The opinion of the Court was delivered by HANDLER, J.

          More than ten years ago Joseph Kallinger and his son went on a criminal rampage in Pennsylvania and New Jersey. The offenses were vicious, involving physical threats and sexual abuse of victims during the course of robberies of suburban homes. Kallinger murdered his victims on three occasions. In 1983, approximately eight years after Kallinger and his son had 286*286 been apprehended, the defendant Simon & Schuster Publishing Inc. published a book entitled "The Shoemaker," written by the defendant Flora Rheta Schreiber, depicting the life and crimes of Joseph Kallinger. The book gave rise to this litigation.

          The plaintiffs, Randi Romaine, Edwina Wiseman, Retta Romaine Welby, and Frank Welby, were victims of Kallinger, whose criminal acts against them resulted in the murder of a young woman, Maria Fasching. Plaintiffs sued the defendants Kallinger, Elizabeth Kallinger, his wife, Schreiber, Simon & Schuster, and Paul J. Giblin, claiming to have been legally injured by defamatory and offensively intrusive statements relating to these crimes contained in "The Shoemaker." Plaintiffs sought in separate counts the award of compensatory and punitive damages based respectively on libel and invasion of privacy by being cast in a false light; they also claimed that their privacy had been invaded through the unreasonable publication of private facts. Other counts of the complaint sought damages based on unjust enrichment and the "Son of Sam" provisions of the Criminal Injuries Compensation Act of 1971, N.J.S.A. 52:4B-26 to -33.

          Defendants Simon & Schuster and Schreiber filed motions for summary judgment seeking dismissal of the action. Plaintiffs filed cross-motions including one seeking partial summary judgment in favor of plaintiff Randi Romaine with respect to the defamation claim. The trial court granted defendants' motion for summary judgment with respect to the defamation and privacy claims. It also granted defendants summary judgment with respect to the unjust enrichment claims and with respect to claims based on the Criminal Injuries Compensation Act. The court also denied plaintiffs' cross-motion for summary judgment.

          Plaintiffs filed a notice of appeal. In an unpublished opinion, the Appellate Division affirmed the dismissal of the defamation and privacy claims substantially for the reasons expressed in the 287*287 comprehensive opinion of Judge Cassidy, the trial judge. Plaintiffs then filed a petition for certification, which was granted by this Court. ___ N.J. ___ (1987).

I.

          The factual context of this litigation is important. Ms. Schreiber, the author of "The Shoemaker," is a professor at the City University of New York, John Jay College of Criminal Justice. Although she has no formal training as a psychologist, Ms. Schreiber has written extensively about psychological subjects, and has focused on the problem of child abuse in her work. She is the author of Sybil, a study of a woman who suffered from a multiple-personality disorder.

          According to defendants, Professor Schreiber's work is an in-depth study of the psychological make-up of a killer. Specifically, the book explores the relationship between the abuse suffered by Kallinger as a child and the psychotic behavior that led to his criminal acts. "The Shoemaker" received a significant amount of critical praise and Schreiber was named "Author of the Year" by the American Society of Journalists and Authors in 1985 in recognition of her work.

          The complaint focuses on a chapter of "The Shoemaker" called "The Hunting Knife." The chapter, which consists of twenty-one pages out of a total of 423, describes the murder of Maria Fasching on January 8, 1975, in Leonia, New Jersey. The chapter relates that Kallinger and his son broke into the home of Mr. and Mrs. DeWitt Romaine. Eight people, who were in the home, were held hostage by Kallinger and his son. Kallinger ordered several of them to remove their clothes, and tied them up. He committed acts of personal abuse and physical degradation on two of the women. While this was occurring, Maria Fasching, a friend of one of the victims, the plaintiff Randi Romaine, came into the house. She was also captured by Kallinger. He directed Ms. Fasching, a nurse, to 288*288 perform an act of sexual mutilation on plaintiff Frank Welby, who was tied up and helpless. When she refused to do so, he killed her by slashing her throat several times. About one-half of the chapter is devoted to Kallinger's own recollections of the murder, obtained by Schreiber during interviews with him; these recollections are presented to indicate the extent that Kallinger's acts were the product of his mental illness. The balance of the chapter consists of the re-creation of the murder, as derived from testimony offered at Kallinger's trial by the survivors of the incident.

          On the second page of "The Hunting Knife" chapter this passage appears relating the circumstances leading up to Maria Fasching's visit to the Romaine house:

2:45 p.m. A black Volkswagen parked in front of the tan stucco house. A slender woman, whose name was Maria Fasching, turned off the ignition, put the key into the pocket of her imitation fur coat, and stepped gracefully out of her car. She was five feet two inches tall, had brown shoulder-length hair, brown eyes, and a round face with full lips. She was engaged to be married, and, already a licensed practical nurse, she looked forward to becoming an RN.

A militant women's libber, Maria Fasching was famous among her friends for her battles on behalf of the weak and downtrodden. She would always try to rescue someone a bully had attacked, and she could not tolerate racists.

Maria thought of herself as a "free spirit." She resisted anything that she considered a restriction on her freedom. She cared for cats that had been hit by cars and for birds with broken wings.

Today, Maria Fasching was on the four-to-midnight shift at Hackensack Hospital, and she wore her nurse's uniform under her coat. In the morning Maria's friend Randi Romaine, who lived in the stucco house, had called Maria and asked her to drop over for coffee. The two women had not seen each other for a long time, for, between hospital duties and preparations for her wedding, Maria's schedule was full.

At first Maria said that she couldn't visit because she had to go to a wake. The wake, however, was only for an acquaintance. Randi and her twin sister, Retta, had been Maria's friends since they were all in the first grade. Besides, Maria was eager for news from Randi about a junkie they both knew who was doing time in prison. Finally, Maria changed her mind. She didn't go to the wake, but drove her Volkswagen to the two-story tan stucco house at 124 Glenwood Avenue, the house of Mr. and Mrs. Dewitt Romaine.

          According to plaintiffs, one sentence in the passage falsely depicts the reason for Ms. Fasching's visit: "Besides, Maria was eager for news from Randi about a junkie they both knew 289*289 who was doing time in prison." This sentence, it is claimed, is defamatory as a matter of law and constitutes a false-light invasion of privacy.[1] The chapter's general narration of the criminal events, from which this passage is taken, is in turn the basis for plaintiffs' invasion of privacy by unreasonable publication of private facts claim.

II.

          Plaintiff Randi Romaine asserts that the particular sentence is defamatory as a matter of law, or alternatively, that the statement's defamatory content was at least a question for the jury. She claims this sentence falsely accuses her of criminality or associations with criminals. Plaintiff also contends that the false accusation was particularly damaging because it injured Ms. Romaine's professional reputation as a drug counsellor and a social worker, interfering with her ability to obtain future employment.

          A defamatory statement is one that is false and "injurious to the reputation of another" or exposes another person to "hatred, contempt or ridicule" or subjects another person to "a loss of the good will and confidence" in which he or she is held by others. Leers v. Green, 24 N.J. 239, 251 (1957); see W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts, ¶ 111 at 773-78 (5th ed. 1984); see also Restatement (Second) of Torts § 559 (1977) (a defamatory communication is one that "tends so to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.")

          290*290 The threshold issue in any defamation case is whether the statement at issue is reasonably susceptible of a defamatory meaning. Kotlikoff v. The Community News, 89 N.J. 62, 67 (1982); Mosler v. Whelan, 28 N.J. 397, 404 (1958). This question is one to be decided first by the court. See Lawrence v. Bauer Publishing & Printing Ltd., 89 N.J. 451, 459, cert. denied, 459 U.S. 999, 103 S.Ct. 358, 74 L.Ed.2d 395 (1982); Leers v. Green, supra, 24 N.J. at 253; Karnell v. Campbell, 206 N.J. Super. 81, 88 (App.Div. 1985). In making this determination, the court must evaluate the language in question "according to the fair and natural meaning which will be given it by reasonable persons of ordinary intelligence." Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 431 (App. Div.), aff'd on rehearing, 49 N.J. Super. 551 (App.Div. 1958); see Molnar v. The Star-Ledger, 193 N.J. Super. 12, 18 (App.Div. 1984); Dressler v. Mayer, 22 N.J. Super. 129, 135 (App.Div. 1952). In assessing the language, the court must view the publication as a whole and consider particularly the context in which the statement appears. See Karnell v. Campbell, supra, 206 N.J. Super. at 88; Molnar v. The Star-Ledger, supra, 193 N.J. Super. at 18; Dressler v. Mayer, supra, 22 N.J. Super. at 135; see also Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761, 764 (D.N.J. 1981) (applying New Jersey law).

          If a published statement is susceptible of one meaning only, and that meaning is defamatory, the statement is libelous as a matter of law. See Mosler v. Whelan, supra, 28 N.J. at 405; Herrmann v. Newark Morning Ledger Co., supra, 48 N.J. Super. at 430. Conversely, if the statement is susceptible of only a non-defamatory meaning, it cannot be considered libelous, justifying dismissal of the action. See Pierce v. Capital Cities Communications Inc., 576 F.2d 495, 501-04 (3d Cir.) (applying Pennsylvania law), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 170 (1978); Cibenko v. Worth Publishers, supra, 510 F. Supp. at 764-65. However, in cases where the statement is capable of being assigned more than one meaning, one of which is defamatory and another not, the question of 291*291 whether its content is defamatory is one that must be resolved by the trier of fact. See Lawrence v. Bauer Publishing & Printing Ltd., supra, 89 N.J. at 459; Mosler v. Whelan, supra, 28 N.J. at 404-05; Karnell v. Campbell, supra, 206 N.J. Super. at 88; Herrmann v. Newark Morning Ledger Co., supra, 48 N.J. Super. at 430.

          Certain kinds of statements denote such defamatory meaning that they are considered defamatory as a matter of law. A prime example is the false attribution of criminality. See Hoagburg v. Harrah's Marina Hotel Casino, 585 F. Supp. 1167, 1170 (D.N.J. 1984); Karnell v. Campbell, supra, 206 N.J. Super. at 88-89; cf. Lawrence v. Bauer Publishing & Printing Ltd., supra, 89 N.J. at 459-60 (statement that plaintiff might be charged with criminal conduct defamatory as a matter of law). Relying essentially on this example of defamation, plaintiff Randi Romaine contends in this case that the published offending statement must be considered libelous per se. According to Ms. Romaine, the sentence has only a defamatory meaning, in that it accuses her of having engaged in criminal conduct or having associated with criminals relating to drugs.

          The trial court concluded, and the Appellate Division agreed, that only the most contorted reading of the offending language could lead to the conclusion that it accuses plaintiff of illegal drug use or criminal associations. We concur in the determinations of the courts below. "[A]ccording to the fair and natural meaning which will be given [this statement] by reasonable persons of ordinary intelligence," Herrmann v. Newark Morning Ledger Co., supra, 48 N.J. Super. at 431, it does not attribute any kind of criminality to plaintiff. A reasonable and fair understanding of the statement simply does not yield an interpretation that the plaintiff was or had been in illegal possession of drugs or otherwise engaging in any illegal drug-related activity. See Valentine v. C.B.S., Inc., 698 F.2d 430, 432 (11th Cir.1983) ("The plaintiff's interpretation does not 292*292 construe the words as the common mind would understand them but is tortured and extreme."); Forsher v. Bugliosi, 26 Cal.3d 792, 805, 608 P.2d 716, 723, 163 Cal. Rptr. 628, 635 (1980) ("the claimed defamatory nature of the book as it relates to appellant is so obscure and attenuated as to be beyond the realm of reasonableness").

          At most, the sentence can be read to imply that plaintiff knew a junkie. Even if we assume that a commonly accepted and well-understood meaning of the term "junkie" is "a narcotics peddler or addict," Webster's Third New International Dictionary 1227 (1981), see also Dictionary of American Slang 300 (2d ed. 1975) (defining "junkie" as a "drug addict"), the statement still does not suggest either direct or indirect involvement by plaintiff herself in any criminal drug-related activities. Absent exceptional circumstances, the mere allegation that plaintiff knows a criminal is not defamatory as a matter of law. See. e.g.. Gonzales v. Times Herald Printing Co., 513 S.W.2d 124 (Tex.Civ.App. 1974) (statement that plaintiff's husband was engaged in the sale and importation of narcotics did not defame her); Rose v. Daily Mirror, Inc., 284 N.Y. 335, 31 N.E.2d 182 (1940) reh'g denied, 285 N.Y. 616, 33 N.E.2d 548 (1941) (plaintiff not defamed by being mistakenly described as the widow of a mobster); cf. Bufalino v. Associated Press, 692 F.2d 266 (2d Cir.1982) (mere imputation of family relationship with Mafia leader not defamatory; characterization of plaintiff as a political contributor with alleged mob ties found to have a potentially defamatory meaning), cert. denied, 462 U.S. 1111, 103 S.Ct. 2463, 77 L.Ed.2d 1340 (1983).

          Beyond the language itself, we are satisfied that the statement in its contextual setting cannot fairly and reasonably be invested with any defamatory meaning. Maria Fasching, we note, is described in the chapter as a person who had compassion for others and who would care for less fortunate persons. The reasonable meaning of the critical sentence that is implied from this context is that Ms. Fasching's interest in the "junkie" stemmed from sympathy and compassion, not from any prediliction 293*293 toward or involvement in criminal drug activity. As extended to Randi Romaine, the only fair inference to be drawn from the larger context is that Ms. Romaine shared her friend's feelings, attitudes and interests, and that her own interest in the junkie was similar to that of Ms. Fasching's.

          We note the further contention that this statement had a defamatory meaning because it implied that the only reason for Ms. Fasching's visit to the Romaine home was her "interest" in news about a "junkie." A review of the full text, however, indicates that there were several reasons for the visit, only one of which was Ms. Fasching's interest in the "junkie." The lower courts soundly rejected this contention.

          We conclude that the statement is not defamatory as a matter of law and accordingly uphold the ruling of the lower court on this point.

III.

          Plaintiffs claim that the publication of the statement invaded their privacy by placing them in a false light. They allege that because it implies criminal conduct or associations with drug users on their part, the statement thus casts them in a false light that is highly offensive to a reasonable person. The trial court's dismissal of this count of the complaint was upheld by the Appellate Division.

          It is accepted in New Jersey that a cause of action exists for invasions of privacy involving "publicity that unreasonably places the other in a false light before the public." See, e.g., Machleder v. Diaz, 801 F.2d 46, 53 (2d Cir.1986), cert. denied, Machleder v. CBS, Inc., ___ U.S. ___, 107 S.Ct. 1294, 94 L.Ed.2d 150 (1987) (applying New Jersey law); Cibenko v. Worth Publishers, Inc., supra, 510 F. Supp. at 766; Faber v. Condecor, Inc., 195 N.J. Super. 81, 86-87 (App.Div.), certif. denied, 99 N.J. 178 (1984); Bisbee v. John C. Conover Agency, 186 N.J. Super. 335, 339 (App.Div. 1982); N.O.C., Inc. v. Schaefer, 197 N.J. Super. 249, 253-54 (Law Div. 1984); Devlin v. 294*294 Greiner, 147 N.J. Super. 446, 461-62 (Law Div. 1977); Palmer v. Schonhorn Enterprises, Inc., 96 N.J. Super. 72, 75 (Ch.Div. 1967). Liability for this form of privacy invasion is found when

[o]ne ... gives publicity to a matter concerning another that places the other before the public in a false light [and]

........

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. [Restatement (Second) of Torts § 652E.]

          There are differing interests protected by the law of defamation and the law of privacy, which account for the substantive gradations between these torts. The interest protected by the duty not to place another in a false light is that of the individual's peace of mind, i.e., his or her interest "in not being made to appear before the public in an objectionable false light or false position, or in other words, otherwise than as he is." Restatement (Second) of Torts § 652E, comment b; see Comment, "False Light: Invasion of Privacy?", 15 Tulsa L.J. 115, 117 (1979). "The action for defamation," on the other hand, "is to protect a person's interest in a good reputation...." Prosser and Keeton on the Law of Torts, supra § 117, at 864. Nevertheless, despite analytical distinctions, there is a conceptual affinity between the causes of action based on these two theories. See Cibenko v. Worth Publishers, Inc., supra, 510 F. Supp. at 766; Bisbee v. John C. Conover Agency, supra, 186 N.J. Super. at 342. As with the requirement in defamation actions that the matter publicized be untrue, a fundamental requirement of the false light tort is that the disputed publicity be in fact false, or else "at least have the capacity to give rise to a false public impression as to the plaintiff." Annotation, "False Light Invasion of Privacy-Cognizability and Elements," 57 A.L.R. 4th 22, 104 (1987); see Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 907 (D.N.J. 1986); Cibenko v. Worth Publishers, Inc., supra, 510 F. Supp. at 766; Bisbee v. John C. Conover Agency, supra, 186 N.J. Super. 295*295 at 342; Restatement (Second) of Torts, § 652E, comment b. However, unlike a defamation claim, it is not necessary in false-light actions that the material that casts plaintiff in a false light also injure her standing in the community. See Cibenko v. Worth Publishers, Inc., supra, 510 F. Supp. at 766; Restatement (Second) of Torts § 652E, comment b.

          The publicized material in a false-light claim must constitute a "major misrepresentation of [plaintiff's] character, history, activities or beliefs." Jonap v. Silver, 1 Conn. App. 550, 559, 474 A.2d 800, 806 (1984). Thus, there can be no recovery for false-light invasion of privacy unless it is shown that the publicity at issue was of a character "highly offensive to a reasonable person." Restatement (Second) of Torts § 652E; see Machleder v. Diaz, supra, 801 F.2d at 53; Bisbee v. John C. Conover Agency, supra, 186 N.J. Super. at 342. This protection of privacy does not extend to the "hypersensitive person;" the material publicized "must be something that would be objectionable to the ordinary person under the circumstances." Prosser and Keeton on the Law of Torts, supra, § 117, at 864.

          As with defamation claims, it is for the court first to determine whether the criticized matter is capable of the meaning assigned to it by plaintiff, and whether that meaning is highly offensive to a reasonable person. See Cibenko v. Worth Publishers, Inc., supra, 510 F. Supp. at 766; cf. McCabe v. Village Voice, Inc., 550 F. Supp. 525, 529 (E.D.Pa. 1982) (dismissing false-light privacy claim on the ground that the material was not susceptible of a meaning highly offensive to a reasonable person). In making this determination, the court "should not consider words or elements in isolation, but should view them in the context of the whole article to determine if they constitute an invasion of privacy." Rinsley v. Brandt, 700 F.2d 1304, 1310 (10th Cir.1983) (applying Kansas law).

          We concur in this case with the trial court's analysis of the criticized statement and the court's determination that it could not reasonably be construed to constitute an accusation of 296*296 illegal drug use; nor, as we have pointed out, is it reasonably susceptible of an interpretation denoting that any of the plaintiffs associated with illegal drug users or traffickers. Because the sentence does not carry the meaning ascribed to it by plaintiffs, it cannot be found to be highly offensive to a reasonable person, and it could not have cast plaintiffs in a false light. See Cibenko v. Worth Publishers, Inc., supra, 510 F. Supp. at 766-67; Fogel v. Forbes, Inc., 500 F. Supp. 1081, 1088 (E.D.Pa. 1980) (applying Pennsylvania law).

