Zeran v. Diamond Broadcasting Inc. (10th Cir. 2000)

KIMBALL, District Judge.

Plaintiff-Appellant Kenneth Zeran ("Plaintiff") appeals from an order of the district court granting Defendant-Appellee Diamond Broadcasting, Inc. ("Defendant") summary judgment. Defendant cross appeals the district court's denial of Defendant's application for costs. After a background section, each matter is considered in turn.

Plaintiff has also appealed the district court's denial of Plaintiff's motion for a new trial and requested certification of two questions to the Oklahoma Supreme Court. These subsidiary matters are addressed in connection with the primary legal issues to which they pertain.

Plaintiff was the victim of a malicious hoax. In the immediate aftermath of the bombing of the Alfred P. Murrah Federal Building in downtown Oklahoma City, a posting appeared on an Internet bulletin board announcing the availability for sale of "Naughty Oklahoma T-Shirts," bearing such slogans, to repeat only the least offensive, as "Rack'em, Stack'em and Pack'em -- Oklahoma 1995" and "Visit Oklahoma -- it's a Blast." Another slogan crudely referenced the children who died in the bombing. The posting was made by someone using the screen name "Ken ZZ03 " and indicated that the shirts could be ordered by telephone. The number provided was Plaintiff's business telephone number.

Plaintiff had nothing to do with the posting. Plaintiff lives in Seattle, Washington, and is an accomplished artist, photographer, and film maker. America Online ("AOL"), an Internet service provider, provided the unique screen name "Ken ZZ03" to an individual who opened up a trial AOL membership. AOL maintains a database with the names, addresses, phone numbers, and credit card numbers of its members, searchable by screen name. However, AOL does not verify member information before allowing a new member to go online utilizing a trial membership, which AOL disseminates by the tens of thousands. The true identity of Ken ZZ03 remains unknown, as the account was opened with false information.

Ken ZZ03 opened up at least two more AOL membership accounts with false information, adopting similar screen names (Ken ZZ033 and Ken Z033) and posting increasingly offensive items for sale, always providing Plaintiff's telephone number.

The first posting appeared on April 25, 1995, six days after the bombing. On that same day, Plaintiff began receiving phone calls, which he described as "negative," "unpleasant, " and "nasty and threatening." The additional postings were made on April 26, 1995, and on April 28, 1995.

Upon learning of the postings, Plaintiff, who is not an AOL member, notified AOL that he was not involved and asked AOL to delete the postings, place notices on AOL that the postings were false, and take steps to prevent his phone number from appearing in any future postings. AOL declined to help and the postings remained on the Internet for at least a week.

Defendant owns KRXO, a classic-rock radio station in Oklahoma City. On April 29, 1995, an AOL member sent an e-mail containing a copy of the original, April 25th posting to one of KRXO's on-air personalities, Mark ("Shannon") Fullerton, who, together with Ron ("Spinozi") Benton, hosted the "Shannon & Spinozi Show," a drive-time morning show, which usually consisted of light-hearted commentary, humor, and games. In the aftermath of the bombing, and continuing for a period of four to six weeks thereafter, however, the show had become a forum for discussion of the bombing and expression of the emotions it aroused. Its tone was serious and somber.

Shannon first saw the e-mail either late in the evening on the day it was sent or early the next morning, May 1, 1995. Shannon was an AOL member and had given his screen name out over the air to enable his listeners to send messages to him. He did not know the person who sent the posting.

Before beginning his shift on May 1, Shannon unsuccessfully attempted to e-mail Ken ZZO3 through AOL, but received a pop-up message informing him that the addressee was not a known AOL member. He did not attempt to call the telephone number on the posting, purportedly because it was before business hours.

Shannon then went on air, discussing the posting, reading the slogans, and reading Plaintiff's telephone number. Shannon urged his listeners to call Ken ZZ03 and tell Ken ZZ03 what they thought of him for offering such products. On that day, Plaintiff received approximately 80 angry, obscenity-laced calls from the Oklahoma City area, including death threats. Plaintiff described it as the worst day of his life and, shortly thereafter, involved law enforcement. The anxiety Plaintiff felt as a result eventually led him to visit his family physician, who treated Plaintiff by prescribing an anti-anxiety drug.

Although most of the callers hung up before Plaintiff had an opportunity to speak, Plaintiff was able to learn that the posting had been mentioned on KRXO. Plaintiff called KRXO and asked that KRXO broadcast a retraction, which it did.

Plaintiff does not know of anyone who knows him by the name Kenneth Zeran who saw the AOL postings, heard the broadcast, or associated him with "Ken Z" or the phone number on the AOL postings.

A. Defendant's Motion for Summary Judgment.

Based on the broadcast, Plaintiff asserted claims of defamation, false light invasion of privacy, and intentional infliction of emotional distress. The district court granted Defendant's motion for summary judgment on all claims. "We review the granting of summary judgment de novo, applying the same legal standard used by the district court under Fed.R.Civ.P. 56(c)."

2. False Light Invasion of Privacy .

Oklahoma has recognized false light invasion of privacy as formulated in the Restatement (Second) of Torts § 652E (1977), which provides:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The district court granted summary judgment to Defendant on this claim on the ground that Plaintiff had failed to offer proof that Defendant's employees either knew the postings were fictitious or acted recklessly, as that term is defined by the controlling authorities. The district court was influenced by the fact that Plaintiff's own expert found that they did not satisfy the level of culpability necessary to impose liability, opining only that "Mark Shannon and Ron Benton were extremely negligent and violated standards of professional conduct when hosting the Shannon and Spinozi Show on May 1, 1995." We affirm on the same basis.

Plaintiff first asserts that the district court erred in interpreting Oklahoma law to require evidence of recklessness, arguing that, given the facts of this case, the Oklahoma Supreme Court would no longer apply the Colbert recklessness standard and would instead follow other states that have permitted recovery under a negligence theory in false light media cases involving private individuals and matters of public concern. In the alternative, Plaintiff seeks certification to the Oklahoma Supreme Court of the question of whether the recklessness standard applies here.

In Colbert, the Oklahoma Supreme Court surveyed and rejected the arguments for a negligence standard in false light cases stating that it was "committed" to "a standard of knowing or reckless conduct to afford recovery to those who suffer mental anguish by reason of a false light invasion of privacy." Plaintiff has cited no authority subsequent to Colbert that justifies Plaintiff's prediction that the Oklahoma Supreme Court would retreat from the Colbert requirements. Accordingly, we decline to certify the question at issue and uphold the district court's application of the recklessness requirement.

Plaintiff next argues that even if knowing or reckless conduct is required, the conduct of Shannon and Spinozi, in accepting the posting at face value and failing to verify its authenticity, is sufficient to avoid summary judgment, notwithstanding Plaintiff's expert's failure to use the term "reckless" in describing their actions. Plaintiff also assigns error to the district court's refusal to accept a new affidavit from Plaintiff's expert, submitted in connection with Plaintiff's motion for a new trial filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure .

In order to establish reckless disregard, Plaintiff must demonstrate actual knowledge of probable falsity. "The only extent that an investigation enters into the consideration of the premises is if the investigation is made and through it, actual knowledge is imparted."

Plaintiff's expert's affidavit, regardless of its content, is not relevant for the same reason. Plaintiff's expert could not possibly have had personal knowledge concerning the relevant question, namely, whether Shannon and Spinozi had an actual, subjective awareness that what they were repeating on the air was probably false. For this reason, we find that the district court did not abuse its discretion in denying Plaintiff's motion for a new trial and affirm the district court's dismissal of the claim.

Copyright © 2004 Dale A. Herbeck
Last update: 19 January 2004