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UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA
January 20, 2006
MEMORANDUM OPINION
On March 9, 2005, the plaintiffs filed this action seeking to prevent
the defendants from
further using their images in an advertising campaign which challenged
various public policy
positions taken by the American Association of Retired Persons (“AARP”)
regarding Social
Security reform and the military. Complaint (“Compl.”) ¶ 1.
Currently before the Court are the
defendants’ motions to dismiss, and the plaintiffs’ opposition
thereto.1 For the reasons set forth
below, the Court grants the defendants’ motions, dissolves the
stipulated order for a preliminary
injunction, and dismisses this case.
I. Factual and Procedural Background
On March 3, 2004, the plaintiffs were among 300 citizens of Multnomah
County, Oregon
who were married pursuant to a newly established right to same-sex
marriage in that county.
Compl. ¶ 9.
While at City Hall awaiting their opportunity
to marry, the plaintiffs, Steve Hansen
and Richard Raymen, kissed. A photographer from a Portland, Oregon
newspaper, the Tribune,
captured the kiss in a photograph he took. Id. The photograph was subsequently
published in
both the Tribune newspaper on March 4, 2004, and later on the Tribune’s
website. Id. At some
later point in time, the Tribune’s website photograph was used
without permission2 as part of an
advertisement created by defendant Mark Montini. Id. ¶ 10. The
advertising campaign was
created for a nonprofit organization, United Senior Association, Inc.,
which does business under
the name USA Next. Id. ¶¶ 7, 10. The advertisement, which
features the photograph of the
plaintiffs kissing, was part of a campaign by USA Next challenging
various public policy
positions purportedly taken by the AARP. Id. ¶ 14. Specifically,
the advertisement contains two
pictures. The first is a picture of an American soldier, who presumably
is in Iraq, with a red “X”
superimposed over it, and the second is the photograph of the plaintiffs
with a green checkmark
superimposed over it. The caption under the advertisement reads: “The
Real AARP Agenda,”
id. ¶ 13, suggesting that the AARP opposes the United States military
efforts abroad and supports
the gay lifestyle. This advertisement ran on the website of The American
Spectator magazine
from February 15, 2005, to February 21, 2005. Id. ¶ 10.
According to the plaintiffs, the purpose of the advertising campaign
was “to incite viewer
passions against the AARP because of its alleged support of equal marriage
rights for same-sex
couples and its alleged lack of support of American troops.” Id. ¶ 14.
Moreover, the plaintiffs
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opine that the “advertisement also conveys the message that the
plaintiffs . . . are against
American troops . . . and are unpatriotic.” Id. ¶ 15. The
plaintiffs contend that the advertisement
attracted media attention, which then caused an even wider distribution
of the advertisement
throughout the media. Id. ¶ 16. The plaintiffs assert that because
of the advertisement, they
“ have suffered embarrassment, extreme emotional distress, and the invasion
of their privacy.”
Id. ¶ 20. In addition, the plaintiffs represent that as a result
of the false and misleading inference
“ communicated by the [a]dvertisement about [the] plaintiffs, their reputations
as patriotic
American citizens has been severely damaged.” Id.
Seeking to prevent further use of their images in the advertisement,
on March 9, 2005, the
plaintiffs filed this action alleging four common-law causes of action—libel;
invasion of privacy
by portraying their images in a false light; invasion of privacy by
appropriating their likeness; and
intentional infliction of emotional distress. Id. ¶¶ 27-62.
The complaint also seeks permanent
injunctive relief and monetary damages. Id. at 13-14. On that same
day, the plaintiffs filed a
motion for a temporary restraining order and a motion for a preliminary
injunction. The Court
immediately heard arguments on the plaintiffs’ motion for a temporary
restraining order on
March 9 and March 10, 2005. In light of the expedited hearing, neither
defendant had the
opportunity to submit substantive legal memoranda in opposition to
the plaintiffs’ motion and
defendant Montini was not present at the argument. At the conclusion
of the hearing on March
10, 2005, this Court orally granted the plaintiffs’ motion from
the bench and later issued a
memorandum opinion consistent with that ruling on March 16, 2005. Following
the Court’s
ruling, the parties entered into a stipulated preliminary injunction,
alleviating the need for this
Court to rule on the plaintiffs’ motion for a preliminary injunction.
The defendants now seek
Montini also seeks dismissal of this action under Rule 12(b)(2) for
lack of personal jurisdiction3 .
However, based upon the record currently before the Court, it is unclear
whether this motion has merit. Thus, further
discovery would be required to resolve this motion. Nonetheless, for
the reasons stated herein, Montini is entitled to
dismissal of this action under Rule 12(b)(6).
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dismissal of this action under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim
upon which relief can be granted.3
III. Legal Analysis
The defendants challenge each claim in the plaintiffs’ complaint.
The Court will address
each challenge separately.4
A. The Plaintiffs’ Libel
Claim
The plaintiffs contend that the advertisement in which their image
appears projects the
view that the AARP supports a gay lifestyle and does not support the
United States military
efforts abroad. Compl. ¶ 14. And by using their images in the
advertisement, the plaintiffs opine
that a reasonable person would attribute the views purportedly held
by the AARP about the
military to the plaintiffs. Id. ¶ 15. Thus, the plaintiffs assert
that the defendants have portrayed
them as unpatriotic Americans who do not support the United States
military. Id. ¶ 28.
Moreover, the plaintiffs assert that due to the manner in which they
have been portrayed in the
advertisement, they have been subjected to “hatred, contempt
and ridicule, and [that the
defendant’s conduct has] diminished the esteem, respect, goodwill
and confidence in which the
Defendant Montini also suggests that dismissal is appropriate because
the plaintiffs are unable to 5 o show
that the advertisement actually defamed them. Montini Mem. at 23-24.
