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CASE NUMBER 02-12642-DD

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Case Number 02-12642-DD

LINDA HOFFMANN-PUGH

Plaintiff-Appellant,

vs.

PATRICIA RAMSEY & JOHN RAMSEY,

Defendants-Appellees.

On Appeal from the United States District Court
Northern District of Georgia
Atlanta Division

The Honorable Thomas W. Thrash
District Judge

D.C. No. 01-CV-0630

APPELLANT'S BRIEF

Darnay Hoffman
Attorney for Appellant

COUNSEL REQUESTS ORAL ARGUMENT

TABLE OF CONTENTS

TABLE OF CONTENTS....i

TABLE OF CITATIONS.....ii

STATEMENT OF JURISDICTION....1

STATEMENT OF THE ISSUES.....1

STATEMENT OF THE CASE......1

SUMMARY OF THE ARGUMENT.....5

ARGUMENT AND CITATION OF AUTHORITY......7

A. Standard of Review.....7

B. The Defendants' Statements Are Defamatory Under Georgia Law........9

C. Defendants Made Actionable Statements of Mixed Opinion And Fact.......16

D. The District Court Erred in Relying on Inapposite California Case Law in Preference to Settled Georgia Case Law...19

E. The Defendants' Statements are Unprotected Because the Ramseys Knowingly Lied and Made False Statements To Implicate Innocent People in Their Crime.....21

CONCLUSION.....24

STATEMENT OF JURISDICTION

Plaintiff-appellant, Linda Hoffmann-Pugh, brought this action seeking damages for defamation pursuant to 28 U.S.C. § 1332, as there exists complete diversity of citizenship between the plaintiff and the defendants and the amount in controversy exceeds seventy-five thousand dollars, exclusive of interests and costs. Venue is proper pursuant to 28 U.S.C. § 1391. On April 8, 2002, the District Court filed its order granting defendants-appellees' Motion to Dismiss. Plaintiff-appellant filed a timely Notice of Appeal on May 6, 2002, pursuant to Fed.R.AppP. 4(a)(1)(A).

STATEMENT OF THE ISSUES

Whether the District Court erred in ruling that statements made about the plaintiff-appellant Linda Hoffmann-Pugh in the defendants-appellees' book The Death of Innocence, implicating her in the kidnap/murder of their daughter, were not defamatory as a matter of law.

STATEMENT OF THE CASE

This case is for libel and slander. The defendants are non-media, multimillionaire murder suspects in the horrific death of their six-year-old daughter JonBenet Ramsey, who was found sexually assaulted and killed in the basement of their home on December 26, 1996. The Ramseys are unique in American history, in that they are arguably the first, and only, unindicted murder suspects to write a bestselling book defaming innocent people under the guise of criticizing a law enforcement agency, in what appears to be part of the defendants' ongoing effort to elude prosecution. The district court took judicial notice of the fact that Atlanta judge Julie E. Carnes had already ruled on similar questions of law and fact in a previous defendants' motion to dismiss in the related case of Wolf v. Ramsey (00-CV-1187). In Judge Carnes' 2/9/01 opinion denying the defendants' motion to dismiss, the court ruled that the plaintiff's complaint for libel contained allegations of fact sufficient to allow a jury to find that the statements made in John and Patsy Ramsey's book The Death of Innocence (1) defamed the plaintiff, (2) were libelous per se, and (3) were actionable mixed opinion and fact.

This Court might also wish to take judicial notice of the fact that the Ramseys' book, which is part of the Record, makes it clear that the authors remain the only publicly declared suspects by the Boulder police, the district attorney, and the Governor of Colorado, who the Ramseys have threatened to sue for libel for his statements concerning their involvement in the death of their daughter JonBenet. To date, the Ramseys have been involved in at least ten separate lawsuits for libel and slander, nearly all of which they have initiated themselves, in what may arguably represent the largest single assault on the First Amendment by murder suspects endeavoring to avoid prosecution in American history.

Evidence exists, moreover, in the form of handwriting reports and affidavits from forensic handwriting experts (Plaintiff's Complaint, Ex. 1), that Patsy Ramsey is the author of the ransom note found at the scene of her daughter's murder.

