Arguments for the 9th Circuit Court of Appeals
The following is a brief summary of the arguments made in Michel Thomas' brief before the Ninth Circuit to be argued in August.
The District Court's two findings that "a reasonable reader might conclude, after reading the article and considering the various points of view presented, that Thomas had in fact lied about his past" and "that implications that Thomas had lied about his past and that his language classes are a 'sham' would be defamatory" should have disposed of the Times' motion and resulted in a ruling in Thomas' favor.
The Times and Rivenburg had argued to the court that the implications identified and designated as being both false and defamatory were not a reasonable or fair reading of the article, and that even if such implications existed, they were not defamatory. The court correctly rejected both of these arguments.
Countless cases have held that libel may occur by publication of direct statements or by publication of defamatory implications.
"In determining whether a statement is libelous we look to what is explicitly stated as well as what insinuation and implication can be reasonably drawn from the communications." Weller v. American Broadcasting Company, 232 Cal.App.3d 991 (1991).
Indeed, on of Plaintiff's experts, Professor Robin Lakoff, points out in her sworn and unrebutted testimony,
"Rivenburg is careful not to be direct in his criticism. However, Rivenburg's subtlety, combined with his repetition, has an even more powerful effect on the reader than a simple unambiguous remark: the reader starts to mentally add them up, piling up the zingers."
"If the article had merely represented the narrative of Thomas' history, along with counter-claims by other sources, it might have presented a journalistically permissible and neutral story, as a reader might in that case be in a position to make up his/her own mind about who is to be believed. However, since the writer has departed from neutrality by setting forth a host of suggestions that depict Mr. Thomas as unreliable, the reader is invited, in fact virtually forced, to take sides against Mr. Thomas from early on, and the decision whom to believe is no longer free."
Rivenburg's article is a classic example of how a clever and skillfully written article can, in Prof. Lakoff's words, have "an even more powerful effect on the reader" than one that directly accuses a subject of fraud or wrongdoing.
The District Court's findings that none of the otherwise actionable defamatory implications should be allowed to go forward because Thomas had failed to show that Rivenburg intended to create those implications is unsupported by the record for each of the following reasons:
The only evidence before the court on the issue of Rivenburg's state of mind or intent to convey the defamatory implications was offered by Thomas, all of which demonstrated that Rivenburg had ignored and never presented to his readers the most compelling and authoritative evidence of Michel's service.
The evidence presented, all of which Rivenburg ignored, is classic evidence of "purposeful avoidance" of the truth and has been recognized by the U.S. Supreme Court as among the most powerful kind of evidence available to prove constitutional malice, i.e. knowledge of falsity or reckless disregard of falsity. As the U.S. Supreme Court has held:
"Although failure to investigate will not support a finding of actual malice, the purposeful avoidance of the truth is in a different category." Harte Hanks v. Connaughton, 491 U.S. at 692.
Substantial evidence was submitted to the court by Michel Thomas in the form of sworn declarations establishing that the defendants misstated, misquoted, and in one instance fabricated facts to support the implications which the District Court agreed were reasonably present in the article and defamatory. The Supreme Court has made clear that the deliberate alteration of a subject's words may equate with knowledge of falsity if the alteration results in a material change in the meaning conveyed by the statement. Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991).
The issue of Rivenburg's "lack of intent" to create the defamatory implications was never advanced by Rivenburg and the Times and no evidence was offered to the court to support a finding of lack of intent. The reason the Times and Rivenburg chose not to make Rivenburg's state of mind an issue seems clear; if his state of mind had been made an issue, Thomas' lawyers would have had an absolute right to take Rivenburg's deposition and obtain sworn testimony from him bearing on this issue. In their briefs to the court the Times' lawyers made clear that they were scrupulously avoiding the issue of Rivenburg's state of mind because under no circumstances did they want to expose Rivenburg to cross examination with regard to why he chose to omit from the article any reference to his interview with Michel's commander in CIC, Ted Kraus, or the numerous official letters and memoranda, all of which confirmed Michel's status as a CIC agent, his presence at Dachau and commended his extraordinary service and contributions to the U.S. Army and the allied cause.
The District Court's ruling failed to recognize that the linguistic devices used by Rivenburg were employed specifically to create the defamatory implications. To the contrary, the court found that the various linguistic devices used by Rivenburg were, in essence, nothing but rhetoric and hyperbole and thus non-actionable "opinion" or "commentary."
A host of California cases clearly recognize the principle that "the allegedly damaging implications frequently cannot be connected to any one statement, or to even a few specific statements but rather emanates from the tone of the article as a whole." Kapellas v. Kofman, 1 Cal.3d 20 (1969). Here, the "tone" of the article was created by a clever and skillful writer who used numerous literary devices to lead his readers to the conclusion that Thomas was a liar and a fraud. The declarations of both Professors Lakoff and Mazingo clearly demonstrate that the literary devices skillfully utilized by Rivenburg created the implications complained of. Thomas is not suing over individual words which by themselves might properly be labeled rhetoric or hyperbole. The creation of the implications in "Larger Than Life" required skill and careful editing - they were not accidental or unintentional. California courts have long held that a "clever writer versed in the law of defamation who deliberately casts a grossly defamatory imputation in ambiguous language" cannot escape liability for causing damage.
The District Court's ruling that the "article merely states opinions on matters of public concern that do not constitute or imply a provable factual assertion" is puzzling because the defamatory implications alleged in Thomas' complaint are all objectively provable factual assertions rather than simply matters of opinion and conjecture. Whether Thomas was a CIC agent, whether he escaped from Klaus Barbie, whether he discovered a huge cache of Nazi documents, whether Thomas was present at the liberation of Dachau and whether his language program is capable of delivering its promised results are all matters that can be objectively proven true or false.
The District Court's reliance on Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995) seems misplaced. In Partington, well known criminal lawyer and author Vince Bugliosi was exonerated from a charge of libel because he had merely expressed his personal opinion as to whether defense lawyer Partington had properly handled the defense of a highly publicized murder case. The Ninth Circuit rightly concluded that Bugliosi's assessments of Partington's performance at trial was "inherently subjective and therefore not susceptible of being proved true or false."
In Thomas, there is nothing "inherently subjective" about whether Thomas was or was not a CIC agent, present at the liberation of Dachau, discovered a cache of Nazi documents or escaped from Klaus Barbie. In short, each of the defamatory implications complained of presents facts which are objectively verifiable.