          Furthermore, the subject matter of the criticized sentence constitutes only a minor or insubstantial portion of the overall text. For this additional reason, any inaccuracies or false statements contained in that material cannot fairly be regarded as highly offensive to a reasonable person as a matter of law. See, e.g. University of Notre Dame Du Lac v. Twentieth Century-Fox Film Corp., 22 A.D.2d 452, 256 N.Y.S.2d 301, aff'd 15 N.Y.2d 940, 259 N.Y.S.2d 832, 207 N.E.2d 508 (1965) (satirical references to plaintiff as president of university were not actionable since they were of a "fleeting and incidental nature."); see also Koussevitzky v. Allen, Towne & Heath, Inc., 188 Misc. 479, 485, 68 N.Y.S.2d 779, 784 (Sup.Ct.), aff'd, 272 A.D. 759, 69 N.Y.S.2d 432, appeal denied, 272 A.D. 794, 71 N.Y.S.2d 712 (1947) (fictionalized or exaggerated references in biography of prominent conductor not actionable because they were only a minor part of the entire text and therefore not "repugnant to one's sense of decency."); Carlisle v. Fawcett Publications, Inc., 201 Cal. App.2d 733, 748, 20 Cal. Rptr. 405, 415 (1962) (certain minor inaccuracies and fictionalizations in an account of plaintiff's marriage to the actress Janet Leigh did not constitute an invasion of privacy).

          Not even the most strained reading of the sentence reveals a meaning that in any way concerns the plaintiffs other than Randi Romaine or places them in a false or meretricious light. To the extent that these plaintiffs may be viewed as asserting a "relational right of privacy," no plausible basis for such a cause of action can be gleaned from the record. See Fasching v. 297*297 Kallinger, 211 N.J. Super. 26, 39-41 (App.Div. 1986); Weller v. Home News Publishing Co., 112 N.J. Super. 502, 507 (Law Div. 1970); see also Young v. That was the Week That Was, 312 F. Supp. 1337, 1341 (N.D.Ohio 1969), aff'd, 423 F.2d 265 (6th Cir.1970) (same result under Ohio law); Cordell v. Detective Publications, Inc., 307 F. Supp. 1212, 1218-19 (E.D.Tenn. 1968), aff'd, 419 F.2d 989 (6th Cir.1969) (Tennessee law); Restatement (Second) of Torts § 652I, comment a ("The right protected by the action for invasion of privacy is a personal right, ... and it cannot be maintained by other persons such as members of the individual's family.")

          Accordingly, we conclude that the lower courts properly determined that plaintiffs had failed as a matter of law to demonstrate that the particular passage tortiously invaded their protectable privacy interests by placing them in a false light.

IV.

          Plaintiffs contend that the chapter "The Hunting Knife" publicizes matters pertaining to their private lives in a manner offensive to a reasonable person. They thus claim a cause of action based upon the invasion of privacy by the unreasonable publication of private facts. In making this claim, plaintiffs concede that the chapter is an accurate and truthful depiction of the events that occurred on January 8, 1975. However, they contend that their criminal victimization, personal degradation, and physical abuse at the hands of Kallinger occurred in private, and that disclosure of the details of these crimes eight years after their occurrence is highly offensive.

          The invasion of privacy by unreasonable publication of private facts occurs when it is shown that "the matters revealed were actually private, that dissemination of such facts would be offensive to a reasonable person, and that there is no legitimate interest of the public in being apprised of the facts publicized." Bisbee v. John C. Conover Agency, supra, 186 N.J. Super. at 340; see Restatement (Second) of Torts § 652D.

          298*298 It is important to stress that this privacy tort permits recovery for truthful disclosures. For this reason the recognition of such a tort creates significant potential for conflict with the guarantees contained in the first amendment of the Constitution. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 489, 95 S.Ct. 1029, 1043, 43 L.Ed.2d 328, 346 (1975); see Forsher v. Bugliosi, supra, 26 Cal.3d at 809, 608 P.2d at 725, 163 Cal. Rptr. at 637 (citing Warren & Brandeis, "The Right to Privacy," 4 Harv.L.Rev. 193, 214 (1890)); Restatement (Second) of Torts § 652D, Special Note. This constitutional dimension explains the stringency of the requirements that must be met in order successfully to establish this privacy-invasion cause of action.

          The critical chapter describes the painful treatment, the humiliation, and abuse that the plaintiffs suffered at the hands of Kallinger. Such publicity is likely traumatic and profoundly disturbing for plaintiffs and would be highly offensive to a reasonable person because it exposes to the public eye the suffering and degradation that they were forced to endure. However, plaintiffs' appeal fails because the facts revealed are not private, and even if they were private, they are of legitimate concern to the public and so privileged under the "newsworthiness" exception to the "unreasonable publication of private facts" claim.

          The determination as to whether published facts are actually private constitutes the first key element of this cause of action. If the facts are public information, even though they relate to matters of individual privacy, they cannot for these purposes be considered "private." The court must first determine then whether the published facts were in the public domain, and hence not private facts.

          Public records that recount or disclose particular facts may serve to place such facts in the public arena and thus bar a claim for publication of private facts. While the term "public records" is not self-defining, we need not in this case determine 299*299 the extent to which particular official governmental records place facts in the public domain. Here, the facts complained of were contained in non-confidential official court records of the Kallinger trial.

          In Cox Broadcasting Corp. v. Cohn, supra, the Supreme Court addressed the question of whether a television station could be held liable to the family of a deceased rape victim for the publication of her name. The victim's name was obtained from a copy of the indictment of her suspected assailant; the document was a part of the public record of the trial. Id., 420 U.S. at 472-73, 95 S.Ct. at 1035, 43 L.Ed.2d at 336. Observing that "the interests of privacy fade when the information already appears on the public record," the Supreme Court held that "the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection." Id. at 494-95, 95 S.Ct. at 1046, 43 L.Ed.2d at 349-50.

          In Cox Broadcasting, the Supreme Court refused to engage in an inquiry into whether the publication was offensive to the sensibilities of the reasonable person: "Such a rule ... would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public." Id. at 496, 95 S.Ct. at 1046-47, 43 L.Ed.2d at 350. Many cases similarly recognize facts contained in a public court record can be published without liability, even when the information may be embarassing or normally considered "private", because the court record places the facts in the public arena. See, e.g., Dresbach v. Doubleday, 518 F. Supp. 1285, 1290 (D.D.C. 1981) ("republication of matters which are in the public record of the trial and related proceedings, no matter how private or offensive, as information contained in the public record is absolutely privileged."); Doe v. Sarasota-Bradenton Television, 436 So.2d 328, 329-30 (Fla. Dist. Ct. App. 1983) (no liability for broadcast of the name of rape victim who testified at trial); Poteet v. 300*300 Roswell Daily Record, 92 N.M. 170, 172, 584 P.2d 1310, 1312 (Ct.App. 1978) (same); Montesano v. Donrey Media Group, 99 Nev. 644, 650-51, 668 P.2d 1081, 1085-86 (1983), cert. den., 466 U.S. 959, 104 S.Ct. 2172, 80 L.Ed.2d 555 (1984) (no liability for reporting plaintiff's 23-year-old hit-and-run conviction).

          This authority demonstrates that the trial court's grant of summary judgment in favor of defendants on the count charging unreasonable publication of private facts was proper. The circumstances of this case fall squarely within the freedom to publish information contained in public court records sanctioned by Cox Broadcasting. The details and facts that plaintiffs claim invaded their privacy were made public by the testimony in court by plaintiffs and other witnesses. They were part of the court record in Kallinger's trial and were extensively reported on at the time of the trial.

          Plaintiffs also contend that recovery should not be barred in this case because eight years passed between the crimes depicted in "The Shoemaker" and the publication of the book. This argument is unpersuasive. The Cox Broadcasting opinion does not suggest that the absolute privilege to publish matters contained in public records is limited if the events are not contemporaneous or recent. Moreover, courts after Cox Broadcasting have found a privilege to disseminate matters contained in public court records despite the passage of a significant period of time. See, e.g., Dresbach v. Doubleday, supra, 518 F. Supp. at 1290 (nineteen years); Montesano v. Donrey Media Group, supra, 99 Nev. at 650-51, 668 P.2d at 1085-86 (23 years).

          This claim is related to the additional argument made by defendants that the information that was published in "The Shoemaker" was newsworthy and therefore its publication was privileged. If facts cannot otherwise be considered "private," then a determination of their "newsworthiness" is obviated. Restatement (Second) of Torts § 652D, Comment b. However, if the critical facts are private, publication of those facts would 301*301 not constitute an actionable invasion of privacy if they are "newsworthy" and thus a matter of legitimate public concern.

          The "newsworthiness" defense in privacy-invasion tort actions is available to bar recovery where the subject matter of the publication is one in which the public has a legitimate interest. See Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir.1980); Meeropol v. Nizer, 381 F. Supp. 29, 37 (S.D.N.Y. 1974), aff'd, 560 F.2d 1061 (2nd Cir.1975), cert. den. 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978); Barbieri v. News-Journal Co., 189 A.2d 773, 775 (Del. 1963).[2] A publication is commonly understood to be "newsworthy" when it contains an "`indefinable quality of information' that arouses the public's interest and attention." Prosser and Keeton on the Law of Torts, supra, § 117 at 860 (quoting Sweenek v. Pathe News, 16 F. Supp. 746, 747 (E.D.N.Y. 1936) (footnote omitted)). In such cases it is for the court to determine whether a matter is of legitimate public interest. See Rosanova v. Playboy Enterprises, Inc., 411 F. Supp. 440, 444 (S.D.Ga. 1976), aff'd 580 F.2d 859 (5th Cir.1978); Hotchner v. Castillo-Puche, 404 F. Supp. 1041, 1045 (S.D.N.Y. 1975); Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 376 (1959); cf. Lawrence v. Bauer Publishing & Printing Ltd., 89 N.J. at 462 (in defamation actions, existence of a privilege is a question of law for the court).

          In addition, once a matter is found to be within the sphere of public interest, otherwise private facts that are related to the subject may also be considered "newsworthy," and therefore publishable. See Dresbach v. Doubleday, supra, 518 F. Supp. at 1290; Restatement (Second) of Torts § 652D, comments 302*302 f, h. Further, the newsworthiness defense in this context often encompasses information pertaining to individuals who have not actively or consciously sought, or who have scrupulously avoided, publicity. See Campbell v. Seabury Press, supra, 614 F.2d at 397; Elmhurst v. Pearson, 153 F.2d 467, 468 (D.C. Cir.1946); Sidis v. F-R Publishing Corp., 113 F.2d 806, 809 (2nd Cir.1940), cert. den., 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 (1940); Restatement (Second) of Torts § 652D, comment f; cf. Sisler v. Gannett, 104 N.J. 256, 279 (1986) (in a defamation action, a private person may enter into a personal transaction or conduct his personal affairs in a manner that "implicates a legitimate public interest with an attendant risk of publicity"). However, there must be an appropriate nexus between the plaintiff and the matter that is newsworthy or of legitimate public interest. See Campbell v. Seabury Press, supra, 614 F.2d at 397; Dresbach v. Doubleday, supra, 518 F. Supp. at 1290; Prosser and Keeton on the Law of Torts, supra, § 117, at 862.

          The events that occurred in the Romaine home on January 8, 1975, were newsworthy and matters of legitimate public concern. These events were the subject of widespread and intense publicity when they occurred. Extensive contemporaneous publicity of this sort is a strong indication that the subject is one that is clearly newsworthy. See Valentine v. C.B.S., Inc., supra, 698 F.2d at 433; Cordell v. Detective Publications, Inc., supra, 307 F. Supp. at 1218; Rawlins v. Hutchinson Publishing Co., 218 Kan. 295, 296-97, 543 P.2d 988, 990 (1975). Moreover, the facts surrounding the commission of a crime are subjects of legitimate public concern. See Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. at 492, 95 S.Ct. at 1045, 43 L.Ed.2d at 348; accord Valentine v. C.B.S., Inc., supra, 698 F.2d at 433 ("events surrounding [Rubin (Hurricane)] Carter's trial and recent retrial continue to be matters of legitimate public interest"); Restatement (Second) of Torts § 652D, comment g. This concern extends to victims and other individuals who unwillingly become involved in the commission 303*303 of a crime or its prosecution. See Elmhurst v. Pearson, supra, 153 F.2d at 468; see also Restatement (Second) of Torts § 652D, comment f ("those who are the victims of crime or are so unfortunate as to be present when it is committed ... are regarded as properly subject to the public interest").

          The contention of plaintiffs that the publicized matter is stale or remote may suggest that the publicized information was not "newsworthy" or a matter of legitimate public concern, and therefore recovery ought not be barred. The news value and public interest in criminal events are not abated by the passage of time. See Dresbach v. Doubleday, supra, 518 F. Supp. at 1290. Most courts that have addressed the effect of the passage of time on the public interest have concluded that a lapse of time does not dilute newsworthiness or lessen the legitimacy of the public's concern. See, e.g., Valentine v. C.B.S., Inc., 698 F.2d at 433; Dresbach v. Doubleday, supra, 518 F. Supp. at 1290 Montesano v. Donrey Media Group, supra, 668 P.2d at 1083; see also Rawlins v. Hutchinson Publishing Co., supra, 218 Kan. at 305, 543 P.2d at 996 (column entitled "Looking Backward," which described plaintiff's ten-year-old suspension from the local police force for conduct unbecoming an officer, "is newsworthy when it occurs, and remains so for as long as anyone thinks it worth retelling").

          We are not persuaded to a different conclusion by Briscoe v. Reader's Digest Ass'n, 4 Cal.3d 529, 483 P.2d 34, 93 Cal. Rptr. 866 (1971). There, it was held that the publication of a convicted felon's name eleven years after his conviction could be the basis of a claim for invasion of privacy, because his identity was no longer newsworthy. Id. at 541, 483 P.2d at 43, 93 Cal. Rptr. at 875. Applying a three-part test for determining newsworthiness first set out in Kapellas v. Kofman, 1 Cal.3d 20, 36, 459 P.2d 912, 922, 81 Cal. Rptr. 360, 370 (1969), the court concluded that the disclosure of plaintiff's name had minimal social value, that it was grossly offensive to a reasonable 304*304 person, and that plaintiff had not consented to the publicity. Id.[3]

          Briscoe does not dictate a different result in this case. In Forsher v. Buguliosi, supra, the California Supreme Court emphasized that Briscoe constituted an exception to the general rule that the passage of time does not dilute newsworthiness. Observing that the Briscoe holding was bottomed on "the fact that the state has a compelling interest in the rehabilitative process and that a continuing threat of media disclosure of the identity of past criminals is counterproductive to this process," the court limited Briscoe to cases involving the identity of rehabilitated convicts. Forsher, supra, 26 Cal.3d at 810, 608 P.2d at 726, 163 Cal. Rptr. at 638; see also Dresbach v. Doubleday, supra, 518 F. Supp. at 1289 ("Briscoe was `an exception to the more general rule that once a man has become a public figure, or news, he remains a matter of legitimate recall to the public mind to the end of his days'") (quoting Forsher v. Bugliosi, supra, 26 Cal.3d at 810, 608 P.2d at 726, 163 Cal. Rptr. at 638); Johnson v. Harcourt, Brace, Jovanovich, Inc., 43 Cal. App.3d 880, 118 Cal. Rptr. 370, 378 (Ct.App. 1974) (same). Moreover, the facts disclosed in Briscoe were matters of public court record, and we do not believe that Briscoe can endure as a viable precedent in light of the absolute privilege to report matters in public court records determined in Cox Broadcasting and endorsed by us today.

          In sum, we conclude that the trial court properly dismissed plaintiffs' unreasonable publicity claim. The facts reported in "The Shoemaker" were in the public domain, newsworthy, and 305*305 matters of legitimate public concern. Thus, their publication is entitled to protection.

V.

For the reasons set forth in this opinion, we affirm the judgment below.

O'HERN, J., dissenting.

          Although I agree with the principles of defamation law articulated by the majority, I write separately to note my disagreement with the application of these principles to the summary dismissal of plaintiff Romaine's complaint that she was libeled by defendants' reference to her as one awaiting news from a "junkie," thus inferentially stating that she was an associate of a criminal. My dissent, then, concerns not the law of libel, but plaintiff's right to a jury trial of contested issues of fact.

          As noted by the majority, the book, "The Shoemaker," details the crimes of Joseph Kallinger, a convicted murderer. During one of his crime sprees, Kallinger held Randi Romaine and seven others hostage. When plaintiff's friend, Maria Fasching, arrived at the crime scene, she was seized and murdered by Kallinger. A chapter of the book, entitled "The Hunting Knife," describes the reason for Maria Fasching's visit to the Romaine house as follows: "[b]esides, Maria was eager for news from Randi about a junkie they both knew who was doing time in prison." Plaintiff contends that this sentence is defamatory as a matter of law because it falsely accuses her of criminality or of associating with criminals. Although I agree with the majority that this statement is not libelous per se, Lawrence v. Bauer Publishing & Printing Ltd., 89 N.J. 451, 459, cert. denied, 459 U.S. 999, 103 S.Ct. 358, 74 L.Ed.2d 395 (1982), I cannot conclude that the sentence is not reasonably susceptible of a defamatory meaning, Kotlikoff v. The Community News, 89 N.J. 62, 67 (1982).

          306*306 A defamatory statement is one that is false and that either injures "the reputation of another," exposes another to "hatred, contempt or ridicule," or subjects another to "a loss of the good will and confidence entertained towards him by others...." Leers v. Green, 24 N.J. 239, 251 (1957). In determining whether allegedly defamatory words are actionable, "[t]he language in question must be construed according to the fair and natural meaning which will be given it by reasonable persons of ordinary intelligence." Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 431 (App.Div.), aff'd on rehearing, 49 N.J. Super. 551 (App.Div. 1958). The allegedly defamatory statement must be taken in context and the publication considered as a whole. See Kotlikoff v. The Community News, supra, 89 N.J. at 72.

          Moreover, "[t]o establish the defamatory nature of the article[] it [is] not necessary for plaintiffs to prove that defendants had accused them of the commission of a crime. Words that clearly `sound to the disreputation' of an individual are defamatory on their face." Lawrence v. Bauer Publishing & Printing Ltd., supra, 89 N.J. at 459 (citation omitted). Thus, the fact that the statement at issue does not directly accuse Randi Romaine of being a criminal or of associating with criminals is of little consequence, for "[t]he sting of an accusation may be more pervasive when made by insinuation. Insinuations may thus be more `mischievous' than direct assertions." Lawrence v. Bauer Publishing & Printing Ltd., 176 N.J. Super. 378, 389 (App.Div. 1980), rev'd in part and vacated in part on other grounds, 89 N.J. 451, cert. denied, 459 U.S. 999, 103 S.Ct. 358, 74 L.Ed.2d 395 (1982) (citation omitted).

          In libel actions, the preliminary question for the trial court is whether the words at issue are reasonably susceptible of a defamatory meaning. Kotlikoff v. The Community News, supra, 89 N.J. at 67 (citing Herrmann v. Newark Morning Ledger Co., supra, 48 N.J. Super. at 429-30). While it is settled that the determination of whether a statement is defamatory is a question of law to be resolved by the trial court, Lawrence v. 307*307 Bauer Publishing & Printing Ltd., supra, 89 N.J. at 459, it is equally clear that "where the words are ambiguous, reasonably capable of either an innocent or a defamatory meaning, it is a question of fact for the jury to determine * * * which of the two meanings * * * [was] understood by those to whom the publication was made." Leers v. Green, supra, 24 N.J. at 253; see also Lawrence v. Bauer Publishing & Printing Ltd., supra, 89 N.J. at 459 (two newspaper articles had been held to be libelous per se and hence not reasonably susceptible of nondefamatory interpretation).

