Thomas v US, CA 87-1820

Section 3

Plaintiffs cannot claim to be private individuals: they are "public figures," defined, for the purpose of libel doctrine, as those who "have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. . . . [T]hey invite attention and comment." Gertz v, Robert Welch, Inc., 418 U.S. at 345. Plaintiffs' twenty-four hour vigil in Lafayette Park takes place in possibly the most conspicuous public forum in the Nation, Their outspoken advocacy of their political and religious views thrives and, indeed, depends on significant and constant attention by the public. They have engaged in a running contest with law enforcement authorities with the result, if not the intention, of attracting considerable media attention, The complaint, in fact, asserts that the alleged violations of plaintiffs' rights have resulted in "direct injury to plaintiffs by alienating them from a substantial portion of the general public." Complaint at ¶ 94. Plaintiffs contend, further, that defendants' actions

cause[d] [plaintiffs] to lose esteem in the eyes of the general public to whom plaintiffs were attempting to communicate in regard to an issue of broad public concern.

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Complaint at ¶ 103.

Defined as "public figures," plaintiffs must satisfy the stringent standard for sustaining libel actions established in New York Times v. Sullivan, supra, with respect to public officials, and extended to nonofficial "public figures" in Curtis Publishing Co. v. Butts, 388 U.S. 130, reh'g denied, 389 U.S. 889 (1963). In order to maintain a libel claim against The Washington Times, plaintiffs would need to show, by clear and convincing evidence, 1) that the statements at issue were false; and 2) that the Times made those statements with "actual malice," "that is, with knowledge that [they were] false or with reckless disregard of whether [they were] false or not." New York Times v. Sullivan, 376 U.S. at 280; see Gertz v. Robert Welch. Inc., 418 U.S. at 343.

The complaint asserts but does not support an allegation of actual malice on the part of The Washington Times or of those individuals responsible for the editorial policy of the newspaper, See, e.g., Complaint at ¶¶ 93, 101 & 102. Plaintiffs maintain that defendants either knew of purported inaccuracies in the statements at the time of publication or disregarded the possibility of inaccuracy, making no effort to determine the validity of the comments published. Complaint at ¶ 101. Plaintiffs conclude that publication of the allegedly false statements in question was motivated by malice towards plaintiffs, Complaint at ¶ 102, and, thus,

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constitute libel for which the newspaper may be sued far damages, id. at ¶ 104-106.

Plaintiffs employ the word "malice" as an empty epithet, devoid of factual content. For instance, plaintiffs allege that "the Washington Times has intentionally and tortiously acted to plant and re-enforce [sic] a false,malicious, hateful, contemptuous, and prejudiced image of plaintiffs in the mind of Ronald Wilson Reagan ....." Id. at Id. at ¶ 96. Plaintiffs allege, further, that:

defendants acted willfully and maliciously, with reckless disregard to promote their fearful arguments for nationalistic elitism through superior firepower over plaintiffs' peaceful argument for human co-existence through cooperation. Defendants distorted reason and truth to cause direct injury to plaintiffs by alienating them from a substantial portion of the general public, and ta represented [sic] plaintiffs' expressions as the "delusions of the insane." Defendants also sought to make their own weaker arguments appear stronger through [sic] the defamation of plaintiffs' character. Defamation in lieu of dialogue is totally outrageous and unacceptable to a civilized society.

Id. at ¶ 94.

Plaintiffs may well confuse political opposition with malice. Some of the editorial language referring to "garbage," "bums," and "lunatics" is certainly strong. Yet, such language reflects not actionable malice but, rather, the timbre of argument characteristic of a robust political press addressing public figures like plaintiffs. As recognized in Ollman:

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Perhaps it would be better if disputation were conducted in measured phrases and calibrated assessments, and with strict avoidance of the ad hominem; better, that is, if the opinion and editorial pages of the public press were modeled on The Federalist Papers. But that is not the world in which we live, ever have lived, or are ever likely to know, and the law of the first amendment must not try to make public dispute safe and camfortable for all the participants,

Ollman v. Evans, 750 F.2d at 993 (Bork, J., concurring).

The complaint lacks any colorable claim that The Washington Times published the challenged statements with actual malice. Thus, the complaint fails to state a claim that would satisfy the New York Times v. Sullivan standard governing common law libel actions against The Washington Times.

B.

