IN THE UNITED STATES DISTRICT COURT®: FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION sna EE ae tees ge onan aes ane ana ceeenat JOHN RAMSEY, PATSY RAMSEY and : BURKE RAMSEY, a minor, by his next Iriends and natural parents : JOHN RAMSEY and PATSY RAMSEY, CASE NO.: 1 03 CV-3976 (TWT) Plaintiffs, vs. FOX NEWS NETWORK, L.L.C., d/b/a Fox News Channel, Defendant.TABLE OF CONTENTS PRELIMINARY STATEMENT. FACTUAL BACKGROUND .... A, The Complaint... B. The News Report. ARGUMENT PLAINTIFFS’ COMPLAINT FAILS TO STATE A VALID. CLAIM FOR DEFAMATION... ‘A, The Court May Dismiss An Action Pursuant to Rule 12(b)(6) For Failure To State A Claim... B. The Court May Conclude That The Complained Of Words Are Not Defamatory As A Matter of Law 1. Defamation By Television Broadcast Is A “Defamacast”, 2, Defamatory Meaning .. 3. The Complained Of Statements Must Be Read In Context... 12 C. The Complained Of Words, On Their Face, Do Not Defame Plaintiff Burke Ramsey. 14 D. The Complained Of Words Are Not Defamatory Per Se Of John Or Patsy Ramsey .. E, Even If Plaintiffs Are Atlempting To Allege Defamation Per Quod, They Have Failed To Plead Special Damages CONCLUSIONTABLE OF AUTHORITIES Federal Cases Clark v. Bibb County Bd. of Educ., 174 F. Supp. 2d 1369 (M.D. Ga. 2001)... Dun & Bradstreet, Inc. v. Miller, 398 F.2d 218 (Sth Cir. 1968)... Farrior v. H.J. Russell & Co., 45 F, Supp. 2d 1358 (N.D. Ga. 1999). Grossman y. Nationsbank, N.A., 225 F.3d 1228 (11th Cir. 2000), Hardboard Machinery Co. v. Coastal Prods. Corp., 289 F. Supp. 496 (M.D. Ga. 1967), aff'd, 398 F.2d 833 (Sth Cir. 1968) .. 12, 23, 24 ‘541 F, Supp. 397 (N.D. Ga. 1982), aff'd, 729 F.2d 1466, reh'g denied, 733 F.2d 908 (11th Cir.), cert, denied, 469 U.S. 857 (1984)... Hoffman-Pugh v. Ramsey, 193 F. Supp. 2d 1295 (N.D. Ga.), aff, 312 F.3d 1222 (1th Cir. 2002)........ Hood v. Dun & Bradstreet, Inc., 486 F.2d 25 (Sth Cir. 1973), cert. denied, 415 U.S. 985 (1974)..... Marshall County Bd. of Educ. v. Marshall County Gas cana 992 F.2d 1171 (11th Cir. 1993)... ctMcCoy v. Johnson Controls World Services, Inc., 878 F. Supp. 229 (S.D. Ga. 1995).... Pospicil v. Buying Office, Inc., 71 F. Supp. 2d 1346 (N.D. Ga. 1999). Southard v. Forbes, Inc., 588 F.2d 140, reh'g denied, 590 F.2d 333 (Sth co cert. denied, 444 U.S. 832 (1979) .... . 13, 20, 21 State Cases Aiken v, May, 73 Ga. App. 502, 37 S.B.2d 225 (Ga. Ct. App. 1946)... American Broadcasting v. Paramount Theatres, Inc. v. Simpson, 106 Ga. App. 230, 126 S.E.2d 873 (Ga. Ct. App. 1962). Arrington v, Palmer, 971 P.2d 669 (Colo. Ct. App. 1998)... Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (Ga. Ct. App. 1950)... Brewer v. Rogers, 211 Ga. App. 343, 439 $.E.2d 77 (Ga. Ct. App. 1993), cert. denied, $12 U.S. 1222 (1994)... Cates v. Nichols, 148 Ga. App. 558, 252 S.E.2d 2 (Ga. Ct. App. 1978)... Constitution Pub. eathers, 48 Ga, App. 429, 172 S.E. 923 (Ga. Ct. App. 1934). Garland v, State, 211 Ga, 44, 84 S.E.2d 9 (1954). iiiGast v. Brittain, 589 S.E.2d 63 (2003). Ledger-Enquirer Co. v. Brown, 214 Ga. 422, 105 S.E.2d 229 (1958)... Macon Telegraph Pub. Co. v, Elliott, 165 Ga, App. 719, 302 S.E.2d 692 (Ga. Ct. App. 1983), cert. denied, 466 U.S, 971 (1984)... wo LL, 19, 23 Mead v. True Citizen, Inc., 203 Ga. App. 361, 417 S.E.2d 16 (Ga. Ct. App. 1992)... Mell v, Edge, 68 Ga. App. 314, 22 $.E.2d 738 (Ga. Ct. App. 1942)... Morrison v. Hayes, 176 Ga. App. 128, 335 S.E.2d 596 (Ga. Ct. App. 1985)... Pacific & Southem Co., Inc. v. Montgomery, 233 Ga. 175, 210 S.E.2d 714 (1974). Reece v. Grissom, 154 Ga. App. 194, 267 S.B.2d 839 (Ga. Ct. App. 1980)... Strange v. Henderson, 223 Ga, App. 218, 477 S.E.2d 330 (Ga. Ct. App. 1996) .. Thomason v. Times-Journal, Inc., 190 Ga. App. 601, 379 S.E.2d 551 (Ga. Ct. App. 1989). Webster v. Wilkins, 217 Ga. App. 194, 456 S.E.2d 699 (Ga. Ct. App. 1995)... Zarach v. Atlanta Claims Ass'n, 231 Ga. App. 685, 500 S.B.2d | (Ga. Ct, App. 1998)...Federal Statutes Fed.R.Civ.P. 12(b)(6)... . 1,8, 25 State Statutes Ga. Code Ann. § 9-11-9(g).. Ga. Code Ann. § 51-5-1(a).. Ga. Code Ann. § 51-5-4.. Ga. Code Ann. § 51-5-10.... Ga. Code Ann, § 51-12-2(b)....This memorandum of law is submitted on behalf of defendant Fox News Network, L.L.C. (“Fox News Channel” or “Defendant” in support of its motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for an order dismissing the Amended Complaint (the “Complaint”) of plaintiffs John Ramsey (“Sohn”), Patsy Ramsey (“Patsy”) (collectively, “the Ramseys”), and Burke Ramsey (“Burke”) (collectively, “Plaintiffs”) for failure to state a valid claim for relief. The facts relevant to this motion are set forth in the accompanying Declaration of Dori Ann Hanswirth, dated April 26, 2004 (the “Hanswirth Decl.”), and the exhibit annexed thereto. PRELIMINARY STATEMENT On the night of December 25, or the early morning of December 26, 1996, a beautiful six-year old girl was brutalized and killed in her Boulder, Colorado home. (Complaint, 4 18). (A copy of the Complaint is annexed to the Hanswirth Decl. as Exhibit A). That girl was JonBenét Ramscy. JonBenét’s