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Molthan v. Meredith Corp.

United States District Court, M.D. Tennessee, Nashville Division

February 2, 2018

JASON STEVEN MOLTHAN, Plaintiff,
v.
MEREDITH CORP. and RAYCOM MEDIA, INC. Defendants.

          Trauger, Judge

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY, United States Magistrate Judge

         I. Introduction and Background

         This matter is before the Court upon Defendants' Motion to Dismiss. Docket No. 20. Along with their Motion, Defendants have contemporaneously filed a supporting Memorandum of Law (Docket No. 21), a “Request for Judicial Notice” of the television news reports which Plaintiff claims are the basis of this suit (the “WSMV Television News Reports”), public records from criminal and civil cases against Plaintiff, and a Tennessee State Judiciary Committee hearing (Docket No. 22), the Declaration of Robb S. Harvey in Support of Defendants' Request for Judicial Notice (Docket No. 23), the Declaration of Amy Irons in Support of Defendants' Request for Judicial Notice (Docket No. 24), and a “Notice of Filing Redacted Exhibit” (Docket No. 26). Also in support of their Motion, with leave of Court (Docket No. 30), Defendants have manually filed 2 DVDs (Docket No. 31).

         Plaintiff has filed a Response in opposition to Defendants' Motion. Docket No. 32.

         With leave of Court (Docket No. 34), Defendants have filed a Reply. Docket No. 34.

         Without leave of Court, Plaintiff has filed a Sur-Reply. Docket No. 36.[1]

         Plaintiff filed this pro se, in forma pauperis action pursuant to 28 U.S.C. §1332 and Tenn. Code Ann. §§28-3-104 and 29-24-104, alleging that Defendants committed “Libel False Light Privacy Invasion” against him in their: (1) reporting that he was a “convicted felon”; (2) characterizing him as a “potential and highly likely murderer and rapist”; (3) insinuating that he was a “psychopath” and/or had been diagnosed with “psychosis”; (4) displaying his photograph near the statement “76% of women who are killed by a man”; (5) being referred to as a “stalker”; (6) reporting that his accuser had “blocked” him while also reporting on the text messages and voicemail messages she stated she received; (7) characterizing Plaintiff as “being a danger” and being “on the verge of harming” others; (8) depicting Plaintiff as being “homeless” and “wandering the streets”; and (9) failing to contact Plaintiff directly to verify the information they were reporting and to get his consent to report it. Docket No. 1. Plaintiff contends that Defendants had “no privileges” to report what they did, because there was “no substantial truth, ” but rather, only “fraud and misrepresentation” that violated his rights “in the form of a false arrest for being ‘that guy on TV.'” Id. Plaintiff reiterates his averment that Defendants should have done basic research and contacted him to verify the information prior to reporting it. Id.

         Plaintiff avers that this Court has diversity jurisdiction because the amount in controversy exceeds $75, 000, Plaintiff “is a citizen of Texas, ” Defendant Meredith Corporation “is a citizen of Iowa, ” Defendant Raycom Media, Inc. “is a citizen of Alabama, ” and the “Tort was originated in Nashville Tennessee, and was then repeated on News Broadcasts Nationally in many states, [and] can be viewed Globally via the Internet.” Id. Plaintiff additionally avers that venue is proper in this Court because he is “ordered by Davidson County to remain in Davidson County until July 31, 2018 and cannot go anywhere else until that court order is changed.” Id.

         Plaintiff avers that he has been damaged because he is “now forever infamous worldwide.” Id. Specifically, Plaintiff contends that he has been harmed because: (1) he is now “subject to public scrutiny; is ill-dignified, insulted, subject to provocations, ridiculed, and [he] faces random threats of harm”; (2) his “career as a journalist and online media personality is destroyed”; (3) his “future job opportunities are significantly damaged” because “no one wants to hire a ‘psychotic killer rapist stalker'”; (4) his “opportunity to finish [his] college education is destroyed” as “admissions into all prestigious universities are destroyed”; (5) his “children and wife, friends and family no longer trust” him and his “reputation and character [have been] completely obliterated as society, even family, trust T.V. news more than anything else”; (6) he “faces false arrests for infamous reputation;” and (7) he “is recognized somewhat often, treated like a killer and threatened with trouble or harm.” Id.