Because as indicated below this Court
concludes that the advertisement is not capable of a defamatory meaning,
it need not address this alternative position.
plaintiffs are held.” Id. ¶ 30. Accordingly, the plaintiffs
contend that they have been defamed
and thus have established a claim for libel. Pls.’ Opp’n
at 5. The defendants’ argue, however,
that the plaintiffs have failed to state a claim for libel. Specifically,
they contend that the
advertisement is not capable of a defamatory meaning, either directly
or by inference, and that no
reasonable person could interpret the advertisement as suggesting that
the plaintiffs are
unpatriotic Americans. USA Next’s Mem. at 11-13; Montini Mem.
at 18-23.5
Under Oregon law, libel can be established by demonstrating that a
communication is
capable of a defamatory meaning. Beecher v. Montgomery Ward & Co.,
Inc., 517 P.2d 667, 669
(Or. 1973). In determining whether a communication is defamatory, the
Oregon Supreme Court
applies the test set forth in the Restatement of Torts. Id.; King v.
Menolascino, 555 P.2d 442,
443 (Or. 1976); see Bellairs v. Beaverton School Dist., No. Civ. 04-770,
2004 WL 1900417, at
*2 (D. Or. Aug. 23, 2004); Restatement (Second) Torts § 559 (1976).
Under the Restatement,
“‘ [a] communication is defamatory if it tends so to harm the reputation
of another as to lower
him in the estimation of the communication or to deter third persons
from associating or dealing
with him.’” King, 555 P.2d at 443 (quoting Restatement
(First) Torts § 559 (1938)).
Accordingly, “[t]o establish actionable defamation, [the] plaintiffs
must prove that [the]
defendant made a defamatory statement that was false and that was communicated
to a third
party.” Brown v. Gatti, 99 P.3d 299, 305 (Or. Ct. App. 2004)
(citing Reesman v. Highfill, 965
P.2d 1030 (Or. 1998); Wallulis v. Dymowski, 918 P.2d 755 (Or. 1996);
Fowler v. Donnelly, 358
P.2d 485 (Or. 1960)). “[A] statement can be [either] facially
defamatory or ‘defamatory by
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implication,’ that is, a statement from which a reasonable person
could draw a defamatory
inference.” Brown, 99 P.3d at 305. “Whether a particular
statement is capable of a defamatory
meaning is a legal question for the court rather than a fact question
for the jury.” Id. at 306; see
Bellairs, 2004 WL 1900417, at *2. In a case of defamation by implication,
the Court must
“ examine[] the connection between the statement and the defamatory inference
to determine
whether ‘the inference that the plaintiff seeks to draw from
the facially nondefamaotry
communication is reasonable.” Brown, 99 P.3d at 305. If the Court
determines that the
statement is capable of a defamatory meaning, dispositive motions must
be denied, and a jury
must decide whether a defamatory meaning was understood by the recipients.
Beecher, 517 P.2d
at 669.
After now having had the opportunity to throughly scrutinize the advertisement
in
question, this Court simply cannot conclude that it is capable of a
defamatory meaning. As
already discussed, the advertisement contains two pictures. The first
is a picture of an American
soldier, who is presumably serving overseas, with a red “X” superimposed
over it, and the second
is the photograph of the plaintiffs with a green checkmark superimposed
over it. The caption
under the advertisement reads: “The Real AARP Agenda.” Compl. ¶ 13.
First, there is nothing
on the face of this advertisement that is defamatory to the plaintiffs.
Rather, it is apparent from
the advertisement as a whole that the only message the advertisement
sends is that the AARP
allegedly supports gay marriage and does not support the United States
military. Facially,
nothing in the advertisement suggests, as the plaintiffs posit, that
they are “unpatriotic American
citizens who do not support the United States military while our nation
is at war.” Id. ¶ 9.
Moreover, a reasonable person could not infer a defamatory connotation
from viewing the
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advertisement. This Court simply cannot make the leap suggested by
the plaintiffs that simply
because their image was used in one portion of the advertisement that
the advertisement implies
that they themselves subscribe to the AARP’s policy positions
on the military, which is
represented in a separate portion of the advertisement. In addition,
the advertisement does not
lead to the inference that all individuals who are either gay or support
same-sex marriage are
anti-military and unpatriotic. The link the plaintiffs are trying to
make is simply too tenuous.
See, e.g., Reesman, 965 P.2d at 1035 (concluding that a statement that
a corkscrew climb “is
definitely frowned upon by FAA authorities” does not reasonably
imply that the maneuver was
improper and thereby does not imply a pilot was unsafe); Anderson v.
Guard Publ’g Co., 489
P.2d 944 (Or. 1971) (concluding that newspaper story stating that the
plaintiff and her husband
were getting a divorce and that her husband shot a man sitting in the
car with the plaintiff was not
defamatory because any inference that the plaintiff was conducting
herself improperly with the
man would be too tenuous to form a basis for liability). In fact, the
advertisement conveys no
message of positions either supported or not supported by the plaintiffs.
Rather the only
connotations that can be derived from the advertisement in regard to
the plaintiffs is that they are
a gay couple and support gay marriage, which are true representations,
Compl. ¶ 6, and therefore
cannot form the basis of a defamation claim. Volm v. Legacy Health
Sys., Inc., 237 F. Supp. 2d
1166, 1178 (D. Or. 2002) (“Truth is a complete defense to defamation.”)
(citing Bahr v.
Statesman Journal, 624 P.2d 664 (Or. Ct. App. 1981)). As such, the
advertisement is not capable
of a defamatory meaning either directly or by inference. Thus, the
plaintiffs’ first claim must be
dismissed for failure to state a claim upon which relief can be granted.Defamation: Oregon
