[FULL THREAD IS TO THE LEFT UNDER “MY LARRY KING/CNN SUIT”]
Due to the dire consequences (dismissal) if I filed a brief late without prior written permission on motion from the court, when my opponent’s answering brief came in late with no prior motion, I filed a special motion to have it disallowed for that reason, and by the way, to give me my trial in the lower court, unapposed. This was denied. Nice try, me.
So their Answering Brief was put on the record, and I’m sure if the lawyers care to print it, they will do so at their website (as my father used to say, “they can plead their own cause”).
My Reply Brief to theirs (no more Briefs, thank heaven) was filed yesterday. Their points to which I am replying should be self-evident.
Faithful readers will surely want to keep up with events, and so here it is:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN CLARK, Appellant,
vs. LAWRENCE HARVEY ZEIGER aka LARRY KING; CABLE NEWS NETWORK, LP, LLLP; and TURNER BROADCASTING SYSTEM, INC.; Appellees.
On Appeal from the United States District Courtfor the Central District of California Honorable William Matthew Byrne, Judge Presiding District Court Case No. CV-04-03632-WMB-FMO
APPELLANT’S INFORMAL REPLY BRIEF
Appellant is referred to herein as “John”. This is John’s response to Appellees’ 37 page late-filed Brief.
John is a pro se, without funds, and without legal training. He cannot process appellants’ contentions by examining the 59 cases they cite one by one. However, his argument is simple, his points forceful, and his cited authorities are few.
REFERENCES TO APPELLEES’ BRIEF ARE TO THEIR PAGE NUMBERS
First paragraph: The onscreen captions, or chirons, which John claims were defamatory, were added AFTER the recording of the interview, in the editing room. This fact is not disputed.
Their footnote: John alleges in his complaint that CNN acted maliciously, and deliberately disregarded the truth by not fully disclosing the facts. John believes that his contention is sufficient to state a claim for relief under Rule 12(b(6).
First paragraph: Appellees contend that John’s verified Complaint is “replete with salacious allegations about his ex-wife’s romantic involvements, his former in-law’s sexual histories, his eviction from the longtime family home, and many other subjects.”
The reason these matters had to be brought up is to demonstrate that John needed to have contact with the producers of the interview PRIOR to its broadcast, billed as “Larry King Live“, in order to make sure that any and all matters of a private “sensational” nature should not be discussed at all, and to protect himself from being held up to a false light. It was too late, the program was taped, and was about to be aired. John does not agree that these facts are “salacious”.
Second paragraph: Referring to the two on-screen chyrons at the center of this case, Appellees make the following statement as fact.
That “….plaintiff fathered [the child] by his family’s former personal assistant, [and] plaintiff acknowledges that he, in fact, fathered the child. He admits this fact yet again in his Informal Brief.”
It is for this court to decide whether that statement of the world famous spokesperson – Larry King – for “CNN – All the News You Can Trust” is an honest and straightforward depiction of the truth, or whether it is a comment designed to uphold the reputation and career, and promote a book, of the guest, Lynn Redgrave, John’s hostile ex-wife, and attract viewers to Larry King Live with a sensationalized banner graphic, which is a commercial undertaking for CNN, at the expense of John and his reputation.
The paperwork and materials included in this case and now in the hands of this court amply demonstrates a different truth.
John happily and proudly revealed (not “admitted”) that he was and is the father of the child as a result of a humanitarian arrangement with Nicolette, the ex Jehovah’s Witness, then a desperate person in need, a circumstance explained on page 2 of his Informal Opening Brief, and that she was a family friend, and not an assistant.
Appellees refer to John’s court-ordered eviction from his home by his wife, and so does John. There are graphic photographs of this chilling event on John’s website “www.johnclarkprose.com”, which is incorporated into this appeal by reference.
Appellees claim that dismissal is proper under Rule 12(b)(6) if it “appears beyond a doubt” that the plaintiff can prove no set of facts to support his claims. John believes that were this case to be remanded back to the lower court for trial, he would be able to support his claims.
Furthermore, John’s arduous journey through Los Angeles’ Family and Civil Courts since 1999, (and not over yet), provides an over-abundance of material available to any reputable media outlet’s research departments seeking to avail themselves of facts, such as being imprisoned by soon to be celebrity judge for hire (retired) Judge Arnold Gold the day before representing himself pro per at his trial in Los Angeles Family Court. John believes that the public airing of CNN’s unfavorable views actually have an effect on the course of his cases in the aforesaid courts.