         Plaintiff further contends that he has suffered “spiritual distress, ” as well as “significant mental and emotional suffering and anguish” including “lowered esteem, ” “dishonor, ” and being “humiliated, ostracised [sic], and shunned in contempt.” Id. He maintains that he will suffer “social, career, and educational damages and disadvantages, ” “threats to [his] valid rights (false arrests), ” and “threats to [his] well-being.” Id. Plaintiff avers that women fear him now and “deride and denigrate his character, ” and that as a result of Defendants' actions, he “cannot find a spouse because infamy cannot be hidden - Google prevents hiding anything.” Id. He asserts that his name has been exploited for no reason and without compensation, and he notes that the “commercial value of [his] name [has been] significantly depreciated.” Id.

         Plaintiff seeks an Order requiring Defendants “to make retractions of all articles involved and to apologize ‘on-air' for damaging [P]laintiff”; an Order requiring Defendant Meredith Corporation “to give [P]laintiff ‘air-time' equal to the amount used in the defamation so he might redeem his character (by either correcting the record, giving [P]laintiff's side of the story, or allowing [P]laintiff to promote various charities for paraplegic and burn victim children); $1, 830, 000 in compensatory damages “for Defamation, False Light, Privacy Invasion”; and $1, 500, 000 in punitive damages. Id.

         Defendants filed the instant Motion and supporting materials arguing that this action should be dismissed because: (1) libel and false light claims are subject to the fair report privilege, and the news reports at issue are a fair and accurate summary of the account given in the criminal and civil court filings, as well as the testimony given by Ms. Gillet to the Tennessee General Assembly; (2) Plaintiff's libel claim, which is based on a single statement in one news report that he was convicted of aggravated stalking, cannot stand because the news report is substantially true, as Plaintiff pled guilty to two charges of aggravated stalking and one charge of harassment; (3) the news reports are not defamatory; (4) Plaintiff's claims fall short of the constitutional “actual malice” standard, as Plaintiff's allegations are conclusory and Plaintiff fails to make any allegation in his Complaint that Defendants made any published statements with reckless disregard to whether they created a particular misleading impression; (5) Plaintiff's “reputation”-based claims must be dismissed under the “libel-proof plaintiff” doctrine, since Plaintiff pled guilty to aggravated stalking and harassment, which were made findings of fact in the order of protection case; (6) Plaintiff's claim for “privacy invasion” cannot stand because it falls under the fair report privilege since it is based on a probation report, it is substantially true, it does not meet the “actual malice” standard, and it is not “highly offensive”; and (7) Plaintiff's claim for public disclosure of private facts cannot stand because the allegedly offending statement was based upon facts that are open to the public eye and is not “highly offensive.” Docket No. 20.

         Plaintiff responds that he objects to the media reports and statements made by Defendants and he argues that the reports are “untrue and libelous, unfaithful to the statutory purposes of TCA § 40-35-313, depict him in a false light, and damage his privacy and reputation wrongly and unlawfully.” Docket No. 32. Plaintiff maintains, therefore, that Defendants “deprived [him] of his common law rights and statutory protections from libel and slander, false light misrepresentations, and unwarranted damages to his reputation and privacy.” Id. at 1-2.

         Specifically, Plaintiff argues that Defendants are not entitled to the “Fair Report Privilege” because although they maintain that they relied upon “court filings and testimony given by Ms. Gillett to the Tennessee General Assembly, ” “this is patently false and can easily be proven.” Id. at 6. Plaintiff contends that Defendants cannot substantiate their claim that Plaintiff was “Convicted of a Felony” because no such record exists since he “received an Order for Deferral (Judicial Diversion) which proves that [he] cannot be legally classified as ‘Convicted' in the public eye in accordance with the stipulations set forth by TCA § 40-35-313.” Id. at 6-7 (emphasis original).