father, John, found his daughter’s lifeless body on the cement floor of a small windowless room in the basement of the Ramsey home sometime in the morning of December 26. The only known people present in the Ramsey home during the time of this heinous crime were JonBenét, John, JonBenét’s mother (and John’s wife) Patsy, and their son, Burke. (Id., 4 18). The circumstances surrounding JonBenét’s deathhave been investigated by numerous law enforcement authorities (Id., §§] 20-21), and by private investigators hired by the Ramseys. Still, more than seven years later, no one has been charged with any crime in connection with the girl’s death. (Id., {§ 21, 23). No intruder has been named as having anything to do with the grievous harm that JonBenet suffered in the last moments of her life. A grand jury sat for more than a year in an effort to investigate and/or to charge someone in connection with JonBenét’s death. (Id., 21). The grand jury was dismissed in October 1999, having brought no indictment against anyone. (Complaint, { 21). However, from the very beginning, the authorities suspected that John and/or Patsy were involved in their daughter’s death. Indeed, John has acknowledged that he and Patsy were the number one suspects from day one and continued to hold that designation for many years. (Id., Ex. A). Many media outlets had also published reports suggesting that it was Burke who had killed JonBenét, (Id., Ex. B, § 7). Those reports ceased in or about May 1999, when Alex Hunter (“Hunter”), Boulder’s then District Attorney, issued a statement that Burke was not a suspect. (Id.) On December 20, 2002, current Boulder District Attorney Mary Keenan (“Keenan”) wrote a letter to Ramsey attomey L. Lin Wood (“Wood”), stating that her investigators would bring “fresh eyes” to the case and would follow up on leads that might link an intruder to the crime. NY -aeuseH HHAlso in December 2002, Carol McKinley (“McKinley”), a Fox News Channel reporter who had been covering the JonBenét case since its inception, started work on a news report (the “News Report”) to commemorate the six-year anniversary of JonBenét’s death. (Complaint, Ex. A). The News Report’s focus is that Keenan’s office is steering the investigation toward a so-called “intruder theory.” The News Report states that “{iJn a recent major development, the Boulder Police Department, long suspicious of the Ramseys, has turned the case over to District Attorney Mary Keenan, to bring ‘fresh eyes” to the investigation.” Also, the News Report quotes Wood saying “this is a new day in this investigation. The days of the Ramseys being the focus of the investigation ... those days are over.” Plaintiffs take issue with the last sentence of the following passage from the News Report: Detectives say they had good reason to suspect the Ramseys. The couple and JonBenét’s nine year old brother, Burke, were the only known people in the house the night she was killed. JonBenét had been strangled, bludgeoned and sexually assaulted, most likely from one of her mother’s paintbrushes. The longest ransom note most experts have ever seen ... three pages ... was left behind. Whomever killed her spent a long time in the family home, yet there has never been any evidence to link an intruder to her brutal murder,(Complaint 4 29) (emphasis added), In addition, Burke claims that he is defamed by the first sentence of this excerpt, contending that it labels him as a suspect. As set forth below, neither of the complained of sentences in this passage could, taken in context, possibly be construed as defamatory of any of the Plaintiffs in this case. The News Report makes clear that Burke is not a suspect. The News Report also makes clear that, even though the authorities have yet to link an intruder to the crime, they are currently trying to do so. Since the News Report clearly states that the authorities are attempting to develop the intruder theory with the hope of linking an intruder to the crime, it cannot and does not defame Plaintiffs. Moreover, since the News Report is not defamatory per se, Plaintiffs were required to plead special damages. They did not do so. For these reasons, the Complaint should be dismissed in its entirety. FACTUAL BACKGROUND A. The Complaint Plaintiffs commenced this action for defamation by filing their Complaint on December 23, 2003. (Hanswirth Decl., ] 2). On February 17, 2004, prior to the Fox News Channel's deadline for responding to the Complaint, Plaintiffs served a First Amended Complaint (the “Complaint”).Plaintiffs contend that the complained of words are libelous per se. (Complaint, § 55). This alleged libel appears to arise from two distinct theories. First, Plaintiffs contend that the statement that “[d]etectives say they had good reason to suspect the Ramseys” is a false statement of fact that defames Burke. (Id., 4 34). To support this theory, Plaintiffs allege that “Boulder police detectives and the district attorney’s detectives have never said that Burke Ramsey was a suspect in the investigation of the murder of