Federal District Court Opinions
BENZ v. WASHINGTON NEWSPAPER PUBLISHING COMPANY, LLC,
(D.C. 9-29-2006) KATHLEEN A. BENZ, Plaintiff, v. THE WASHINGTON NEWSPAPER PUBLISHING COMPANY, LLC and JOHN F. BISNEY, Defendants. Civil Action No. 05-1760 (EGS). United States District Court, D. Columbia. September 29, 2006
MEMORANDUM OPINION
EMMET SULLIVAN, District Judge
Plaintiff Kathleen Benz commenced this action against
defendants, The Washington Newspaper Publishing Company,
LLC, publisher of the Washington Examiner (“the Examiner”)
and John F. Bisney (“Bisney”), alleging defamation,
invasion of privacy, and intentional infliction of
emotional distress, related to a gossip column published in
the August 19, 2005 issue of the Examiner and for articles
with similar content posted on various websites. Pending
before the Court are defendants’ respective motions to
dismiss. Upon consideration of the motions, the responses
and replies thereto, the Examiner’s motion is DENIED IN
PART and GRANTED IN PART, and Bisney’s motion is DENIED IN
PART and GRANTED IN PART.
I. FACTUAL BACKGROUND
Plaintiff is an assignment editor at the Washington, D.C.
Page 2 office of the Cable News Network (“CNN”). Am. Compl.
¶ 6. Defendant Bisney is a former CNN radio
correspondent and a former colleague of plaintiff. Id.
¶ 11. In November 2002, plaintiff and Bisney
developed a social friendship. Id. ¶ 16. During the
period of their friendship, Bisney repeatedly expressed his
desire to have a romantic and sexual relationship with
plaintiff. Plaintiff, however, insisted on and maintained a
platonic relationship with him. Id. ¶¶ 21-22,
56-57.
Their friendship ended in May 2005 when plaintiff learned
that Bisney, without plaintiff’s knowledge or permission,
obtained access to her email account, read her emails, and
established and maintained websites in the name of the
plaintiff. Id. ¶¶ 17, 69, 84-86. On those
websites, Bisney posted personal and private information
and photographs of plaintiff. Id. Bisney also wrote a
“fake” article[fn1] about the plaintiff and sent it to
her.[fn2] Id. ¶¶ 64-65. The article named
various men whom plaintiff Page 3 has allegedly dated.
Id. ¶ 65. Of all the men mentioned, plaintiff has
actually only dated Gary Williams, Paul Bosserman, Julian
Epstein, and John Daggitt. Id. ¶ 66.
On June 1, 2005, plaintiff filed for a temporary
restraining order against Bisney in the District of
Columbia Superior Court. Id. ¶¶ 103-04. On
July 11, 2005, plaintiff and Bisney entered into a “Binding
Settlement Agreement and Release,” which provided that
“[t]he parties agree that they will not intentionally
contact or communicate with each other.” Id.
¶¶ 106, 107.
In July 2005, more articles about plaintiff, authored by
Bisney, appeared on the internet.[fn3] Id. ¶¶
109, 112, 117, 120. In Page 4 August 2005, Bisney used
plaintiff’s name, her home and work telephone numbers, her
home address, and email address to respond to personal
advertisements seeking sexual relations on a website. Id.
¶ 142. As a result, plaintiff received numerous phone
calls and email messages from individuals who believed that
plaintiff wanted to engage in sexual relations with them.
Id. ¶ 143.
On August 19, 2005, the Examiner published an article in
the gossip column entitled “Controversial Love for CNN
Producer”[fn4] by Page 5 Karen Feld. Id. ¶ 162.
Prior to publishing this article, Ms. Feld did not speak to
the plaintiff. Id. ¶ 166. Once the article was
published, plaintiff contacted Ms. Feld and told her that
the article was substantially false. Id. ¶ 176. On
September 30, 2006, the Examiner published an article by
Karen Feld entitled “Correction.”[fn5] Id. ¶ 180. On
September 2, 2005, plaintiff filed this civil action
against defendants the Examiner and Bisney alleging
defamation, invasion of privacy and intentional Page 6
infliction of emotional distress.[fn6]
II. STANDARD OF REVIEW
The Court will not grant a motion to dismiss for failure
to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355
U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994). See also Swierkiewicz
v. Sorema, 534 U.S. 506, 514 (2002) (stating that a court
may dismiss a complaint “only if it is clear that no relief
could be granted under any set of facts that could be
proved consistent with the allegations”). Accordingly, at
this stage of the proceedings, the Court accepts as true
all of the complaint’s factual allegations. See Does v.
