United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
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.
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.
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.
Plaintiff's allegations in the complaint
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.
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.
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,
asserts that he is not a public figure. Id. at p.
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
- - 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,
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
- - 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.
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
“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.”
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
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