Wednesday, November 13, 2002
Ninth Circuit Partially Revives Gennifer Flowers’ Defamation Suit
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals yesterday reinstated most of Gennifer Flowers’ defamation and invasion-of-privacy suit against members of the Clinton administration.
“Just as Bill Clinton’s critics are free to attack his scruples and sincerity in the public media, his supporters are free to defend him; the law will rarely hold any of them responsible for their words,” Judge Alex Kozinski wrote. “This freedom, however, is not absolute. Even among public figures, defamation—that tort ‘[w]hose sting is sharper than the sword’s’ —can leave scars that in the most egregious circumstances demand redress.”
Flowers, a former Arkansas resident, burst on the scene in 1992 when the Star tabloid reported that she had carried on an affair with the then-governor of Arkansas. She and Bill Clinton both denied the reports initially, but Flowers—“doubtlessly realizing that honesty is the best policy after all,” Kozinski said sarcastically—later sold her story to the tabloid and held a press conference at which she played secret recording of intimate phone calls from Clinton.
Later news reports said the tapes may have been edited.
“Long after the public spotlight has moved on in search of fresh intrigue, the lawyers remain,” Kozinski explained. “And so we find ourselves adjudicating a decade-old dispute between Gennifer Flowers and what she affectionately refers to as the ‘Clinton smear machine’: James Carville, George Stephanopoulos and Hillary Clinton. Flowers charges that said machine destroyed her reputation by painting her as a fraud and a liar after she disclosed her affair with Bill Clinton.”
In November 1999, Flowers—represented by Judicial Watch, which has filed dozens of suits against the Clintons and their associates, with mixed results—sued Carville, now a writer and commentator, as well as an international political consultant and Stephanopolous, who hosts the news talk program “This Week With George Stephanopolous” on ABC. She also sued Little, Brown & Co., which published Stephanopolous’ White House memoirs.
Two years ago, she added Hillary Clinton, now U.S. senator from New York, to the suit. She also added additional allegations against Stephanopolous after he criticized her allegations on Larry King’s CNN television program.
She claimed that Hillary Clinton masterminded a conspiracy in which the two aides defamed Flowers and painted her in a false light by claiming that she had lied to the Star and altered the tapes. Flowers also alleged that the senator directed other, unnamed conspirators to break into her residence.
“Flowers claims that, as a result of all this schemery, her reputation has wilted and her blossoming career as a Las Vegas lounge singer has been nipped in the bud,” Kozinski explained, waxing botanical.
U.S. District Judge Philip Pro of the District of Nevada dismissed most of Flowers’ allegations as time-barred under the Nevada “borrowing statute.” The law provides that the statute of limitations of the jurisdiction in which the cause of action accrued, if shorter than the Nevada period, is determinative unless the action is brought “in favor of a citizen [of Nevada] who has held the cause of action from the time it accrued.”
Pro ruled that Flowers, who moved to the state from Arkansas in 1998, could not claim the benefit of the exception as to any statement made prior to that time. Because all of the states in which the statements were made or published have one-year statutes of limitations, rather than a two-year statute like Nevada’s, Flowers could not sue over any statement made prior to November 1998, the district judge said.
Of the three allegedly defamatory statements as to which the claims were timely—Carville’s 1998 statement on the King program that the “tape was doctored,” Stephanopoulos’ comments in his 1999 book that the allegations were “tabloid trash,” “crap,” and “garbage” and that the tapes “maybe…were doctored;” and a comment Stephanopoulos made to CNBC’s Tim Russert that the tapes were “selectively edited”—Pro said none of them were defamatory as a matter of Nevada law.
All of the statements, he said, were protected opinion and/or accurate restatements of news reports. He also ruled that since there were no well-pled claims arising out of the alleged conspiracy, the conspiracy claim itself would have to be dismissed.
But Kozinski said the three statements may have been defamatory. He also concluded that the two-year statute of limitations applied.
The judge, he said, erred by analogizing to the borrowing statues of other states, such as California Code of Civil Procedure Sec 361, under which the California statue of limitations applies if the action is brought “in favor of one who has been a citizen of this State.”
The language of Nevada’s law is different, Kozinski noted, because the citizenship requirement is stated in the present tense, thus indicating the Legislature’s intent to grant the benefit of the longer period to all the state’s citizens, not just long-time residents.
A number of Flowers’ allegations, the judge pointed out, are still time-barred, because they were made more than two years before suit was barred. He rejected the argument that the continuing circulation of the allegations, such as in Carville’s 1994 memoirs, were a “continuing tort,” since the publication of a book is a discrete event.
As for the substance of her complaint, the judge agreed that Flowers cannot recover based on claims that her allegations were called “trash” or “garbage,” because this is “mere rhetorical hyperbole” or “generalized invective.”
But if the defendants’ comments about the editing or doctoring of the tapes conveyed the message that Flowers altered them, and if the defendants knew that the allegatins were false or acted recklessly in making them, they are not protected by state law or the First Amendment, the judge said.
If the defendants were merely repeating news accounts that they had no reason to disbelieve, the judge said, their comments are protected. But if they were merely purporting to rely on the news reports when in fact they knew those accounts were false, there is no such protection, the judge explained.
Having voluntarily injected herself into a public controversy, Kozinski went on to say, Flowers is a public figure who can only recover upon a showing of actual malice by clear and convincing evidence. While she “doubtless faces an uphill battle” in attempting to do so, her timely allegations were sufficient to survive a motion to dismiss, the judge wrote.
The opinion was joined by Senior Judge J. Clifford Wallace, like Kozinski an appointee of President Reagan, and Judge Richard Paez, who was appointed by President Clinton.
The case is Flowers v. Carville, 00-17299.
Copyright 2002, Metropolitan News Company