In addition to their libel claim against The Washinston Times, which cannot lie on the facts plead, plaintiffs seek relief from the Times defendants pursuant to 42 U.S.C. If 1983, 1985(3), and 1986, Plaintiffs' claims cannot survive defendants' motion to dismiss for failure to state a claim under these federal civil rights statutes, See Times' Motion to Dismiss at 11-12.

(1)

42 U.S.C. § 1983 provides persons within the United States with a right of action against

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or

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the District of Columbia, subjects, or causes to be subjected [another person] to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws....

42 U.S.C. § 1983. Two elements are necessary for recovery under this provision. First, a plaintiff must show that a defendant has deprived him or her of a right secured by the "Constitution and laws" of the United States. Adickes v. S.H. Kress & Co, 398 U.S. 144, 150 (1970). Second, a plaintiff must shaw that a defendant acted "under color' of" the law of a state, territory, or the District of Columbia. Id., citing Monroe v. Pape, 365 U.S. 167, 184 (1961).

The allegations appearing in the complaint here cannot satisfy the first requirement imposed under § 1983. Plaintiffs name the Times defendants primarily in counts alleging common law torts, such as assault, intentional infliction of emotional distress, and libel, See Complaint at ¶¶ 92, 93, 100. Neither the Constitution nor any laws contemplated under § 1983 establishes a "right" or "privilege" to be free from libel or assault qua assault. Moreover, where state law does not extend any legal guarantee of the present enjoyment of one's reputation, beyond providing a remedy in tort for damage thereto, defamation by a state official does not result in a deprivation of "liberty" or "property" protected by Fourteenth Amendment. Consequently, no action under § 1983 may lie for plaintiffs' assault, defamation, and libel claims. See Paul v. Davis,

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424 U.S. 693, 711-12, reh'g denied, 425 U.S. 985 (1976).

Even if the common law torts allegedly committed by the Times defendants did operate to deprive plaintiffs of a "right, privilege[], or immunit[y]" cognizable under § 1983, the complaint alleges no acts taken by the Times defendants "under color of" any state or District of Columbia law. Accordingly, the complaint fails to satisfy the second criterion established for § 1983 actions in Adickes v, S.H. Kress Co., supra.

Plaintiffs have failed to refute the contention that a § 1983 action against the Times defendants cannot lie on the facts plead . Plaintiffs acknowledge that the motion to dismiss contains arguments pertaining to § 1983 in particular; however, plaintiffs opposition to the motion to dismiss stresses only 42 U.S.C. § 1985(3) and case law interpreting and applying that provision. See Plaintiffs' Opposition at 6. Although plaintiffs have not engaged defendants' arguments on this issue, an independent evaluation of § 1983 and the relevant law in this Circuit compels the conclusion that defendants are correct. Plaintiffs have neither alleged, nor factually supported, an allegation, that all or any of the Times defendants acted under color of state or District of Columbia law to deprive plaintiffs of any right, privilege, or immunity secured by the Constitution or laws. Accordingly, the complaint fails to state a claim against any Times defendant upon which

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relief can be granted under Sec U.S.C. § 1983.

(2)

The complaint alleges not only that the Times defendants committed common law torts against plaintiffs, but also that the Times defendants conspired with the federal defendants to deprive plaintiffs of rights secured to them by the First Amendment. Plaintiffs claim a right of action for the alleged conspiracy both under 42 U.S.C, § 1983 and under 42 U.S.C. § 1985(3).

Neither the complaint nor any other pleading submitted by plaintiffs in this action differentiates their conspiracy claims as between these statutory provisions, although case law interpreting the two emphasizes their distinctive histories and standards for application. Defendants move to dismiss plaintiffs' conspiracy claims under both § 1983 and § 1985(3) on the grounds that the complaint fails to state a claim under either provision upon which relief can be granted, Times' Motion to Dismiss at 15-20. An independent analysis of §§ 1983 and 1985(3) leads to the conclusion that defendants are correct: the accompanying Order dismisses the complaint's conspiracy counts against all Times defendants.

(a)

Plaintiffs' attempts to state a conspiracy claim under 42 U.S.C. § 1983 fail for several reasons. First, as defendants argue, the complaint does not plead plaintiffs conspiracy claims under § 1983 with sufficient specificity.

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See Times' Motion to Dismiss at 15-16. In Hobson v. Wilson, 733 F.2d 1 (D.C. Cir. 1984), cert. denied, 170 U.S. 1084 (1985), this Circuit articulated a heightened pleading standard demanding especial particularity in civil rights complaints. See id. at 30. [3] The Hobson court quoted with approval the second Circuit's pleading requirement for such actions:

"Complaints containing only 'conclusory,' 'vague,' or 'general allegations' of a conspiracy to deprive a person of constitutional rights will be dismissed... Diffuse and expansive allegations are insufficient."