JonBenét Ramscy” and that they “have never considered Burke Ramsey to be a suspect in the investigation of the murder of JonBenét Ramsey.” (Id., {ff 35, 36, see also Complaint, {| 37-39, 45, 46, 57). Second, Plaintiffs contend that the statement that “there has never been any evidence to link an intruder to [JonBenét’s] brutal murder” is a false statement of fact that defames them. (Id, 4 40). Plaintiffs allege that ample evidence supports the notion that an intruder may have been responsible for JonBenét’s death. (Id., 49] 47-53). ‘Therefore, Plaintiffs contend that the statement incorrectly leads the public to believe that they were criminally involved in the murder of JonBenét as principals, co-conspirators, and/or accessories. (Complaint, {{] 8-60). However, Plaintiffs concede that John and Patsy were indeed “under the umbrella of suspicion.” (Id., 4 24).B. The News Report The News Report begins by reiterating that the authorities do not consider Burke a suspect: After all this time, the only action seen in the unsolved case has been in civil court. Millions of dollars have changed hands . .. much of it has come from people who called JonBenét's older brother Burke, who's been cleared, a suspect. (Complaint, Ex. A), The News Report contrasts this civil litigation with the lack of progress on the criminal front, noting that the homicide remains unsolved. (Id.) The News Report then discusses the bungled investigation, the contamination of the crime scene and the lack of physical evidence. The News Report makes clear that Patsy and John initially were the prime suspects. Former Boulder Police Detective Steve Thomas is quoted as saying: “probable cause existed to arrest Patsy Ramsey in connection with the death of her daughter.” (Id.) John Ramsey is later featured in footage, admitting their status as prime suspects: “{ mean the fact [is] that we were the prime suspects on December 26th. We had that ranking.” (1d.) Even John and Patsy’s attomey in this action - Wood — is featured in the News Report admitting his clients’ status as suspects: “the days of the Ramseys being the focus of the investigation those days are over.” (Id.) Interestingly, John and Patsy do not contend that any of these statements are eitherfalse or defamatory of them, and they indeed concede that they were the main suspects in the crime. (Complaint, {| 24). ‘After noting that John and Patsy have historically been considered suspects, the News Report shifts gears dramatically. Against this historic backdrop, the News Report makes clear that the tide is turning. The main point of the News Report is that the Boulder Police Department — “long suspicious of the Ramseys” — was turning the case over to Boulder District Attorney Keenan to bring “fresh eyes” to the investigation. (Id., Ex. A) The News Report states that under Keenan’s new leadership, the focus of the investigation is reported to be moving away from long-time suspects John and Patsy, and towards “new leads and potential suspects.” (Id.) Notwithstanding that the News Report states in no uncertain terms that the Ramseys are no longer the main suspects in the homicide, Plaintiffs focus on an isolated excerpt from the News Report as the basis of their claim. Plaintiffs contend that the statement, commenting on the lack of evidence linking an intruder to JonBenét’s death, is intended as an accusation that John, Patsy, and/or Burke were involved. Plaintiffs further contend that the Fox News Channel falsely labels Burke “a suspect,” notwithstanding that the News Report makes clear that Burke has recovered civil settlements from people who have falsely labeled him as such.As set forth below, the construction urged by the Plaintiff’ is unreasonably strained and fails to comport with the tenor and content of the News Report as a whole. Considered in its entirety, the News Report is not capable of defaming any of the Plaintiffs. As such, this action should be dismissed for failure to state a claim for relief, ARGUMENT PLAINTIFFS’ COMPLAINT FAILS TO STATE A VALID CLAIM FOR DEFAMATION A. The Court May Dismiss An Action Pursuant to Rule 12(b)(6) For Failure To State A Claim Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Such a motion attacks the legal sufficiency of the complaint. “In essence, the movant says, ‘Even if everything you allege is true, the law affords you no relief.” McCoy v. Johnson Controls World Services, Inc., 878 F. Supp. 229, 231 (S.D. Ga. 1995). In determining such a motion, the Court “must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff.” Hoffman-Pugh v. Ramsey, 193 F. Supp. 2d 1295, 1298 (ND. Ga.), aff'd, 312 F.3d 1222 (11th Cir, 2002). The Court need not, however, accept as true the plaintiff's conclusions of law. Clark v. Bibb County Bd. ofEduc., 174 F. Supp. 2d 1369, 1371 (M.D. Ga. 2001). In addition to considering the facts set forth in the complaint, the Court should also consider any exhibits annexed to the complaint. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (Ith Cir, 2000); Clark, 174 F. Supp. 2d at 1370. A motion to dismiss may be granted, “when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Marshall County Bd. of Educ. v. Marshall County Gas District, 992 F.2d 1171, 1174 (1th Cir. 1993). B. The Court May Conclude That The Complained Of Words Are Not Defamatory As A Matter of Law 1, Defamation By Television Broadcast Is A “Defamacast” In Georgia, defamation through the medium of radio or television falls into a category referred to as “defamacast.” Strange v. Henderson, 223 Ga. App. 218, 219, 477 S.E.2d 330, 332 (Ga. Ct. App. 1996); see Ga. Code Ann. § 51-5-10 (imposing liability against broadcasters of defamatory statements). The court that coined the phrase “defamacast” said that general principles of libel and slander | For the sake of convenience and efficiency on this motion, Defendant shall analyze Plaintiffs’ claims for defamation under Georgia law. In doing so, Defendant notes that the law of defamatory meaning in Colorado is not meaningfully different from the law of Georgia, such that there is no conflict of law. Sce e.g., Arrington v. Palmer, 971 P.2d 669 (Colo. Ct. App. 1998). However, Defendant reserves the right to present a choice of law issue to the Court at a later date,would also apply thereto: “[PJrinciples such as what is defamatory, what is privileged and so forth will continue to apply.” American Broadcasting _v. Paramount Theatres, Inc. v. Simpson, 106 Ga. App. 230, 240 n.8, 126 S.E.2d 873, 880 n.8 (Ga. Ct. App. 1962), Thus, “defamacast” includes elements of both libel and slander. Brewer v. Rogers, 211 Ga. App. 343, 346, 439 S.E.2d 77, 80 (Ga. Ct. App. 1993), cert. denied, $12 U.S. 1222 (1994). 2. Defamatory Meaning Slander is defined as an oral defamation. Ga. Code Ann, § 51-5-4. If the alleged slander falls within three specified categories, proof of special damages is not required. Id. These categories are: (1) imputing to another a crime punishable by law; (2) charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society; and (3) making charges against another in reference to his trade, office, or profession, calculated to injure him therein. Id. A libel “is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” Ga. Code Ann. § 51-5-I(a). “Libel per se consists of a charge that one is guilty of a crime, dishonesty, or immorality, and the words must be defamatory on their face.” Hoffman-Pugh, 312 10F.3d at 1225; Morrison v. Hayes, 176 Ga. App. 128, 129, 335 S.E.2d 596, 597 (Ga. Ct. App. 1985), Libel per se does not require proof of special damages. Hayes v. Inwin, 541 F. Supp. 397, 432 (N.D. Ga. 1982), aff'd, 729 F.2d 1466, reh’g denied, 733 F.2d 908 (1 Ith Cir.), cert. denied, 469 U.S, 857 (1984). In addition to a libel per se claim, Georgia courts also recognize a claim of libel by innuendo, or libel per quod. The difference between libel per se and per quod has been explained as follows: “Defamatory words which are actionable per se are those which are recognized as injurious on their face - without the aid of extrinsic proof. However, if the defamatory character of the words [does] not appear on their face but only become defamatory by the aid of extrinsic facts, they are not defamatory per se, but per quod, and are said to require innuendo.”? Macon Telegraph Pub. Co. v. Elliott, 165 Ga. App. 719, 723, 302 S.E.2d 692, 696 (Ga. Ct. App. 1983), cert. denied, 466 U.S. 971 (1984); see Dun & Bradstreet, Inc. y. Miller, 398 F.2d 218, 222 (Sth Cir. 1968) (“Words which are libelous per se do not need an innuendo”). In the case of libel by innuendo, “ambiguous words may be clarified in meaning ‘by reference to the circumstances."" Hood v. Dun & 2 Georgia courts recognize a similar distinction regarding slander per se and per quod actions. Pospicil v. Buying Office, Inc., 71 F. Supp. 2d 1346, 1362 (N.D. Ga. 1999) (slander per quod “are those statements not defamatory on their face but, rather, are defamatory only by the aid of extrinsic facts and implication.”) lLBradstreet, Inc., 486 F.2d 25, 28 (Sth Cir. 1973), cert. denied, 415 U.S. 985 (1974). Those circumstances may include “a statement by plaintiff of construction which he puts upon words which are alleged to be libelous and which meaning he will induce the jury to adopt at trial.” Hardboard Machinery Co. v. Coastal Prods. Corp., 289 F. Supp. 496, 500 (M.D. Ga. 1967) (quoting Black’s Law Dictionary), aff'd, 398 F.2d 833 (5th Cir. 1968). 