          When we view defamation issues under state common law, the standard for summary judgment is the traditional test of whether plaintiff has raised a genuine issue of material fact that requires a trial on the merits. Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 156-57 (1986) (citing Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954)). The dispositive question, then, as the majority frames it, is whether defendants' insinuation that Randi Romaine was an associate of a "junkie" was ambiguous or reasonably susceptible of either an innocent or a defamatory meaning. Supra at 290. I am satisfied that in the context of this case the defendants' characterization of Randi Romaine as an associate of a "junkie" was reasonably susceptible of a defamatory meaning. I must therefore dissent from the Court's disposition.

          It may be that there is a quite innocent or rational explanation for the author's reference to Ms. Romaine's association with a "junkie." That reference may be a mere mistake and thus might be insulated from liability in the context of this work, which is intended to explore matters that are reasonably to be regarded as within the public interest. Because this case comes to us on a motion for summary judgment, however, we must assume the worst scenario for the offenders: that they deliberately misstated this element of the narrative. I suspect that such a scenario is far from reality, but because of the procedural posture of the case I must dissent from the holding that no jury could find that the reference to an innocent victim 308*308 of crime as an associate of a convicted "junkie" reduced her esteem in the community or placed her in a false light before the public.

          For affirmance Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN — 6.

For reversal — Justice O'HERN — 1.

          [1] The trial court dismissed the defamation claims of plaintiffs Edwin Wiseman, Retta Romaine Welby, and Frank Welby, finding that the statement did not concern these individuals. Plaintiffs Wiseman, Welby, and Welby conceded before the Appellate Division that this ruling was correct, hence the only remaining defamation claim is that of Randi Romaine. All plaintiffs, however, continue to press the false-light invasion of privacy claim caused by this same statement.

          [2] We have acknowledged in the variant context of fair comment involving an alleged untruthful statement that "not everything that is newsworthy is a matter of legitimate public concern and sorting such matters from those of a more private nature may be difficult." Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 144 (1986). The concept of newsworthiness may be somewhat broader than that which is encompassed by the notion of "legitimate public concern." We need not in this case dwell on such possible differences.

          [3] See also Capra v. Thoroughbred Racing Ass'n, 787 F.2d 463, 464-65 (9th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 669, 93 L.Ed.2d 721 (1986). In Capra the plaintiff was a participant in the federal witness protection program; publication of his true identity in connection with his wife's application for a horse-racing license was actionable because of the substantial State interest in witness protection. No such interest is involved in the instant case.

RIVERA, J.

          On this appeal from a pre-answer dismissal of plaintiffs' defamation action, we conclude that the challenged statements are reasonably susceptible of a defamatory connotation, and not otherwise privileged, nonactionable "pure opinion." Therefore, we reverse the Appellate Division.

I.

          Plaintiffs Robert Davis and his stepbrother Michael Lang sued defendants Syracuse University and James Boeheim, the University's head basketball coach, for defamation based on statements by Boeheim made in response to Davis' and Lang's allegations of sexual molestation by Bernie Fine, Boeheim's longtime friend and the team's associate head coach. Plaintiffs claimed that Fine used his position and authority within the University's basketball program to gain access to and control over Davis and Lang for purposes of sexually molesting them.

          According to plaintiffs, from the time Davis and Lang were children in the 1980s, Fine lured them with opportunities to attend the games and assist the team as "ball boys." For years the sexual abuse continued, on and off campus, on team trips away from the University, in Fine's car and in his home. Davis alleged that in his case the abuse continued for almost two decades, commencing when he was about 11 years old. Plaintiffs further alleged that Boeheim had observed Davis with Fine at practices, at games, and on trips with the team, including once in Fine's hotel room during the 1987 NCAA Final Four.

          The plaintiffs did not make their claims known or public until they were adults, years after the abuse ended. In 2002, Davis went to the Syracuse Police Department, but the Department failed to investigate or take any action on his allegations, informing him that the statute of limitations for child sexual abuse had expired. Davis decided to go to the media, and reported the abuse to the Syracuse Post-Standard, a daily newspaper servicing the Syracuse area, and ESPN, a national sports television channel. In 2003, ESPN interviewed Davis but failed to publicize his allegations.

          266*266 In September 2005, Davis reported the sexual abuse to the University's new Chancellor. At the University's request, Davis met with a University lawyer and provided names of individuals who Davis claimed could corroborate his allegations of abuse. A few months later the University informed Davis by letter that it had concluded his allegations were unfounded and had closed the matter.

          Plaintiffs' claims became public in 2011 after unrelated allegations by other victims of sexual abuse surfaced against another coach at another well known university. In that year, similar claims surfaced of sexual abuse of multiple victims by former Penn State University assistant football coach Jerry Sandusky. As with the plaintiffs' claims against Fine, the Penn State sexual abuse scandal involved allegations that Sandusky had used the University's football program in order to gain access to underage victims. Penn State's head football coach, Joe Paterno, was alleged to have covered up the abuse.

          The Penn State scandal renewed national and local media interest in plaintiffs' allegations. Within two weeks of the initial breaking news coverage of the Penn State story, and as the media focus on the Penn State allegations continued, ESPN issued a news report about the allegations against Fine. The story also relayed Davis' statement that Boeheim saw Davis lying on Fine's hotel room bed during the 1987 NCAA Final Four.

          The day after the ESPN story, the University released a statement in which it described its 2005 four-month investigation into Davis' allegations. The University stated that it had interviewed persons named by Davis, but was unable to corroborate the claims. The University further stated that it would have acted had it found any evidence or corroboration of the allegations in 2005.

          The same day the ESPN story broke, and before the University's statement went public, Boeheim issued a one-paragraph statement, released by the Syracuse University news service, in which he too announced that the University had investigated the allegations and had concluded they were unfounded. Boeheim further declared that "Bernie [Fine] has my full support," and that he had known Fine for over 40 years and had "never seen or witnessed anything to suggest that [Fine] would be involved in any of the activities alleged." Boeheim stated that if he had "seen or suspected anything, I would have taken action."

          267*267 Boeheim made several other statements to reporters, which were quoted in the print and online versions of the New York Times, on the Syracuse Post-Standard's website Syracuse.com, on SportingNews.com, and on ESPN.com. In these statements, Boeheim reasserted his support for Fine and his denial of any knowledge of the claimed events as described by Davis. He also called Davis and Lang liars, and stated that their allegations were financially motivated.

          Davis and Lang commenced this action against Boeheim and the University for defamation, claiming that several of Boeheim's statements to ESPN, the Post-Standard, and the New York Times, were false and defamatory, and had caused them economic, emotional and reputational harm. The University and Boeheim filed a motion to dismiss pursuant to CPLR 3211 (a) (7), on the grounds that the statements were not defamatory as a matter of law because they constituted nonactionable opinion, not facts. Supreme Court granted the motion concluding that a reasonable reader would conclude that Boeheim's statements were "a biased and personal opinion on the accusations against Bernie Fine, not fact."

          The Appellate Division affirmed in a split 3-2 decision. The majority concluded that although Boeheim's statements that Davis fabricated allegations and was motivated by financial gain had certain factual elements, based on "the content of the communication as a whole, as well as its tone and apparent purpose," and "the over-all context in which the assertions were made," a reasonable reader would have believed that the challenged statements were conveying opinion and not facts (Davis v Boeheim, 110 AD3d 1431, 1432, 1433 [4th Dept 2013]). The dissent concluded that dismissal on a pre-answer motion to dismiss was error because Boeheim's statements that Davis was lying about Fine to get money, and that he had done so in the past, constituted opinion that implies a basis in facts not disclosed to the reader or listener, and thus constituted actionable "mixed opinion."

          Davis and Lang contend that the Appellate Division erred because the complaint sufficiently pleads a cause of action for defamation against Boeheim and the University based on statements that are defamatory facts or, alternatively, mixed opinion. We agree the complaint is sufficient to survive the motion to dismiss, and reverse the Appellate Division.

268*268 II.

          This appeal comes to us on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), a procedural posture which requires that "we accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiff's claim" (Silsdorf v Levine, 59 NY2d 8, 12 [1983]; see also Armstrong v Simon & Schuster, 85 NY2d 373, 379 [1995]). Unlike on a motion for summary judgment where the court "searches the record and assesses the sufficiency of the parties' evidence," on a motion to dismiss the court "merely examines the adequacy of the pleadings" (State of New York v Barclays Bank of N.Y., 151 AD2d 19, 21 [3d Dept 1989], affd 76 NY2d 533 [1990]). In determining the sufficiency of a defamation pleading, we consider "whether the contested statements are reasonably susceptible of a defamatory connotation" (Armstrong, 85 NY2d at 380, citing Weiner v Doubleday & Co., 74 NY2d 586, 592 [1989]). As we have previously stated, "[i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action" (Silsdorf, 59 NY2d at 12, citing 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509 [1979]). We apply this liberal standard fully aware that permitting litigation to proceed to discovery carries the risk of potentially chilling free speech, but do so because, as we have previously stated, "we recognize as well a plaintiff's right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets [the] minimal standard necessary to resist dismissal of [the] complaint" (Armstrong, 85 NY2d at 379).

          In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications. Thus, a false statement "that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation" (Thomas H. v Paul B., 18 NY3d 580, 584 [2012]). "Since falsity is a necessary element of a defamation cause of action and only `facts' are capable of being proven false, `... only statements alleging facts can properly be the subject of a defamation action'" (Gross v New York Times Co., 82 NY2d 146, 152-153 [1993], citing 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 139 [1992], and Immuno AG. v Moor-Jankowski, 77 NY2d 235, 254 [1991]).

          269*269 A defamatory statement of fact is in contrast to "pure opinion" which under our laws is not actionable because "[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" (Mann v Abel, 10 NY3d 271, 276 [2008]). For, "[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas" (Steinhilber v Alphonse, 68 NY2d 283, 289 [1986], citing Gertz v Robert Welch, Inc., 418 US 323, 339-340 [1974]). A pure opinion may take one of two forms. It may be "a statement of opinion which is accompanied by a recitation of the facts upon which it is based," or it may be "[a]n opinion not accompanied by such a factual recitation" so long as "it does not imply that it is based upon undisclosed facts" (Steinhilber, 68 NY2d at 289, citing Ollman v Evans, 750 F2d 970, 976 [DC Cir 1984]).

          While a pure opinion cannot be the subject of a defamation claim, an opinion that "implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, ... is a `mixed opinion' and is actionable" (Steinhilber, 68 NY2d at 289, citing Hotchner v Castillo-Puche, 551 F2d 910, 913 [2d Cir 1977], cert denied sub nom. Hotchner v Doubleday & Co., 434 US 834 [1977], and Cianci v New Times Pub. Co., 639 F2d 54, 64, 65 [2d Cir 1980]). This requirement that the facts upon which the opinion is based are known "ensure[s] that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw [the reader's] own conclusions concerning its validity" (Silsdorf, 59 NY2d at 13-14). What differentiates an actionable mixed opinion from a privileged, pure opinion is "the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker's] opinion and are detrimental to the person" being discussed (Steinhilber, 68 NY2d at 290, citing Rand v New York Times Co., 75 AD2d 417, 422 [1980], and Silsdorf, 59 NY2d at 14).

          Distinguishing between fact and opinion is a question of law for the courts, to be decided based on "what the average person hearing or reading the communication would take it to mean" (Steinhilber, 68 NY2d at 290; Mann, 10 NY3d at 276 ["(w)hether a particular statement constitutes an opinion or an objective fact is a question of law"], citing Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 381 [1977], cert denied 434 US 969 [1977]). "The dispositive inquiry ... is `whether a reasonable 270*270 [reader] could have concluded that [the statements were] conveying facts about the plaintiff" (Gross, 82 NY2d at 152, citing 600 W. 115th St. Corp., 80 NY2d at 139).

          We apply three factors in determining whether a reasonable reader would consider the statement connotes fact or nonactionable opinion:

"(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact" (Mann, 10 NY3d at 276, quoting Brian v Richardson, 87 NY2d 46, 51 [1995]).

          The third factor "lends both depth and difficulty to the analysis" (Brian, 87 NY2d at 51), and requires that the court consider the content of the communication as a whole, its tone and apparent purpose (Brian, 87 NY2d at 51; Mann, 10 NY3d at 276, quoting Brian, 87 NY2d at 51). Thus, we have adopted a holistic approach to this inquiry.

"Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis `whether the reasonable reader would have believed that the challenged statements were conveying facts about the ... plaintiff'" (Brian, 87 NY2d at 51, citing Immuno AG., 77 NY2d at 254, and Steinhilber, 68 NY2d at 293; Mann, 10 NY3d at 276, quoting Brian, 87 NY2d at 51).

III.

          In their complaint, Davis and Lang alleged that Boeheim made defamatory statements that they were liars seeking money. In support of their claim, they identified quotes from Boeheim in which he stated:

1. "This is alleged to have occurred ... what? Twenty years ago? Am I in the right neighborhood?... So we are supposed to do what? Stop the presses 26 years later? For a false allegation? For 271*271 what I absolutely believe is a false allegation? I know [Davis is] lying about me seeing him in his hotel room. That's a lie. If he's going to tell one lie, I'm sure there's a few more of them."

2. "The Penn State thing came out and the kid behind this is trying to get money. He's tried before. And now he's trying again.... That's what this is about. Money."

3. "It is a bunch of a thousand lies that [Davis] has told.... He supplied four names to the university that would corroborate his story. None of them did... there is only one side to this story. He is lying." Boeheim continued, "I believe they saw what happened at Penn State, and they are using ESPN to get money. That is what I believe."

4. "You don't think it is a little funny that his cousin (relative) is coming forward?"

5. Boeheim stated that the timing of Lang's decision to speak out about his abuse seemed "a little suspicious."

          Applying the aforementioned principles to this case, the first and second factors weigh in favor of finding that Boeheim's statements were factual assertions. With respect to the first factor, Boeheim used specific, easily understood language to communicate that Davis and Lang lied, their motive was financial gain, and Davis had made prior similar statements for the same reason. These are clear statements of the plaintiffs' actions and the driving force for their allegations against Fine. Consideration of the second factor similarly weighs in favor of treating Boeheim's statements as factual because the statements are capable of being proven true or false, as they concern whether plaintiffs made false sexual abuse allegations against Fine in order to get money, and whether Davis had made false statements in the past (see McNamee v Clemens, 762 F Supp 2d 584, 601 [ED NY 2011] [distinguishing general denials of accusations from specific statements that accuser "will be proven a liar and has lied in front of members of Congress" and holding the latter actionable]). Moreover, they were not "rhetorical hyperbole rather than objective fact" (Ram v Moritt, 205 AD2d 516, 517 [2d Dept 1994]; see also Independent Living Aids, Inc. v Maxi-Aids, Inc., 981 F Supp 124, 128 [ED NY 1997] [epithet "liar," in context, where it reflects a mere denial of accusations, was 272*272 personal opinion and rhetorical hyperbole]). Our inquiry, however, does not rest on these two factors because the third factor in the analysis "is often the key consideration in categorizing a statement as fact or opinion" (Thomas H., 18 NY3d at 585, citing Immuno AG., 77 NY2d at 254). It is this third factor that the parties vigorously dispute, and which we conclude establishes the sufficiency of plaintiffs' complaint.

          Defendants contend that the context in which the statements were made leads inexorably to the conclusion that Boeheim's statements are nonactionable pure opinion. They argue that a reader would consider Boeheim's statements as an obvious and transparent effort to defend his longtime close friend and colleague against allegations of sexual abuse, as well as an effort to defend against suggestions that Boeheim knew about the alleged abuse and did nothing. They further argue that he specifically denied any special knowledge when he stated, "I know nothing" and "I really don't have any facts."

          Essentially, defendants argue that because a reader could interpret the statement as pure opinion, the statement is as a consequence, nonactionable and was properly dismissed under CPLR 3211 (a) (7). However, on a motion to dismiss we consider whether any reading of the complaint supports the defamation claim. Thus, although "[i]t may well be that [the challenged statements] are subject to defendants' interpretation ... the motion to dismiss must be denied if the communication at issue, taking the words in their ordinary meaning and in context, is also susceptible to a defamatory connotation" (Sweeney v Prisoners' Legal Servs. of N.Y., 146 AD2d 1, 4 [3d Dept 1989], citing Carney v Memorial Hosp. & Nursing Home of Greene County, 64 NY2d 770, 772 [1985], and Silsdorf, 59 NY2d at 12-13). We find this complaint to meet this minimum pleading requirement.

          Here, Boeheim stated that Davis and Lang lied and did so for monetary gain, and that Davis had done so in the past. Boeheim's assertions that Davis previously made the same claims, for the same purpose, communicated that Boeheim was relying on undisclosed facts that would justify Boeheim's statements that Davis and Lang were neither credible nor victims of sexual abuse.[*] That, as defendants argue, Boeheim denied knowledge of facts, or prefaced some statements by saying "I believe," is 273*273 insufficient to transform his statements into nonactionable pure opinion, because in context, a reasonable reader could view his statements as supported by undisclosed facts despite these denials (Thomas H., 18 NY3d at 586).

          The context further suggests to the reader that Boeheim spoke with authority, and that his statements were based on facts. Boeheim was a well respected, exalted member of the University and the Syracuse community-at-large, and as head coach of the team appeared well placed to have information about the charges. Boeheim's initial statement, which contained information about the University's investigation, was released on the school's website, confirming his status within the University. His statement contained information about Davis' allegations and the University's investigation, which a reader could understand was based on Boeheim's access to factual details unavailable to the public, facts which supported his assertions about Davis and his motive. That Boeheim's statement was issued prior to the University's first public statement about the investigation, further suggests that Boeheim had access to otherwise confidential information. Moreover, Boeheim worked with Fine for many years and claimed to "know" Davis from when Davis was a child assisting the team and serving as a babysitter, further suggesting that Boeheim had particular details upon which he relied in asserting that the allegations were untrue. In addition, Boeheim knowingly made these statements to reporters during the media investigation and coverage of the plaintiffs' allegations. Those statements were then published in news-related articles that described the allegations, comparing them to the Penn State victims' claims, and discussing the impact of the sexual abuse charges on the individuals involved. Although the placement of the articles is but one factor to be considered, because the articles cited by plaintiffs cannot be categorized as op-eds or letters to the editor, "the common expectations that apply to those more opinionated journalistic endeavors were inapplicable here (see, Immuno AG. v Moor-Jankowski, supra). Thus, the circumstances under which these accusations were published `encourag[ed] the reasonable reader to be less skeptical and more willing to conclude that [they] stat[ed] or impl[ied] facts'" (Gross, 82 NY2d at 156, quoting 600 W. 115th St. Corp., 80 NY2d at 142).

274*274 IV.

          At this early stage of the litigation, on this pre-answer motion to dismiss and on the record before us, we cannot state as a matter of law that the statements are pure opinion. There is a reasonable view of the claims upon which Davis and Lang would be entitled to recover for defamation; therefore the complaint must be deemed to sufficiently state a cause of action (Silsdorf, 59 NY2d at 12). Accordingly, the Appellate Division order should be reversed, with costs, and the motion to dismiss the complaint denied.

          Order reversed, with costs, and defendants' motion to dismiss the complaint denied.