United States Dep’t of Justice, 753 F.2d 1092, 1102 (D.C.
Cir. 1985). Plaintiff is entitled to “the benefit of all
inferences that can be derived from the facts alleged.”
Kowal, 16 F.3d at 1276.
III. DEFAMATION
Plaintiff contends that defendant, the Examiner, committed
defamation when it published an article about the plaintiff
in the August 19, 2005 gossip column. Plaintiff also
alleges that defendant Bisney committed defamation when he
posted “fake” Page 7 articles he wrote about the plaintiff
on various websites (hereinafter referred to as “the
internet articles”). The August 19, 2005 article in the
Examiner is similar in content to Bisney’s internet
articles.[fn7]
According to the plaintiff, these articles are defamatory
because they allege that plaintiff uses her position at CNN
to meet and become romantically and sexually involved with
“power players,” i.e., wealthy, influential men; that she
“hooked up” with porn king Mark Kulkis; and that hooking up
with Kulkis was part of her pattern of using her position
in the media to meet prominent men for personal and
professional gain. These articles, which plaintiff alleges
are false,[fn8] have harmed her reputation professionally
and in her community. See Howard Univ. v. Best, 484 A.2d.
958, 988 (D.C. 1984).
In response, the Examiner argues that there is nothing
defamatory about a single woman being “linked romantically”
with single men. Since none of the men mentioned in the
column are married, there is no implication of sexual
misconduct or Page 8 impropriety. Moreover, the Examiner
argues, the phrase “hooked up” is not capable of defamatory
meaning because it just means that Mark Kulkis and
plaintiff met on a social basis. Finally, the plain meaning
of the statement that plaintiff “uses her position” to meet
the “right people” is that plaintiff is a CNN producer,
who, by definition, must use her position to meet the right
people, i.e., those in a position to supply her with
information for interviews and news stories. To the extent
that the Examiner article is similar to the internet
articles, Bisney adopts the Examiner’s arguments as to why
the internet articles are not defamatory.
A. Legal Framework
A publication is defamatory “if it tends to injure
plaintiff in his trade, profession or community standing,
or lower him in the estimation of the community.” Howard
Univ., 484 A.2d. at 988. “Whether a statement is capable of
defamatory meaning is a question of law.” Weyrich v. The
New Republic, 235 F.3d 617, 627 (D.C. Cir. 2001). If a
statement is reasonably capable of any defamatory meaning
then the Court cannot rule, as a matter of law, that it was
not libelous. Id. A statement found to be defamatory “must
be more than unpleasant or offensive.” Klayman v. Segal,
783 A.2d 607, 613 (D.C. 2001). It must be “odious, Page 9
infamous or ridiculous.”[fn9] Id.
The Court must consider the document as a whole, and must
examine the alleged defamatory statements within context.
Id. at 614 (“[c]ontext serves as a constant reminder that a
statement in an article may not be isolated and then
pronounced defamatory . . .”). Further, words should be
given their plain and natural meaning, and “the statements
at issue should not be interpreted by extremes, but should
be construed as the average or common mind would naturally
understand them.” Id. at 616. The plaintiff has the burden
of proving the defamatory nature of the challenged
statement. Id. at 613. Finally, when the Court is presented
with a Rule 12(b)(6) motion to dismiss a defamation action,
the Court must assume the falsity of the statements at
issue and that the statements were made by the defendants
with knowledge of their falsity or reckless disregard for
their truth. Id. at 614.
B. The Examiner’s August 19, 2005 Article is Capable of
Defamatory Meaning.
The article in the Examiner opens with a statement that
plaintiff “uses her position to meet all the `right’
people.” Page 10 The next sentence declares that “[s]he’s
been linked romantically with power players” and then lists
the names of eight men with whom plaintiff has had romantic
liaisons. Next, the article turns to plaintiff’s most
recent relationship and states that she “has hooked up”
with “porn king Mark Kulkis.”
When statements such as “uses her position to meet the
`right’ people”; “linked romantically with power players”;
and “hooked up” with a “porn king” are considered within
the context of the article as a whole and the words are
given their ordinary meaning, the Court finds that an
average, ordinary reader could likely comprehend that
plaintiff uses her position at CNN for personal gain.