It is their ongoing attempt to elude prosecution by shifting suspicion onto innocent people that has led the Ramseys to make certain statements in their book The Death of Innocence: The Untold Story of JonBenet's Murder and How Its Exploitation Compromised the Pursuit of Truth ("DOI") (published in March of 2000) that are deliberately calculated to create the false impression that Linda Hoffmann-Pugh was involved in some way in the kidnap/ murder of their daughter JonBenet, which has led to this lawsuit:

"The police ask Patsy these same questions about who might have been angry or acting strangely, and she begins to think about our cleaning lady. Linda Hoffmann-Pugh had called Patsy a couple of days before Christmas, very distraught and in tears. Linda said her sister, who was also her landlord, was going to evict her if she didn't come up with the past-due rent. She asked Patsy if she could borrow twenty-five hundred dollars to cover it. Patsy had consoled Linda and agreed to lend her the money. In fact, Patsy had intended to leave the check for Linda on the kitchen counter before leaving for Michigan; Linda would let herself in the house and pick it up while we were gone for the holidays.

"Patsy remembers that her mother, Nedra Paugh, had said that Linda had remarked to her at one time, "'JonBenet is so pretty; aren't you afraid that someone might kidnap her?' Now those comments seem strangely menacing.

"Finding the phone number in her digital Rolodex, Patsy tells a police officer where Linda Lives in Ft. Lupton, Colorado. Patsy later tells me she was thinking, If it's Linda, it's okay, because she is a good, sweet person. She is just upset. She may need the money, but she won't hurt JonBenet."

"The police tell us they will arrange for the Ft. Lupon police to drive by Linda's house to see if they notice anything unusual, but they don't want to alert anyone there that they are being watched." (DOI at pp. 19-20)

As a result of the Ramseys' interest in establishing that Linda Hoffmann-Pugh was involved in the kidnap/ murder of JonBenet, the plaintiff has unnecessarily become the subject of unflattering and intrusive attention by law enforcement and the media, causing her extreme humiliation, embarrassment, and emotional distress. She has also been exposed to public hatred, contempt, and ridicule in the small community of Platteville, Colorado, where she lives and works. As set forth more fully below, the plaintiff argues that the district court erred by not following Georgia case law, accepting that of California instead, when it granted the Defendants' Motion to Dismiss in its entirety. The statements complained of constitute libel per se and are not privileged.

SUMMARY OF THE ARGUMENT

Atlanta district court judge Julie E. Carnes correctly answered the question of whether or not the defendants made defamatory statements in their book The Death of Innocence in her decision in the related case of Wolf v. Ramsey (00-CV-1187):

The Court concludes that the statements made in defendants' book are reasonably read to impute the crime of murder to plaintiff. Although defendants do not directly state that plaintiff killed JonBenet, they claim that they did not kill their daughter, and name plaintiff as one of the people they suspected may have done so. In determining whether a statement is defamatory, '[t]he trial judge should read and construe the publication as a whole, and thereafter 'may find that it is not defamatory, that it is defamatory, or that it is ambiguous and the question is one for a jury. In considering whether a writing is defamatory as a matter of law, we look…at what construction would be placed on it by the average reader." Mead v. True Citizen, Inc., 203 Ga. App. 361, 362, 417 S. E. 2d 16, 17 (1992) (citations omitted). The Court concludes that a jury could reasonably conclude from these statements, taken as a whole, that the Ramseys were imputing the murder of JonBenet to plaintiff.

The next question is whether these statements are capable of being proved false. Defendants claim that they are not because they merely represent their impressions at the time that plaintiff "represented too many unanswered questions." Plaintiff, however, argues that defendants killed JonBenet, and therefore had no basis for their supposed belief that plaintiff had something to do with her death. At this stage of the proceedings, the Court must take all facts in favor of the plaintiff. Assuming for the purpose of this order that defendants did know who killed JonBenet, and knew that the murderer was not plaintiff, their statements was not merely opinion, but was indeed a falsity. (Emphasis added)

Id. at 11-12.