          [*] Based on our conclusion that the complaint sufficiently states a claim for defamation, we need not address whether plaintiffs' alternative theory of mixed opinion based on distorted facts was preserved below and properly before us.

Appeal from the United States District Court for the Central District of California; S. James Otero, District Judge, Presiding, D.C. No. 2:18-cv-06893-SJO-FFM.

Before: THOMAS, Chief Judge, and WARDLAW and NGUYEN, Circuit Judges.

NOT FOR PUBLICATION

MEMORANDUM^[*]

Stephanie Clifford appeals the district court's dismissal of her defamation action against President Donald J. Trump.^[1] We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, we affirm.

1. The district court correctly concluded under the Erie doctrine that the motion to dismiss procedures of the Texas Citizens Participation Act (TCPA)—Texas's version of an anti-SLAPP law—apply in federal court. We have long held that analogous procedures in California's anti-SLAPP law apply in federal court, United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999), and the TCPA is indistinguishable from California's law in all material respects, compare S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018) (describing the TCPA analysis), with Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 820 (2011) (describing California's anti-SLAPP analysis).

Though we recognize the Fifth Circuit recently held that the TCPA does not apply in federal court, Klocke v. Watson, 936 F.3d 240, 244-47 (5th Cir. 2019), the reasoning of the Fifth Circuit's opinion cannot be reconciled with our circuit's anti-SLAPP precedent, compare Newsham, 190 F.3d at 972 ("[T]here is no indication that [Federal Rules of Civil Procedure] 8, 12, and 56 were intended to `occupy the field' with respect to pretrial procedures aimed at weeding out meritless claims."), with Klocke, 936 F.3d at 247 ("Rules 8, 12, and 56 provide a comprehensive framework governing pretrial dismissal and judgment." (cleaned up)). We are bound to follow our own precedent, which requires us to apply the TCPA.^[2] Miller v. Gammie, 335 F.3d 889, 892-93, 900 (9th Cir. 2003) (en banc).

Because the TCPA motion in this case challenged the legal sufficiency of the allegations in the complaint, we "apply the Federal Rule of Civil Procedure 12(b)(6) standard and consider whether a claim is properly stated." Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 834 (9th Cir. 2018).

2. The elements of a defamation claim under Texas law are (1) "the publication of a false statement of fact to a third party," (2) "that was defamatory concerning the plaintiff," (3) made with actual malice,^[3] and (4) damages, in some cases. In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015). We conclude, like the district court, that the complaint failed to plausibly allege an actionable false statement of fact, though for slightly different reasons.

As alleged in the complaint, Ms. Clifford began an intimate relationship with Mr. Trump in 2006. Five years later, in 2011, Ms. Clifford agreed to cooperate with a magazine that intended to publish a story about the relationship. Ms. Clifford alleges that a few weeks after she agreed to assist with the magazine story, she was approached by an unknown man in a Las Vegas parking lot who told her "Leave Trump alone. Forget the story," and threatened that harm would come to her if she continued to cooperate with the magazine. Ultimately, the story was not published.

In 2018, after Mr. Trump became President, Ms. Clifford went public with her account of this incident. With the assistance of a sketch artist, she prepared a composite sketch of the man from the parking lot, which was disseminated publicly.

Ms. Clifford's defamation claim is based on a tweet Mr. Trump published about the composite sketch. Shortly after the sketch was released, a Twitter user unrelated to the parties here tweeted the sketch juxtaposed with a photograph of Ms. Clifford's ex-husband, with a mocking message suggesting that the two men resembled one another. Mr. Trump retweeted this tweet, adding his own message: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

The two tweets appeared together as depicted below:^[4]

Ms. Clifford responded by filing this suit, alleging that Mr. Trump's tweet is defamatory.

Under Texas law, as informed by the Supreme Court's First Amendment jurisprudence, "statements that are not verifiable as false are not defamatory. And even when a statement is verifiable, it cannot give rise to liability if the entire context in which it was made discloses that it was not intended to assert a fact." Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 638 (Tex. 2018) (cleaned up). Texas law refers to statements that fail either test—"verifiability or context"—as "opinion[s]." Id. The determination of whether a statement is "reasonably capable of a defamatory meaning" focuses on how the statement would be interpreted by an "objectively reasonable reader." Id. at 624, 631.

Ms. Clifford advances two arguments for why the tweet at issue is defamatory. First, citing the Black's Law Dictionary definition of "confidence man," she argues that the use of the term "con job" implied that she had literally committed the crime of fraud. But it would be clear to a reasonable reader that the tweet was not accusing Clifford of actually committing criminal activity. See id. at 638. Instead, as used in this context, the term "con job" could not be interpreted as anything more than a colorful expression of rhetorical hyperbole. Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 13-14 (1970) (description of the plaintiff's negotiating position as "blackmail" could not reasonably be interpreted as having accused him of committing the crime of blackmail); see also Milkovich v. Lorain J. Co., 497 U.S. 1, 16-17 (1990). Because the tweet could not reasonably be read as asserting that Ms. Clifford committed a crime, this theory of defamation is not viable. Tatum, 554 S.W.3d at 638; see also Bresler, 398 U.S. at 13-14.

Next, Ms. Clifford argues that the tweet is defamatory because it accused her of lying about having been threatened because of her participation in a magazine story about her relationship with Mr. Trump. We agree that this is a reasonable interpretation of the tweet, but conclude that it is not actionable.

Under Texas law, a statement that merely interprets disclosed facts is an opinion, and, as noted, statements of opinion cannot form the basis of a defamation claim. Tatum, 554 S.W.3d at 639-40. Viewed through the eyes of an objectively reasonable reader, the tweet here reflects Mr. Trump's opinion about the implications of the allegedly similar appearances of Ms. Clifford's ex-husband and the man in the sketch. Mr. Trump's reference to a "sketch years later of a nonexistent man" signals that the allegedly defamatory conclusion that followed— that Ms. Clifford was pulling a "con job" and "playing the Fake News Media for Fools"—plainly concerns the similarities between the sketch and the photograph of Ms. Clifford's ex-husband. Because the tweet juxtaposing the two images was displayed immediately below Mr. Trump's tweet, the reader was provided with the information underlying the allegedly defamatory statement and was free to draw his or her own conclusions. Moreover, the tweet does not imply any undisclosed facts. Accordingly, the tweet, read in context, was a non-actionable statement of opinion. Id.; Fox Ent. Grp., Inc. v. Abdel-Hafiz, 240 S.W.3d 524, 560 (Tex. App. 2007) ("[T]here is no defamation liability for a statement of opinion when a report sets out the underlying facts in the publication itself, thereby allowing the listener to evaluate the facts and either accept or reject the opinion." (citing Brewer v. Capital Cities/ABC, Inc., 986 S.W.2d 636, 643 (Tex. App. 1998)).

Resisting this conclusion, Ms. Clifford argues that the tweet is reasonably construed as disputing not only her account of having been threatened over her cooperation with the magazine but also her broader allegation that she had an intimate relationship with Mr. Trump. Construed this way, Ms. Clifford contends that the tweet is actionable because a reasonable reader would appreciate that Mr. Trump had personal knowledge about whether there had in fact been a relationship, such that the tweet would be understood as a statement, based on undisclosed facts, that Ms. Clifford had fabricated her account of the relationship. We find this argument unpersuasive.

As an initial matter, in evaluating whether Ms. Clifford adequately pleaded a defamation claim, we are limited to the allegations in the complaint. Koala v. Khosla, 931 F.3d 887, 894 (9th Cir. 2019). The operative complaint specifically alleges that Mr. Trump's tweet was defamatory because it "falsely attack[ed] the veracity of Ms. Clifford's account of the threatening incident that took place in 2011." Nowhere does the complaint allege that the tweet was instead addressing Ms. Clifford's allegations about her relationship with Mr. Trump. This theory is therefore not before us.

More importantly, even if this theory had been properly presented, we do not believe the tweet could be reasonably read as addressing Ms. Clifford's account of her relationship with Mr. Trump. The tweet did not reference the alleged relationship and instead focused on the sketch of the ostensibly "nonexistent man." This was plainly a reference to Ms. Clifford's account of having been threatened by a man in a Las Vegas parking lot. It follows that the statement in the following sentence that Ms. Clifford was pulling a "con job" and "playing the Fake News Media for Fools" was referring to her account of that same incident, not more broadly to other, unreferenced, statements by Ms. Clifford about the alleged relationship.

Because the complaint failed to plead an actionable false statement, the district court correctly granted the motion to dismiss.^[5]

3. The district court did not abuse its discretion by denying leave to amend the complaint. See Parents for Privacy v. Barr, 949 F.3d 1210, 1221 (9th Cir. 2020). Amendment would have been futile because the tweet is not defamatory as a matter of law. See id. at 1239.

AFFIRMED.

[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

[1] Because the operative complaint names President Trump in his personal capacity, the remainder of this disposition refers to the parties as Ms. Clifford and Mr. Trump.

[2] We do not consider Ms. Clifford's argument, raised for the first time in her reply brief on appeal, that applying the TCPA would violate the Seventh Amendment. Brown v. Rawson-Neal Psych. Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016) ("We generally do not consider issues that are not raised in the appellant's opening brief.").

[3] Actual malice is required because Ms. Clifford has not disputed that she is a public figure. In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015).

[4] Mr. Trump's unopposed request that we consider the screenshot of the tweet is granted. The screenshot is properly before us because the tweet is described in the complaint and forms the basis of the defamation claim. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018).

[5] In light of our conclusion, we do not address whether the complaint adequately pleaded actual malice. We also need not, and do not, address the district court's conclusion that Ms. Clifford presented herself as a "political adversary" of Mr. Trump.

CHIN, District Judge.

          In this libel case, plaintiff Howard K. Stern, the former lawyer for and companion of the late Anna Nicole Smith, sues defendants Rita Cosby and Hachette Book Group USA, Inc. ("Hachette"), the author and publisher, respectively, of the bestselling book Blonde Ambition: The Untold Story Behind Anna Nicole Smith's Death (the "Book"). Stern contends that defendants defamed him in the Book by falsely stating or suggesting, among other things, that he had engaged in sex with the father of Smith's child, "pimped" Smith to as many as fifty men a year, and played a role in Smith's death.

264*264

          Cosby and Hachette deny that they have libeled Stern. First, they argue that Stern is "libel-proof"—that is, they contend that his reputation is already so bad that it cannot be further damaged. Second, they contend that the statements in question are not defamatory, and argue in particular that, in this day and age, statements suggesting that someone is homosexual are no longer libelous per se, as they no longer connote shame, contempt, or ridicule. Third, they argue that Stern has failed to present evidence from which a jury could find that they acted with actual malice.

          Before the Court are defendants' motions for summary judgment. For the reasons set forth below, I conclude that a reasonable jury could find that Cosby, but not Hachette, is liable for defamation for certain of the statements in the Book. Accordingly, Hachette's motion is granted and Cosby's motion is granted in part and denied in part.

BACKGROUND

A. The Facts

          On a motion for summary judgment, the Court construes all facts in the light most favorable to Stern, as the non-moving party. The following facts are drawn from the deposition transcripts, affidavits, declarations, and exhibits[1]:

1. The Participants

a. Anna Nicole Smith

          Smith was a model and actress who attained notoriety in 1994 when, at the age of 26, she married an 89-year-old billionaire named J. Howard Marshall III. From then until her untimely death in 2007, she was frequently the subject of tabloids, celebrity gossip magazines, and entertainment shows. (See generally 12/15/08 McNamara Decl. Ex. Y (Smith obituary); Abby Goodnough and Margalit Fox, Anna Nicole Smith Is Found Dead 265*265 in Florida, N.Y. Times, Feb. 9, 2007 (observing that "[f]or gossip columnists and supermarket tabloids, Ms. Smith's life provided endless fodder.")). When Marshall died in 1995, Smith became embroiled in litigation over the Marshall estate with one of Marshall's sons. Stern was one of Smith's attorneys. (Stern Decl. ¶ 4).

          Smith had two children, Daniel, born in 1986, and Dannielynn, born in 2006. (Id. ¶¶ 6-8). Daniel died, apparently of a prescription drug overdose, in the Bahamas just a few days after Smith gave birth to Dannielynn in 2006. (Id. ¶ 9).

          From 2002 to 2003, Smith starred in a reality TV show on E! Entertainment called The Anna Nicole Show. Stern and Smith's son, Daniel, regularly appeared on the show. Both Smith and Stern often appeared to be intoxicated on the show, to the point where, in one episode, Stern appeared to lose consciousness. Often Smith and Stern behaved in a bizarre manner, and in one episode Stern appears in drag after losing a bet. (See Littlefield Decl. Ex. B (DVD of first season)). According to Stern, many aspects of the show were staged. (Stern Decl. ¶ 56).

          Smith died of a prescription drug overdose on February 8, 2007 at a hotel in Florida. (Id. ¶ 14; see generally Abby Goodnough, Anna Nicole Smith's Death Is Ruled an Accidental Drug Overdose, N.Y. Times, Mar. 27, 2007).

b. Howard K. Stern

          Stern, an attorney, began doing legal work for Smith in 1997, and was co-counsel in her litigation regarding the Marshall estate. (Stern Decl. ¶ 4). His relationship with Smith became romantic in 2000, but they kept the romantic aspect of the relationship a secret until 2006. (Id. ¶ 5).

          Stern was present when Smith gave birth to Dannielynn in the Bahamas, and at the time he believed he was her father. (Id. ¶ 8). After a lengthy and contentious paternity dispute with Larry Birkhead, Smith's former boyfriend, Stern learned that Birkhead was actually Dannielynn's father. (Id. ¶ 20).

          Stern was also present in Florida when Smith died, and he was subsequently made the executor of her estate. (Id. ¶¶ 14, 16).

          After Daniel and Smith died, Stern was subjected to an onslaught of media criticism, including the following representative examples:

▄ On March 27, 2007, the New York Post ran an article intimating that Stern was involved in Smith's death, and referring to Stern as Smith's "devious companion." (Cosby Decl. Ex. 16).[2]

266*266 ▄ On April 1, 2007, Geraldo Rivera said the following on his show: "Like the entourage of sycophants and enablers who surrounded Elvis Presley, most of the people living off Anna Nicole did nothing to save her from herself. And worse than enabling, people like lawyer turned companion Howard K. Stern facilitated her untimely demise by ensuring she had all the drugs she needed to die from." (Id. Ex. 84).

▄ On April 2, 2007, a guest on Nancy Grace's CNN show said that "everyone points the finger at Howard Stern" vis-a-vis the death of Daniel Smith. (Id. Ex. 34).

          On March 12, 2009, the Los Angeles District Attorney filed a felony complaint against Stern and two of Smith's doctors. (3/13/09 McNamara Decl. Ex. 9). The sixcount complaint alleges, inter alia, that Stern conspired with the doctors to provide Smith with excessive quantities of prescription drugs even though they knew she was addicted to the drugs. (Id.). The next day, the California Attorney General held a press conference in which he referred to Stern as Smith's "principal enabler." (4/6/09 McNamara Decl. Ex. 1).

c. Rita Cosby

          Cosby has been a journalist for more than twenty years, working as a correspondent and host for CBS, MSNBC, and Fox News. During that time she conducted a number of high-profile interviews, including of several heads of state, and has received three Emmy awards. (Cosby Decl. ¶¶ 1-8).

          Cosby started covering Smith around 2006, when she was a reporter for MSNBC. (Id. ¶¶ 10, 13). After Daniel Smith's death, Cosby began to devote much of her time to reporting on the events surrounding Smith—the Bahamian coroner's investigation into the cause of Daniel's death, Smith's commitment ceremony to Stern,[3] Smith's own death, the paternity dispute between Stern and Birkhead, and the various court proceedings. (Id. ¶¶ 15).

          In the spring of 2007, Cosby began to consider leaving MSNBC to write a book. (Id. ¶ 37). She discussed with Bruce Littlefield, a writer she knew from college, the possibility of collaborating on a book together, and decided that a book about Smith and the media frenzy surrounding her life and death was the logical choice. (Id.; Littlefield Decl. ¶ 8).

2. The Book

          Cosby and Littlefield wrote the Book together, based on Cosby's reporting. (Cosby Decl. ¶ 38; Littlefield Decl. ¶ 9).

          On April 10, 2007, Todd Shuster, Cosby's agent, sent an email to Amy Einhorn, an editor at Hachette, pitching a book Cosby planned to write, then entitled Fame and Miss Fortune: Secrets from Inside the Anna Nicole Smith Media Storm. (Einhorn Aff. Ex. B). The email described Cosby's "one-of-a-kind work of investigative journalism" as follows:

Drawing on her unique access to all of the major players in this widely followed tale of sex, drugs, and unbridled personal ambition, Cosby will reveal the tabloid media jockeying and closed-door shenanigans 267*267 to which she alone has been witness in connection with this case. She will also offer rare insight into what exactly makes the death of Anna Nicole Smith compelling to so many millions of people worldwide.

          (Id.). Einhorn was impressed with the proposal and thought that it had the potential to be a popular book, in part because she anticipated that the Book would contain previously unpublished information about Smith. (Einhorn Aff. ¶ 10).

          Schuster also sent Einhorn background materials on Cosby, including her curriculum vitae and a summary of her career, all of which impressed Einhorn and convinced her that Cosby was an accomplished journalist. (Id. ¶ 9).

          On April 12, 2007, Einhorn, along with several other Hachette employees, met with Cosby and Shuster to discuss the Book. At this meeting Cosby revealed that the Book "would have a number of previously unreported explosive news items," but Cosby would not reveal what these items were, because she was still shopping the Book to other publishers. (Id. ¶¶ 12-13). Hachette was not interested in publishing the Book unless it contained previously unreported information, however, so Einhorn arranged for Schuster to tell her two of the items in a phone call that took place on April 16, 2007. (Id. ¶¶ 14-15). Einhorn only recalls one of the items: The Book would report that Smith had once walked in on Stern and Birkhead having oral sex. (Id. ¶ 15).[4] After Einhorn got off the phone, she sent an email to two of her colleagues characterizing what she had just heard as "holy shit" items. (Id. ¶ 17).

          The next day Hachette offered Cosby an advance of $405,000 plus royalties for the Book. (Id. ¶ 18; id. Ex. C §§ 2-3). They signed the agreement on May 21, 2007. (Cosby Decl. ¶ 41). The agreement required Cosby to deliver the final manuscript to Hachette by June 12, 2007. (Einhorn Aff. ¶ 19). Because Hachette wanted to publish the Book while interest in the story was still at its peak, Hachette put the Book's publication on a "crash" schedule, which meant that Cosby provided chapters to Hachette on a rolling basis, and Hachette had attorneys review each chapter as it came in. (Id. ¶ 20).

          The Book was published on September 4, 2007 and instantly became a bestseller.

          Immediately after the Book was published, reports began to appear in the media contradicting aspects of the Book. See Stern v. Cosby, 246 F.R.D. 453, 455 (S.D.N.Y.2007) ("Stern I").

B. Procedural History

          Stern filed the complaint on October 2, 2007, invoking the Court's diversity jurisdiction, and asserting a claim for libel based on the following nineteen statements in the Book (the "Statements"):[5]

▄ Statement 1: Stern and Birkhead had oral sex at a party at a private home in Los Angeles. Smith discovered them, laughed, and later remarked that Stern was gay. (Book at 202-04).

▄ Statement 2: Smith, in front of her nannies in the Bahamas, used to regularly watch a video of Stern and Birkhead having sex. (Id. at 204).

