Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, April 1, 2008

District Court Dismisses Group Libel Case Against NBC Universal

The U. S. District Court for the Southern District of New York has granted the defendant's motion to dismiss in the case of Diaz v. NBC Universal (the "American Gangster" case), a class action case in which the plaintiffs alleged that "the three named plaintiffs and every New York City-based DEA agent during that 12 year period were defamed by an allegedly false legend that appears on screen at the end of the film. The legend says that Frank Lucas’ `collaboration [with law enforcement] led to the conviction of three quarters of New York City's Drug Enforcement Agency.'" The plaintiffs sued for "libel, intentional infliction of emotional distress, and negligent infliction of emotional distress" and requested an injunction until the allegedly false and defamatory legend that appeared at the end of the film was removed.

The Court notes that the plaintiffs present only one defamatory statement: "stating that Lucas’ cooperation with authorities after his arrest `led to the conviction of three quarters of New York City's Drug Enforcement Agency.'" This statement illustrates the problem: the plaintiffs cannot meet the "of and concerning" requirement for the defamation claim.

Nonetheless, plaintiffs allege that each of them can be identified by an average viewer because the film depicts as corrupt virtually the entire New York City narcotics law enforcement community. Therefore, plaintiffs argue that the legend need not reference the plaintiffs by name. Plaintiffs rely on Brady v. Ottaway Newsparers, Inc....In Brady, the court permitted a group of 53 unindicted police officers to pursue a libel claim based upon a newspaper publication that stated that their “entire [police] department was under a cloud” because of the indictment of some of them. In this case, however, the legend did not cast a cloud over the entire (non-existent) “New York City DEA;” it said that a fraction (albeit a substantial fraction) of the members of that group were convicted....Thus, even assuming arguendo that the legend concerned the plaintiff group, plaintiffs’ libel claim would still be barred. At a minimum, plaintiffs argue that the claims of the nine DEA agents who took part in the search of Lucas’ home should be permitted to go forward, because (1) that subset of the entire group is small enough to fall within the exception to the group libel doctrine, and (2) the searching officers in the Film engage in particularly despicable conduct that never happened. To support their position, plaintiffs argue that the article on which the Film is based, “Return of the Superfly,” by Mark Jacobson, contains a contention by Lucas that Agent Korniloff and his DEA colleagues took nine or ten million dollars from him during this search. During the search scene in the film, a character portraying a corrupt NYPD officer tells Lucas’ wife that the, “Feds are going to come in and take everything, take it all, but not before I get my gratuity.” (He then steals money.) Plaintiffs contend that these statements allegedly defame “the Feds” (i.e., the DEA), and so need not reference these plaintiffs by name, since an average viewer who was aware that DEA searched the house would view these DEA agents as having stolen nine or ten million dollars (“take[n] it all”). The same viewer would then assume that DEA agents were later convicted for these crimes. The first thing to note is that the Complaint does not mention the Jacobson article, so it is of no moment what it does or does not say. Moreover, it would be improper to “bootstrap” an erroneous statement in the Jacobson article onto the movie (which does not track the article), and then to find that the movie (not the article) libels Korniloff and his companions. In the film, the nine DEA agents who participated in the search are not identifiable. The film never names the DEA agents who searched Lucas’ home....Nor does the film mention that DEA agents (or anyone else) stole “nine or ten million dollars” from Lucas’ home. The movie does not show a single person who is identifiable as a DEA agent. The person who steals the money is an NYPD officer. (In fact, the line quoted by plaintiffs could just as easily mean that the “Feds” would seize “all” of Lucas’ money legally, and that the corrupt NYPD officer wanted to get his “gratuity” before the “Feds” got there.) A viewer must go beyond the movie (i.e., have read the Jacobson article) to know that Lucas alleged the theft of a much greater sum by the DEA agents (“Feds”) who searched his house. Korniloff may have been libeled by Lucas’ statement in the “Superfly” article (as to which the statute of limitations has long run). However, he and the eight other DEA agents were not libeled by the legend that appears onscreen at the end of American Gangster. The cause of action for libel is dismissed as barred by the group libel doctrine. I need not reach defendant's alternative argument that no reasonable person could interpret the legend as referring to federal DEA agents, rather than New York City police officers.
With regard to the IIED and NIED claims, the Court said, "Plaintiffs’ claims for intentional and negligent infliction of emotional distress are barred under the same constitutional and common law principles as plaintiffs’ libel claim. They too must be dismissed."
Finally, the Court suggested that "It would behoove a major corporation like Universal (which is owned by a major news organization, NBC) not to put inaccurate statements at the end of popular films. However, nothing in this particular untrue statement is actionable."
The case is Diaz v. NBC Universal, 36 Med.L.Rptr. 1419 (S.D.N.Y. 2008); 2008 U.S. Dist. LEXIS 15294; 2008 WL 465135 (2008).

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