Plaintiff is a single, professional woman in her mid-30s.
An allegation that she is using her position in the media
to meet and engage in romantic and sexual relations with
certain prestigious and powerful men, in order to advance
her career and social status, arguably makes the plaintiff
appear “odious, infamous and ridiculous.” The Court is
further persuaded that the article’s characterization of
the plaintiff and her alleged pattern of practice tend to
injure plaintiff’s reputation in her profession and her
overall standing in her community. See Howard Univ., 484
A.2d. at 988. Therefore, the article is reasonably capable
of defamatory meaning.
The Examiner argues that the phrase “linked romantically”
merely means that the plaintiff has been rumored to have
had Page 11 romantic relationships or love affairs with
the men mentioned, and that there is nothing defamatory
about dating or even sex between two consenting adults in
this day and age in a major metropolitan area. The Court
disagrees. The phrase “linked romantically” cannot be read
in isolation from the laundry list of prominent men with
whom plaintiff has allegedly been involved, the description
of plaintiff using her position to meet these right men,
nor the statement that she hooked up with a porn king. When
all of these statements are examined together within
context, the article paints a picture of an opportunistic
woman who will use her job in the media and sex to get what
she wants. Such an image conveys a lack of certain moral
and ethical restraint on the part of the plaintiff.
The same applies to the phrase “hooked up . . . with porn
king Mark Kulkis.” The Examiner argues that phrase is not
defamatory because it merely means that plaintiff and Mark
Kulkis met on a social basis.[fn10] However, when that
phrase is read in context, the Court is persuaded that it
does not merely mean that plaintiff and Mark Kulkis met on
a social basis. Rather, it implies that plaintiff engaged
in some conduct relating to sex with “porn king Mark
Kulkis” as part of her pattern of using her Page 12 CNN
position to meet such men.
Further, the Court is not persuaded by the Examiner’s
argument that the plain meaning of the statement that
plaintiff “uses her position” to meet the “right people” is
that plaintiff is a CNN producer who, by definition, must
“use her position” as a journalist to meet the “right”
people, i.e. those in a position to supply her with
information for interviews. The understanding the Examiner
attributes to the phrase in question can only be achieved
if the phrase is read in isolation. When it is examined in
context with the article in its entirety, the Court finds
that the meaning of that phrase is not so innocuous.
Rather, the meaning that readily comes to the surface is
that plaintiff is using her position as a CNN producer, not
to further any journalistic endeavors, but to meet and
become romantically involved with wealthy, influential
men.[fn11]
The Examiner also contends that only “serious sexual
misconduct” may give rise to defamatory meaning. The
Restatement (Second) of Torts (“Restatement”) § 574
(1977), however, states that “any statements that impute[]
any form of unchastity to a woman, married or single” have
been defined as “serious sexual Page 13 misconduct.”
Because the article alleges plaintiff of unchaste conduct,
it, by definition, has also alleged plaintiff of “serious
sexual misconduct.” See Restatement § 574. The
Examiner’s argument is therefore, unavailing, and the
plaintiff has shown at this juncture that the article in
the Examiner is capable of defamatory meaning.
Finally, the Examiner argues that the fact that the
article appeared in a gossip column should inform the Court
as to how a reasonable reader would understand the article.
The Examiner maintains that a reader would not take
seriously the allegations made in a gossip column, with its
“breezy” tone and casual language, as an allegation made in
a more serious investigative report. Because the article
appeared in a gossip column, argues the Examiner, it is
less likely that a reader would understand it to be an
allegation of unprofessional conduct.
The Court agrees that the tone of a gossip column could
certainly be different from a serious investigative report;
however, the August 19, 2005 article focused on the
plaintiff and implied certain conduct on the part of the
plaintiff that made plaintiff appear “odious, infamous and
ridiculous.” See Weyrich, 235 F.3d at 627. Therefore, even
though the article appeared in the gossip column, the Court
finds that it is capable of Page 14 defamatory
meaning.[fn12]
C. The “Correction” Published in the Examiner on September
30, 2005 is Not Reasonably Capable of Defamatory Meaning.
Plaintiff alleges that the “Correction” published in the
Examiner on September 30, 2005, again stated defamatory
allegations, namely that she used her position at CNN to
obtain romantic relationships. The Court disagrees.
