A federal judge from the Western District of Oklahoma has granted Time Inc.’s motion to dismiss a lawsuit of an Oklahoma State booster, who claimed the magazine invaded his privacy by “publicly placing him in a false light” in a series of 2013 articles, entitled “The Dirty Game,” about the football program at Oklahoma State University.
Named as defendants in the lawsuit were Time, Inc. d/b/a Sports Illustrated Magazine (SI) and its employees or agents, defendants George Dohrmann and Thayer Evans. Dohrmann and Evans penned a magazine article that allegedly “invaded” John Talley’s privacy “by publicly placing him in a false light. Talley sued and the defendants filed a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)6.
By way of background, SI published in the first article of a five-part series, that “that OSU had a systematic scheme of illegal [financial] boosting activities” and that Talley “was a financial booster whose generosity far exceeded that of OSU football fans and was improper.” A six-paragraph passage of the article “contains allegedly false statements made by former OSU football players about Talley, as well as statements made by Talley, and is set forth in its entirety.”
In their motion to dismiss, the defendants alleged that the undisputed facts show: “1) the statements about the plaintiff in the article were not substantially and materially false but, instead, were true; 2) the statements were not highly offensive to a reasonable person; and 3) the statements were not published with ‘actual malice’ as defined by Oklahoma law.” Specifically, regarding the last element, the defendants argued that the plaintiff cannot show they knew of or recklessly disregarded “the falsity of the publicized matter and the false light in which [Plaintiff] would be placed.” See Colbert v. World Publ’g Co., 1987 OK 116, 747 P.2d 286, 290 (Okla. 1987) (quoting McCormack v. Okla. Publ’g Co., 1980 OK 98, 613 P.2d 737, 740 (Okla. 1980)); see also Zeran v. Diamond Broad., Inc., 203 F.3d 714, 719 (10th Cir. 2000); Restatement (Second) of Torts, § 652E (1977); Okla. Unif. Jury Instr. § 28.15.2
In its analysis, then court wrote that the plaintiff “presents no facts or evidence to show that the defendants knew the allegations they reported about the plaintiff were false. He instead argues (mostly without factual support) that the defendants knew or should have known their sources were not credible, and that the defendants’ investigation was flawed and incomplete.”
Further, the plaintiff claimed the defendants published “serious and deliberate false allegations” that portrayed him “as a dishonest man, in that he was systematically engaged in improperly giving OSU football players illegal and unwarranted money.” However, on the summary judgment record presented, the plaintiff did not “show a genuine dispute of material fact as to the accuracy of most statements in the SI article because they were presented as allegations of former OSU players and are consistent with the recorded interviews.
“The audio recordings submitted by Defendants establish that they accurately reported what OSU football players named in the article said about being overpaid for work, being paid for sham work, being paid for speaking engagements, and staying on the plaintiff’s property rent-free. The defendants also reported the plaintiff’s denials of the allegations, his statement that he cleared the payments with OSU’s compliance office, and confirmation from the compliance office that the plaintiff was cleared to employ players. Regardless whether the allegations made against the plaintiff were true, a media publication is not “false” where a source’s statements are accurately reported. See Green v. CBS Inc., 286 F.3d 281, 284 (5th Cir. 2002) (“In cases involving media defendants, such as this, the defendant need not show the allegations are true, but must only demonstrate that the allegations were made and accurately reported.”); Campbell v. Citizens for an Honest Gov’t, Inc., 255 F.3d 560, 568-69 (8th Cir. 2001) (accurate report of evidence in murder investigation was not false, regardless whether allegations and implication were actually true); see also Magnusson v. N.Y. Times Co., 2004 OK 53, 98 P.3d 1070, 1075-76 (Okla. 2004) (television broadcast that accurately reported patients’ complaints about plastic surgeon were protected by fair comment privilege). Further, a media defendant’s omission from an otherwise true publication of information that would have placed the subject in a more favorable or balanced light is not actionable as false. See Machleder v. Diaz, 801 F.2d 46, 55 (2d Cir. 1986); see also Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1108 (10th Cir. 2017); Polin v. Jews for Jesus, No. 88-2031, 1991 U.S. App. LEXIS 22182, 1991 WL 184101, *6-7 (10th Cir. Sept. 16, 1991) (unpublished).”
Elaborating on the this, the court noted that the plaintiff “has not identified a false statement in the article regarding the allegations of former OSU football players that, read in context, creates an impression he actually was a dishonest man, improperly giving athletes unwarranted money, as alleged in his pleading. In ‘Part 1 – The Money,’ the defendants reported numerous allegations of improper financial payments to OSU football players by assistant coaches, boosters and others, together with the accused persons’ denials of receiving or making the alleged payments. The passage of the article about the plaintiff, although understandably upsetting to him, accurately reported former players’ statements about him and included his denials. Thus, in the context in which they were made, the defendants’ statements about the plaintiff’s alleged financial support of OSU football players cannot reasonably be found to have placed him in a false light.
“As to then plaintiff’s reported admission that he paid OSU football players for speaking engagements (and so engaged in a practice prohibited by NCAA rules), the court finds this statement could not place the plaintiff in a false light because it was substantially true. Truth is an absolute defense to the tort claim asserted. See Rinsley, 700 F.2d at 1307. The plaintiff has alleged, and has testified in this case, that Mr. Schecter misunderstood his statements because he was referring to team-building talks (distinguished from speeches) and reimbursement for expenses (not speaking fees). However, the plaintiff’s denial that he ever paid OSU players for speaking engagements is refuted by the documentary evidence submitted in support of the defendants’ motion.
“The court cannot consider an assertion of fact to be disputed where a party’s version of the facts ‘is blatantly contradicted by the record, so that no reasonable jury could believe it.’ See Price-Cornelison v. Brooks, 524 F.3d 1103, 1121 (10th Cir. 2008) (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007)); accord Thomson v. Salt Lake City., 584 F.3d 1304, 1312 (10th Cir. 2009). Therefore, although the plaintiff disagrees with the way in which the defendants reported his statement about payments for speaking engagements, the article is not actionable as a publication that placed him in a false light.
“For these reasons, the court finds that he plaintiff has failed to demonstrate a genuine dispute of fact regarding the falsity of the statements made about him in the article and, therefore, the defendants are entitled to summary judgment on this basis.”
John Thomas Talley v. Time, INC., d/b/a Sports Illustrated Magazine, et al.; W.D. Okla.; Case No. CIV-14-853-D, 2018 U.S. Dist. LEXIS 161820; 9/21/18
Attorneys of Record: (for plaintiff) Gary L Richardson, LEAD ATTORNEY, Alisa G Hopkins, Charles L Richardson, Richardson Boudreaux PLLC, Tulsa, OK; Raymond S Allred, Richardson Boudreaux PLLC, Tulsa, OK. (for defendants) Jon Epstein, LEAD ATTORNEY, Hall Estill-OKC, Oklahoma City, OK; Robert D Nelon, Lindsay N Kistler, Hall Estill-OKC, Oklahoma City, OK.