▄ Statement 3: Stern and Smith abused illegal drugs together, even when Smith was pregnant. (Id. at 5, 79).

268*268 ▄ Statement 4: Stern had Mark Hatten falsely arrested and imprisoned for stalking Smith. (Id. at 102).

▄ Statement 5: Stern and Smith conspired to have Mark Hatten murder the son of Smith's late husband, J. Howard Marshall, so that Smith could inherit her former husband's entire estate. (Id. at 102).

▄ Statement 6: Stern perjured himself when he testified in a Florida proceeding that he was not compensated by Entertainment Tonight in connection with media coverage of Daniel Smith's death. (Id. at 28).

▄ Statement 7: Daniel Smith said that Stern arranged for men to have sex with Smith for money—in other words, he "pimped" her. (Id. at 31).

▄ Statement 8: Daniel Smith thought that Stern generally took advantage of Smith. Daniel also said that he saw Stern, on at least fifty occasions per year, drug Smith before "pimping" her. (Id. at 31).

▄ Statement 9: Stern destroyed evidence relating to Daniel Smith's death. Specifically, Stern flushed down the toilet several pills he found in Daniel Smith's room at their home in the Bahamas. (Id. at 51-53).

▄ Statement 10: Stern stole substantial amounts of money from Smith and wired the money to offshore accounts. (Id. at 165-66, 233-34).

▄ Statement 11: Stern perjured himself when he testified in a Florida proceeding that he was the father of Dannielynn. In fact, he knew he was not the father. Stern also offered Birkhead a deal whereby Stern would abandon any claim to being Dannielynn's father if Birkhead would permit Stern to serve as executor of Smith's estate. (Photograph caption in Book).

▄ Statement 12: Stern made additional offers to Birkhead in exchange for permitting Stern to serve as executor of Smith's estate. (Book at 175-76, 198).

▄ Statement 13: Stern extorted or blackmailed Birkhead based on Stern's knowledge that Birkhead was gay. (Id. at 176, 201-02).

▄ Statement 14: Daniel Smith told someone that Stern "keeps feeding my mom drugs" and that Stern was "a Svengali" because of the way he controlled Daniel's mother. (Id. at 30-31).

▄ Statement 15: Various people felt that Stern was a threat to Anna's life. (Id. at 104, 204).

▄ Statement 16: Stern was only after Smith's money, and he had a financial motive to kill her. (Id. at 105).

▄ Statement 17: Five days before she died, Smith's attorney faxed her will to one of Stern's attorneys. The will excluded Smith's children, which aroused suspicion that Stern might have been involved. (Id. at 170-72).

▄ Statement 18: Smith thought that Stern was involved in Daniel Smith's death, and at one point yelled at Stern, "You did this! You killed him! You caused this!" (Id. at 76-78, 91, 104, 166).

▄ Statement 19: Many people in Smith's inner circle thought that Stern was involved in Smith's death. (Id. at 7, 9, 10, 11-12, 18, 22, 25, 26).

          On October 15, 2007 Stern moved, by order to show cause, for a preliminary injunction to enjoin defendants from tampering with witnesses or evidence and seeking certain expedited discovery. See Stern I, 246 F.R.D. at 456. Stern's motion was based on recordings of conversations between Cosby and representatives of 269*269 Smith's former nannies in the Bahamas that appeared to show Cosby offering to pay the nannies for affidavits supporting the veracity of Statement 2. See id. Defendants did not object to the preliminary injunction but objected to the request for expedited discovery. I granted a preliminary injunction orally on October 25, 2007 and followed with a written decision ordering certain expedited discovery on November 6, 2007. See id. at 458.

          The parties thereafter engaged in discovery. These motions followed. I held oral argument on July 7, 2009 and reserved decision.

DISCUSSION

          First, I discuss the standards applicable to motions for summary judgment. Second, I consider defendants' arguments that Stern is barred from suing for libel by the libel-proof plaintiff doctrine. Third, I turn to defendants' contention that certain Statements are not defamatory. Fourth, I address defendants' arguments that Stern has failed to present any evidence of actual malice. Fifth, I discuss defendants' assertion that Stern has failed to show that he is entitled to present his claims for punitive damages to the jury. Finally, I consider defendants' arguments that even to the extent Stern has pointed to actionable Statements in the Book, he is barred by the incremental harm doctrine from seeking damages based on those Statements.

A. Standard on a Motion for Summary Judgment

          The standards governing motions for summary judgment are well-settled. A court may grant summary judgment only where there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See Fed R. Civ. P. 56(c); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment should be denied "if the evidence is such that a reasonable jury could return a verdict" in favor of the non-moving party. See NetJets Aviation, Inc. v. LHC Commc'ns, LLC, 537 F.3d 168, 178-79 (2d Cir.2008). In deciding a motion for summary judgment, the court must construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party's favor. In re "Agent Orange" Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir.2008). The non-moving party cannot, however, "escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (internal citations and quotations omitted).

          In deciding a motion for summary judgment, the role of the court is not to ask whether "the evidence unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because the court's role is limited in this respect, it may not make factual findings, determine credibility of witnesses, or weigh evidence. See Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005); Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir.1996); United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994).

B. Is Stern Libel-Proof?

          Defendants argue that Stern is libel-proof as a matter of law because of all the negative publicity he has received, and because he cast himself in a negative light when appearing on The Anna Nicole Show. Defendants contend that Stern's reputation was so bad prior to publication 270*270 of the Book that it could not have been further damaged by the Statements, and thus the complaint must be dismissed. I disagree.

1. Applicable Law

          The libel-proof doctrine is predicated on the notion that "a plaintiff's reputation with respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject." Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir.1986); see Merrill Lynch, Pierce, Fenner & Smith Inc. v. Savino, No. 06 Civ. 868(LAP), 2007 WL 895767, at *12 n. 4, 2007 U.S. Dist. LEXIS 23126, at *38 n. 4 (S.D.N.Y. Mar. 23, 2007) ("The libel-proof doctrine . . . states that a plaintiff who has established such a bad reputation that he cannot show injury to his reputation is libel-proof and thus cannot maintain an action for defamation."). While the doctrine is most often applied to plaintiffs with criminal convictions, it is not limited to plaintiffs with criminal records. Cerasani v. Sony Corp., 991 F.Supp. 343, 353 (S.D.N.Y.1998).

          The Second Circuit has cautioned that the libel-proof plaintiff doctrine is to be sparingly applied, as it is unlikely that many plaintiffs will have such tarnished reputations that their reputations cannot sustain further damage. See Buckley v. Littell, 539 F.2d 882, 889 (2d Cir.1976) (noting that class of plaintiffs to whom libel proof doctrine applies "is a limited, narrow one"); Guccione, 800 F.2d at 303 ("The libel-proof plaintiff doctrine is to be applied with caution, since few plaintiffs will have so bad a reputation that they are not entitled to obtain redress for defamatory statements, even if their damages cannot be quantified and they receive only nominal damages.") (citation omitted).

          There is some question, as the parties acknowledge, as to whether the libel-proof plaintiff doctrine is valid in the wake of the Supreme Court's decision in Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 523, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991), where the Court held that the incremental harm doctrine—the "cousin" of the libel-proof doctrine, Jewell, 23 F.Supp.2d at 390—is not properly grounded in the First Amendment, and therefore not valid under federal law. See Behar, 238 F.3d at 176 n. 2 (noting that "continued vitality after Masson" of the libelproof plaintiff doctrine is open question); Jewell, 23 F.Supp.2d at 390 n. 29 ("Because Masson rejected any basis for grounding the incremental harm defense in federal constitutional terms, the libelproof plaintiff doctrine seems similarly vulnerable.") (citation omitted).

          Whether a plaintiff is libel-proof is a question of law for the Court to decide. See Guccione, 800 F.2d at 303 (holding that plaintiff is libel-proof as matter of law); Cardillo v. Doubleday & Co., 518 F.2d 638, 639 (2d Cir.1975) (same); Cerasani, 991 F.Supp. at 354 (same).

2. Application

          Here, even assuming the libel-proof plaintiff doctrine continues to be viable, I conclude that it does not bar Stern's suit.

          First, Stern should not be precluded from seeking damages for being defamed by the Book merely because he was the subject of critical discussion on tabloid television and in celebrity gossip magazines. Even assuming, for example, that Geraldo Rivera and other celebrity journalists and talk show hosts suggested that Stern had a hand in Smith's death, Stern denies these accusations. If indeed the accusations are false, the fact that Stern might have been falsely accused before does not mean that he could not be further injured if he was falsely accused again. That someone has been falsely called a thief in the past does not mean that he is 271*271 immune from further injury if he is falsely called a thief again. Moreover, there is a qualitative difference between comments made on a tabloid television show and written statements in a book purporting to be the product of legitimate "investigative journalism," written by—as appears on the cover of the Book—an "Emmy-Award Winning Journalist." The libel-proof plaintiff doctrine is to be sparingly applied (if at all), and surely it is not to be applied in a situation such as this.

          Second, much of the conduct detailed in the Book is fundamentally different from the conduct that was the subject of the allegations swirling in the tabloid media. None of the media reports prior to the publication of the Book referenced Stern engaging in oral sex with Birkhead or making a video of himself and Birkhead doing so. The general thrust of the media reports prior to publication of the Book was that Stern was a member of Smith's bizarre inner circle who exploited Smith for money and fame. This is different in kind from many of the allegations in the Book, and thus Stern's reputation could sustain further damage—and, indeed, he claims it has. (See Stern Dep. at 490-91, 554-60). As then-Judge Scalia aptly put it, "[i]t is shameful that Benedict Arnold was a traitor; but he was not a shoplifter to boot, and one should not have been able to make that charge while knowing its falsity with impunity." Liberty Lobby v. Anderson, 746 F.2d 1563, 1568 (D.C.Cir. 1984), rev'd on other grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). So, too, here.

          Similarly, the criminal complaint filed against Stern in California does not alter this conclusion. While it undoubtedly does some damage to Stern's reputation, it is only an accusation and he is obviously presumed innocent in the matter. Moreover, the subject matter of the criminal complaint is different from most of the Statements at issue in this case. The criminal complaint charges Stern with playing a role in obtaining prescription drugs for Smith. It says nothing about promiscuous homosexual sex, "pimping," or any of the other Statements at issue here.

          Finally, the fact that Stern was seen on certain episodes of The Anna Nicole Show in a negative light likewise does not render him libel-proof. Although the show was a "reality show," Stern contends that much of it was staged, and many viewers undoubtedly watched the show with some skepticism. More importantly, the allegations in the Statements are significantly different and much more serious than the conduct Stern engaged in on the show.

          Accordingly, defendants' motion for summary judgment on the ground that Stern is libel-proof is denied.

C. Are the Statements Defamatory?

          Defendants argue that Statements 1 and 2, which impute homosexuality to Stern, are not defamatory, and that Statements 6 and 11 are substantially true, and therefore not actionable.

          I begin by discussing the legal standard applicable to a defamation claim under New York law. I then address defendants' arguments in turn. I conclude that Statements 1 and 2 are defamatory, but not defamatory per se, and that Statement 6, but not Statement 11, is substantially true.

1. Standard on a Claim for Defamation

          To succeed on a claim for defamation under New York law,[6] a plaintiff 272*272 must prove that a published statement is both false and defamatory. Cytyc Corp. v. Neuromedical Sys., Inc., 12 F.Supp.2d 296, 301 (S.D.N.Y.1998). Ultimately, New York law requires a libel plaintiff to prove five elements:

(1) a written defamatory statement of fact regarding the plaintiff; (2) published to a third party by the defendant; (3) defendant's fault, varying in degree depending on whether plaintiff is a private or public party; (4) falsity of the defamatory statement; and (5) injury to plaintiff.

          Meloff v. New York Life Ins. Co., 240 F.3d 138, 145 (2d Cir.2001) (citation omitted). In some circumstances, where the statement is so egregious that it is presumed to cause serious harm, the statement is defamatory "per se"—and the plaintiff need not prove special damages, i.e., economic or financial loss. Sharratt v. Hickey, 20 A.D.3d 734, 735, 799 N.Y.S.2d 299 (3d Dep't 2005).

          Where the plaintiff is a public figure,[7] because of the First Amendment, more than these five elements is required. The reason is simple: "[O]ne of the prerogatives of American citizenship is the right to criticize public men and measures." Baumgartner v. United States, 322 U.S. 665, 673-74, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944). Thus, the Supreme Court requires a public figure plaintiff to prove, by clear and convincing evidence, that the defendant made the statements with "actual malice." New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); accord Contemporary Mission, Inc. v. New York Times Co., 842 F.2d 612, 621 (2d Cir.1988) ("Liability requires clear and convincing evidence of a knowing falsehood or `subjective awareness of probable falsity.'") (internal citation and quotations omitted).

          A statement is defamatory if it would "tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace." Kimmerle v. New York Evening Journal, 262 N.Y. 99, 102, 186 N.E. 217 (1933); accord Golub v. Enquirer/Star Group, 89 N.Y.2d 1074, 1076, 659 N.Y.S.2d 836, 681 N.E.2d 1282 (1997) (statement defamatory where it "`tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community'") (quoting Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257 (1947)). On a motion for summary judgment, the court's role is to determine whether a statement is "reasonably susceptible to the defamatory meaning imputed to it." Levin v. McPhee, 119 F.3d 189, 195 (2d Cir.1997). If so, the court does not determine as a matter of law that the statement is defamatory, as that is the exclusive province of the jury. See Jewell, 23 F.Supp.2d at 360.

          To determine whether a statement is reasonably susceptible to a defamatory meaning, the Second Circuit has instructed as follows:

First . . . courts must give the disputed language a fair reading in the context of the publication as a whole. Challenged statements are not to be read in isolation, but must be perused as the average reader would against the whole apparent scope and intent of the writing.

Second, courts are not to strain to interpret such writings in their mildest and most inoffensive sense to hold them nonlibelous. A fair reading controls.

Finally, the words are to be construed not with the close precision expected from lawyers and judges but as they 273*273 would be read and understood by the public to which they are addressed. It is the meaning reasonably attributable to the intended reader that controls.

          Celle v. Filipino Reporter Enters., 209 F.3d 163, 177-78 (2d Cir.2000) (internal citations and quotations omitted).

2. Are the Statements Reasonably Susceptible to a Defamatory Meaning?

a. Statements 1 and 2

          Stern argues that Statements 1 and 2, which impute homosexuality to him, are defamatory per se. In support of his argument, Stern cites Appellate Division cases so holding. See, e.g., Klepetko v. Reisman, 41 A.D.3d 551, 552, 839 N.Y.S.2d 101 (2d Dep't 2007) ("The false imputation of homosexuality is reasonably susceptible of a defamatory connotation.") (internal citation and quotations omitted); Nacinovich v. Tullet & Tokyo Forex, 257 A.D.2d 523, 524, 685 N.Y.S.2d 17 (1st Dep't 1999) (holding that publications "depicting plaintiff as a homosexual, or implying such, are defamatory per se").

          The New York Court of Appeals, however, has never held that a statement imputing homosexuality constitutes defamation per se. Accordingly, this Court must predict what New York's highest court would do were the issue before it. See Michalski v. Home Depot, Inc., 225 F.3d 113, 116 (2d Cir.2000) ("Absent law from a state's highest court, a federal court sitting in diversity has to predict how the state court would resolve an ambiguity in state law.").

          The New York Court of Appeals has held that the following four categories of statements are defamatory per se: (1) those that accuse the plaintiff of a serious crime; (2) those that "tend to injure another in his or her trade, business or profession"; (3) those that accuse the plaintiff of having a "loathsome disease"; or (4) and those that impute "unchastity to a woman." Liberman v. Gelstein, 80 N.Y.2d 429, 435, 590 N.Y.S.2d 857, 605 N.E.2d 344 (1992). Whether a statement is defamatory per se "depends, among other factors, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place." Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257 (1947). Thus, whether a statement is defamatory per se can evolve from one generation to the next.[8]

          The question, then, is whether the New York Court of Appeals, in 2009, would hold that a statement imputing homosexuality connotes the same degree of "shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace," Kimmerle, 262 N.Y. at 102, 186 N.E. 217, as statements accusing someone of serious criminal conduct, impugning a person in his or her trade or profession, implying that a person has a "loathsome disease," or imputing unchastity to a woman.[9] I conclude that it would not.

          The past few decades have seen a veritable sea change in social attitudes about homosexuality. First, and perhaps most importantly, in 2003 the United States Supreme Court, in a sweeping decision, invalidated laws criminalizing intimate homosexual 274*274 conduct, holding that such laws violate the Fourteenth Amendment's Due Process Clause. Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Thus, to the extent that courts previously relied on the criminality of homosexual conduct in holding that a statement imputing homosexuality subjects a person to contempt and ridicule, see Plumley v. Landmark Chevrolet, 122 F.3d 308, 310-11 (5th Cir.1997) (holding that calling person "faggot" was slander per se because doing so "impute[s] the crime of sodomy"), Lawrence has foreclosed such reliance.

          Second, in 2009, the "current of contemporary public opinion" does not support the notion that New Yorkers view gays and lesbians as shameful or odious. A movement is currently afoot in the state to legalize gay marriage, see Jeremy W. Peters, Paterson Introduces a Same-Sex Marriage Bill, N.Y. Times, Apr. 16, 2009, at Al, and according to a recent opinion poll from Quinnipiac University—an independent polling institute—New York State residents support gay marriage 51 to 41 percent, with 8 percent undecided. See Quinnipiac University Polling Institute, New York State Voters Support Same-Sex Marriage Quinnipiac University Poll Finds, June 23, 2009, http://www. quinnipiac.edu/x1318.xml?ReleaseID= 1340. The same poll found that New York State residents support civil unions 68 to 25 percent. (Id.). The fact that a majority of New Yorkers supports some sort of government recognition of same-sex relationships belies the notion that these same New Yorkers regard gays and lesbians with "public contempt, ridicule, aversion or disgrace."

          Finally, the New York Court of Appeals has not, in its most recent opinion touching on social attitudes toward homosexuality, given any indication that it perceives widespread disapproval of homosexuality in New York. In Hernandez v. Robles, a majority of the Court of Appeals rejected the argument that the New York Constitution compels recognition of same-sex marriage. 7 N.Y.3d 338, 356, 821 N.Y.S.2d 770, 855 N.E.2d 1 (2006). The plurality opinion clearly recognized, however, that social attitudes toward gay and lesbian New Yorkers had changed dramatically in the past few years, see id. at 361, 821 N.Y.S.2d 770, 855 N.E.2d 1 ("The idea that same-sex marriage is even possible is a relatively new one."), and that the New York legislature could permit same-sex marriage if it chose to. See id. at 358-59, 821 N.Y.S.2d 770, 855 N.E.2d 1 (noting that "of course the Legislature may (subject to the effect of the federal Defense of Marriage Act) extend marriage or some or all of its benefits to same-sex couples"). The concurring opinion went even further, and suggested that the New York legislature should take up the issue. See id. at 379, 821 N.Y.S.2d 770, 855 N.E.2d 1 (Graffeo, J., concurring) ("It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate."). The Court of Appeals' opinion in Hernandez is simply inconsistent with the notion that gays and lesbians are the subject of scorn and disgrace.

