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Yeager v. National Public Radio

United States District Court, D. Kansas

July 31, 2018

WILLIAM YEAGER, Plaintiff,
v.
NATIONAL PUBLIC RADIO, ANDREW FLANAGAN, JACOB GANZ, and ASHLEY MESSENGER, Defendants.

          MEMORANDUM AND ORDER

          Sam A. Crow, U.S. District Senior Judge.

         Plaintiff's pro se complaint (Doc. No. 1) lists five causes of action for defamation and slander at pp. 83-85. This case is before the court upon defendants' motion to dismiss. Doc. No. 12. The motion argues that the complaint fails to state a claim and that the court lacks personal jurisdiction over one defendant. As explained below, the court finds that the motion to dismiss should be granted because plaintiff has failed to state a claim.

         Plaintiff and his wife (who is not a party in this case) take strong offense to and claim they have been damaged by the alleged defamatory statements discussed in this opinion. They consider the opinions published by defendants to be carelessly and unfairly formulated in contravention of the law and of the principles espoused by National Public Radio. Here, the court is concerned only with the law which does not give judges and juries the task of deciding whether many types of opinions are true or false, even though those opinions may be unjustifiably hurtful to their subjects. The court finds for the reasons described below that the alleged defamatory statements are largely unverifiable opinions or opinions based (correctly or incorrectly) upon disclosed non-defamatory facts and, therefore, do not supply a plausible basis for cause of action.

         I. The parties

         Plaintiff is 60 years old. Doc. No. 1, p. 74. According to the complaint, plaintiff has worked as an artist, filmmaker, musician, activist and humanitarian. Id. at pp. 10 & 67. He currently resides in Cottonwood Falls, Kansas. Id. at p. 28. Defendant National Public Radio (NPR) published an article about plaintiff on March 23, 2017 and broadcast an interview which concerned plaintiff on March 24, 2017. Defendant Andrew Flanagan wrote the article and he and defendant Jacob Ganz participated in the interview. Defendant Ashley Messenger is an attorney for NPR.

         II. Plaintiff's allegations in the complaint

         Plaintiff, according to his lengthy complaint, has written and recorded over 2600 songs and pursued the business of music for 14 years between 1981 and 1995. Id. at p. 69. The complaint asserts that five songs from plaintiff's first album were finalists in a national song writing contest; that he was discovered by Columbia Records president Chuck Gregory in 1984 and by Grammy Award winner Bruce Hornsby in 1990; that he was the guitar player for the “[i]nternationally recognized band ‘Inner Circle' from 1985-1986;” and that his second album was played on all of South Florida's radio stations in 1985. Id. at p. 70.

         Plaintiff has produced films and music videos. He claims he has five feature films listed on IMDb. Id. at p. 23. He won awards in the mid-1990s at the Palm Beach International Film Festival and the Dahlonega International Film Festival, and in later years at the Delray Beach International Film Festival (2004) and the Red Dirt International Film Festival (2015). Id. at pp. 71-73. Another film or performance art piece produced by plaintiff was “Jimmy's Story” in which plaintiff portrayed a supposed love-child of Jimi Hendrix.

         Plaintiff states in the complaint that his desire to use his artistic talents to better humanity has been posted on his website for over 12 years. Id. at p. 27. His wife works with him in these endeavors. The complaint contains multiple references to plaintiff's desire to raise money to supply wheelchairs for land mine victims through, as an example, benefit concerts.

         Plaintiff asserts that he is not a public figure. Id. at p. 28.

         On March 23, 2017, an article by Andrew Flanagan was posted on the NPR website. The article was titled “The Most Expensive Record Never Sold - Discogs, Billy Yeager and the $18, 000 Hoax That Almost Was.” The article begins: “This is the story of a hoax that almost was. Its motivating force was a hunger for fame, or infamy, or whispered legend in a particularly American sort of way.” The article describes how a test pressing of plaintiff's album titled “Billy Yeager 301 Jackson St.” was auctioned for $18, 000.00 on a resale website - “Discogs” - which is popular with record collectors. This broke the record of $15, 000.00 bid for a rare Prince album. Flanagan wrote that this record-breaking sale “seems to have been a fiction woven by the record's creator” and that the website canceled the transaction. In other words, according to Flanagan plaintiff appeared to bid $18, 000.00 for his own record. This is what Flanagan referred to as the “hoax that almost was.” The article includes the following statements:

- - Billy Yeager . . . has pursued musical fame (or at least notoriety) for 37 years, by his own account. Despite a clear talent for guitar and a cosmically eccentric and dubiously effective knack for self-promotion, Yeager has been stymied repeatedly.
- - The most eccentric - and ill-conceived - example of his promotional facility, bar none, came when Yeager spent two years planning and executing a hoax that would eventually convince a television station and a weekly paper to believe that he was Jimmy Story, the son of Jimi Hendrix, who was in possession of lost recordings from the psychedelic legend. To pull off the scam, Yeager dyed his skin brown.
- - [Bruce] Hornsby heard a demo tape of Yeager's, liked what he heard and connected Yeager with Capitol Records, who gave Yeager a shot. It was the closest he would come to fame, but it cemented in Yeager's mind what he'd thought for some time: that he was destined for, perhaps owed, greatness. The catalyst Hornsby provided would become a source of obsession.
- - Embittered, Yeager began to plan the Jimmy Story bamboozle. After two years of preparation, Jimmy Story became a cover star. Less than two years after that, Yeager had assembled, roughshod and chaotic, a documentary about his life, with the Jimmy Story hoax as its centrifugal force.
- - A tumble down the rabbit hole of Yeager's life is quixotic indeed - relentless failures and his ceaseless drive to reverse them form a closed loop that only occasionally reaches out into the real world. Diving in, you realize quickly you are not in control here, like Alice chasing the rabbit. Like a dog chasing a car.
- - [T]he release of Jimmy's Story . . . drew the attention of a Spanish woman named Anais, who traveled to Florida and became Yeager's wife . . . After the pair married they began producing films like Jesus of Malibu and Sebastien Beach, One Fine Day, [1] which attracted minor attention. Eventually, Yeager began experimenting with the web and the infinite possibilities it offers, to those with ample time on their hands, for invention, obfuscation and, most importantly self-mythology.
- - For all his purported virtuosity and the ostensible existence of multiple recordings, his music is - besides grainy footage of Yeager shredding, tank-topped and beach-browned, in a backyard jam session - practically inaccessible in an age of ubiquitous access.
- - The trail of (quite arguably) collectible Yeager ephemera online forms another closed system of dubious worth, with Yeager at its center and pseudonymous retailers encircling him.
- - On Discogs, the user who attempted to sell “301 Jackson St.” and nearly broke the site's record under the name “southflamusic” has several other Yeager records for sale, none priced less than $3, 200. . . . Reached over email, “southflamusic” responded using the name “Al Sharpton, ” a pseudonym they said was meant to protect their business interests. Asked how they acquired their copy of “301 Jackson St., ” Sharpton responded: “I can't say.” . . . Sharpton did not respond at press time when asked point-blank if they were in fact Billy Yeager.
- - The press contact Yeager lists on his site - Chris Von Weinberg, who is also listed as the writer, producer and director of a recent documentary about Yeager and who has no other film credits on IMDb - did not respond to a request for an interview. That's because Von Weinberg is Yeager, says John F. Stacey. “Chris Von Weinberg. That's Billy. As he's migrated onto the Internet he's created all these fake identities.” - - Everything about this tale points to Yeager having bought his own unknown record from himself, short of Yeager actually admitting it.
- - This is a man more interested in the chase than in the catching. The story of Billy Yeager is one of purposeless obfuscation. Yeager told Stacey he should be playing stadiums, not local bars.
- - Yeager, for all the belief he has in his promise and his failures expressing it, has repeatedly poured more of his creative energy into being a trickster-booster than he has an artist. If that art does indeed exist, we'll probably never hear it at a price we're willing to pay.

         On March 24, 2017, Audie Cornish of NPR interviewed defendants Flanagan and Ganz regarding a few pieces of music news. During the interview she questioned them about Flanagan's “reporting” regarding Yeager and the sale of “Billy Yeager ephemera.” Doc. No. 13-2, p. 21. Flanagan explained that his report started with an email from Discogs about the record for the most expensive album sold on the site. Flanagan referred to Yeager as “a complete unknown” who sold the album on Discogs to himself to “get this strange type of publicity that he's been seeking his entire life.” Id. at p. 22. Ganz stated:

“This guy, as good as he might possibly be, is far more interested in infamy than he is in fame and the chase of pulling the wool over people's eyes. He's a huckster. He's a charlatan. The fact that you can do that on the Internet as well as you can anywhere else is just sort of like part of the long story of people in the music industry doing crazy things I think.”

Id.

         Plaintiff alleges that he communicated several times with Ashley Messenger, seeking without success for defendants to issue a retraction and to have the article and interview removed from NPR's website.

         The complaint alleges five counts of defamation or slander arising from the original publication or broadcast of the above-described article and interview or from the ...


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