A recent case provides another opportunity to consider the legal issues surrounding defamation of a public figure. What constitutes defamation of character, where a football coach is accused of participating in bullying conduct? The Eleventh Circuit ruled against the football coach in Turner v. Wells, in an opinion published January 18, 2018.
James Turner coached the offensive line for the Miami Dolphins from 2012 until February 2014. Following allegations of bullying within the organization, the NFL hired the law firm of Paul, Weiss, Rifkind, Wharton & Garrison, and individual Paul, Weiss attorney, Theodore V. Wells, Jr., to investigate. After receiving the 144-page Paul, Weiss report (the “Report”), the Dolphins fired Turner in February 2014.
The Report focused on the bullying of Jonathan Martin, an offensive lineman for the Dolphins. Martin abruptly left the team in October 2013, and checked himself into a hospital for psychological treatment. The Report concluded that bullying by several players contributed to Martin’s decision to leave the team, and the Report also included several references to Turner, opining that his unprofessional conduct played a role in Martin’s struggles.
After being fired, Turner filed suit against Paul, Weiss, and Wells, in U.S. District Court in Florida. The district court dismissed the complaint for failure to state a claim, and Turner appealed to the Eleventh Circuit (which has appellate jurisdiction over federal cases arising from Alabama, Georgia and Florida).
The Eleventh Circuit reviewed Turner’s claims of defamation by applying the elements of Florida law, which requires: (1) publication; (2) falsity; (3) the statement was made with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) the statement must be defamatory. The Court concluded that Turner had failed to prove his claims of defamation.
Turner cited four references to him in the Report that he asserted were libelous: (1) homophobic taunting; (2) poor judgment in texting; (3) failure to intervene to stop insulting comments by others, including references to Martin’s sister and mother, and (4) the existence of a “Judas Code” in the organization.
The Court rejected each of these arguments, either because the statements were opinion (if a claim is not readily capable of being proven true or false, then the claim is opinion), which are not actionable, or were indeed factual, which eliminates one of the essential elements of a claim of defamation, i.e., falsity.
Turner also asserted that he had been defamed “by implication” – that is, that the artful drafting of the Report purposefully omitted certain facts and juxtaposed other irrelevant facts, thereby suggesting that Turner fostered a culture of bullying within the Dolphins offensive line.
Defamation by implication presents a question of law for the Court. The inquiry turns on whether the gist of the publication is false. The Court reviewed Turner’s claim of defamation by implication from several legal angles, discounting and rejecting these claims, too. For example, a defendant is still protected from a defamation suit if the statements qualify as an opinion: “[s]imply put, ‘if the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, he may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct’”; and “classification of Turner’s gift—a male blow-up doll given to a player taunted for his supposed sexual orientation—as homophobic taunting is subjective and not readily capable of being proven true or false.” [citations omitted].
The Court also rejected Turner’s argument that a different set of rules applies to the Report because it involved a commercial setting in a private workplace and not a news report by a media organization. The Court holds that “[t]he First Amendment protects both media (“freedom . . . of the press”) and non-media (“freedom of speech”) defendants. U.S. Const. amend. I. Like media defendants, non-media defendants may then choose the true facts to include in their publication. Turner lacks support for his different-rules argument.” [citations omitted].
Public Figure and Proving Actual Malice
Finally, the Court affirmed the dismissal for an additional reason not reached by the district court: “Because Coach Turner is a public figure who has failed to adequately plead that the Defendants acted with malice in drafting and publishing the Report, his complaint was properly dismissed.” The Court evaluated other Florida cases which found public figure status in circumstances similar to those here. For example, in Scholz v. RDV Sports, Inc., the Florida appellate court agreed with the lower court’s conclusion that the plaintiff was a public figure, because he was an assistant professional basketball coach who previously had been a successful college basketball coach.. The Scholz court also noted that he “drew public attention to himself and his employment status with the [professional team] when he met with newspaper reporters at his lawyer’s office immediately after he filed his lawsuit against the [professional team].” [citations omitted].
Decisions from other jurisdictions also support the finding that Turner, as a sports figure, is a public figure: Curtis Publ’g Co. v. Butts (college football coach and athletic director); Marcone v. Penthouse Int’l Magazine For Men (“[S]ports figures are generally considered public figures because of their position as athletes or coaches.”); Brewer v. Memphis Publ’g Co. (former college and professional football player); Time, Inc. v. Johnston (former professional basketball player and current college assistant coach); and Vandenburg v. Newsweek, Inc. (college track coach). [citations omitted].
Specifically, the Court found that “Coach Turner chose to put himself in the public arena. As the Report noted, Turner was the focus of the 2012 season of Hard Knocks, an HBO television program that ‘showcase[ed] Turner’s coaching style and featur[ed] interviews and footage of him on the field and in the locker room.’ During his coaching career, Turner was the subject of several articles discussing his career and coaching philosophy. Turner was a prominent person on the closely followed Dolphins professional sports team.” [citations omitted].
But the conclusion that Turner is a public figure does not end the Court’s inquiry. The Court must also decide whether Turner is a “general” or “limited” public figure. The distinction is important because general public figures are individuals who, by reason of fame or notoriety in a community, will in all cases be required to prove actual malice, while limited public figures, on the other hand, are individuals who have thrust themselves forward in a public controversy and therefore required to prove actual malice only in regard to certain issues. The Court employed a two-part analysis to determine whether Turner was a limited public figure: first, did Tuner play a central role in the controversy; and second, was the alleged defamation germane to the Turner’s role in the controversy.
The Court discarded Turner’s contention that he was a limited public figure because he did not attempt to influence the public controversy. “When Turner took the job as the offensive line coach for the Dolphins NFL team, he thrust himself into the public limelight inherent in professional sports and well within the public controversy arising from Martin’s bullying. Even if Turner’s players were mainly responsible for the bullying, and therefore the scandal, this does not prevent Turner from becoming a public figure.” [citations omitted]. “Furthermore, Turner’s text messages to Martin—pushing him to make a statement to the press defending [another player]—and his commissioning a response to the Report show that Turner inserted himself into the controversy even after it had made national news. Turner also agreed to be interviewed by the Defendants, becoming a central figure in the Report.” [citations omitted].
Because Turner is a public figure, he must establish “actual malice” on behalf of Paul, Weiss in order to maintain a defamation action, as New York Times v. Sullivan requires. The test of “actual malice” is subjective, and focuses on whether the defendant “actually entertained serious doubts as to the veracity of the published account, or was highly aware that the account was probably false.” [citations omitted]. While Turner’s complaint is replete with allegations of malice, these allegations are set forth in a conclusory manner: “Throughout his complaint, Turner alleges that the Defendants ‘knowingly and recklessly’ ignored or deliberately avoided learning information when drafting their Report, but the complaint does not set forth facts demonstrating that the Defendants acted in these ways. Those portions of the complaint do not allege sufficient relevant facts to support a claim of actual malice.” [citations omitted].
Perhaps the most important takeaway from this decision is that the steep burden of proof for a public figure, the actual malice standard established in New York Times v. Sullivan, is alive and well and living in Florida.