Neal Horsley v. Geraldo Rivera

                                                                     [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?

                                         5
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.

                                         6
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.
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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


                                           9
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


                                          10
"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


                                          11
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


                                          12
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).
                                          14
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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