When the “Correction” is read as a whole, it is clear that
the Examiner did not make any statements that are capable
of defamatory meaning. In fact, the Examiner corrected,
with apologies, any statements in the August 19, 2005
article that were determined to be false. Specifically, the
“Correction” states that the Examiner “did not intend to
suggest any improper relationship or misuse of her position
at CNN.” Because a reasonable person of ordinary
intelligence would understand the “Correction” as just
that, a correction to the inaccuracies contained in the
August 19, 2006 article, the Court concludes that the
September 30, 2005 “Correction” is not reasonably capable
of defamatory meaning as a matter of law. It does not Page
15 make plaintiff appear “odious, infamous or ridiculous.”
Before finding that the statements in the “Correction” are
not actionable, the Court must also examine whether the
statement places plaintiff in a “highly offensive” false
light. See Weyrich, 235 F.3d at 628 (“We remind the
District Court that, before finding that a statement is not
actionable, because it is not reasonably capable of
defamatory meaning, it must also satisfy itself that the
statement does not arguable place appellant in a `highly
offensive’ false light.”). The “Correction” regrets any
errors made in the August 19, 2005 article that may have
placed plaintiff in a false light and apologizes for any
offense taken. As such, the Court concludes that there is
nothing in the “Correction” that would place plaintiff in a
highly offensive false light.
D. Defendant Bisney’s Internet Articles are Reasonably
Capable of Defamatory Meaning.
There are many similarities between the August 19, 2005
article in the Examiner and Bisney’s internet
articles.[fn13] Not only do the defendants’ articles relay
the same information as to plaintiff’s alleged romantic
relationships, but the tone and the context in which the
information is presented are similar as well. Having
already determined that the August 19, 2005 article in the
Examiner is reasonably capable of defamatory meaning, the
Page 16 Court finds Bisney’s internet articles, when
considered as a whole and in context, are also reasonably
capable of defamatory meaning.
IV. INVASION OF PRIVACY[fn14]
A. Plaintiff Has Stated a Claim for False Light Against
Defendants the Examiner and Bisney.
Plaintiff has alleged that both defendants the Examiner
and Bisney have violated her privacy by placing plaintiff
in a false light. The Examiner argues that plaintiff’s
false light claim should be dismissed because the
statements in the article, even if false, would not be
“highly offensive to a reasonable person.” See Weyrich, 235
F.3d at 628. Defendant Bisney incorporates his arguments
against the defamation claim to the false light claim.
A false light invasion of privacy claim requires a showing
of (1) publicity (2) about a false statement,
representation or imputation (3) understood to be of and
concerning the plaintiff and (4) which places the plaintiff
in a false light that would be highly offensive to a
reasonable person. Klayman, 783 A.2d at 614. “Whereas an
action for defamation redresses damage to one’s reputation,
the tort of false light is intended to remedy mental Page
17 distress from having been exposed to public view.” Lane
v. Random House, Inc., 985 F. Supp. 141, 149 (D.D.C.
1995). However, “[t]here is a great deal of overlap between
the causes of action for defamation and false light.”
Moldea v. New York Times Co. 15 F.3d 1137, 1151 (D.C. Cir.
1994). “Publicity that is actionable in a false light claim
generally will be actionable in defamation as well.” Id.
Because the torts of defamation and invasion of privacy
false light are so similar, a plaintiff may only recover on
one of the two theories based on a single publication, but
is free to plead them in the alternative. Weyrich, 235 F.3d
at 628.
The Court’s reasons as to why the Examiner’s August 19,
2006 article and Bisney’s internet articles are capable of
defamatory meaning are applicable to the Court’s finding
that those articles would be highly offensive to a
reasonable person. Those articles, which implied that
plaintiff, a professional, single woman in her 30s, used
her job in the media to obtain romantic and sexual
relationships with “power players” for personal gain, and
that linked her in a sexual relationship with a “porn
king,” would be highly offensive to a reasonable person.
Accordingly, plaintiff has pleaded sufficient facts to make
out a claim for false light invasion of privacy against
both of the defendants.
B. Plaintiff has Stated a Claim for Public Disclosure of
Private Facts against Defendants the Examiner and Bisney.
The Examiner argues that invasion of privacy by public
Page 18 disclosure of private facts claim should be
dismissed because the sine qua non of this claim is that
the facts made public are intimate, private and true. Since
plaintiff has alleged in her complaint that most of the
statements in the August 19, 2005 article are false, by
plaintiff’s own admission, this claim must be dismissed.