          Judge McMahon, in 2008, considered this issue and reached the opposite conclusion. See Gallo v. Alitalia-Linee Aeree Italiane-Societa per Azioni, 585 F.Supp.2d 520, 549-50 (S.D.N.Y.2008). Her carefully-considered decision was based largely on the fact that prejudice still exists against gays and lesbians in our society. See id. ("This Court's decision to include homosexuality in the slander per se category should not be interpreted as endorsing prejudicial views against gays and lesbians. Rather, this decision is based 275*275 on the fact that the prejudice gays and lesbians experience is real and sufficiently widespread so that it would be premature to declare victory. If the degree of this widespread prejudice disappears, this Court welcomes the red flag that will attach to this decision.") (citations omitted). While I certainly agree that gays and lesbians continue to face prejudice, I respectfully disagree that the existence of this continued prejudice leads to the conclusion that there is a widespread view of gays and lesbians as contemptible and disgraceful. Moreover, the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians, merely because of their sexual orientation, belong in the same class as criminals. Accord Albright v. Morton, 321 F.Supp.2d 130, 138 (D.Mass.2004) ("If this Court were to agree that calling someone a homosexual is defamatory per se—it would, in effect, validate that sentiment and legitimize relegating homosexuals to second-class status.").[10]

          Stern argues principally that this Court is bound by New York Appellate Division cases—several of which are cited above—holding that an imputation of homosexuality is defamatory per se. I am not so bound. The rulings of intermediate appellate courts are "helpful indicators of how the state's highest court would rule," but they are not binding on me. See DiBella v. Hopkins, 403 F.3d 102, 112 (2d Cir.2005). Only one of the Appellate Division cases considers the issue in any depth; the others fail to discuss the evolving social attitudes regarding homosexuality and merely state, in a conclusory manner, that an imputation of homosexuality is defamation per se. Cf. Lewittes v. Cohen, No. 03 Civ. 189(CSH), 2004 U.S. Dist. LEXIS 9467, at *10 n. 5, 2004 WL 1171261, at *3 n. 5 (S.D.N.Y. May 24, 2004) (citing several Appellate Division cases and concluding that "[g]iven welcome shifts in social perceptions of homosexuality . . . there is good reason to question the reliability of these precedents"). The only decision that does consider the issue is Matherson v. Marchello, 100 A.D.2d 233, 241-42, 473 N.Y.S.2d 998 (2d Dep't 1984). That decision was from 1984, and even then the court struggled with the decision. See id. at 241, 473 N.Y.S.2d 998 (holding issue "presents a far more subtle and difficult question"). Accordingly, while I have carefully considered these cases, they are not controlling as I consider how the New York Court of Appeals would rule on the issue in 2009, after Lawrence v. Texas.

          Thus, I hold that Statements 1 and 2 are not defamatory per se merely because they impute homosexuality to Stern. They are, however, nonetheless susceptible to a defamatory meaning. Therefore, a jury will decide whether they are defamatory.

          Statement 1 alleges that Stern engaged in a sexual act with Birkhead at a party in Los Angeles in 2005. A reasonable jury could find that engaging in oral sex at a party is shameful or contemptible, and the fact that this conduct may not be illegal does not alter this conclusion. Cf. Jewell, 23 F.Supp.2d at 363 ("While it may be true that these actions are not `illegal or immoral,' the law does not require them to be either in order for the statements to be capable of a defamatory meaning."). Moreover, it also appears from the record that, at the time this alleged incident took place in 2005 (9/23/08 Cosby Dep. at 604-05), Smith was dating Birkhead and/or still involved in a relationship with Stern. 276*276 (Compare Book at 203-04 (implying that Smith and Birkhead were dating at time of party) with Stern Decl. ¶ 5 (stating that he and Smith had continuous romantic relationship beginning in 2000)). Thus, to the extent that the Statement implies that Stern was unfaithful to Smith, this would be further reason for a jury to find that the Statement is defamatory.

          Statement 2 alleges that Stern made a sex tape with Birkhead. This allegation would expose Stern to contempt among most people—even if, arguably, not among the social circles in which he and Smith traveled.[11] Moreover, while the record does not reveal when the sex tape was allegedly made, to the extent that Smith was dating Stern at that time, again a reasonable jury could find that Stern was unfaithful to Smith, and that his infidelity was shameful.

          For these reasons, I conclude that Statements 1 and 2 are susceptible to a defamatory meaning, but are not defamatory per se. Accordingly, Stern will have to prove special damages as to each of these Statements.[12]

b. Statements 6 and 11

          Defendants argue that Statements 6 and 11 are substantially true, and therefore cannot be defamatory.

          Under New York law "it is `fundamental that truth is an absolute, unqualified defense to a civil defamation action,' and `substantial truth suffices to defeat a charge of libel.'" Weber v. Multimedia Entm't, Inc., No. 97 Civ. 0682(JGK), 2000 U.S. Dist. LEXIS 5688, at *29, 2000 WL 526726, at *10 (S.D.N.Y. May 2, 2000) (quoting Guccione, 800 F.2d at 301). The Supreme Court has held that, where the "the substance, the gist, [or] the sting" of a statement is true, it cannot be libelous. Masson, 501 U.S. at 517, 111 S.Ct. 2419 (internal citation and quotation omitted).

i. Statement 6

Statement 6 reads in full as follows:

"I just want her to be with Daniel," Howard K. Stern cried to Entertainment Tonight cameras on his flight from Florida to the Bahamas on Entertainment Tonight's private plane. Even though Howard testified under oath during the Florida court hearing over Anna's burial that he only received the free flight, he was reportedly paid one million dollars to allow the entertainment news magazine to exclusively tape him and tag along as he went back to the Bahamas to secure Anna's five-month-old baby, Dannielynn—the baby he was claiming to be the father of.

          (Book at 28). Cosby argues that this statement is substantially true, because on February 21, 2007, Stern testified in a Florida proceeding that, since the death of Daniel Smith, he had not "received directly any financial remuneration from any media, press, or public relations." (12/15/08 McNamara Decl. Ex. R).

          277*277 Stern concedes that he signed a contract with Entertainment Tonight. (Stern Decl. ¶ 81) ("I signed the contract because I needed the money to bring Anna back to the Bahamas."). He claims, however, that he subsequently told the network that he did not want to go through with the contract and that his mother, without his knowledge, subsequently told Entertainment Tonight to proceed with the contract. (Id. ¶¶ 82-83). Stern claims he was "shocked" when he learned he had received $150,000 for the interview. (Id. ¶¶ 81-82).

          The gist of Statement 6 is true, even if some of the details were wrong, and Cosby's motion is therefore granted as to it. Stern did in fact sign a contract with Entertainment Tonight, and he was paid $150,000—not $1 million—for permitting the network to film him on the plane. His statement in the proceeding was, if technically correct, nonetheless misleading. No reasonable jury could conclude otherwise. Accordingly, Statement 6 is substantially true, and therefore not actionable.

ii. Statement 11

Statement 11 reads in full as follows:

Even though Howard K. Stern testified on the stand that he was the father of Dannielynn, he privately made this offer to Larry: "I will give you your baby if you leave me as executor of the estate."

          (Photograph caption in Book). Cosby argues that this Statement is substantially true because Stern knew when he testified that he was not Dannielynn's father. As Stern points out, however, while there may have been indications prior to his testimony that he was not the father, he did not know that as fact until an April 2007 paternity test proved that Birkhead was Dannielynn's father. (Stern Decl. ¶¶ 105-06).

          Moreover, Stern also challenges Statement 11 for its accusation that he sought to "trade" Dannielynn in exchange for being named executor of Smith's estate. (Compl. ¶ 276; Stern Decl. ¶ 104). According to Birkhead, he never told Cosby any such thing. (Birkhead Decl. ¶ 15).

          Because Cosby has not submitted any evidence to show that Statement 11 is substantially true, her motion for summary judgment as to Statement 11 is denied.

c. Remaining Statements

          The parties do not appear to dispute that the remaining Statements are susceptible to a defamatory meaning, and having reviewed the Statements, I agree. Accordingly, a jury will determine whether the remaining Statements are defamatory.

D. Did Defendants Act with Actual Malice?

          Both defendants argue that Stern has failed to present sufficient evidence of actual malice. First, I discuss the legal standards for determining the existence of actual malice. Second, I address the evidence of actual malice on the part of Cosby and Hachette, in turn.

1. Actual Malice Standard

The Second Circuit has explained the standard of actual malice as follows:

Despite its name, the actual malice standard does not measure malice in the sense of ill will or animosity, but instead the speaker's subjective doubts about the truth of the publication. If it cannot be shown that the defendant knew that the statements were false, a plaintiff must demonstrate that the defendant made the statements with reckless disregard of whether they were true or false. The reckless conduct needed to show actual malice is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing, but by whether there is sufficient evidence to 278*278 permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.

          Church of Scientology Int'l v. Behar, 238 F.3d 168, 174 (2d Cir.2001) (internal citations and quotations omitted). The plaintiff bears the burden of proving actual malice by clear and convincing evidence. Anderson v. Liberty Lobby, 477 U.S. 242, 255-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

          Factors for a court to consider in determining whether a defendant acted with actual malice include (1) whether a story is fabricated or based on an unverified, anonymous source; (2) whether the allegations at issue "are so inherently improbable that only a reckless person would have put them in circulation"; and (3) whether there are any obvious reasons to doubt the truthfulness of the defendant's source or the accuracy of the source's report. Behar, 238 F.3d at 174 (quoting and citing St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)).

          In determining whether a plaintiff has adduced sufficient evidence to reach a jury, the Court may consider plaintiff's evidence of actual malice in the aggregate. See Tavoulareas v. Piro, 817 F.2d 762, 794 n. 43 (D.C.Cir.1987) (en banc) ("We recognize that each individual piece of evidence cannot fairly be judged individually against the standard of clear and convincing evidence. Plaintiffs are entitled to an aggregate consideration of all their evidence to determine if their burden has been met."); McFarlane v. Sheridan Square Press, 91 F.3d 1501, 1510 (D.C.Cir.1996) (citing Tavoulareas for same proposition); Bolden v. Morgan Stanley & Co., 765 F.Supp. 830, 834 (S.D.N.Y.1991) (denying defendant's motion for summary judgment based on "aggregate of plaintiff's evidence" of actual malice); but see Church of Scientology v. Time Warner, Inc., 903 F.Supp. 637, 641 (S.D.N.Y.1995) ("[T]he Court considers each allegedly libelous statement individually to determine whether a rational finder of fact could find actual malice by clear and convincing evidence.") (emphasis added).

2. Cosby

          There is substantial evidence in the record from which a reasonable jury could find that Cosby acted with actual malice vis-a-vis several of the Statements. As discussed below, two of Cosby's sources accuse her of trying to get them to say untrue things, and two deny what she attributed to them entirely. Cosby also relied on sources who were obviously biased against Stern, and the record also contains evidence that Cosby tried to bribe two other sources. This is sufficient evidence of actual malice to take to a jury, at least with respect to certain Statements.

a. Statement 1

          A reasonable jury could find that Cosby acted with actual malice vis-a-vis Statement 1.

          First, a reasonable jury could find, by clear and convincing evidence, that there are "obvious reasons to doubt" the truthfulness of Jackie Hatten, Cosby's source for Statement 1. Behar, 238 F.3d at 174. A jury could so find based on the following:

▄ Mark Hatten, Jackie's brother, was convicted of stalking Smith and assaulting one of Smith's neighbors, and evidently Mark Hatten believed that Stern falsely accused him of these crimes. (Stern Decl. ¶¶ 28, 72-73). Similarly, according to Stern, Smith cut Jackie Hatten out of her life in 2000 and referred to Jackie and her brother as "psychos," "stalkers," and "crazy." (Cosby Decl. ¶ 39). A reasonable jury could find, based on this evidence, that 279*279 Jackie Hatten was so biased that it was reckless of Cosby to rely on her for the Statement.

▄ In an appearance on Fox News that Cosby claims she saw prior to being told by Hatten about the incident (Cosby Decl. ¶ 73), Hatten stated several times that she "had been told that Howard was gay." (Stern Decl. Ex. 13 (video of interview)). Notably, however, Hatten did not state in that interview that she knew Stern was gay, or that she had seen him engage in sexual acts with another man; instead she alluded to the fact that he would frequent gay bars with Smith. (Id.). As Stern points out, if Hatten really had witnessed Stern and Birkhead engaging in sexual contact at a party, she undoubtedly would have said so during that interview.[13] The fact that she did not suggests she may have fabricated the story, and the fact that Cosby never questioned her on this point suggests Cosby was so desperate to find explosive items to include in the Book that she simply did not care. Cf. Babb v. Minder, 806 F.2d 749, 755 (7th Cir.1986) ("Reckless conduct may be evidenced in part by failure to investigate thoroughly and verify the facts. . . particularly where the material is peculiarly harmful or damaging to the plaintiff's reputation or good name.") (internal citations and quotations omitted).

          Second, a reasonable jury could find that Statement 1 was so "inherently improbable that only a reckless person" would have published it. Behar, 238 F.3d at 174 (internal citation and quotation omitted). The inherent improbability in this Statement is not that two men had sex at a party, but that these two men did so, in a bedroom at a party in a stranger's house in Los Angeles, precisely when Smith and Jackie Hatten were themselves walking around in the house and entering bedrooms. Stern and Birkhead maintain that they are heterosexual, and, as discussed above, there is evidence in the record to suggest that Smith had some type of relationship with both men at the time the incident occurred. Both men, moreover, were key players in the tabloid drama that was Smith's life—Birkhead as the father of one of Smith's children and Stern as her lawyer and companion—and the allegation that they had a sexual relationship was nothing short of explosive. Perhaps too explosive. In other words, printing a claim that Birkhead and Stern had sex would be a way to make it to the top of the bestseller list, and a reasonable jury could find that Cosby ignored the inherently improbable nature of the Statement in her zeal to write a blockbuster book.

b. Statement 2

          There is substantial evidence in the record from which a reasonable jury could find that Cosby acted with actual malice vis-a-vis Statement 2.

          First, Cosby's conduct after the Book was published is evidence from which a reasonable jury could find that she had subjective doubts as to the veracity of Statement 2.[14] After Stern filed this lawsuit, 280*280 Cosby traveled to the Bahamas and attempted to meet with the nannies who had purportedly observed Smith watching the sex tape. See Stern I, 246 F.R.D. at 455. In a conversation with Lincoln Bain, one of the nannies' representatives, Cosby proposed paying the nannies to sign an affidavit attesting to the accuracy of the statements she attributed to them in the Book. (Id. at 455-56). Cosby was adamant in the conversation, however, that the payment go through the nannies' attorney, because making a payment directly to the nannies would raise serious questions in this court proceeding:

I cannot do much more because then it would look outrageous. You know what I mean? Because the problem is now that I'm dealing with the court thing, you have to understand, my thought's it's going to come back.

          (Id. at 456). Cosby suggested that the attorney send her a bill for services rendered in connection with the affidavit, and she then had this exchange with Bain:

COSBY: So I think that way everybody is covered and I think that that is a winwin. And that way so if it ever comes out, yeah I paid her, I'll say, I paid her cause these guys prepared the affidavit and that is a bona fide expense.

BAIN: Yeah.

COSBY: You know, and then I paid the attorney, and here is the bill for it. You know what I mean?

BAIN: Yeah.

COSBY: You know, that is a perfectly bona fide, you know, and that way, that way, that way you know cause otherwise you get into this whole thing if I get put under oath at some point now and they say, did you pay them a dime? And I can say, well, I paid the attorney for the affidavit. That's legitimate. You know what I mean?

BAIN: Yeah, yeah.

          (Id.). Cosby also made clear that once she had paid the attorney, the attorney "can do whatever she wants with the money," and that "down the road" she could do more. (Id. at 455-56).

          As I noted in Stern I, Cosby's actions are extremely troubling, and suggest that she was attempting to obstruct justice by tampering with witnesses. (Id. at 457-58). Presented with this evidence, a reasonable jury could conclude that Cosby knew she had fabricated Statement 2 and was desperate to come up with an after-the-fact verification of one of the more salacious and explosive allegations in the Book.

          Second, a reasonable jury could find that there were "obvious reasons" to doubt the truthfulness of Cosby's sources for this Statement, Don Clark and Wilma Vicedomine. Clark and Vicedomine were Cosby's only sources for the claim that Stern and Birkhead made a sex tape that Smith used to watch. (Cosby Decl. ¶ 82). Clark and Vicedomine were private investigators working for John O'Quinn, an attorney who represented Smith's mother, Virgie Arthur. (Cosby Decl. ¶ 82). Prior to writing the Book, Cosby was aware that they worked for O'Quinn, and that O'Quinn, on behalf of Arthur, was challenging Stern's custody over Smith's daughter. (9/23/08 Cosby Dep. at 573). Cosby also knew that there was "animosity" between Stern and 281*281 Arthur, that Stern had sued O'Quinn for libel, and that one of the claims in Stern's suit arose out of an interview Cosby conducted with O'Quinn on MSNBC. (Id. at 577-78). Moreover, after the Book was published, Clark lied on national television about being the source for the sex tape story. (See Clark Dep. at 304-05 ("Q. This statement was not the truth when you said it on national television that you didn't have any idea how Rita Cosby got her information about it. That was not the truth, was it, Mr. Clark? A. That was not the truth.")). A reasonable jury could find that Cosby's reliance on these two sources for such an explosive allegation is evidence of actual malice, because Cosby was aware of their possible bias and/or unreliability. Cf. Secord v. Cockburn, 747 F.Supp. 779, 789 (D.D.C.1990) (holding that actual malice requirement met where "author was subjectively aware that the source was unreliable").

          Finally, a reasonable jury could conclude that Statement 2 is so "inherently improbable that only a reckless person" would have published it. Behar, 238 F.3d at 174 (internal citation and quotation omitted). I understand that Smith and Stern led what many people would describe as an unorthodox lifestyle. Even in the context of an unorthodox lifestyle, however, Statement 2 is hard to fathom. Not only does Statement 2 allege that Stern (Smith's lawyer and companion) and Birkhead (the father of Smith's child) had sex together, but that (1) they made a video of their sexual activity, (2) Smith obtained or was provided with a copy of the video, (3) she regularly viewed the video, (4) to entertain herself, (5) in front of the nannies. Viewing the evidence in the light most favorable to Stern, I conclude that a reasonable jury could find that this Statement was inherently improbable, Cosby knew or should have known that it was not true, and she wrote the Statement with actual malice.

c. Statement 3

          Cosby's source for this Statement regarding Stern's and Smith's drug use was anonymous. By not filing a motion to compel prior to summary judgment to obtain the names of these anonymous sources, Stern has waived the right to challenge the credibility or reliability of those witnesses now. See OAO Alfa Bank v. Ctr. for Pub. Integrity, 387 F.Supp.2d 20, 52 n. 53 (D.D.C.2005) ("The Court does not see the wisdom in allowing plaintiffs to lie in the weeds until a motion for summary judgment is filed, and then spring the issue at summary judgment, denying defendants any right to use the evidence at all."). Cosby's motion for summary judgment as to Statement 3 is therefore granted.

d. Statements 4 and 5

          Stern argues that Cosby's reliance on Mark Hatten as the source for these two Statements is evidence of actual malice because Hatten was so unreliable and biased that it would be reckless to rely on him. The evidence of bias Stern cites is that Hatten was convicted of stalking Smith and assaulting one of Smith's neighbors, and that Hatten claims Stern set him up. (Stern Decl. ¶ 73). Cosby acted recklessly, Stern argues, in relying on a source so obviously biased as Hatten.