Unfortunately, Atlanta district court judge Thomas Thrash erred when he incorrectly held that Judge Carnes' decision was inapposite to his decision granting the defendants' motion to dismiss. Judge Thrash also incorrectly deferred to the California state case of Forsher v. Bugliosi, 26 Cal.3d 792 (1980), instead of accepting the Georgia appellate case of Harcrow v. Struhar, 235 Ga. App. 403 (1999) as dispositive, as required of federal courts sitting in diversity. The Eleventh Circuit has held that: In determining the law of the forum state, federal court must follow the decisions of the state's highest court, and in the absence of such decisions on an issue, must adhere to the decisions of the state's intermediate appellate courts unless there is some persuasive indication that the state's highest court would decide the issue otherwise.

Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982).

Furthermore, when a state's highest court has not addressed an issue, the federal district court must make an "educated guess" as to how the state's highest court would rule. See, e.g., Benante v. Allstate Ins. Co., 477 F.2d 553, 554 (5th Cir. 1973). Here, the district court failed to do so.

ARGUMENT AND CITATION OF AUTHORITY

A. Standard of Review

A motion to dismiss under FRCP Rule 12(b)(6) "is viewed with disfavor and is rarely granted." Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982).

The complaint, furthermore, must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Linder v. Portocarrero, 963 F.2d 332 (11th Cir. 1992). See also, Quality Foods de Centro, S.A. v. Latin American Agribusiness Development Corp., S.A., 711 F.2d 989, 994-5 (11th Cir. 1983)

The district court, moreover, may not dismiss a complaint under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 69, 73, 104 S. Ct. 99, 101-103, 2 L.Ed.2d 80 (1957). See, Beck v. Deloitte & Touche, 144 F.3d 732, 735-36 (11th Cir. 1998) ("In seeking dismissal for failure to state a viable claim, a defendant thus bears the 'very high burden' of showing that the plaintiff cannot conceivably prove any set of facts that would entitle him to relief.") As the U.S. Supreme Court clearly stated:

When a federal court reviews the sufficiency of a complaint..[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is no the test..

'In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (quoting Conley, 355 U.S. at 45-6 (emphasis added)). Accord in Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), quoted in H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-250 (1989).

Furthermore, any motion to dismiss that is granted by a district court is reviewed de novo by the appellate court, which applies the same standard as the lower court. "In reviewing de novo a dismissal pursuant to Rule 12(b)(6), we apply the same standard as did the district court." South Florida Water Management Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996). See also, Marshall County Bd. Of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

B. The Defendants' Statements Are Defamatory Under Georgia Law The District Court erred by agreeing with the defendants' claim that the statements complained of by the plaintiff are not capable of a defamatory meaning as a matter of law in Georgia. In raising this argument, the defendants, along with the District Court, ignored a crucial distinction in the caselaw: A court may grant a motion to dismiss only if it finds that the plaintiff cannot prove any set of facts consistent with those alleged in their complaint. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

The defendants, moreover, bear "the 'very high burden' of showing that the plaintiff cannot conceivably prove any set of facts that would entitle [it] to relief." Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th Cir. 1998). (Emphasis added). And although the defendants' correctly argued that it is one of the functions of the court to determine the threshold question of whether a statement is reasonably susceptible of conveying a defamatory meaning, they ignored addressing the argument that it remains strictly within the exclusive province of the jury to determine whether the plaintiff has in fact been defamed. Bryant v. Avado Brands, Inc., 187 F. 3d 1271 (11th Cir. 1999); South Fla. Water Management Dist. V. Montalvo, 84 F. 3d 402 (11th Cir. 1996).

Ignoring this critical distinction is no small matter since this separation of roles between the court and the trier of fact inevitably leads to an important limitation in the nature of the district court's inquiry:

On a motion to dismiss or for summary judgment, the issue is not whether the court regards the language as libelous, but whether it is reasonably susceptible of such a construction. The court may not…interfere with the jury's role by treating as nondefamatory a statement that a reasonable juror may fairly read in context as defamatory.

Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986).

The District Court erred in holding that there was no basis for a jury to find the statements by the Ramseys to be defamatory, thereby effectively usurping the jury's function, while improperly substituting the court's subjective interpretation of the defamatory nature, if any, of those statements for that of a jury.