3. The Complained Of Statements Must Be Read In Context A court may conclude as a matter of law that the words complained of are not defamatory per se. Garland v. State, 211 Ga. 44, 46, 84 S.B.2d 9, 11 (1954); Thomason v. Times-Journal, Inc., 190 Ga. App. 601, 601-02, 379 S.E.2d S51, 552 (Ga. Ct. App. 1989); Aiken v. May, 73 Ga. App. 502, 37 S.E.2d 225 (Ga. Ct. App. 1946). In making such a determination, the allegedly defamatory statement must be construed in the context of the publication “as a whole.” Thomason, 190 Ga. App. at 602, 379 S.E.2d at 553. The court should view the entirety of the publication, including the headlines and text, to determine the sense in which the readers to whom it is addressed would ordinarily understand it. Pacific & Southern Co., Inc. v. Montgomery, 233 Ga. 175, 177, 180, 210 S.E.2d 714, 716 (1974) (the court should consider “the telecast, the pictures, and spoken narrative taken in their entire context”); Ledger-Enquirer Co. v. Brown, 214 Ga. 422, 423-24, 105 S.E.2d 12229, 230-31 (1958) (“the whole item, including display lines, should be read and construed together, and its meaning and signification thus determined.”). In doing so, courts will not hunt for a strained construction in order to find the words defamatory. Hoffman-Pugh, 193 F. Supp. 2d at 1299. Furthermore, courts will not interpret words in the subjective manner urged by the plaintiff, if that construction is not supported by the statements as a whole. Farrior v. H.J. Russell & Co., 45 F. Supp. 2d 1358, 1363 (N.D. Ga. 1999), “The question is what construction the average viewer would place upon the telecast.” Brewer, 211 Ga. App. at 346, 439 S.E.2d at 80. Finally, the “distinctions between libel per se and libel by innuendo do not affect the court’s initial task of determining whether the publication is capable of defamatory meaning.” Southard v. Forbes, Inc., 588 F.2d 140, 143, reh’g denied, 590 F.2d 333 (Sth Cir.), cert. denied, 444 U.S, 832 (1979). The Georgia Supreme Court explained the manner in which a libel by innuendo should be construed in Garland, 211 Ga. at 46, 84 S,E.2d at 11: Though a defamatory charge may be made in indirect terms or by insinuation, the publication must be construed as a whole, and the words charged as being defamatory are to be taken in their plain, natural, and ordinary meaning, to be understood by the court as other people would understand them, according to the sense in which they appear to have been published and the idea they were meant to convey. The court will not hunt for a strained construction in order to hold the words used as being defamatory. 13Where the words can bear but one meaning, and that is that they are obviously not defamatory, the office of innuendo cannot make the words defamatory .. . Id. (internal citations omitted). C. The Complained Of Words, On Their Face, Do Not Defame Plaintiff Burke Ramsey Plaintiffs contend that the News Report defames Burke by labeling him a “suspect.” Plaintiffs focus, in particular, on the following statement as false and defamatory of Burke: “[dJetectives say they had good reason to suspect the Ramseys.” (Complaint, 4 34). Citing to an affidavit of former Boulder District Attomey Hunter, Plaintiffs allege that Burke has never been considered a suspect. (Id. Ex. B). Plaintiffs further contend that the News Report defames Burke insofar as it states “there has never been any evidence to link an intruder to [JonBenét’s] brutal murder.” (id., 40). Because Burke is one of the four people known to have been in the home that night, Plaintiffs allege that he is defamed as a possible principal, co-conspirator, or accessory. (Id., | 60). ‘The construction urged by the Plaintiffs to support Burke’s claim is unreasonable and contradictory to the actual wording and meaning of the News Report. When read in its entirety, the transcript is not conceivably defamatory of Burke, as it neither labels him a suspect, nor does it state that he was involved in 14 gems 8488961JonBenét’s death. The News Report mentions Burke by name only twice. First, his name is mentioned in the opening paragraph that reports, in unequivocal terms, that Burke has never been suspected of any wrongdoing: Million of dollars have changed hands . . . Much of it has come from people who called JonBenét’s older brother Burke, who's been cleared, a suspect. (Id., Ex. A), Thus, the News Report makes clear from the start that the authorities believe that Burke had nothing to do with his sister's death. Not only is he not a suspect, the News Report makes clear that he has recovered money from people who have falsely called him one.* Burke is then mentioned a second time in the second sentence of the complained of paragraph as follows: “Detectives say they had good reason to suspect the Ramseys. ‘The couple and JonBenét’s nine year old brother, Burke, were the only known people in the house the night she was killed...” (Complaint, 3 The statement that Burke has “been cleared” is not inconsistent with the view that he was not considered a suspect. As the Hunter Affidavit makes clear, “questions about any possible involvement by her brother, Burke Ramsey, .. . were raised and investigated as part of standard investigative practices and procedures.” (Complaint, Ex. B, 5). After Hunter “was made aware that tabloid newspapers had indicated that Burke Ramsey was a suspect,” he issued a May 1999 press release that “publicly and officially stated that Burke Ramsey was not a suspect.” (Id., 7). The statement that Burke has been cleared is an obvious reference to Hunter's press release exonerating Burke once and for all. 15Ex. A) (emphasis added). Plaintiffs contend that the first sentence — that “detectives say they had good reason