Further, for the statements in the column that are true
— the identities of the men plaintiff actually dated
— those statements are not “highly offensive to a
reasonable person of ordinary sensibilities.” Wolf v.
Regardie, 553 A.2d 1213, 1220 (D.C. 1989).
Defendant Bisney adopts the Examiner’s arguments and adds
that with regard to plaintiff’s home and work numbers and
her home and email addresses posted on a website seeking
sexual relations, those true facts hardly amount to such
facts that would be highly offensive to a reasonable
person. Further, Bisney argues, because plaintiff’s phone
numbers and addresses were already available on the
internet, those facts are not private facts, and thus he
cannot be held liable for disclosing information already
known to the public.[fn15] Page 19
To recover for public disclosure of private facts, a
plaintiff must show (1) the publication of private facts
(2) in which the public has no legitimate concern (3) whose
publication would cause suffering, shame or humiliation to
a person of ordinary sensibilities. White v. Fraternal
Order of Police, 707 F. Supp. 579, 587 (D.D.C. 1989). This
privacy tort seeks to “redress reputational injuries made
all the more painful because the public revelations about
deeply private and intimate matters are undeniably true.”
Doe v. United States, 83 F. Supp. 2d 833, 842 (S.D. TX
2000).
The Examiner is correct that the sine qua non of this
claim is that the information revealed to the public is not
only intimate and private but also true. Plaintiff has
alleged that much of what the article has stated about her
is untrue: she does not use her position to meet the
“right” people; she has not been romantically involved with
Jonathan Ledecky, John McDonough, Mel Karmazin, or Hugh
O’Brien, and she has not been involved romantically or
otherwise with Mark Kulkis. Since those statements in the
column are false, the Court concludes that plaintiff cannot
bring a claim for public disclosure of private facts for
those statements.
The plaintiff, however, has stated that statements about
her condition, which is a private fact, would be highly
offensive to a reasonable person. Page 20 romantic
relationships with Gary Williams, Paul Bosserman, John
Daggit, and Julian Epstein are true. As such, if the public
has no legitimate concern in these matters and if the
publication of these facts “would cause suffering, shame or
humiliation to a person of ordinary sensibilities,” then a
claim for public disclosure of private facts has been
sufficiently pleaded at this time. The Court is persuaded
that it is unlikely that an unmarried, professional woman
in her 30s would want her private life about whom she had
dated and had sexual relations revealed in the gossip
column of a widely distributed newspaper, particularly in
the context in which the information was revealed. Further,
plaintiff’s personal, romantic life is not a matter of
public concern. Because the Court finds that unwanted
publication of such personal, true facts would cause
suffering, shame or humiliation to a person of ordinary
sensibilities, the plaintiff has sufficiently satisfied the
elements of this claim.[fn16]
Turning to Bisney’s argument, the Court must address
whether public disclosure of plaintiff’s phone numbers and
addresses on an internet site soliciting for sexual
relations would “cause suffering, shame or humiliation to a
person of ordinary Page 21 sensibilities.” Although
plaintiff’s phone numbers and addresses may be available to
the public on the internet and in phone books, that does
not negate the fact that the information are nonetheless
private facts. Individuals have a privacy interest in their
home addresses and phone numbers. See National Ass. of
Retired Fed. Employees v. Horner, 879 F.2d 873 (D.C. Cir.
1989) (privacy interests of individuals in avoiding the
unlimited disclosure of names and addresses is significant,
therefore individuals not only have a large measure of
control over the disclosure of their own identities and
whereabouts, but people expect to be able to exercise that
control); Heights Community Congress v. Veterans
Administration, 732 F.2d 526, 529 (6th Cir. 1984) (“The
importance of the right to privacy in one’s address is
evidenced by the acceptance within society of unlisted
telephone numbers . . . and postal boxes, which permit the
receipt of mail without disclosing the location of one’s
residence.”). Plaintiff’s phone numbers and home address
are private facts
In this case, plaintiff’s private facts were not published
in a website listing CNN producers or in a media bulletin
or in any such site. Rather, plaintiff’s private facts were
used for solicitation purposes. Plaintiff’s personal
information was provided to individuals seeking to have sex
with plaintiff under the information and belief that
plaintiff wanted to have sex with them. Such disclosure of
one’s private facts would be “highly Page 22 offensive to
a reasonable person of ordinary sensibilities.” Therefore,
the Court concludes that the plaintiff has stated a claim
for public disclosure of private facts against defendant
Bisney.[fn17]
C. Plaintiff has Failed to State a Claim for Intrusion
Upon Seclusion Against Defendant Bisney.