According to Georgia statute, a statement is "reasonably susceptible" of a defamatory meaning when "tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." O.C.G.A. 51-5-1 (Emphasis added). In making this evaluation, moreover, a court must read the words as "naturally" as possible within their context, and as an average reader would understand them. "A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it." Fiske v. Stockton, 171 Ga. App. 601, 605, 320 S.E.2d 590. The Georgia case of Harcrow v. Struhar, 235 Ga. App. 403, 511 S.E.2d 545 (Ga. App. 1999) illustrates this principle. When a libel defendant wrote and circulated a neighborhood flyer implying that the plaintiffs were responsible for shooting his cat, the court found that the writing as a whole could be reasonably construed to imply that the plaintiffs had shot the defendant's cat and were, therefore, guilty of the crime of cruelty to animals.

The Harcrow court held, furthermore, that just because the defendant's flyer included a statement which was clearly intended to act as a general disclaimer ("I'm not saying that they [the plaintiffs] are responsible for this atrocious act, that will be determined by the...police, but they are prime suspects," id. at 546), this fact alone did not negate the other portions of the writing. The court found that a jury could reasonably conclude that the statements in the flyer, when taken as a whole, could be understood to be the equivalent of imputing a crime to the plaintiffs. "The evidence was clearly sufficient for the jury to conclude that the writing published by [defendant] was false and malicious defamation tending to injure the [plaintiffs'] reputation or expose them to public hatred, contempt, or ridicule." Id. at 546. A similar conclusion was reached by the 2nd Circuit Court of Appeals in a decision which held that [s]tatements implicating [the plaintiff] in a murder [which] appear among conflicting and speculative versions of an unresolved mystery reflects only that a jury issue exists as to how the words were likely to be understood by the ordinary and average reader, and does not preclude a trier of fact from finding a defamatory connotation.

Levin v. McPhee, 119 F.3d 189, 195 (2nd Cir. 1997).

Under Georgia law, courts may find as a matter of law that statements are not libelous only if the language is "so clear, certain and unambiguous that the only possible construction is that it is not libelous or defamatory." World Ins. Co. v. Peavy, 110 Ga. App. 651, 654, 139 S.E.2d 440, 442 (1964). (Emphasis added). Furthermore, "words which alone are innocent may in their context clearly be capable of a defamatory meaning and may be so understood." Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 362 (S.D.N.Y. 1998).

The defendants' statements, when taken within the context of their book about the "unsolved" murder of their daughter and the various "suspects" they believe worthy of investigation, are capable of conveying to the average reader that Linda Hoffmann-Pugh was a legitimate murder suspect "who might have been angry or acting strangely" (DOI at p. 19) because she "had called Patsy a couple of days before Christmas, very distraught and in tears" (DOI at p. 19) because her own sister (!) "was going to evict her if she didn't come up with the past-due rent" (DOI at p. 19) while agreeing to allow her to "borrow twenty-five hundred dollars to cover it" (DOI at p. 19) which she could do if she "let herself in the house and pick it up while we were gone for the holidays." (DOI at p. 19) Moreover, the fact that the defendants' then state that "Patsy remembers that her mother, Nedra Paugh, had said that Linda had remarked to her at one time, 'JonBenet is so pretty; aren't you afraid that someone might kidnap her?"(DOI at pp. 19-20) only adds to the general impression being created for the reader that the Ramseys believe there is a legitimate reason to give Linda Hoffmann-Pugh's name to the police as a suspect.

To dispel any doubt that this is what the Ramseys are doing, they add the rather melodramatic observation that "Now those comments seem strangely menacing" for effect. (DOI at p. 19)

The defendants next throw additional fuel on the fire by including Patsy Ramsey's completely gratuitous observation that "If it's Linda, it's okay, because she is a good, sweet person. She is just upset. She may need the money, but she won't hurt JonBenet." (DOI at p. 20) The Ramseys then conclude the matter of Linda Hoffmann-Pugh's fate by leaving it entirely up in the air, never to be referred to again in their book, with the statement that "The police tell us they will arrange for the Ft. Lupon police to drive by Linda's house to see if they notice anything unusual, but they don't want to alert anyone there that they are being watched." (DOI at p. 20)

Given the public's extensive knowledge of the existence of a ransom note from reading the defendants' book, a court might easily conclude that a fair reading of these statements could lead the general reader (and a jury) to believe that the defendants' intended to convey the impression that Linda Hoffmann-Pugh had at least kidnapped their daughter, if not actually murdered JonBenet Ramsey. What the Ramseys fail to tell the reader is that Linda Hoffmann-Pugh was immediately cleared by the police and later appeared before a Boulder grand jury as a prosecution witness. Nowhere in their book do they mention this fact. Clearly, they want the reader to draw the inevitable conclusion that Linda Hoffmann-Pugh may have been involved in the kidnapping, if not murder, of their daughter and remains a police suspect.