to suspect the Ramseys”- is a reference to Burke that falsely labels him a suspect. Clearly it is not ~ either when viewed in jsolation or when viewed in the context of the News Report in its entirety. Within the context in which it is uttered, the Fox News Channel is clearly not referring to Burke as one of “the Ramseys.” The complained of sentence - “detectives say they had good reason to suspect the Ramseys” — is followed by the further descriptive term in the next sentence — “the couple.” Hence, the term “the Ramseys” in the first sentence is an obvious reference to “the couple” — John and Patsy — referred to in the second sentence. As the further description in the second sentence makes clear — Burke is not one of “the couple,” as he is described separately as “JonBenét’s nine year old brother, Burke.” (Complaint, Ex. A). Hence, the sentence is not “of and concerning” Burke. In the absence of a statement that directly imputes a defamatory meaning to him, Burke cannot recover in this action for defamation. See Constitution Pub. Co. v. Leathers, 48 Ga. App. 429, 172 S.E. 923 (Ga. Ct. App. 1934) (article does not impute defamatory meaning to the plaintiff where it is clear that plaintiff is not included in the group charged with wrongdoing). The broader context of the News Report as a whole further refutes any 16 SN pease mesanotion that the Fox News Channel has defamed Burke. As referenced above, the News Report makes clear from the start that Burke is not a suspect. The term “the Ramseys” is used loosely in other segments of the News Report as a reference to John and Patsy Ramsey — exclusive of Burke. For example, the News Report states at the outset that “the Ramseys” have been sued by “their former employees.” This is clearly not a reference to the child, but rather, to his parents. Later, after John is depicted admitting that he and Patsy were prime suspects, the News Report states that “the Boulder Police Department, long suspicious of the Ramseys, has turned the case over ... .”. Again, the reference to “the Ramseys” is obviously a reference to John and Patsy, not to Burke. And Plaintiffs’ own attorney — Wood — is featured in the News Report stating that “the days of the Ramseys being the focus of the investigation . . . are over.” Again, it is clear from the context that Wood is not including Burke as a “focus of the investigation,” nor would he, given the position of his clients in this litigation. Based upon the foregoing, Burke has no cognizable claim for defamation. The News Report does not attack Burke’s character or impute conduct that is “illegal, dishonest, or immoral.” Reece vy. Grissom, 154 Ga. App. 194, 195, 267 S.E.2d 839 (Ga. Ct. App. 1980) (article not defamatory because it named plaintiff the father of arrestee but contained no suggestion father was connected with illegal, 17dishonest, or immoral conduct); Cates v. Nichols, [48 Ga. App. 558, 559, 252 S.E.2d 2, 2 (Ga. Ct. App. 1978) (broadcast containing “specific disclaimer of any suggestion of actual impropriety” not defamatory). By clearly stating Burke’s innocence, the News Report is not, under any construction, defamatory. D. The Complained Of Words Are Not Defamatory Per Se Of John Or Patsy Ramsey John and Patsy are referred to throughout the News Report as long-time suspects in the murder of JonBenét. Significantly, neither John nor Patsy seeks to recover for any of these statements in this action for defamation. For their defamation claim, John and Patsy appear to focus on a single sentence in the News Report that says, “there has never been any evidence to link an intruder to (JonBenét’s] brutal murder.” (Complaint, { 40). Coupled with the statement that the Plaintiffs were the only known people in the house that evening, and apparently ignoring the effect of six years of publicity about them, John and Patsy contend that the News Report caused “millions of members of the public ... to believe that [they were] criminally involved in the murder of [their] daughter as a principal and/or co-conspirator and/or as an accessory.” (Id., $9 40, 58, 59). The excerpt complained of by the Ramseys does not, on_its face, affirmatively charge either John or Patsy Ramsey with a crime, dishonesty, or immorality. See Zarach v. Atlanta Claims Ass’n, 231 Ga. App. 685, 689, 500 IgS.E.2d 1, 5 (Ga. Ct. App. 1998) (including a copy of an advertisement for plaintiff's business in seminar material on fraudulent businesses is not libelous per se). Therefore, to allege their claim for defamation, Plaintiffs must rely on facts extrinsic to the text of the News Report — i.e., that there in fact has never been evidence of an intruder.4 Plaintiffs must also explain the meaning they ascribe to the complained of words, as the words themselves are not injurious on their face. Therefore, Plaintiffs have not alleged a claim of defamation per se. Macon Telegraph, 165 Ga, App. at 723, 302 S.E.2¢ at 696. If anything, they have alleged a claim for libel per quod, which requires pleading and proof of special damages, which, as explained