Intrusion upon seclusion has three elements: (1) an
invasion Page 23 or interference by physical intrusion by
use of a defendant’s sense of sight or hearing, or by use
of some other form of investigation or examination (2) into
a place where the plaintiff has secluded herself or into
her private or secret concerns (3) that would be highly
offensive to an ordinary, reasonable person. Wolf, 553 A.2d
at 1217. “It is the nature of the intrusion which initially
fixes liability.” Id. The types of invasion this tort seeks
to address are harassment, peeping through windows or into
other locations, opening personal mail, eavesdropping on
private conversations, entering plaintiff’s home without
permission, searching plaintiff’s belongings, examining
plaintiff’s private bank account or other invasions of that
nature. Id. at 1217-18.
In Count II of her complaint, plaintiff alleges that
defendant Bisney invaded her privacy by intruding upon her
seclusion. But plaintiff does not specify how Bisney
invaded or interfered with her seclusion by physical
intrusion. Plaintiff, however, does allege in her
opposition to Bisney’s motion that she suffers from a form
of herpes, see Pl.’s Opp., p. 21, and that disclosure of
this fact by Bisney satisfies the elements of intrusion of
seclusion.
Because plaintiff fails to explain whether Bisney learned
of this fact by physical intrusion into a place where she
secluded herself, the Court is not persuaded that the
elements of this claim have been met. Plaintiff does not
allege that Bisney Page 24 learned this fact by
eavesdropping on her private conversations or looking
through her personal papers. Rather she states that her
condition is a private fact that is known to only a few of
her close friends, such as Bisney.[fn18] Therefore, if
plaintiff told Bisney about her condition, then she cannot
claim that he intruded into a place where she secluded
herself. Accordingly, at this juncture this claim is
dismissed without prejudice.[fn19]
V. CONCLUSION
For the foregoing reasons, the Court finds that as a matter
of law, the Examiner’s August 19, 2005 article and Bisney’s
various internet articles are reasonably capable of
defamatory meaning. However, the Examiner’s September 30,
2006 “Correction” is not an actionable defamatory
statement. Also, plaintiff has sufficiently pleaded
invasion of privacy claims of false light and public
disclosure of private facts against both defendants. Page
25 Plaintiff, however, has failed to state a claim for
invasion of her privacy by intrusion upon her seclusion
against defendant Bisney. Accordingly, that claim is
dismissed at this time without prejudice. An appropriate
Order accompanies this Memorandum Opinion.
[fn1] Plaintiff does not allege in her Amended Complaint
that this “fake” article was published on any website or
publication.
[fn2] The article states:
CNN DC Bureau producer Kathy Benz has made something out
of a career out of dating wealthy, prominent local power
players, from Maryland hoops coach Gary Williams to
venture capitalist Mark Ein. But a recent paramour
apparently doesn’t have such deep pockets. In a dust-up
that has their bureau buzzing, CNN’s Hill radio reporter
John Bisney is ready to sue, hoping to recover $14,000 he
claims to have loaned Benz over the past year. With things
now on the skids, Bisney, also the long-time announcer
for Crossfire, wants his money back. “She told me she
needed tuition for a Georgetown MBA, but it went for her
personal expenses,” said Bisney, 50. “Kathy’s used to guys
shrugging it off, but to me that’s real money.” Benz, 34,
has been spotted around town in the company of Democratic
superlawyer Julian Epstein, Rep. Pete Sessions (R-Tex.),
Georgetown hairdresser to the stars Paul Bosserman and
Bush I chief of staff John Sununu. She was also engaged to
multimillionaire John Daggit, who made his fortune during
AOL’s heyday.
[fn3] One version of the articles on the internet states:
X-rated video mogul Mark Kulkis, who escorted porn star
Mary Carey to last month’s GOP dinner with President Bush,
has found a new love interest: Washington power dater and
CNN producer Kathy Benz.
The two only met a month ago during an interview while
Kulkis, 40, president and CEO of Kick Ass Pictures, was in
DC for the National Republican Congressional Committee’s
annual President’s Dinner. He’s honorary chairman of the
NRCC’s business Advisory Council, a roundtable of
millionaire entrepreneurs.
