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Yeager v. National Public Radio

United States District Court, D. Kansas

November 9, 2018




         The court has stated that this case would be dismissed pursuant to defendants' motion to dismiss the original complaint unless plaintiff filed an amended complaint which stated a claim upon which relief may be granted. See Doc. No. 29. Plaintiff has filed a 220-page amended complaint (Doc. No. 36) which the court has construed as a proposed amended complaint and a motion for leave to proceed upon the amended complaint. Defendants oppose the motion. Doc. No. 38. Plaintiff has filed a reply to defendants' opposition. Doc. No. 45.

         The proposed amended complaint adds a claim for outrage. Other than that, the proposed amended complaint is similar to plaintiff's original complaint and reads something like a motion for reconsideration. The court has carefully considered the proposed amended complaint and for the reasons stated below finds that it fails to state a claim for relief. The court may refer to the order ruling on defendants' motion to dismiss the original complaint or include portions of that opinion in this order.


         Fed.R.Civ.P. 15(a) provides that leave to amend a complaint shall be given freely when justice so requires. A district court, however, may deny leave to amend where the amendment would be futile. Jefferson County Sch. District v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). If a proposed amended complaint fails to state a claim or is subject to dismissal for another reason, then the motion to amend is futile. See Fields v. City of Tulsa, 753 F.3d 1000, 1012 (10th Cir. 2014). The court incorporates the standards for determining whether a complaint fails to state a claim as set out in Doc. No. 29 at pp. 7-8.

         Because plaintiff proceeds pro se, we liberally construe his pleadings, but we will not act as his advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Nor will we excuse him from adhering to the same procedural rules as other litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).


         The proposed amended complaint describes plaintiff as follows:

The Plaintiff William (Billy) Yeager is a multi-instrumentalist and songwriter, who has been discovered several times by people such as Chuck Gregory (Columbia Records), Grammy Award Winner Bruce Hornsby, and Bon Jovi and Kiss manager Doc McGhee. Billy Yeager has written and recorded over 2600 musical compositions. In his early 20's he won several National Songwriting contests. In 1983, he produced his first album, What's It Gonna Take. Over 22 of South Florida's top musicians, such as Dennis Noday, Rex White, Jay Drake, Allan Layton and Diane Sherrow, recorded on the album. On his second album Be My Valentine, produced in 1985, Billy played every instrument. The album was recorded at Circle Sound Studios, which is the private recording studio of the Inner Circle Reggae Band. Yeager was the guitar player for the Grammy Award winning band Inner Circle from 1985-1986. “Touter” Harvey and Ian Lewis both were involved in the engineering and production of the Be My Valentine album. Billy has performed and played alongside musicians such as Doug Ingle from Iron Butterfly, Gerry Morotta from Peter Gabriel, Carmine Appice from Vanilla Fudge, Butch Trucks from Allman Brothers, and Pat Travers. In 1987 Yeager recorded with Ira Sullivan, Eddie Higgins, and “Mars” Cowling on Stan Jeff Brown's album Transformation Paradox. Yeager also recorded with Jaco Pastorius who considered Billy one of the greatest guitarists he ever performed with. In the 90s Plaintiff shifted his attention to making films. His first film Jimmy's Story which he filmed for over 23 years, took him several years to edit and was funded by the Cultural Development Group in Miami (Founder, Aaron Morris); the film won 4 awards at the DIFF and Best First Feature at the Palm Beach International Film Festival. Plaintiff has produced, directed and acted in 4 more feature films; A Perfect Song which won him “Best Actor" Award at the Delray Beach Film Festival; The Florida Highwaymen, the story about the famous folk artists who have been featured on PBS and have 12 books published about their story; the film trilogy Jesus of Malibu that took 8 years to complete; and the documentary Sebastian Beach One Fine Day, which Premiered at the NYC Surf Film Festival; there are 2 documentary films produced about the Plaintiff: The Film That Changed The World, which tells the story about Yeager and his wife's desire and mission “to change the world for the betterment of humanity, ” which won "Most Inspirational Movie Award" at the Red Dirt International Film Festival, and Billy Yeager The Ineffable Enigma which tells the story of the Plaintiff's artistic career and mission, as a musician, filmmaker, activist and humanitarian.

Doc. No. 36, ¶ 70.

         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.