         Plaintiff additionally argues that Defendants cannot rely upon the records in the ongoing civil case concerning the order of protection sought by Ms. Gillett in labeling him as “convicted” or in justifying depicting him as a highly likely suspect to commit future rapes or murders or in justifying depicting him as psychotic or dangerous, because the news reports occurred from January 2016 to April 2016, but the civil case referenced dates from May 2016 to April 2017. Id. at 7. Plaintiff asserts that Defendants cannot claim Ex Post Facto records as their “source, ” and he notes that they cite a 2017 “finding of fact” by the Court of Appeals that is being challenged. Id. Plaintiff maintains that Defendants' Request for Judicial Notice of these documents should be denied and the documents should be excluded. Id. at 7-8. Plaintiff further argues that Defendants cannot use “Case 14OP2920” to justify their actions since “Case 14OP2920” was a “secret Ex Parte case” that “went nowhere and dissolved after the time limitations elapsed when Tennessee failed to inform the respondent (Plaintiff) of it's [sic] existence, and when he did arrive in Nashville 5 months later it was never mentioned and he was never charged for violating it because it had dissolved in accordance with the guidelines set forth in TCA § 36-6-305.” Id. at 8 (emphasis original). Plaintiff maintains, “Case 14OP2920, having never materialized and no notice ever granted to the respondent, does not constitute as proof of “Fair Report Privilege” for [Defendants] in anyway whatsoever when they claimed [Plaintiff] was a ‘Convicted Felon.'” Id. (emphasis original).

         Plaintiff also maintains that “the mere existence of an Order of Protection on its face value does not constitute as evidence of a ‘Conviction' in terms of Media Portrayal nor does it justify the other actions of the Defendant's [sic] alleged herein.” Id. at 9. Plaintiff notes that he had to sign the Order of Protection in order to satisfy the District Attorney and get Diversion, and he adds that he “is still attempting to challenge it's [sic] legality by revealing that the District Attorney violated Tennessee law when requiring the Plaintiff to sign it, as Tennessee law prohibits them from having any place in an Order of Protection's negotiations or using it as a device in a bargain.” Id.

         As to Defendants' reliance on the Tennessee General Assembly testimony of Mrs. Gillett, Plaintiff contends that her testimony was hearsay and can neither prove that he is a “Convicted Felon” nor justify their actions “because Mrs. Gillett is a private citizen, her testimony was not made under oath so she is immune from perjury, the actual text message record proves she is lying, and nothing in her testimony proves that he is a “Convicted Felon” or justifies Defendants' actions. Id.

         Plaintiff next argues that Defendants never revealed their source for determining that Plaintiff was a “Convicted Felon, ” never explained that Judicial Diversion-Deferral “grants the Plaintiff legal immunity to public characterization as such, ” and failed to perform reasonable due diligence in researching the actual criminal case documents or the terminology employed. Id. at 10. Plaintiff adds that even if Defendants had researched the criminal cases and obtained copies of the Deferral Order to review, they did not fairly or accurately use those documents in their reports and broadcasts, and they did not explain that he had not been technically “Convicted” of any crimes, but rather had “instead signed a contract with the District Attorney to avoid ‘Conviction' and maintain a clean unblemished record in order to keep a spotless reputation in the public realm.” Id. Plaintiff maintains that journalists are “expected to do more than merely repeat the claims of a private citizen, ” and he asserts that Defendants failed to use good faith in their reporting or adhere to basic standards of professionalism. Id. at 10-11.

         Regarding Defendants' reporting that Plaintiff is homeless, Plaintiff argues that he is not, in fact, homeless because he has permission to sleep at a church while he is “stranded” in Nashville and Defendants have no right to discuss his housing situation with the public and have no justification for “mischaracterizing his demeanor in such a damaging way.” Id. at 12. Plaintiff maintains that Defendants' “revelation is invasive, defamatory, and damaging.” Id. Plaintiff summarizes that Defendants' actions do not qualify under “Fair Report Privilege” because, “[r]ather than merely giving fair and accurate coverage of government proceedings and testimony within them, the Defendants took it upon themselves to create a highly offensive depiction and characterization of the Plaintiff which condemned him to infamy in the eyes of the public despite being prohibited by statute.” Id.