Third paragraph: Appellees refer to the retraction-demand statute, California Civil Code §47a. Appellees still don’t get it. Larry King and CNN gave John no chance to set things right, and their failure was due to the fact that the program was taped. It was too late already to make the necessary adjustment, and to insist that they refrain from any disparagement of John. A risk they were obviously willing to take. It is extremely unfortunate that John’s effort to set the record straight can only have a hurtful impact upon his now estranged family. Further evidence that CNN’s actions were irresponsible.
However, if this case can be brought to trial, an amended complaint, if granted, might well address the possibility that, in a strange twist, CNN’s failure to give John a voice was an attack upon his First Amendment freedoms! It’s all very well to state that John was free to say whatever he believed to be true somewhere else, but the means of saying it were controlled by CNN and denied by CNN. Indeed, John could cry out his truths on a mountaintop or deep in the forest, and if he is not heard, he becomes like the proverbial falling tree.
Appellees again claim that “Truth is an absolute defense to a defamation claim”. John again states that he did not father a child with the family’s personal assistant, and that to state so as truth was defamatory. The statement is not a “minor inaccuracy”, it is a huge, misleading, lie.
Appellees, by way of justification, aver that, as one court explained, “a particular word or phrase ordinarily cannot be defamatory unless in a given context it reasonably can be understood as having an easily ascertainable and objectively verifiable meaning. The vaguer a term, or the more meanings it can convey, the less likely it is to be actionable.” An examination of the tape will show that, even if, which is not admitted by John, Larry King’s words were held to be “vague”, it was the context provided by the added moving banner graphics which made King’s comments no longer vague.
The statement that the divorce was “shocking” was true only if the sealed details of the separate child custody and visitation case was revealed. Since it was not, it actually was not shocking, it was a divorce not contested by John, and the details are a matter of public record.
Last paragraph: The term “love child” is a loaded term in today’s world, and raises audience reactions that are not appropriate to the truth of what really happened. Furthermore, the matter of the child was not brought up in the divorce court at all, as the records demonstrate. The matter of the innocent child was a quite separate trial, also handled by Judge Gold, and the sealed record is not available to the public.
Appellees refer to an interview that John voluntarily gave to the television show “Celebrity Justice”. It is ironic that Celebrity Justice is a program that John later found out was owned and controlled by Warner Brothers, a unit of Time-Life, which owns appellee Turner Broadcasting and appellee CNN. After the program was aired, John emailed to producer Omar Lugones on October 21, 2004, to complain that they had edited his appearance on the show. See footnote below for the content of the email.
[footnote: no mention of Lynn’s lovers, no mention of the circumstances which brought the baby about, no mention of the green card scam, no attempt to talk to Al Goldstein, no attempt to talk to Ernesto the plumber or Nicolette, no attempt to talk to Brandon Maggart, no use of the pictures I sent you of the lineup at my gate after my eviction, no mention of my case against Los Angeles Family Court, no mention of the corrupt judge Arnold H. Gold, and on and on and on. And the Larry King Live tape you borrowed from me to show the graphics just helped make their case against me, namely that they were merely reporting on the truth, and boy, did John Clark deserve what he got, just another screwing around husband. It’s as though my complaint and my details to my son and the letter to Immigration I suupiled [sic] you with was consigned to the dumpster! Did your owners get to you – Time Warner and their lawfirm Davis Wright Tremaine? That makes sense to me. You certainly gave them what they would have wanted to see. 15 year affair with Lynn’s assistant indeed! My Love Child indeed. I sounded like every scheming unfaithful husband around, and you did me no favors.]
First paragraph: Again, Appellees state that John “admitted” fathering a child with the person who was “shortly thereafter his and Miss Redgrave’s assistant. Then finished the paragraph with the bald statement that “Thus, this statement is also true.” Thus, in their misleading statement, Appellees continue to demonstrate that their entire enterprise, including their legal department, would appear to be ethically challenged.
Final paragraph: “Her husband’s other woman later wed and divorced their son.” That statement without the accompanying fact that this wedding took place to ensure a green card for the “other woman” as they put it, is truly shocking, as they intended it to be for their audience. This kind of pandering for ratings points is at the heart of what CNN should be held accountable for, and is another reason that this trial should go forward, as a public service. They need to be asked what exactly are the standards practiced at their so called Department of Standards and Practices that deserve their sobriquet “All the News You Can Trust”.