         The March 23rd article was titled “The Most Expensive Record Never Sold - Discogs, Billy Yeager and the $18, 000 Hoax That Almost Was.” 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 the article plaintiff appeared to bid $18, 000.00 for his own record. This is what the article referred to as the “hoax that almost was.”

         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.”


         Plaintiff states in the amended complaint that, before the NPR article and interview, he:

was known as a talented musician and songwriter who had written and recorded songs; as a filmmaker who had produced, directed and acted in award winning independent films; as someone that doesn't compromise his high ideals and values trying to fit in; as someone who had rejected the vanities and the corruption of the mainstream music and film industries; as a seeker of truth; as having relinquished a comfortable life and given away material possessions to set off on a serious spiritual quest with his wife, to try to create artwork that helps to raise conscious awareness in humanity and inspires people to seek truth and become truth; as someone that has been involved with charities since 1985 (World Vision, prison ministry, caregiver, feeding the homeless, church prayer leader); as a bold and courageous artist, one with righteous anger about the injustice in the world, willing to challenge other artists and also raise money to help those who cannot help themselves, etc.

Doc. No. 36, ¶ 88.

         Plaintiff alleges that the article and the interview contain many defamatory statements. He alleges that he and his wife 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.

         Plaintiff contends that his efforts to raise money with benefit concerts staged at a refurbished missile silo in Kansas were sabotaged by the article and interview. Id. at ¶¶ 341-349. Plaintiff states that the ticket price ($7, 500.00) “was to be marketed to the ‘well-to-do' upper middle-class people who are very supportive in the arts and are philanthropists interested in helping others.” Id. at ¶ 343. The money raised was to be used to buy wheelchairs for land mine victims. He further contends that he was thrust into a deep depression.

         In addition to defamation, plaintiff asserts that defendants are liable for slander, false light invasion of privacy and outrage.


         Plaintiff alleges defamation, slander and false light invasion of privacy. Kansas law and federal constitutional law apply here. In Kansas, the tort of defamation includes both libel and slander. Dominguez v. Davidson, 974 P.2d 112, 117 (Kan. 1999)(quoting Lindemuth v. Goodyear Tire & Rubber Co., 864 P.2d 744, 750 (Kan.App. 1993)). A valid defamation claim requires proof of: (1) false and defamatory statements; (2) the defendant communicated these statements to a third party; and (3) the plaintiff's reputation was injured by the statements. El-Ghori v. Grimes, 23 F.Supp.2d 1259, 1269 (D.Kan. 1998); see also In re Rockhill Pain Specialists, P.A., 412 P.3d 1008, 1024 (Kan.App. 2017)(quoting Hall v. Kansas Farm Bureau, 50 P.3d 495 (Kan. 2002)). “A statement is defamatory if it diminishes the esteem, respect, goodwill or confidence in which the plaintiff is held or excites adverse, derogatory or unpleasant feelings or opinions against him. A defamatory statement necessarily involves the idea of disgrace.” Clark v. Time Inc., 242 F.Supp.3d 1194, 1217 (D.Kan. 2017)(interior quotations omitted).

         A false light privacy action requires that publicity be given to someone which places that person before the public in a false light of a kind highly offensive to a reasonable person.[1] Hunter v. The Buckle, Inc., 488 F.Supp.2d 1157, 1179 (D.Kan. 2007)(citing Rinsley v. Frydman, 559 P.2d 334, 339 (Kan. 1977)). The standards and defenses which apply to a defamation claim also apply to a “false light” claim. See Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir. 1983)(applying same defenses to both causes of action); Stead v. U.S.D. No. 259, 92 F.Supp.3d 1088, 1109 (D.Kan. 2015)(the two claims are generally treated the same way); Castleberry v. Boeing Co., 880 F.Supp. 1435, 1442 (D.Kan. 1995)(courts treat the two claims similarly); Restatement (Second) of Torts § 652E (1977)(comment e)(it is arguable that limitations placed on defamation should apply to false light claims).