         Turning to Defendants' assertion that their reports and broadcasts were “substantially true” and therefore protected, Plaintiff responds that his pleading guilty and receiving Judicial Diversion - Deferral is not the same thing as being a “Convicted Felon” such that the news reports were not true and not entitled to protection under the truth defense. Id. at 13. Plaintiff argues that Defendants' broadcasting of such, without explaining T.C.A. § 40-35-313, violates the legislation's purpose and the goals of rehabilitation and second chances. Id. at 13-14. Plaintiff maintains that he was under diversion, and not considered to be on formal probation or parole since he was never “Convicted” of any crime. Id. at 14. Plaintiff asserts that T.C.A. § 40-35-313 “does not protect members of the public (such as media corporations, private citizens, etc) from liability in characterizing the contractee as ‘Convicted' because that is the entire purpose of the Diversion scheme to begin with, to rehabilitate the Defendant, offer a second chance at doing good, protect the status quo of their prior reputation, and to avoid the ‘sting or stigma' of ‘Conviction.'” Id. at 15.

         Plaintiff further maintains that the media does not meet the criteria of T.C.A. § 40-35-313 because T.C.A. § 40-35-313 has specific limitations to how a Diversion Order can be construed as a guilty plea, and media corporations labeling someone as “Convicted” is not one of those exceptions. Id. at 16. Plaintiff additionally argues that “Judicial Diversion is Immunity from Conviction in this Case.” Id. Plaintiff explains, “Judicial diversion [] avoids an adjudication of guilt, and so long as the person does not violate the terms of probation, the charges will be dropped and proceedings dismissed, never resulting in a ‘conviction.'” Id. at 17. Plaintiff asserts that “a guilty plea under Tenn. Code Ann. §40-35-313, even before eventual expungement, is not an adjudication of guilt and not a conviction.” Id. at 19 (emphasis original). Plaintiff argues, “If the Defendants are allowed to escape liability from claiming the Plaintiff is a ‘Convicted Felon' than [sic] it defeats the entire premise, theory, and purpose of Judicial Diversion, and renders it a meaningless statute of little to no value.” Id. at 20.

         Plaintiff also asserts that “Allowing the Defendants to Escape Liability Challenges the Legal Standing of the Original Criminal Case 2015-1-469 and the Constitutionality of Judicial Diversion” which “could potentially undermine the entire case.” Id. Plaintiff argues that this Court has no choice but to deny the instant Motion “to maintain uniformity with the Davidson County Criminal Court and the Tennessee Legislature” and to “uphold the statute and protect it's viability as a legal concept.” Id. at 21.

         Plaintiff next responds that, in defending a defamation action, it is insufficient to show that the imputation is “substantially true.” Id. He notes that he is not “infamous, ” still has the right to vote, maintains that a conviction is a verdict or adjudication of guilt while a judicial diversion is not, and would like a jury to decide whether there is a noteworthy distinction. Id. at 22-23. Plaintiff also “suggests that the Court ignore or overrule the various citations from prior courts that decided otherwise as their judgments were clearly in error (probably because they were not presented with enough evidence or a well crafted argument explaining the significance and importance of Judicial Diversion immunities).” Id. at 23.

         Plaintiff contends that judicial diversion precludes an adjudication of guilt and he maintains that “although the meaning [of conviction] differs based on context, [] it generally refers to a step in the judicial process, namely the “Verdict” phase (finding of guilt).” Id. at 26. He explains that because he “never reached a ‘Verdict' or ‘Finding of Guilt' in his criminal case and instead received Judicial Diversion, it would appear certain that he has been immunized from the characterization of ‘Convicted Felon' ...


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