          It is a close call, but I disagree that a jury could find that Cosby acted with actual malice in reporting Hatten's accusations. While the two Statements convey the point that Hatten was accusing Stern of framing him, they also make clear that Hatten was arrested, convicted, and sentenced to seven years in prison. A reasonable jury could only conclude that Hatten's allegations were nothing other than the bitter complaints of a convicted felon, and from the way Cosby presents them it is clear that Cosby was not adopting Hatten's 282*282 views. While merely reporting what another has said obviously does not insulate a reporter from liability for defamation, under these circumstances a reasonable jury could not conclude that Cosby acted with actual malice in repeating Hatten's allegations in the Statements.

e. Statement 6

As discussed above, Statement 6 is dismissed on the ground that it is substantially true.

f. Statements 7 and 8

          There is sufficient evidence from which a reasonable jury could find that Cosby acted with actual malice vis-a-vis Statements 7 and 8. Jack Harding is the source for Statement 7, and Jackie Hatten for Statement 8, but Cosby corroborated each Statement by reference to the other, and thus they are properly considered together. (See Cosby Decl. ¶ 117 ("These two sources [Harding and Hatten] independently told me consistent information which helped to corroborate it and make it more credible."); id. ¶ 121 ("[G]iven the detail of Jackie's [Hatten] story which was reinforced by Jack Harding's independent statement, I absolutely believed Daniel's description of the pimping.")).

          First, there is evidence that Cosby fabricated quotes. Jack Harding is the source for Statement 7. During his deposition, Harding unequivocally denied making Statement 7 to Cosby, or to anyone else:

Q. The fact of the matter is, whether he would demean his mom that way or not, the truth of the matter is that Daniel Smith never made that statement to you; right?

A. No.

Q. He didn't; is that right?

A. That's right.

Q. And in fact—truth and in fact, you never told Ms. Cosby that Daniel had told you that Howard was having people lay his mom, pimping her for sex?

A. No.

Q. You didn't tell her that, did you?

A. I didn't tell her that, but she kept asking me that and I kept saying, "I—I have no idea. He never said that to me."

Q. And you never told anyone that Daniel Smith told you that Howard K. Stern was having people lay his mom or pimping her for sex?

A. No.

(Harding Dep. at 60-61).

          Cosby argues that this Court should disregard Harding's denial for three reasons: first, the denial is "nothing more than a failure to remember by a sick and tired elderly man"; second, Harding, in other interviews, acknowledged making statements that he denied making in his deposition; and, finally, Cosby's notes from her interview of Harding and a subsequent email she sent reflect what she wrote in the Book.

          Cosby's arguments fail, however, because she is arguing credibility. It is for a jury—not the Court—to consider conflicting testimony, make credibility determinations, and weigh the evidence. Even assuming Harding made statements elsewhere that contradict his deposition testimony here, it is up to the jury to resolve the conflicts.

          Second, a reasonable jury could find that Statements 7 and 8 are so inherently improbable that Cosby was reckless in including them in the Book. It is one thing to point out the various unorthodox aspects of Smith's life. It is another thing entirely, however, to state that Smith knowingly acted as a prostitute (with all the money she had), with Stern as her "pimp," or that Stern drugged her and "pimped" her to as many as fifty men a year. It will be up to a jury to determine whether this Statement is as inherently improbable as it sounds.[15]

283*283 g. Statement 9

          Stern argues that the sources for this Statement are unreliable. The only evidence he cites is that the sources had previously made the accusation to the Bahamian police after Daniel Smith's death. (Stern Decl. ¶ 95). It is not clear to the Court how this undermines, rather than reinforces, the sources' reliability, and Stern does not elaborate. In any event, this is not evidence that Cosby acted with actual malice.

h. Statement 10

          Stern argues that the sources for this Statement are biased and unreliable, and cites as evidence the fact that Mark Speer had taken sides in a dispute involving Larry Birkhead and his attorney. Stern also makes much of the fact that, in his deposition, Speer quibbled with some of the language Cosby used to describe things he had said, but never denied the substance of what he told Cosby. (See, e.g., Speer Dep. at 176-82). Based on this evidence, and even considering the other evidence of actual malice in the record, no reasonable jury could find that Cosby acted with actual malice vis-a-vis Statement 10.

i. Statement 11

          The Statement itself identifies Birkhead as its source, but Birkhead has submitted a declaration explicitly and unequivocally denying ever telling Cosby that Stern offered to abandon his paternity claim in exchange for being named executor of Smith's estate. (See Birkhead Decl. ¶ 15) ("Rita Cosby's claim . . . that I told her that Howard made an offer that included him `giving' me Dannielynn is a deliberate fabrication. I never told her anything of the sort."). It will be up to a jury to determine who is telling the truth. If the jury believes Birkhead in this respect, it could reasonably find that Cosby acted with actual malice.

j. Statement 12

          Stern focuses on Birkhead's denials that any of the statements Speer allegedly overheard took place, but Speer was Cosby's source for this Statement, not Birkhead. While Stern consistently maintains that Speer was unreliable, the evidence supporting his contention is not sufficient for a reasonable jury to find that Cosby acted recklessly in relying on Speer.

k. Statement 13

          Virgie Arthur, Stern's mother, is the source for this Statement. (Cosby Decl. ¶ 148). For the same reasons discussed above in the context of Statement 2, a reasonable jury could find that Cosby's reliance on Arthur for such a sensational allegation was reckless, and therefore evidence of actual malice.

1. Statement 14

          Stern does not, either in his brief or declaration, adduce any evidence—other than Stern's claim of falsity—of actual malice as to Statement 14, and it is therefore dismissed.

m. Statements 15-19

          These Statements generally suggest that Stern was complicit in the deaths of Smith and her son, Daniel, and are the 284*284 most serious accusations in the Book, as Cosby's counsel acknowledged at oral argument. (7/7/09 Tr. at 8 ("The most damning allegation at issue is that [Stern] was in some way responsible for Anna Nicole's death and responsible for Daniel's death.")). Cosby attributes them to a number of different sources, including Virgie Arthur and Jackie Hatten. As discussed above, a reasonable jury could find that there are obvious reasons to doubt the truthfulness of Arthur and Hatten, and in light of the seriousness of the allegations— which in substance accuse Stern of murder—and the evidence of actual malice in the record as to other Statements, I conclude that whether Cosby acted with actual malice vis-a-visa Statements 15 to 19 is a question for the jury. Accordingly, Cosby's motion for summary judgment on Statements 15-19 is denied.

          To summarize, Cosby's motion for summary judgment is granted as to Statements 3, 4, 5, 6, 9, 10, 12, and 14, and denied as to Statements 1, 2, 7, 8, 11, 13, 15, 16, 17, 18, and 19.

3. Hachette

          The only issue as to Hachette is whether Hachette acted with actual malice with respect to publication of the Book. I conclude there is insufficient evidence in the record from which a reasonable jury could find, by clear and convincing evidence, that Hachette acted with actual malice, and therefore I grant Hachette's motion for summary judgment.

          The only evidence Stern adduces that Hachette acted with actual malice is that Hachette did not investigate the reliability of Cosby's sources or the accuracy of her claims. Hachette does not dispute that it did not independently factcheck anything in the Book. (Einhorn Aff. ¶ 5).[16] The law is clear, however, that a book publisher has no independent duty to investigate an author's story unless the publisher has actual, subjective doubts as to the accuracy of the story. See Lohrenz v. Donnelly, 350 F.3d 1272, 1284 (D.C.Cir. 2003); Hotchner v. Castillo-Puche, 551 F.2d 910, 914 (2d Cir.1977) (holding that publisher's "failure to conduct an elaborate independent investigation did not constitute reckless disregard for truth"). The First Circuit explained the reason for this rule as follows:

To require a book publisher to check, as a matter of course, every potentially defamatory reference might raise the price of non-fiction works beyond the resources of the average man. This result would, we think, produce just such a chilling effect on the free flow of ideas as First Amendment jurisprudence has sought to avoid.

          Geiger v. Dell Pub. Co., 719 F.2d 515, 518 (1st Cir.1983). A book publisher is permitted to rely on an author's reputation and experience without having to independently fact-check a book. See McManus v. Doubleday & Co., 513 F.Supp. 1383, 1389-90 (S.D.N.Y.1981) (denying summary judgment as to author but granting as to publisher because publisher was "entitled as a matter of law to rely on [author's] proven reportorial ability").

          Stern adduces no evidence that anyone at Hachette had any actual, subjective doubt as to any of Cosby's reporting.[17] Rather, he appears to suggest that they 285*285 should have had doubts. He argues as follows:

▄ "Hachette knew that Cosby's primary sources for a majority of her information were Clark and Vicedomine and that all of the information they provided was hearsay or double hearsay without any corroboration." (Stern Opp. at 71).

▄ "Hachette knew that Cosby had absolutely no corroboration for the other major claims in [the Book], including that Jackie Hatten saw Stern performing oral sex on Birkhead at a party in Los Angeles and that Stern pimped Ms. Smith out to at least fifty or possibly as many as one hundred men in a year without her knowledge." (Stern Opp. at 71).

          As discussed above, however, Cosby did have sources—however unreliable—for these Statements, and Hachette had no duty to investigate the reliability of these sources or the accuracy of Cosby's reporting.[18] Hachette, moreover, was entitled to rely on the accuracy of the reporting of a journalist with three Emmys under her belt.

          While there is evidence in the record, discussed above, from which a reasonable jury could find that Cosby had subjective doubts as to the accuracy of certain of the Statements in the Book, there is no evidence to suggest Hachette was aware of any of it. There is, for example, nothing in the record to suggest that Hachette was aware that Cosby pressured sources to lie, as a jury could so find, or that, after the Book was published, Cosby traveled to the Bahamas in an apparent effort to tamper with witnesses. There is simply no evidence in the record—much less clear and convincing evidence—from which a reasonable jury could find that anyone at Hachette had the same knowledge as Cosby as to the reliability of these sources.[19]

          This conclusion is unaffected by the fact that Hachette, pursuant to its standard practice, contractually required Cosby to submit all her source materials to Hachette's outside counsel to conduct a libel review. Stern does not point to any evidence that the review conducted by Hachette's attorney resulted in anyone at Hachette entertaining any subjective doubts as to the accuracy of Cosby's reporting. 286*286 Even assuming the outside attorney had actual doubts—and Stern submits no evidence of any—her doubts could not be imputed to Hachette, as it is undisputed that she was not Hachette's employee. See Murray v. Bailey, 613 F.Supp. 1276, 1282 (N.D.Cal.1985) (holding, in context of actual malice inquiry, that "stringent standards required by the First Amendment make application of an agency theory inappropriate").

          Nor is it sufficient that Hachette was anxious to publish the Book as soon as possible and with as many blockbuster stories as possible. There is nothing improper or even remarkable about the fact that Hachette, a for-profit publisher, was interested in producing a best-selling book, and the law is clear that absent evidence of "pressure to produce sensationalistic or high-impact stories with little or no regard for their accuracy," pressure to publish sensational stories "cannot, as a matter of law, constitute evidence of actual malice." Tavoulareas, 817 F.2d at 796-97.

          Stern's remaining arguments as to Hachette are similarly meritless. He argues that one of Einhorn's innocuous notations on a manuscript of the Book and Hachette's post-publication marketing efforts constitute evidence of actual malice, but they are no such thing, and are certainly not clear and convincing evidence.

          Because there is insufficient evidence in the record from which a reasonable jury could find, by clear and convincing proof, that Hachette acted with actual malice, Hachette's motion for summary judgment is granted, and the complaint is dismissed as to it.

E. Punitive Damages

          Punitive damages are available under New York law "`to punish a person for outrageous conduct which is malicious, wanton, reckless, or in willful disregard for another's rights.'" DiBella v. Hopkins, 403 F.3d 102, 122 (2d Cir.2005) (quoting Prozeralik v. Capital Cities Commc'ns, 82 N.Y.2d 466, 479-80, 605 N.Y.S.2d 218, 626 N.E.2d 34 (1993)). Satisfying the actual malice standard does not suffice. (Id.). To be entitled to punitive damages, a defamation plaintiff must prove that the defendant acted, toward the plaintiff, with "hatred, ill will, spite, criminal mental state or that traditionally required variety of common-law malice." Prozeralik, 82 N.Y.2d at 479-80, 605 N.Y.S.2d 218, 626 N.E.2d 34.

          There is evidence in the record from which a reasonable jury could find that Cosby acted with hatred, ill will, or spite toward Stern. For example, Eric Gibson, a friend of Smith's and Stern's, provided a declaration that suggests Cosby may have acted out of ill will toward Stern. (See Gibson Decl. ¶ 3 ("I realized when I talked to Ms. Cosby that she was trying to get me to say negative, and untrue, things about Howard and how he treated Anna Nicole. During our conversation Ms. Cosby was trying to put false words in my mouth.")). In a similar vein, Birkhead claims that Cosby once told him that she was going to "nail Howard to the wall" and "destroy" him. (See Birkhead Decl. ¶ 12). This is sufficient evidence that Cosby acted with hatred, ill will, or spite to permit the claim to reach the jury. Cosby, for her part, will be able to provide the jury with evidence that she treated Stern fairly in the Book.

F. The Incremental Harm Doctrine

          Cosby argues that the Court should grant summary judgment and dismiss the complaint even as to the actionable statements based on the incremental harm doctrine. The incremental harm doctrine "measures the difference between the harm caused by non-actionable statements when compared with the harm caused by purportedly actionable statements 287*287 and dismisses the latter when the difference is incremental." Jewell, 23 F.Supp.2d at 387.[20] Under this doctrine, the Court should dismiss a claim, even one based on a false statement, where the Court determines that the plaintiff's "reputational interest in avoiding further adverse comment . . . is minimal when compared with the First Amendment interests at stake." Simmons Ford, Inc. v. Consumers Union of U.S., Inc., 516 F.Supp. 742, 751 (S.D.N.Y.1981).

          Here, the doctrine does not warrant dismissal of the complaint. Like the libel-proof plaintiff doctrine, the incremental harm doctrine is to be sparingly applied, if at all. Several of the Statements at issue in this case—including the Statement that Stern made a sex tape with Birkhead and that Stern "pimped" Smith—are particularly salacious and damaging to Stern's reputation. Moreover, the actionable Statements are significantly different from the non-actionable Statements. I cannot say, therefore, that the damage caused by these Statements is only incremental compared to the damage caused by those Statements I have held to be non-actionable. See Liberty Lobby, 746 F.2d at 1568 (Scalia, J.) (criticizing incremental harm doctrine because "it rests upon the assumption that one's reputation is a monolith, which stands or falls in its entirety. The law, however, proceeds upon the optimistic premise that there is a little bit of good in all of us—or perhaps upon the pessimistic assumption that no matter how bad someone is, he can always be worse.").

          Accordingly, I hold that the incremental harm doctrine does not bar Stern's case from proceeding to a jury.

CONCLUSION

          For the foregoing reasons, Stern's motion to strike is granted in part and denied in part, Cosby's motion for summary judgment is granted as to Statements 3, 4, 5, 6, 9, 10, 12, and 14, and denied as to Statements 1, 2, 7, 8, 11, 13, 15, 16, 17, 18, and 19, and Hachette's motion for summary judgment is granted in its entirety, and the complaint is dismissed as to Hachette.

The Court will conduct a pre-trial conference on September 11, 2009 at 12:00 p.m. in Courtroom 11A.

SO ORDERED.

MEMORANDUM DECISION

          Defendant Rita Cosby moves for reconsideration of that portion of the Court's August 12, 2009 opinion (the "Opinion") holding that plaintiff Howard K. Stern may proceed to trial with respect to Statements 1 and 2. See Stern v. Cosby, No. 07 Civ. 8536(DC), 2009 WL 2460609, 2009 U.S. Dist. LEXIS 70912 (S.D.N.Y. Aug. 12, 2009). Stern opposes the motion. I held oral argument on the motion for reconsideration on September 11, 2009 and reserved decision. For the reasons that follow, the motion is denied.

DISCUSSION

          The issue presented by Cosby's motion is whether Stern must prove special damages as to Statements 1 and 2. In the Opinion, I held that he must, because Statements 1 and 2 were not libelous per se. In reaching that conclusion, I focused solely on the issue of whether calling a person a homosexual is libelous per se. I held that it was not. Id. at 2009 WL 288*288 2460609, at **11-12, 2009 U.S. Dist. LEIS 70912, at *35-37.

          Cosby moves for reconsideration based on Stern's acknowledgment in his deposition that he has no special damages, and indeed it is clear that Stern has not alleged special damages in this case to date.[1] In response to Cosby's reconsideration motion, Stern now argues, for the first time, that he need not prove special damages because Statements 1 and 2 are libelous per se, even assuming statements imputing homosexuality are not libelous per se.[2]

          "The line between statements that are defamatory per se and those that require proof of special damages remains fuzzy." Celle v. Filipino Reporter Enters., 209 F.3d 163, 179 (2d Cir.2000); accord 1 Robert D. Sack, Sack on Defamation 2-125 (3d ed.2000) [hereinafter "Sack"] (noting that New York law on this point is "in disarray"). The parties' arguments require the Court to delve into this "fuzzy" area of the law.

A. Libel Per Se Is Not Limited to the Four Categories

          The New York Court of Appeals has recognized four categories of statements as defamatory per se: (1) those that accuse the plaintiff of a serious crime; (2) those that "tend to injure another in his or her trade, business or profession"; (3) those that accuse the plaintiff of having a "loathsome disease"; or (4) and those that impute "unchastity to a woman." Liberman v. Gelstein, 80 N.Y.2d 429, 435, 590 N.Y.S.2d 857, 605 N.E.2d 344 (1992). Determining whether a statement is defamatory per se is a question of law for the Court. 1 Sack, 2-120 ("It is a question of law, for the court to determine, whether a communication is libelous or slanderous per se."); James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 353 N.E.2d 834 (1976) (same).

          As a threshold matter, Stern argues that these four categories only apply to slander, not libel, actions. I disagree. In Meloff v. N.Y. Life Ins. Co., a libel case, the Second Circuit cited Liberman, a slander case, for the proposition that "[p]laintiff's compensable injury is presumed if the defamatory statement falls within a category of libel per se." 240 F.3d 138, 145 (2d Cir.2001). The Second Circuit went on to hold that the statement at issue in that case was libelous per se because it "tend[ed] to disparage a person in the way of his office[,] profession[,] or trade." Id. Similarly, in Celle, a libel case, the Second Circuit cited Liberman, among other cases, for the proposition that a libel plaintiff need not prove special damages for a statement that disparages a person's profession or trade. 209 F.3d at 179-80. Hence, the Second Circuit has twice applied Liberman to libel claims, and accordingly, I hold, in accordance with this Second Circuit precedent, that the categories of slander per se also apply to libel actions.

          Stern next argues that, even if Liberman applies to libel cases, libel per 289*289 se is not limited to the four categories. I agree, for three reasons.

          First, as Judge Sack put it, the four categories are "largely arbitrary," 1 Sack, 2-111, and there does not appear to be any logical reason for limiting libel or slander per se to these four categories. Indeed, the latter two categories—"unchastity" on the part of a woman and "loathsome" diseases—are antiquated and odd. As the parties acknowledged at oral argument (9/11/09 Tr. at 10-11, 36), no case holds that libel per se is limited to these categories, and the Court's own research has not revealed any.

