I filed this, at the last allowable minute, on January 10, 2006.
I received a call from a publication asking for comment – I said the document speaks for itself. I’m told the document is viewable at the Ninth Circuit filing office in San Francisco, and is a public document.
So I’ve decided to publish it here, for the interest of self-represented parties, and to satisfy the simply curious. It joins other documents filed by me under the sidebar “My Larry King/CNN suit”.
Appeal Case Number 05-56399 (Ninth Circuit)
Appellant John Clark (hereinafter “John”) now a senior 73 years of age, brought suit against Larry King, CNN, and Turner Broadcasting (hereinafter “Defendants”) for their actions taken during a broadcast of a pre-taped interview with John’s ex-wife, actress Lynn Redgrave, on the program “Larry King Live” on May 22, 2003. The suit was filed and accepted 10/08/2004 as a Second Amended Complaint. The complaint demanded a jury trial for good reason.
Defendants sought to have the case dismissed immediately by Motion, under California’s SLAPP rules. Judge William Matthew Byrne held a hearing with the parties in open court on 12/28/2004 to consider their motion. He heard orally from both sides, and after a lengthy hearing stated that he would take it under submission and issue an order early in the New Year.
The court waited seven months until 08/05/2005 to issue its order of dismissal, with prejudice, under Fed. R. Civ. P. 12(b)(6).
For this court to properly understand the context of the dispute, the facts as they were submitted to the court by written submission on the record are that John fathered a child in a private arrangement with a friend of the family, a visitor from England, on a tourist visa. The woman was in distress, was shunned by her Jehovah’s Witness family and friends (disfellowshipped, they call it) because she was a “sinner” who had transgressed their strict rules. To worsen her mental state, she had a few days before lost her mother, who had died in the street of a brain haemorrhage. Her mother was her only friend, apparently. John and his family invited her to stay a few weeks at their home in Topanga to get away for a while. Lynn Redgrave was out of town working and John got to talk with her a great deal, and rightly or wrongly, he suggested to her that a new life would be the best solution and give her something to live for. So she became pregnant by mutual arrangement, and the idea was that she would return home at the expiration of her visa, and the baby would be born back in England, and that would be the end of it as far as John was concerned. Things went terribly wrong when she refused to leave, overstayed her visa, and became an illegal. John’s wife and son went down to US Immigration to help gain her a green card, his son married her to expedite the process, getting paid by her to do it, and so it was that the little boy became an American citizen. But everybody broke the law. The woman then stayed on as the family helper, for John’s own daughter was herself still a small child. And there everything would have been fine, except that this woman secretly submitted to the advances of John’s plumber, and they together found a lawyer willing to stage a malicious prosecution for a piece of Redgrave’s earnings, and the house she was living in. The National Enquirer intercepted the summons at the courthouse, causing John’s wife to be concerned about what this would do to her career. John consented to agree to an uncontested divorce.
Another fact submitted to the court at the hearing was that John, in an effort to tell his side of the story since no media was talking to him, created a blog-site on the internet where he could let the entire truth be known. The site is at www.johnclarkprose.com. The record shows that the judge did not know what a blog was.
John’s site reaches a few thousand people around the world with his truth. CNN reaches several hundred million around the world with their half truth version.
This appeal is focused upon one and only one issue, which is whether or not John should get his trial before a jury.
John’s issue is that Judge Byrne took it upon himself to act as not only the judge but also as the jury. He wrote in his decision of dismissal 10 pages of his reasons why the case should be dismissed and not go to trial, and that John had no probability of success.
John believes that the court’s opinion was entirely the subjective opinion of the judge, and that if a trial were to be held before a jury, the subjective opinion of his peers would have been entirely different.
At the (only) hearing on 12/28/2004, the question came up that Defendants were 1. Exercising their First Amendment rights of free speech, and 2. were telling the truth, anyway.
John has made it clear in his documents filed with the court that he had no problem with the interview itself, which dealt with his ex-wife’s career and her unfortunate breast cancer.
His problem was with the graphics which defendants wrapped around the screen, the content of which are revealed in the written submissions, and can be seen on the video-tapes. The description of the texts appear in the judgment at page 4, line 18, with the court’s comments.
The court’s subjective evaluation can be demonstrated at the paragraph starting at p. 4, line 23, where the judge holds that John is objecting to “trivial” mis-statements of fact.
As a television professional himself, John knows that these graphics were not present during the interview, but had to be edited in later. There was a period of several weeks between the interview and the delayed air-date.
Only at trial would John have the chance, through the legal processes of Discovery and Deposition, to learn how it came about that the interview was not allowed to stand on its own merits, and how and when it was that the text was pasted on later, which provided a completely different context to the interview, and which John claims has harmed him greatly.