"Whether stated directly or by implication or innuendo, it is libelous per se to falsely state that a person is guilty of a crime or has a criminal case pending against him." (Emphasis added). Harcrow v. Struhar, 236 Ga. App. 403, 511 S.E.2d 545, 546 (G. App. 1999); Mead v. True Citizen, Inc., 203 Ga. App. 361, 362, 417 S.E.2d 16 (1992); Melton v. Bow, 241 Ga. 629, 630-31, 247 S.E.2d 100 (1978); Witham v. Atlanta Journal, 124 Ga. 688, 53 S.E. 105 (1906). As Judge Carnes held in her decision in Wolf v.Ramsey(00-CV-1187):

The Court concludes that the statements made in defendants' book are reasonably read to impute the crime of murder to plaintiff. Although defendants do not directly state that plaintiff killed JonBenet, they claim that they did not kill their daughter, and name plaintiff as one of the people they suspected may have done so...The Court concludes that a jury could reasonably conclude from these statements, taken as a whole, that the Ramseys were imputing the murder of JonBenet to plaintiff.

Id. at 11.

Judge Carnes also went on to hold that Chris Wolf had been successful in "establishing that defendants' statements constituted libel per se.." (Carnes at p. 12) in his complaint, thereby rejecting the argument the defendants are now raising for a second time in the memorandum of law they have submitted in support of this motion.

In the present case, the Ramseys are imputing, at the very least, the crime of kidnapping to Linda Hoffmann-Pugh when they write:

"Patsy remembers that her mother, Nedra Paugh, had said that Linda had remarked to her at one time, "'JonBenet is so pretty; aren't you afraid that someone might kidnap her?' Now those comments seem strangely menacing…..Patsy later tells me she was thinking, If it's Linda, it's okay, because she is a good, sweet person. She is just upset. She may need the money, but she won't hurt JonBenet." (DOI at pp. 19-20)

C. Defendants Made Actionable Statements of Mixed Opinion and Fact

Another threshold issue for the District Court to determine was whether or not the defendants' statements were opinion or fact. "There is no wholesale defamation exemption for anything that might be labeled 'opinion.' To say otherwise would ignore the fact that expressions of 'opinion' may often imply an assertion of objective fact." Eidson v. Berry, 202 Ga. App. 587, 588, 415 S.E. 2d 16 (1992). (emphasis added)

As the U.S. Supreme Court explained in Milkovich v. Lorain Journal, 497 U.S. 1, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990), the Constitution does not offer wholesale protection for so-called "expressions of opinion" if those expressions imply assertions of objective fact. ("As Judge Friendly aptly stated: 'It would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words 'I think.'id. at 18-19.) The Milkovich court also observed that "It is worthy of note that at common law, even the privilege of fair comment did not extend to 'a false statement of fact, whether it was expressly stated or implied from an expression of opinion.'" Id. at 19.

A statement cast in the form of an opinion may imply the existence of undisclosed defamatory facts on which the opinion purports to be based, and thus may be actionable. Jaillett v. Georgia Television Co., 238 Ga. App. 885, 890, 520 S.E. 2d 721 (1999); Restatement (Second) of Torts 566 (1977).