Benz denies cozying up to Kulkis to get a scoop for CNN
about the private lunch he and Carey had with White House
Chief of Staff Karl Rove. “Mark’s a wonderful guy and I
think this could be the real thing,” she tells
girlfriends.
Benz 35, is known in Washington power circles for dating
such figures as venture capitalist Jonathan Ledecky (now
trying to buy the Washington Nationals), Univ. of Maryland
basketball coach Gary Williams, and spent time last August
with Sirius CEO Mel Karmazin at his Hamptons home.
A second variation of the article has this final sentence:
“Her regular companions include Rep. Pete Sessions
(R-Tex.), John Sununu, Sr., venture capitalist Mark Ein,
John McDonough, and Democratic lawyer Julian Epstein. She
was engaged to John Daggitt, AOL millionaire.”
A third variation begins with “Cute catch of the day and
Kickass Pictures CEO, Mark Kulkis (40), has started dating
a little further up the food chain. Recent reports have
linked him to CNN producer Kathy Benz (35).” After listing
all the men plaintiff has allegedly dated, the articles
concludes with this final sentence, “Finally a relationship
in which Kulkis isn’t the sluttier one. Happy herpes!”
[fn4] The Examiner article states:
CNN Producer Kathy Benz, 35, uses her position to meet
all the “right” people. She’s been linked romantically
with power players — including venture capitalist
Jonathan Ledecky (a Washington Nationals ownership
hopeful), University of Maryland basketball coach Gary
Williams, Chicago Cubs VP John McDonough, Sirius CEO Mel
Karmazin, actor Hugh O’Brien, CNN correspondent John
Bisney, Georgetown hairstylist Paul Bosserman and her one
time fianc?©, AOL millionaire John Daggitt. Now she has
hooked up, according to her gal pals, with porn king Mark
Kulkis. The couple first met when Kulkis, 40, president
and CEO of Kick Ass Pictures, did a CNN interview while he
was in D.C. for the National Republican Congressional
Committee’s annual President’s Dinner. He’s the honorary
chairman of the NRCC’s Business Advisory Council. That’s a
roundtable of millionaire entrepreneurs. Kulkis made
tabloid headlines when he escorted porn star Mary Carey
to GOP dinner with President Bush in June. At that time,
he and Carey enjoyed a private lunch with White House
insider Karl Rove. Wouldn’t you have liked to have been a
fly on that wall?
[fn5] The Examiner’s “Correction” states:
Karen Feld’s August 9, 2005, “Buzz” Column discussed
several contacts made by Kathy Benz, an assignment editor
at CNN. The column said Ms. Benz had been linked
romantically with nine men. We now believe we were the
target of an Internet “spoofer” who used an email address
that appeared to come from another news organization. Ms.
Benz has filed a lawsuit against the Washington Examiner
regarding this column; while we ordinarily would not
comment on pending litigation, we have learned that Mark
Kulkis was interviewed by Ms. Benz but they never had a
relationship of any kind. In her complaint, Ms. Benz says
that she dated Gary Williams, Paul Bosserman and John
Daggitt, but did not date the other men mentioned in the
column. We regret the errors. We did not intend to suggest
any improper relationship or misuse of her position at CNN
and apologize to Ms. Benz for any offense taken.
[fn6] This claim is only asserted against defendant Bisney.
See Am. Compl. §§ 232-45.
[fn7] When compared to the Examiner’s August 19, 2005
article, Bisney’s internet articles name additional “rich
and powerful” men who are plaintiff’s “regular companions,”
describes in detail plaintiff’s love interest and
relationship with “X-rated video mogul” Mark Kulkis, and
alludes to a sexually transmitted disease, herpes.
[fn8] False but for the statements that she dated Paul
Bosserman, Gary Williams, John Daggitt, and Julian Epstein
are true. Am. Compl. § 66.
[fn9] Odious has been defined to mean “arousing or
deserving hatred or loathing”; infamous as “notorious or in
disgrace or dishonor”; and ridiculous as “deserving
ridicule,” which is the act of making someone or something
the object of scornful laughter by joking and mocking.
Klayman, 783 A.2d at 619.
[fn10] In contemporary slang, “hooking up” can mean
everything from a kiss to sexual intercourse. See
http://www.urbandictionary.com. Both plaintiff and the
Examiner recognize such meaning to the phrase “hooking up.”
See the Examiner’s Mot. to Dismiss at 10, fn. 6; Pl’s Opp.
at 11.