at Section F, infra, are absent from the Complaint. This Court’s decision in Hoffman-Pugh v. Ramsey, 193 F. Supp. 2d 1295, is persuasive authority supporting the dismissal of this action for lack of defamatory meaning. In that action this Court rejected the argument that certain statements in a book by John and Patsy Ramsey concerning the Ramseys’ housekeeper, Linda Hoffman-Pugh, were capable of defaming her by implying her involvement in the death of JonBenét. The statements at issue in the book noted that Hoffman-Pugh had once queried whether the family was concerned that JonBenét would one day be kidnapped, and, in the days before JonBenét’s death, had asked the Ramseys for + Burke also relies on the District Attorney's statement exonerating him. 19money and had been behaving strangely. These actions, the book reported, made Patsy question whether Hoffman-Pugh was involved in JonBenét’s disappearance. This Court dismissed Hoffman-Pugh’s complaint, finding that the passage at issue was not defamatory. The Court explained: “That the one passage Plaintiff cites as the entire basis for her defamation suit could be considered as imputing the kidnapping and murder of JonBenét Ramsey to Plaintiff, is_an_unreasonable interpretation in light of the entire publication.” 193 F. Supp. 2d at [301 (emphasis added). The Court further noted that the only crime that could be imputed to plaintiff was the crime of kidnapping — but the attribution of this crime ceased to carry a defamatory meaning once JonBenét’s body was discovered. Id, This Court’s holding was later affirmed by the Eleventh Circuit in a decision that repeats the analysis. 312 F.3d at 1226-27. That Court, like this one, concluded: Reading and construing the book as a whole, it does not accuse Hoffman-Pugh of murder or create a general impression that she is a murder suspect. There is no ambiguity, and the parts of the book that relate to her have only one reasonable interpretation — a nondefamatory one. 312 F.3d at 1227. Similarly, in Southard v. Forbes, Inc., 588 F.2d 140 (5th Cir. 1979), the Fifth Circuit applying Georgia law, rejected an argument by the plaintiffs that an allegedly defamatory article imputed a crime to them. In that action, the 20complained of article in Forbes magazine reported that plaintiff Jim Southard, a former stockbroker turned antique car investor, planned to start an investment program in classic cars for profit-sharing and pension plans. The article repeated Southard’s boasting about the value of such an investment: “The value of those cars never goes down, so you're guaranteed to make money” and concluded with the editorial comment: “If he made claims like that for stocks, Southard would be in the soup. But there is no Securities & Exchange Commission for classic cars.” 558 F.2d at 142. In affirming the dismissal of the action, the Fifth Circuit held “nothing on the face of the article explicitly accuses Southard of violating federal securities law . . . Thus, we cannot accept that the article was defamatory of Southard and Classic Car Investments as a matter of law.” Id. at 144. See also Mead vy. True Citizen, Inc., 203 Ga. App. 361, 417 S.E.2d 16 (Ga. Ct. App. 1992) (article is not defamatory because it does not impute a crime to the plaintiff). Here, as in Hoffman-Pugh and Southard, the defamatory construction urged by Plaintiffs is unreasonable and not supported by the text of the News Report itself, At its worst, the particular passage complained of states an uncontested fact: that John, Patsy, Burke, and JonBenét were the only known people in the house at the time. The News Report then states another fact: there has not been any evidence developed to link an actual, identifiable intruder to the crime. While 21Plaintiffs recite evidence that supports the possibility of an intruder (Complaint, 4 41), there is no dispute that none of this evidence has been linked to an actual person, and JonBenét’s death remains a mystery. Thus, the words are not capable of the defamatory meaning urged by Plaintiffs. See Gast v. Brittain, 589 S.E.2d 63, 64-65 (2003) (“unambiguous letter cannot reasonably be interpreted to imply or suggest that [plaintiff] either engaged in or condoned the criminal conduct alleged in the letter.”). In the context of the full report, the defamatory construction urged by Plaintiffs becomes even more preposterous. The gist of the News Report is that a new chapter is opening in the JonBenét investigation. The News Report begins by stating that John and Patsy were previously the prime suspects ~ a fact they readily concede, But the News Report makes clear that this is no longer the case, as a new district attorney is looking at the case anew, examining leads and persons other than the Ramseys. Thus, the gist of the News Report is not that the Ramseys are killers. The News Report never makes such a charge, even in veiled terms. Instead, the gist is that the Ramseys may have been the wrong targets from the start and that the real killer is being sought. Thus, the construction urged by Plaintiffs, that the statement charges them with murder, is “so farfetched, forced and strained” that it has no real relationship to “the remaining statements in the report.” 