         Subjective statements and statements of opinion are protected by the First Amendment as long as they do not present or imply the existence of defamatory facts which are capable of being proven true or false. Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990); Pan Am Systems Inc. v. Atlantic Northeast Rails and Ports, Inc., 804 F.3d 59, 65 (1st Cir. 2015). This is a question to be determined by the court. Robinson v. Wichita State University, 2017 WL 2378332 *4 (D.Kan. 5/31/2017); D'Souza-Klamath v. Cloud Cty. Health Ctr., Inc., 2009 WL 902377 *10 (D.Kan. 3/31/2009). “[T]he defense available in a defamation action that the allegedly defamatory statements are opinions, not assertions of fact, is also available in a false light privacy action.” Rinsley, 700 F.2d at 1307; see also, Robinson, 2017 WL 2378332 at *7.

         Vague language that is subject to multiple interpretations is generally not actionable. See Montgomery v. Risen, 875 F.3d 709, 713 (D.C. 2017)(characterization of software sold to the government as a “hoax” is too “loose, figurative or hyperbolic” to be considered defamatory); Hogan v. Winder, 762 F.3d 1096, 1107(10th Cir. 2014)(“performance issues” & “erratic behavior” - too vague and nonspecific to be defamatory); Gray v. St. Martin's Press, Inc., 221 F.3d 243, 249 (1st Cir. 2000)(what is success or failure in the situation of a public communications firm is very much a matter of opinion); Phantom Touring, Inc. v. Affiliated Publi'ns, 953 F.2d 724, 728 (1st Cir. 1992)(description of a musical comedy version of “Phantom” as “a rip-off, a fraud, a scandal, a snake-oil job” is too subjective to be proven true or false, even the charge of “blatantly misleading the public” is subjective and imprecise); Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129-30 (1st Cir. 1997)(“trashy” is subjective and cannot be verified); Dilworth v. Dudley, 75 F.3d 307, 310 (7th Cir. 1996)(“scam” may be nondefamatory hyperbole rather than a false assertion of fact depending on context); McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987)(the word “scam, ” used in an article regarding a timeshare sales program, is incapable of being proven true or false); Nunes v. Rushton, 299 F.Supp.3d 1216, 1231-32 (D.Utah 2018)(“scam” and “hoax” used as opinionated rhetorical hyperbole and therefore, not defamatory); Robinson v. Wichita State University, 2018 WL 836294 *12 (D.Kan. 2/13/2018)(“too bureaucratic” is subjective and nondefamatory); Ayyadurai v. Floor64, Inc., 270 F.Supp.3d 343, 361-62 (D.Mass. 2017)(“charlatan” used in a loose figurative manner cannot be defamatory); Robinson, 2017 WL 2378332 at *4 (“too hierarchal” and “too punishment-centered” are subjective and nondefamatory); D.Kan. 5/31/2017); Clark, 242 F.Supp.3d at 1219 (“disturbing” management style is subjective and nondefamatory); McKee v. Cosby, 236 F.Supp.3d 427, 445 (D.Mass.) aff'd, 874 F.3d 54 (1st Cir. 2017)(“The judgment of an individual's credibility is not an objective fact capable of being proven true or false”); Paterson v. Little, Brown & Co., 502 F.Supp.2d 1124, 1135 (W.D.Wash. 2007)(“ripoff” is imprecise and incapable of defamatory meaning); Metcalf v. KFOR-TV, Inc., 828 F.Supp. 1515, 1530 (W.D.Okla. 1992)(statement that a medical organization was a “sham” perpetrated by “greedy doctors” is a matter of opinion); NBC Subsidiary (KCNC-TV), Inc. v. Living Will Center, 879 P.2d 6, 11 (Colo. 1994)(en banc)(statement that a product is a “scam” as a statement of its value is not a defamatory statement).

         Defamation cannot arise where the speaker communicates the nondefamatory facts that undergird his opinion. Piccone vs. Bartels, 785 F.3d 766, 771 (1st Cir. 2015); Ross v. Rothstein, 2014 WL 1385128 *8 (D.Kan. 4/9/2014). Even if an expression of opinion may have been skewed by a vindictive motive, if it is “‘based on disclosed or assumed nondefamatory facts [then it] is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is.'” Piccone, 785 F.3d at 774 (quoting Yohe v. Nugent, 321 F.3d 35, 42 (1st Cir. 2003))). “[E]ven a provably false statement is not actionable if it is plain the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts.” Riley v. Harr, 292 F.3d 282, 289 (1st Cir. 2002)(interior quotation omitted). If defendants fully disclosed ...

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