In their book, the Ramseys repeat remarks which Linda Hoffmann-Pugh categorically denies ever making ("Patsy remembers that her mother, Nedra Paugh, had said that Linda had remarked to her at one time, 'JonBenet is so pretty; aren't you afraid that someone might kidnap her?'") and then try to "clean up" their defamatory statements by adding a "disclaimer" with Patsy's observation: "If it's Linda, it's okay, because she is a good, sweet person. She is just upset. She may need the money, but she won't hurt JonBenet." (DOI p. 20) Remarkably, these facts are very similar to those of Harcrow v. Struhar, 236 Ga. App at 403-4, in which a Georgia Court of Appeals rejected the argument that a general "disclaimer" by a cat owner accusing his neighbors of shooting his pet was vitiated by his statement that "I'm not saying that [the plaintiffs] are responsible for this atrocious act, that will be determined by the [police], but they are prime suspects.." Id. at 404. The Court found, moreover, that this statement "was not merely an expression of his opinion," id. at 404, and that it "does not negate other portions of the writing," id. at 404, and that as a result "the jury was entitled to conclude [the statements] were the equivalent of imputing a crime to the [plaintiffs]." Id. at 404.

The defamatory statements complained of in the defendants' book also suffer the same problems as those statements made by the Ramseys in the media promoting their book. For example, the defendants make it perfectly clear to the reader that they have hired private investigators who, over a period of three years, conducted their own investigation into the murder of their daughter. The book is even advertised as containing the "results" of the Ramseys' investigation. However, the "results" of their investigation, and the "facts" upon which they base their statements, remain largely undisclosed to the reader, who is left to draw his own conclusions as to what is "fact" and what is "opinion," with no idea of how much is drawn from, and based upon, the "secret" investigative files of the Ramseys.

Defendants' counsel is uniquely aware of the implications of including Linda Hoffmann-Pugh in the Ramseys' list of "suspects," having appeared as plaintiff's counsel for Richard Jewell, who was falsely identified as a suspect in the terrorist bombing of the Olympic games in 1996, in the case of Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, (S.D.N.Y., 1998). The court in that case observed that "Although the net cast by a criminal profile may well capture a number of innocent people, that fact does not change the damaging impact on the innocents snared..a person who fits the profile is identified as someone who may have been involved in a criminal act. Such a false accusation is not without its sting or pain." Id. at 364. See also Levin v. McPhee, 119 F. 3d at 195 (statement implicating someone in a murder, even though such an implication appeared "among conflicting and speculative versions of an unresolved mystery," was capable of a defamatory meaning and motion to dismiss was properly denied.)

John and Patsy Ramsey's public statements, and those in their book, are laden with innuendo and suggestions that the plaintiff was a legitimate kidnapping and murder suspect. "Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact." Milkovich v. Lorain Journal Co., 497 U.S. 1 at 18.

D. The District Court Erred in Relying on Inapposite California Case Law in Preference to Settled Georgia Case Law

The district court relies upon the California case of Forsher v. Bugliosi, 26 Cal. 3d 792 (1980), in preference to the Georgia case of Harcrow, in reaching its conclusion that a jury could not, as a matter of law, find that the Ramseys defamed Linda Hoffmann-Pugh. In doing so, the district court has ignored the Eleventh Circuit's holding that: In determining the law of the forum state, federal court must follow the decisions of the state's highest court, and in the absence of such decisions on an issue, must adhere to the decisions of the state's intermediate appellate courts unless there is some persuasive indication that the state's highest court would decide the issue otherwise.

Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982).

The law of the forum state of Georgia is found in Harcrow, and not in the law found in the California case of Forsher. In Forsher, it is a state prosecutor who is reporting the facts of a case in which he participated, while in the case before this Court, it is murder suspects (i.e., the Ramseys) who make the defamatory statements in what is arguably an attempt to cover their tracks by implicating Linda Hoffmann-Pugh to the police and the general reader of their book.

The District Court, moreover, relies upon a strained interpretation of Linda Hoffmann-Pugh's argument by laboriously deconstructing the Ramseys' statements into their separate parts to "prove" that they are not defamatory to the plaintiff. However, the District Court seemingly ignores the fact that it is the "totality" of their statements, taken together with their protestations of "innocence" that makes their reference to Linda Hoffmann-Pugh so defamatory. "Words which alone are innocent may in their context clearly be capable of a defamatory meaning and may be so understood." Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 362 (S.D.N.Y. 1998).