Id., quoting Ostrer v. Aronwald, 567 F,2d 551, 553 (2nd Cir. 1977); Hobson v. Wilson, 337 F.2d at 30 & n.87 (supporting with citations the claim that "every other circuit" requires civil rights complaints to be plead with specificity); see also Martin v. Malhoyt, 830 F.2d 237, 258 (D.C. Cir.), reh'g denied, 833 F.2d 1049 (1987), The complaint here contains only conclusory allegations of a § 1983 conspiracy between the Times and federal defendants to deprive plaintiffs of First Amendment rights; plaintiffs fail

[3Although Hobson involved claims brought under 42 U.S.C. § 1985(3) rather than under § 1983, the pleading standard adopted there has been generally applied to conspiracy complaints brought under any of the civil rights statutes. See, e.g., Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977), cert. denied, 434 U.6, 1077 (1978) (§ 1983 complaint's conclusory allegations of conspiracy, unsupported by material facts, could not survive motion to dismiss). Moreover, Hobson claims to have borrowed its own pleading standard, in part, from decisions in which other circuits addressed claims arising under § 1983, See Hobson v. Brennan, 337 F.2d at 30 n,87 (citing cases).]

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to support their claims with reference to material facts. Even were the complaint construed to assert nonconclusory and factually supported allegations of a conspiracy under § 1983, it would yet fail to satisfy the substantive criteria governing claims under that provision.

Private parties like the Times defendants, whose actions might not otherwise be taken "under color of state law," may be subject to suit under § 1983 if they conspire with government officials to deprive others of their constitutional rights. See Adickes v. S.H. Kress & Co., 398 U.S. at 152. The complaint here names only federal officials as the private defendants' alleged co-conspirators, Because actions of the federal government itself, and of its officers, lie beyond the purview of § 1983, District of Columbia v. Carter, 409 U.S. 418, 424, reh'g denied, 410 U.S. 959 (1973), § 1983 actions for alleged conspiracies involving private parties and federal officers are recognized only when the conspiracy charged also involves state or local officials. See, e.g., Hampton v, Hanrahan, 400 F.2d 600, 623 (5th Cir. 1979), reversed in part on other abounds, 446 U.S. 754, reh'g denied, 448 U.S. 913 (1980). Plaintiffs allege no such conspiracy here.

Moreover, an action for conspiracy to violate Sec 1983 depends, as does a simple § 1983 action, upon a showing that the acts of which plaintiffs complain were taken "under color of state law." Plaintiffs' allegation that the Times

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defendants conspired with federal officials to promulgate regulations infringing plaintiffs' First Amendment rights describes a conspiracy which could only have proceeded "under color of" federal law.[4] Section 1983 provides no relief against persons acting under calor of federal law. See Wheeldin v. Wheeler, 373 U,S. 6~7, 652 (1963), Thus, even had plaintiffs named state or D.C. officials as co- conspirators with the named Times and federal defendants, the complaint would still fall short of § 1983's requirement that the alleged conspiracy have taken place under color of state law.

(b)

Plaintiffs' conspiracy claims similarly fail to satisfy the standards governing actions under 42 U.S.C. § 1985(3). That section provides, in pertinent part, that

[if] two or more persons in any state or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; [and,] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of

[4Plaintiffs appear to concede this point. In describing the "nature" of their 1987 action, plaintiffs allege that "[t]he intention of the conspiracy uas to utilize regulatory schemes . . and to encourage public support for regulations under the color of which defendants have deprived plaintiffs of rights and privileges guaranteed under the Constitution of the United States." Complaint at ¶ 20. The "reguLations" to which plaintiffS refer are, of course, federal regulations, codiiied at 36 C.F.R. § 7.96.]

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such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3). Unlike § 1983, an action for damages under § 1985(3) does not require a showing that the acts complained of were taken "under color of state law." Hobson v. Wllson, 727 F,2d at 14, citing Grfffin v. Breckenridge, 403 U.S, 88 (1971). Yet, again unlike § 1983, § 1985(3) vindicates only that "conspiratorial tortious fnterference with the rights of others, [that is] motivated by some class-based, invidiously discriminatory animus." Martin v, Malhoyt, 830 F.2d at 258, quoting Hobson, 737 F.2d at 14; see Griffin v. Breckenridge, 403 U.S. at 102.

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