22Dun & Bradstreet, Inc. v. Miller, 398 F.2d at 223. Because the News Report on its face is not capable of suggesting, directly or even indirectly, John or Patsy’s involvement in the crime, the action should be dismissed. £. Even If Plaintiffs Are Attempting To Allege Defamation Per Quod, They Have Failed To Plead Sp: Damages In order for Plaintiffs to allege their claim for defamation, they must rely on facts extrinsic to the text of the News Report — such as the alleged evidence of an intruder and the district attorney’s statement exonerating Burke. Plaintiffs must also explain the meaning they ascribe to the complained of words, as the words themselves are not injurious on their face. As a result, if the News Report is deemed defamatory, it is defamatory per quod, not per se. Hardboard Machinery, 289 F. Supp. at 500; Macon Telegraph, 165 Ga. App. at 723, 302 S.E.2d at 696. Thus, Plaintiffs must plead and prove special damages. Hoffman-Pugh, 193 F. Supp. 2d at 1299; Webster v. Wilkins, 217 Ga. App. 194, 456 S.E.2d 699 (Ga. Ct. App. 1995). Special damages flow directly from the alleged defamation; they must be alleged with specificity in the complaint. Ga. Code Ann. § 9-11-9(g); Ga. Code Ann. § 51-12-2(b). They are comprised of “the loss of money, or of some other material temporal advantage capable of being assessed in monetary value.” Zarach, 231 Ga. App. at 689, 500 S.E.2d at 5; Webster, 217 Ga. App. at 196, 456 23S.E.2d at 701. Special damages do not include “mere annoyance or loss of peace of mind, nor even physical illness occasioned by the defamatory charge.” Mell v. Edge, 68 Ga. App. 314, 314, 22 S.E.2d 738, 739 (Ga. Ct. App. 1942). A plaintiff's failure to plead special damages should result in dismissal as a matter of law. Hardboard Machinery, 398 F.2d at 833; Mell, 68 Ga. App. 314, 22 S.E.2d 738. In the instant action, Plaintiffs summarily allege that they have suffered “stress, emotional distress, humiliation, anger, and other mental pain and suffering” as a direct result of the News Report.) (Complaint, 4 62). Such damages do not comprise special damages. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 331, 60 S.E.2d 802, 811-12 (Ga. Ct. App. 1950) (“No special damages are claimed ... It is not alleged that the plaintiff has suffered any loss of employment or monetary deprivation, and it appears from the pleadings that the entire injury is to [plaintiff's] reputation and feelings.”). For this additional reason, Plaintiffs’ action should be dismissed. S Because the Ramseys have been the focus of the investigation for six years, it is inconceivable that they could properly allege special damages arising from this News Report. Plaintiffs’ reputations have been so affected by coverage of the investigation thus far, that the News Report could not possibly have caused any new or additional harm to their reputations. Indeed, after the News Report, John determined to consider running for public office. If his reputation had been seriously damaged by the News Report, it is unlikely that he would be doing so. 24CONCLUSION For the foregoing reasons, this Court should dismiss Plaintiffs’ Complaint in its entirety, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a valid cause of action, and this Court should grant such further and other relief'as it deems just and proper. Dated: April 27, 2004 25 Respectfully Submitted, HOGAN & HARTSON L.L.P. Dori Ann Hanswirth Trina R. Hunn Jason P. Conti 875 Third Avenue New York, New York 10022 Tel: (212) 918-3000 Facsimile: (212) 918-3100 ~and - ALSTON & BIRD L.L.P. Judson Graves Ga. Bar # 305700 One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309 Tel: (404) 881-7000 Facsimile: (404) 881-7777 Counsel for DefendantCerti ion of Counsel Pursuant to N.D Ga, Local Rule 7.1D, I hereby certify that this document is submitted in Times New Roman 14 point type as required by N.D. Ga. Local Rule 5.1B, DORI ANN HANSWIRTHIN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JOHN RAMSEY, PATSY RAMSEY and BURKE RAMSEY, a minor, by his next friends and natural parents, JOHN RAMSEY and PATSY RAMSEY, Plaintiffs, ! CASE NO.: 1 03 CV-3976 (TWT) vs. : FOX NEWS NETWORK, L.L.C., d/b/a Fox News Channel, Defendant. CERTIFICATE OF SERVICE, This is to certify that I have on this date served a true and correct copy of the within and foregoing MEMORANDUM OF LAW UPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT upon counsel for Plaintiffs by Georgia Messenger courier service for hand delivery on this date, addressed as follows: L. Lin Wood, Esquire L. LIN WOOD, P.C. The Equitable Building Suite 2140 100 Peachtree Street Atlanta, Georgia 30303-1913 ATLOUIIGA6S8961This 28th day of April, 2004. fr PATRICK R. COSTELLO. Georgia Bar No, 189329 ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3424 (404) 881-7000 (404) 881-7777 facsimile Counsel for Defendant ATLOL/1 162658901