The court further demonstrates its lack of understanding at p. 5, line 13, where it states that “No reasonable person who watched this interview would conclude that either King or Redgrave implied that the divorce caused or exacerbated her breast cancer. {Emphasis added].
John believes that a jury is the proper place to look for what is “reasonable”, and not a sophisticated judge.
At the oral hearing on 12/28/2004, the defendants claimed they were 1. exercising their First Amendment rights of free speech, and 2. were telling the truth, anyway.
John’s response was that there are limits to free speech, there’s no carte blanche, one well-known example being that one cannot run through a theater yelling “fire, fire”.
The defense also takes the position that the program was telling the truth.
John takes the position, and indeed it is the central proposition of his case, that what CNN did was tell a half-truth, and that a half-truth can be, in fact, a lie.
At the oral hearing, he gave as an example that if a soldier’s image and name were shown on television, and he was described as a murderer and a killer, withholding the fact that he was a soldier, that description would be the truth but not the whole truth, and would be severely damaging to the reputation of that individual, and not the truth.
The key issue here is whether the withholding of key facts renders the truth to be a kind of fraud and lie, and it falls to a jury of ordinary people to decide where the division lies between a harmless “stretching of the truth” and a shocking descent into the abyss of falsehood.
What is the meaning of legal truth? The ‘Lectric Law Library’s Lexicon On “Truth” says the following:
“TRUTH – The actual state of things. In contracts, the parties are bound to tell the truth in their dealings, and a deviation from it will generally avoid the contract and even concealment, or suppressio veri, will be considered fraudulent in the contract of insurance.” And further on, “The Constitution of New York declares, that in all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous, is true, and was published with good motives and for justifiable ends, the party shall be acquitted.” (Emphasis added). [http://www.lectlaw.com/def2/t111.htm}
In the case at bar, John believes he can show at trial that the motives of CNN and Larry King were in fact for the purpose of gaining ratings points at the expense of John’s reputation, which is a commercial purpose. Their description of the relationship between his son and John’s alleged mistress, and the innocent child whose image was shown in these graphics, were half-truths, made for the purpose of generating lurid and sensational interest from the viewer, and actually destroying what was originally intended to be an honorable act.
Here is what Merriam Webster has to say about half-truths:
Merriam Webster defines a half-truth as a partially true or partially fabricated statement made to deceive or to escape censure “a public led astray by the half-truths of a dictator” [Webster’s Third New International Dictionary, Unabridged. Merriam-Webster, 2002. http://unabridged.merriam-webster.com (9 Jan. 2006)].
At page 5, line 22 the court examines the question of whether defendants made their constructs with “actual malice”, that is “with knowledge that it was false or with reckless disregard of whether it was false or not.” [New York Times Co. V. Sullivan 376 U.S. 254, 280 (1964)].
John believes that he could convince a jury that defendants did in fact “act with reckless disregard of whether it was false or not”. (See footnote)
John went down to the TV station early on the day of the broadcast demanding that he be a part of the broadcast, so as to ensure that he would not be defamed by his wife, in particular. He was informed that the interview had been pre-taped. The court found that John did not make the necessary Cal. Civ. Code § 48a request for equal time, and therefore CNN had no obligation to set the record straight.
John believed that, as a non-lawyer, he had demonstrated the meaning of what he wanted to do, and the court wrongly decided that he should be held to a legally professional “by the book” standard, and that his informal request should not stand. John believes that this is further proof that the court was making decisions unfavorable to him and was interested in keeping him away from a jury.
At p. 8, line 16, the court states that Plaintiff does not show a “reasonable probability” that he will prevail on the defamation claim. John comments that this is the judge’s opinion, that in front of a judge he might not, but before a jury, that is another matter which the court does not want to give him the opportunity to find out.
So, not only did John not get a jury trial, he did not get a trial at all. Except that the proceedings which brought forth the ruling from the district court have all of the earmarks of a trial, without, however, the rules and procedures of a trial, which John feels is an abuse of the court’s discretion and a denial of due process.
John believes that this incident had and still has a direct bearing on the outcome of his legal problems in family court, which are not over. The financial situation between his ex-wife and John is still an open one, and there will be further court appearances. And also, court appearances in the matter of his son Zachary, who is currently being hidden by his mother with the aid of her attorney.
John notes that the court “could” strike the complaint under the California rules, but does not, only under the Federal rules.
Appellant John Clark respectfully asks this court to remand this case back to the district court for a trial before a jury.
Although this is outside the record, it is worth noting here that the television media fiasco in its reporting of the miners trapped down the mine at West Virginia just after Christmas 2005, and their reporting that they were factually all alive, instead of reporting that there was a rumor that they were all alive, will haunt them for many years to come, and goes to the heart of what drives CNN and its ilk, in their unending quest for viewers, ratings, and profits. John watched the unfolding of this travesty on CNN.