[fn11] Alternatively, the Examiner argues that the phrase
could be interpreted to mean that plaintiff has met men
through her position at CNN whom she later has seen on a
social basis, and such statement is hardly damaging to her
reputation. Again, as observed by the Court herein, when
the phrase is read and examined in context, it is capable
of defamatory meaning.
[fn12] The Examiner also argues that the article’s statement
that plaintiff “uses her position to meet all the `right’
people” is not a statement of fact, rather it is a
statement of opinion, therefore it is incapable of
defamatory meaning. This argument lacks merit. The Court
cannot discern what opinion is being proffered by the
statement in question. Rather, the statement clearly
imputes a fact that plaintiff is using her position to meet
all the right people.
[fn13] Compare footnotes 1-3.
[fn14] The tort of invasion of privacy protects against
four distinct types of invasions: false light; intrusion
upon one’s solitude or seclusion; public disclosure of
private facts; and appropriating one’s name or likeness for
another’s benefit. Wolf v. Regardie, 553 A.2d 1213, 1217
(D.C. 1989). In her amended complaint, plaintiff alleges
intrusion upon seclusion (Count II), public disclosure of
private facts (Count III), and false light (Count IV). See
Am. Compl. §§ 191-231.
[fn15] For the first time in her opposition to defendant
Bisney’s motion to dismiss, plaintiff alleges that she
suffers from a form of herpes, see Pl.’s Opp. at 21, and
argues that disclosure of this fact by Bisney satisfies the
elements of her disclosure of private facts claim. This
fact about the plaintiff is not presented anywhere in her
complaint or amended complaint. In one of defendant
Bisney’s internet articles, a reference to herpes is made
in relation to plaintiff’s and Mark Kulkis’ alleged
romantic relationship. The Court observes that public
disclosure of such a
[fn16] The same reasoning is applicable to Bisney’s argument
that disclosure of the names of the actual men plaintiff
dated is not “highly offensive to a reasonable person of
ordinary sensibilities.”
[fn17] Bisney cites to Wolf v. Regardie, 553 A.2d 1213
(D.C. 1989) to argue that once information is available to
the public from public sources, disclosure of that
information cannot be considered to be a disclosure of
private facts. The facts of Wolf, however, are
distinguishable. In Wolf, a media defendant published an
article listing plaintiff as one of Washington’s wealthiest
individuals. The information about plaintiff’s assets and
net worth was gathered through public records such as court
documents. The Wolf Court concluded that plaintiff failed
to establish that the facts published were private facts.
The Court based its holding on First Amendment principles
and the right of the press to publish “truthful information
already extent on the public record” because that is “of
critical importance to our type of government in which the
citizenry is the final judge of the proper conduct of
public business.” Wolf, 553 A.2d at 1221. In sum, the Court
stated that it was “reluctant to embark on a course that
would make public records generally available to the media
but forbid their publication if offensive to the
sensibilities of the supposed reasonable man.” Id. See also
Dresbach v. Doubleday & Co., 518 F. Supp. 1285, 1288
(D.D.C. 1981) (in an invasion of privacy for public
disclosure of private facts case, the court notes how
protection of First Amendment values have persuaded courts
to give broad latitude to those publications, which may
possibly reveal private information offensive to the
ordinary person, but are of public or general interest).
The situation in this case is markedly different. There are
no freedom of the press concerns here, nor was Bisney
disclosing facts of public interest and concern. Rather, he
disclosed plaintiff’s private information to a discrete
audience, and a reasonable person of ordinary sensibilities
would be highly offended if their personal information was
disclosed without consent to such an audience.
[fn18] The actual sentence reads, “Ms. Benz suffers from a
form of herpes, a private fact unknown to only a few of her
close friends, such as Bisney.” Pl.’s Opp. at 21. The Court
notes that the sentence is unclear due to a misuse of a
word. Bisney in his reply has interpreted this sentence to
mean that Bisney knew of plaintiff’s condition, which was
disclosed to him by plaintiff because he was one of her
close friends. See Bisney’s Reply at 7. Plaintiff has not
made any representations that such a reading of that
sentence is incorrect. Therefore, because Bisney’s reading
of that sentence is the most reasonable interpretation
given the context, the Court adopts that interpretation.
[fn19] In view of the apparent ambiguity over how Bisney may
have learned of plaintiff’s condition, the plaintiff shall
have ten days from the date of this Order to file a
pleading seeking any appropriate relief. Page 1