E. The Defendants' Statements are Unprotected Speech Because the Ramseys Knowingly Lied and Made False Statements to Implicate Innocent People in Their Crime John and Patsy Ramsey have piously argued that the plaintiff's cause of action risks chilling significant truthful speech and valuable opinion, thereby interfering with their "right" to defame innocent people for the kidnap/murder of their daughter by naming them in their book as possible police suspects. The defendants then go on to lament the fact that Linda Hoffman-Pugh's complaint will discourage their expression of "truthful" speech in the 'marketplace of ideas.' The Ramseys support this proposition -- that the First Amendment somehow protects their right to "name" (frame?) murder suspects in a book -- by pointing to the U. S. Supreme Court opinion of Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) ("Under the First Amendment there is no such thing as a false idea.")

However, the Ramsey's neglect to mention the rest of Gertz, which states that "Neither the intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust and wide-open debate on public issues.'"( Id. at 340, quoting New York Times v. Sullivan, 376 U.S. at 270). The Ramseys, moreover, fail to mention Hustler Magazine v. Falwell, 485 U.S. 46 (1988), in which the Supreme Court states even more emphatically:

False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual's reputation that cannot easily be repaired by counterspeech, however persuasive or effective.

Hustler Magazine v. Falwell, 485 U.S. at 52

The statements in Hustler Magazine are consistent with the U.S. Supreme Court's pronouncement in Garrison v. Louisiana, 379 U.S. 64, (1964), in which the Court addressed what constitutional protection, if any, the First Amendment should grant calculated falsehoods (i.e., "lies"):

The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published., should enjoy like immunity..

For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.

Garrison v. Louisiana, 379 U.S. at 75.

It has been long established that certain speech is not protected by the First Amendment. Perjury, the conversations of co-conspirators, yelling "fire!", etc. are all examples of "unprotected" speech. Why should the lies of murder suspects, who may have the legal right to remain silent, but who do not have the right to falsely implicate innocent people for their crime in a bestselling book be allowed to seek sanctuary in the First Amendment?

In light of the fact that there is compelling evidence in the form of handwriting reports and affidavits by forensic document examiners attached as "Exhibit 1" to the plaintiff's amended complaint, showing that Patsy Ramsey is the ransom note writer, makes the defendants' characterization of the Book 's central idea -- that the Boulder police mishandled the murder investigation -- almost ludicrous. The mere fact that Patsy Ramsey wrote the ransom note, if proven by clear and convincing evidence to a jury, would be sufficient to establish as false the statement that: "If it's Linda, it's okay, because she is a good, sweet person. She is just upset. She may need the money, but she won't hurt JonBenet." (DOI, at p. 19) Arguably, Patsy Ramsey's authorship of the ransom note would be legally sufficient proof to meet the "actual malice" requirement that she had the necessary "intent" to knowingly publish false statements about Linda Hoffmann-Pugh. If John and Patsy Ramsey both know she is the ransom note writer, then, by definition, they have made provably false statements about the plaintiff with "constitutional malice."

"If a public figure proves by clear and convincing evidence that the defendant published with the purpose or design of communicating a false and defamatory, albeit implied statement, the plaintiff should be able to maintain a cause of action and recover for the resulting harm. Such a predicate to legal responsibility of the publisher in a public figure case is fully consistent with the promise of New York Times and its progeny. The Court in New York Times did not promise absolute immunity; it fashioned a qualified privilege. Calculated falsehood, in the form of the deliberate lie, is not protected by the First Amendment." C. Thomas Dienes & Lee Levine, Implied Libel, Defamatory Meaning and State of Mind: The Promise of New York Times Co. v. Sullivan, 78 Iowa L. Rev. 237, 311(1993)

CONCLUSION

Linda Hoffmann-Pugh contends that if the statements by the defendants in their book, which try to implicate her in the horrific sexual assault and murder of a six-year girl in a case that has received enormous international press attention, don't rise to the level of "unprotected speech," then what does? If Linda Hoffmann-Pugh cannot bring this action, accused as she is of kidnapping and possibly killing a small child, then who can ever hope to defend their reputation from false charges of kidnap/murder?

For the foregoing reasons, it is respectfully requested that the Court reverse the Order of the District Court.

Dated: June 14, 2002

Respectfully submitted,

_________________________
DARNAY HOFFMAN

Attorney for Plaintiff-Appellant