" when
reported in newspaper articles, inasmuch as it was impossible to believe that a
listener or reader would think that a crime had been charged); Keller v. Miami
Herald Publishing Co., 778 F.2d 711, 717 (11th Cir. 1985) (newspaper's editorial
cartoon depicting persons resembling gangsters in a dilapidated building identified
as a nursing home that had been closed by state order, and containing caption
"Don't worry, Boss. We Can Always Reopen It As A Haunted House," was an
expression of pure opinion and thus protected by the First Amendment).
More recently, the Supreme Court has clarified that the Constitution
provides protection for “rhetorical hyperbole” that “cannot reasonably be
interpreted as stating actual facts about an individual.” Milkovich v. Lorain Journal
Co., 497 U.S. 1, 20 (1990) (citing Hustler Magazine v. Falwell, 485 U.S. 46, 50,
53-55 (1987)). This provides assurance that public debate will not suffer for lack
of "imaginative expression" or the "rhetorical hyperbole" which has traditionally
added much to the discourse of our Nation. Id. This protection reflects “the reality
that exaggeration and non-literal commentary have become an integral part of
social discourse.” Levisnky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128
(1st Cir. 1997). This court has applied the rule articulated in Milkovich to find that
a statement made by outside counsel representing a steel company that the conduct
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of an equipment vendor, in filing an ethics complaint regarding an allegedly illegal
investigation by the state attorney general's office and the steel company, was "the
equivalent of Jeffrey Dahmer complaining his victims got blood on the carpet,"
could not reasonably be construed as defamatory in the sense that the vendor and
its principal were comparable in some fashion to a convicted mass murder. See
Tieco, 261 F.3d at 1293-94 (11th Cir. 2001).
In determining whether Rivera’s statement is entitled to protection as
rhetorical hyperbole, we must consider the circumstances in which the statement
was expressed. Keller, 778 F.2d at 717. Examining the context surrounding the
statement, we conclude that it consisted of the sort of loose, figurative language
that no reasonable person would believe presented facts. A reasonable viewer
would have understood Rivera’s comments merely as expressing his belief that
Horsley shared in the moral culpability for Dr. Slepian’s death, not as a literal
assertion that Horsley had, by his actions, committed a felony.
We base this determination on a number of observations. Most significant is
that Horsley himself acknowledged that he understood Rivera to be speaking in a
figurative rather than literal sense as soon as Rivera’s statement was made, . As
soon as Rivera stated “You are an accomplice to homicide, Mr. Horsley,” Horsley
retorted “You are too, because you’re – you’re showing exactly the same
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information.... You’re a collaborator just like I am, if that’s true.” Based on this
response, it is clear not only that Horsley believed that Rivera was speaking on a
figurative level, but also that Horsley by his own statements was creating the
impression on the audience that the dialogue was taking place on an animated, non-
literal plane. Accordingly, Horsley’s response itself is contrary to his assertion that
Rivera’s viewers must have understood the statement as a literal assertion that
Horsley could be criminally charged for his acts.
Additionally, other sections of the interview, such as the following
exchange: “Horsley: I’m not pretending righteous – I’ve got blood of these
children on my hands. As a citizen of the United... Rivera: You may have the
blood of this doctor on your hands, Mr. Horsley” and Horsley’s statement “It’s not
just babies who are at risk, Geraldo, my life is at risk. Your life is at risk. This
whole nation’s very existence is at risk” also instill upon a reasonable viewer the
impression that the parties were exchanging dialogue at a non-literal level. The
fact that the parties were engaged in an emotional debate on a highly sensitive
topic weighs in favor of the conclusion that a reasonable viewer would infer that
Rivera’s statement was more an expression of outrage than an accusation of fact.
In sum, it is clear from the record that Horsley and Rivera were engaged in
an emotional debate concerning emotionally-charged issues of significant public
13
concern. Both Horsley and Rivera used non-literal, figurative language in
expressing their views. When Rivera’s statement is examined, as it must be, in its
context of this debate, no reasonable viewer would have concluded that Rivera was
literally contending that Horsley could be charged with a felony in connection with
Dr. Slepian’s murder. To the contrary, the record indicates that Rivera used those
words only to convey the view that Horsley was morally responsible for Slepian’s
death. Therefore, the district court erred in ruling that Rivera’s allegedly
defamatory statement was not protected by the First Amendment as non-literal
rhetorical hyperbole.2
Because we determine that Rivera’s statement that Horsley was an
accomplice to murder was protected by the First Amendment and by Georgia law
as rhetorical hyperbole, we need not consider his claim that the statement was also
2
In addition to enjoying First Amendment protection, Rivera’s statement
was also protected as hyperbolic expression under Georgia law, which similarly
provides that the pivotal question in a defamation action is whether the challenged
statement(s) can reasonably be interpreted as stating or implying defamatory facts.
See, e.g., Jaillett v. Georgia Television Co., 520 S.E.2d 721, 725-26 (Ga. App.
1999) (television station which reported that an air conditioner repair business
incorrectly told a homeowner that her entire unit needed to be replaced did not
defame the business by virtue of reporter and anchor's use of the phrase "ripped
off"); Webster v. Wilkins, 456 S.E.2d 699, 700 (Ga. App. 1995) (statements by the
father of a child that he wanted to take the child from its mother and that "she's
unfit to have a kid" did not rise to level of imputing any specific crime, debasing
act, dishonesty, or immorality).
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protected as an expression of opinion based on fully-disclosed facts.
CONCLUSION
For the foregoing reasons, we reverse the orders of the district court denying
Rivera’s motion for judgment on the pleadings and motion for reconsideration.
We remand the case to the district court with instructions to enter judgment in
favor of Rivera.
REVERSED AND REMANDED.
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