Last paragraph: Larry King asserts to his audience that Lynn Redgrave will “open up about everything. She’s been through it all. A no-holds-barred hour with Lynn Redgrave. Exclusive”. (Exclusive – to all the news you can trust – emphasis added).
This statement is deliberately misleading. It says that there is nothing more to tell, which is far from the truth.
First paragraph: Appellees state that the United States Supreme Court has mandated that a court must examine for itself “the statements in issue [in a defamation case] and the circumstances under which they were made to see … whether they are of a character which the principles of the First Amendment … protect.” (Emphasis added).
If this standard controls this case, it is clear that CNN provided the circumstances that should not allow them to claim First Amendment privileges.
First paragraph: Appellees claim that telling a “half-truth” is OK, it is merely a “version” of events, and a broadcaster is not required to present every possible version of events.
To which John responds, try telling that to the West Virginia coal miners’ families, who were told on January 3, 2006, as truth by CNN that the trapped miners were all alive.
Try telling that to our State Department, who were told that CNN was disseminating as fact that the Iranians were claiming the right to manufacture nuclear weapons. In a speech by Iranian President Ahmadinejad on January 14 of this year, he claimed that “Iran has the right to nuclear energy“, not too interesting. CNN’s version was that he said “The use of nuclear weapons is Iran’s right”, much more attention getting. They were forced to issue a retraction and correction later.
First paragraph: Oddly, Appellees bring in the case of Hustler Magazine and the Reverend Jerry Fallwell, and state that a “satirical portrait of the Plaintiff” is somehow connected with this case. John’s mind is boggled at the thought, and wonders if they are including a satire defense.
John acknowledges that he was once a child star, albeit 60 years ago. He also acknowledges that he appeared in the movie Jagged Edge in 1985, his last appearance as an actor, and actually his last work outside of representing Lynn Redgrave for the thirty-three years of their marriage. He has been unable to find work since that time. And therein lies the damage.
Whether a person, once deemed to be a public figure, can reclaim rights of privacy is not known to John. Judge Byrne held that he was a public figure. Judge Byrne is no longer with us, and if the case were to be held before a different judge, the result might be different.
284 F.3d 977 (9th Cir. 2002), Buskirk v. Cable News Network
This case was ruled upon by this court partly in Plaintiff’s favor, and is on point in John’s case. Buskirk brought a case for defamation against CNN and Time Warner, based upon a series of television and magazine reports stemming from Operation Tailwind, a 1970 United States military operation conducted in Laos. The district court dismissed the action with prejudice for failure to state a claim upon which relief can be granted. The Appeals Court AFFIRMED the district court in part and REVERSED and REMANDED in part on a Rule 12(b)(6) determination by the lower court.
It is noteworthy that Buskirk’s case rested upon more than one interview he gave to CNN, and the facts that CNN retracted and attempted to correct itself in 2 subsequent broadcasts. In John’s case, he has had no interaction with Appellees whatsoever, no interviews, no retractions.
With reference to Buskirk’s case, the justices remarked as follows:
“Statements, although perhaps ‘true’ when viewed in isolation, may create an overall false impression when considered in context. See Renwick, 304 S.E.2d at 600; Tyson, 351 S.E.2d at 842. See also Turner v. KTRK Television, Inc., 38 S.W.2d 103, 115 (Tex. 2000) (applying Texas law) (“[A] plaintiff can bring a claim for defamation when discrete facts, literally or substantially true, are published in such a way that they create a substantially false and defamatory impression by omitting material facts or juxtaposing facts in a misleading way.”); Dixson v. Newsweek, Inc., 562 F.2d 626, 631 (10th Cir. 1977).”
“A publisher may not escape liability for defamation when it takes words out of context and uses them to convey a false representation.”
1. John Clark, Plaintiff and Appellant, respectfully asks this court to grant him a remand to the District Court for further action, at which time he would get himself a lawyer.
2. If this court cannot do so, then Appellant asks for a ruling that this has not been a frivolous claim and is not subject to the California Code of Civil Procedure §425.16, which would enable Appellees to charge John with their fees and costs. It is unclear whether Judge Byrne in the lower court gave them that choice.
RESPECTFULLY SUBMITTED this 13th day of March, 2006.
John Clark, Appellant Pro Se