          Second, limiting libel per se to these four categories is inconsistent with the rationale behind per se defamation. The reason the law dispenses with the special damages requirement in some cases is because certain statements are considered so inflammatory and offensive that the law presumes the statements to have caused damage. See Carey v. Piphus, 435 U.S. 247, 262-63, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (noting that presumed damages is "oddity" of defamation law, but defending rule because "those forms of defamation that are actionable per se are virtually certain to cause serious injury to reputation"); Mgmt. Servs. v. Health Mgmt. Sys., 907 F.Supp. 289, 293 (C.D.Ill.1995) ("The reason damages are presumed when forms of defamation are actionable per se is because the defendant's conduct is considered so severe that serious injury to the plaintiffs reputation is `virtually certain.'") (quoting Carey, 435 U.S. at 262). In other words, certain statements are so clearly damaging that the law presumes that the plaintiff has suffered damages. It is inconsistent with this rationale to say that only statements within the four categories can be so inflammatory and offensive that damages will be presumed, particularly because there is no principled reason why the rule only applies to these four categories.

          Third, there is some authority for the proposition that libel per se extends beyond the four categories. As discussed in the Opinion, lower courts in New York have for decades held that statements imputing homosexuality are libelous per se, even though that is not one of the four categories recognized by the Court of Appeals. 2009 WL 2460609, at *11-12, 2009 U.S. Dist. LEXIS 70912, at *34-36 (discussing cases). Moreover, other cases have set forth a standard for when a statement should be presumed to be damaging, without reference to the four categories. See Pub. Relations Soc'y of Am., Inc. v. Road Runner High Speed Online, 8 Misc.3d 820, 799 N.Y.S.2d 847, 851 (N.Y.Sup.Ct.2005) ("A written statement is libelous per se if it tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society."); Roth v. United Fed'n of Teachers, 5 Misc.3d 888, 787 N.Y.S.2d 603, 608 (N.Y.Sup.Ct.2004) ("It is also well established that statements that tend to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number in the community are libelous per se.") (internal citation and quotations omitted); 43A N.Y. Jur.2d Defamation and Privacy § 7 (citing Pub. Relations Soc'y of Am., Inc. and Roth for same proposition).[3]

          290*290 In light of the above, I hold that, under New York law, libel per se is not limited to the four categories. Rather, I hold that a statement is libelous per se, even if it does not fall within one of the four categories, if the statement is so severe that serious injury to the plaintiff's reputation can be presumed. See Carey, 435 U.S. at 262 (holding that "statements that are defamatory per se by their very nature are likely to cause mental and emotional distress, as well as injury to reputation, so there arguably is little reason to require proof of this kind of injury"). Where a statement meets this heightened standard of defamation, then it is libelous per se, and the plaintiff need not prove special damages.

          I hold further that Statements 1 and 2—which accuse Stern of (1) having sex with Smith's boyfriend; (2) making a video of himself having sex with Smith's boyfriend; (3) promiscuity; and (4) infidelity—so clearly expose Stern to "hatred, contempt or aversion, or [so clearly] induce an evil or unsavory opinion of him in the minds of a substantial number of the community" that serious injury to Stern's reputation can be presumed. Accordingly, he need not prove special damages as to Statements 1 and 2.

B. In the Alternative, Statements 1 and 2 Are Libelous Per Se Because They "Tend to Injure" Stern In His Profession

          Even assuming libel per se is limited to the four categories, I hold, as a matter of law, that the conduct described in Statements 1 and 2 would "tend to injure" Stern in his trade, business, or profession, and is therefore libelous per se on that basis as well.

          "To be actionable as words that tend to injure another in his or her profession, the challenged statement must be more than a general reflection upon [plaintiffs] character or qualities. Rather, the statement must reflect on her performance or be incompatible with the proper conduct of her business." Golub, 89 N.Y.2d at 1076, 659 N.Y.S.2d 836, 681 N.E.2d 1282.

          Statements 1 and 2 claim that Stern, Anna Nicole Smith's attorney, had a sexual relationship with Larry Birkhead, Smith's boyfriend. The Statements portray Stern as a lawyer who would have sex with his client's boyfriend—on video. Potential clients would, presumably, not want to have a lawyer who slept with his client's significant other. Moreover, serious questions as to an attorney's duty of loyalty to his client surely are raised when the attorney has a sexual relationship with his client's significant other. See Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir.2003) ("`As a matter of professional responsibility, an attorney owes a duty of loyalty to his client.'") (quoting In re Agent Orange Prod. Liab. Litig., 800 F.2d 14, 17 (2d Cir.1986)). In such an instance, an attorney could face a substantial conflict of interest, as he could be motivated to protect the interests of his client's spouse instead of his client's. Even assuming such conduct is not unethical,[4] it is certainly unprofessional and ill-advised.

          If Statements 1 and 2 are true, they would certainly "reflect on [Stern's] performance" as an attorney and be "incompatible with the proper conduct" of an attorney. Golub, 89 N.Y.2d at 1076, 659 N.Y.S.2d 836, 681 N.E.2d 1282. Stern was Smith's attorney, and therefore had a duty to protect Smith's interests. If Stern did have a sexual relationship with Smith's 291*291 boyfriend, he faced a serious conflict of interest due to his representation of Smith and his relationship with Birkhead, Smith's boyfriend. Accordingly, I hold, as a matter of law, that Statements 1 are 2 are libelous per se because they disparage Stern in his profession as an attorney. He need not prove special damages as to either Statement.

CONCLUSION

          For the foregoing reasons, Cosby's motion for reconsideration as to Statements 1 and 2 is denied. Trial in this case shall commence on November 30, 2009 at 10:00 a.m. in Courtroom 11A. The parties shall submit a joint pre-trial order, requests to charge, and proposed voir dire by November 9, 2009. Motions in limine, if any, shall be filed by November 9, 2009 and opposition shall be filed by November 20, 2009. The Court will hold a hearing on November 23, 2009, at 10:00 a.m., to decide the motions in limine and to discuss any other matters for trial.

SO ORDERED.

          [1] Much of the evidence relied upon by the parties in litigating the motions—including declarations and deposition testimony—was submitted under seal. The Second Circuit has held that "documents submitted to a court for its consideration in a summary judgment motion are—as a matter of law—judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment." Lugosch v. Pyramid Co., 435 F.3d 110, 121 (2d Cir.2006). This presumption in favor of public access to documents is strongest where the documents "are used to determine litigants' substantive legal rights." Id. (citing United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir.1995)). Here, the Court has relied on the sealed evidence in ruling on these motions for summary judgment, and thus the sealed materials are judicial documents to which a strong presumption of access attaches. Accordingly, the sealed documents submitted in connection with defendants' motions for summary judgment will be unsealed, unless within five business days hereof any party shows compelling reasons why any particular materials should not be unsealed.

          [2] Stern seeks to strike certain portions of Cosby's declaration on several grounds, including that it is not based on personal knowledge. The law is clear that "for summary judgment purposes, `[a] supporting or opposing affidavit must be made on personal knowledge.'" SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 138 (2d Cir.2009) (quoting Fed.R.Civ.P. 56(e)(1)). It is obvious that Cosby does not have personal knowledge of many of the statements in her declaration—for example, where she describes details of Smith's life. (See, e.g., Cosby Decl. ¶ 13 ("In 2005 Anna [Nicole Smith] was living in Los Angeles and dating Larry Birkhead when she met and became involved with a wealthy developer from South Carolina, Ben Thompson.")). Cosby's knowledge of such events is, presumably, based on what she has read and what other people told her—in other words, hearsay. Similarly, Stern's declaration makes statements of which he cannot have personal knowledge— for example, statements regarding Cosby's state of mind. (See, e.g., Stern Decl. ¶ 25 ("Rita Cosby had every reason to doubt the credibility of her sources, and the highly implausible claims supposedly being told by them.")). The Court will not consider any statement in any affidavit or declaration that does not appear to be based upon the affiant's or declarant's personal knowledge.

          Stern also objects to Cosby's declaration on the ground that many of the exhibits attached thereto, such as newspaper articles, are hearsay. The newspaper articles, however, are not offered for their truth. Rather, they are offered to show that Stern was subjected to media criticism for his behavior.

          Accordingly, Stern's motion to strike is granted in part and denied in part.

          [3] The commitment ceremony took place in the Bahamas on September 28, 2006. Stern acknowledges that it was not a legal marriage under Bahamian or United States law. (Stern Decl. ¶ 11).

          [4] According to another editor at Hachette, the other item was probably the Book's claim that Stern "pimped" Smith for money. (Pockell Dep. at 37-38).

          [5] Many of the Statements are long passages from the Book; the Court has here set forth summaries. Stern's complaint addresses the 19 Statements in paragraphs 92-370.

          [6] The parties agree that New York law governs this dispute, as the events giving rise to this suit—namely, the writing and publication of the Book—took place in New York. (Pl. Opp. at 23 n. 8; Cosby Mem. at 12 n. 8; Hachette Mem. at 8 n. 1).

          [7] Stern does not dispute that he is a public figure. (Pl. Opp. at 22 n. 7).

          [8] It is, for example, unlikely that the New York Court of Appeals would today hold that it is libelous per se to state that a white man is "colored" or a "negro," but that is precisely what the Court held in 1926. See Sydney v. MacFadden Newspaper Pub. Corp., 242 N.Y. 208, 213-14, 151 N.E. 209 (1926).

          [9] That New York law treats a statement accusing a woman, but not a man, of unchastity as defamatory per se is both antiquated and highly questionable.

          [10] I also note that amicus curiae Lambda Legal Defense and Education Fund, one of the largest gay and lesbian advocacy organizations in the country, argues that, because it is "neither shameful nor disgraceful to be identified as lesbian or gay, it is not defamatory per se to describe someone as gay." (Lambda Mem. at 1).

          [11] I reject, as absurd, Cosby's argument that Statement 2 is not susceptible to a defamatory meaning because sex tapes are commonly made by celebrities, and do not expose those celebrities to contempt. (Cosby Mem. at 19 n. 16; Cosby Decl. ¶ 74).

          [12] It is not clear to the Court whether either defendant moves for summary judgment as to damages, but I am satisfied that Stern has adduced sufficient evidence of damages to get to a jury. Under New York law, "a plaintiff entitled only to nominal damages of one dollar is entitled to the vindication which a jury verdict can bring." Sharon, 599 F.Supp. at 586. Here, Stern has alleged damages to his reputation in the tens of millions of dollars, and he is entitled to have a jury determine the amount of damages, if any.

          [13] Hatten certainly was not shy about making incendiary charges on national television: In a February 13, 2007 interview she suggested Stern was responsible for the deaths of Smith and her son. (Cosby Decl. ¶ 76; id. ex. 29).

          [14] I reject Cosby's argument that I cannot consider evidence of events that took place after publication of the Book in evaluating whether Cosby acted with actual malice. The fact that Cosby tried to obtain an affidavit from the nannies under the circumstances alleged is properly considered as evidence of her state of mind when she wrote the Book. See Sharon v. Time, Inc., 599 F.Supp. 538, 581 (S.D.N.Y.1984) (considering post-publication evidence and holding that such evidence "could be weighed by the jury as part of a possible factual basis for finding that [defendant] had recklessly disregarded the truth"); see also United States v. Lorenzo, 534 F.3d 153, 161 (2d Cir.2008) (holding, in criminal context, that "`false exculpatory statements made to law enforcement officials are circumstantial evidence of a consciousness of guilt and have independent probative force'") (quoting U.S. v. Johnson, 513 F.2d 819, 824 (2d Cir.1975)).

          [15] Cosby's argument that she did not, as a matter of law, act with actual malice because she relied on previous reports intimating that Stern was "pimping" Smith is rejected, as there is evidence that Cosby either knew the allegation was false, or was reckless as to its truth or falsity. See Flowers v. Carville, 310 F.3d 1118, 1130 (9th Cir.2002) ("[I]f someone knows that the news story is false, he can't sanitize his republication by purporting to rely on the news source. Nor can he claim immunity if he has conflicting information from another source and recklessly disregards it.").

          [16] Indeed, Einhorn stated that she is not aware of a single book publisher that has an in-house fact-checking department. (Id. ¶ 6).

          [17] The actual malice of an author cannot be imputed to the publisher unless the author is an employee of the publisher. See Chaiken v. VV Publ. Corp., 119 F.3d 1018, 1033-34 (2d Cir.1997). Stern does not allege—nor could he—that Cosby was Hachette's employee.

          [18] Stern also suggests, in a single conclusory sentence, that Hachette investigated certain sources, "uncovered serious concerns and reasons to doubt their credibility, and purposely chose not to investigate further." (Stern Opp. at 73). Stern does not cite to any evidence in the record to show that Hachette investigated any of the sources, and the Court's own review of the record had not revealed any.

          [19] The Court has concluded, as discussed above, that the jury can consider whether the inherently improbable nature of certain of the Statements is evidence that Cosby acted with actual malice when she published them. I have considered whether a jury could infer actual malice as to Hachette based on these same Statements, and I conclude that it could not. In Revell v. Hoffman, 309 F.3d 1228, 1233 (10th Cir.2002), the Tenth Circuit was confronted with a similar situation. There, the plaintiff's only evidence of actual malice was the inherent improbability of various passages in a book regarding the Oklahoma City bombing. The Tenth Circuit affirmed the District Court's grant of summary judgment to the defendants, concluding that the plaintiff "confuses what might be considered some evidence of actual malice with what, standing alone, will suffice to carry his burden of proving actual malice." Id. The Tenth Circuit refused to permit the plaintiff to proceed to trial based solely on inherent improbability because "[r]equiring publishers to finance trials based on such nebulous allegations would severely burden First Amendment rights." Id. at 1234. The Tenth Circuit's conclusion applies with equal force to this case. Under the circumstances, I conclude that the inherently improbable nature of certain of the Statements, without more, is insufficient evidence of actual malice to reach a jury.

          [20] As discussed above, the Supreme Court in Masson, 501 U.S. at 523, 111 S.Ct. 2419, held that the incremental harm doctrine is not available under federal law. In Jewell, however, Judge Preska, in a comprehensive and well-reasoned decision, predicted that the New York Court of Appeals would hold that the doctrine is available under New York law. 23 F.Supp.2d at 392.

          [1] The parties glossed over this issue in their summary judgment papers.

          In response to Cosby's reconsideration motion, Stern submitted a $500 doctor's bill for treatment he received after publication of the Book. Even assuming the Court would accept this evidence at this stage, under New York law special damages "must flow directly from the injury to reputation caused by the defamation, not from the effects of the defamation." Nunez v. A-T Fin. Info. Inc., 957 F.Supp. 438, 441 (S.D.N.Y.1997). A doctor's bill for treating mental anguish is not pecuniary loss, and therefore does not constitute special damages. Absent the doctor's bill, Stern has no evidence of special damages. (See 9/11/09 Tr. at 22).

          [2] Stern also devotes a significant portion of his brief to an argument based on the distinction between libel per se and libel per quod. I do not consider this issue, as I deny Cosby's motion on other grounds.

          [3] The language in these cases, however, is noi substantially different from the language for "plain slander." See 2 New York Pattern Jury Instructions 3:323D (2009) ("Spoken words are slanderous if they tend to expose the plaintiff to public hatred, contempt, ridicule or disgrace. . . .").

          [4] The parties dispute whether such conduct would violate California—the state in which Stern was admitted to practice at the time— ethical canons.

Mitchell v. Globe International Publishing, Inc.,

817 F.Supp. 72 (D. Ark. 1993)

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

            The October 2, 1990, edition of the Sun published a photograph of the plaintiff in conjunction with a “story” entitled, “World's oldest newspaper carrier, 101, quits because she's pregnant!” The “story” purports to be about a “papergal Audrey Wiles” in Stirling, Australia, who has been delivering papers for 94 years. Readers are told that the papergal became pregnant by a man she met on her newspaper route.

            The plaintiff, Nellie Mitchell, is a 96–year–old resident of Mountain Home, Arkansas. Ms. Mitchell has operated a newsstand since 1963. Prior to that she delivered newspapers on her paper route. The defendant, Globe International Publishing, Inc., publishes the Sun. The defendant also publishes the Examiner. In 1980 the Examiner ran an article entitled “Granny's a paperboy at age 85.” The article was about Ms. Mitchell. The picture of Ms. Mitchell appeared with this article as well.

            Based on the Sun article, the plaintiff filed this action for defamation on November 30, 1990, in the Circuit Court of Baxter County, Arkansas. The action was removed to this court on January 7, 1991, on the basis of diversity of citizenship.

            Globe contends it is entitled to judgment as a matter of law because the article and photograph in question did not convey false and defamatory statements about the plaintiff. It is further contended that summary judgment is appropriate because there is no proof of actual malice. Plaintiff, naturally, strenuously opposes the motion.***

            A cause of action for defamation generally has six elements: (1) the defamatory nature of the statement of fact; (2) the statement's identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant's fault in the publication; (5) the statement's falsity; and (6) the damages suffered by the plaintiff. Lisa R. Pruitt, The Law of Defamation: An Arkansas Primer, 42 Ark.L.Rev. 915, 920 (1989). See also H. Brill, Arkansas Law of Damages § 35–8 (2d Ed.1990). The defendant argues the article in question was satire, humor, or fiction and was not meant to be a truthful statement of facts. As such, defendant urges that a different standard is appropriate for works of those genres. Specifically, defendant states a different standard has been developed for determining malice in these situations, namely: whether the author intended, or recklessly failed to anticipate that readers would construe the publication as a statement of defamatory facts. Defendant relies on Miss America Pageant, Inc. v. Penthouse International, Ltd., 524 F.Supp. 1280, 1286–87 (D.N.J.1981). We have previously determined, however, that actual malice is not the appropriate standard of fault to be applied to the issue of liability.

            By affidavit the author of the article indicates the subject article is entirely fictional. In his deposition the author indicates he was given the headline and the picture and then “made up” the story. John Vader, editor of the Sun, indicates in his deposition that when the picture of plaintiff was selected they assumed she was dead.

            Vader describes the Sun as follows: a “tabloid that is published mainly for entertainment. It deals with offbeat, fantastic, very unusual stories.” Deposition 8–9. “[T]he Sun publishes stories which border on fantastic. The Sun' s stories are not necessarily true.” Vader Deposition at 27. “The Sun is a magazine. A great many of the articles in the Sun, as I said before, are fantasy, fantastic, very much like science fiction. There are a sprinkling of actual happenings in the articles about actual happenings in the paper; those are very, very well updated.” Vader Deposition at 38.

            The typical defamation action involves a purportedly factual publication. Actions involving fictional works are atypical. In an action arising from a purportedly nonfactual publication concentration on the “falsity” of the allegations is problematic. Courts have taken different analytical approaches to this issue.

One law review article describes the problems inherent in such analysis as follows:

The application of the New York Times or Gertz analysis to fiction is problematic, however, not because of the truth contained in fiction but because of the very “falsity” of the fiction. In a work of fiction, the author's misrepresentations are more than the result of carelessness or negligence regarding the truth of the material; they are a deliberate disregard of the truth. Thus, all defendants in fiction cases have acted with “actual malice” according to the nonfiction definition of this term in New York Times. As a result, the literal application to fiction of the constitutional test of fault established in New York Times and refined in Gertz would bring about unintended and perverse results.

            R. Rich & L. Brilliant, Defamation–in–Fiction: The Limited Viability of Alternative Causes of Action, 52 Brooklyn L.Rev. 1, 6 (1986). It is recommended that in such situations a plaintiff should be required to prove the following four elements: (1) that the alleged tortious statement was false; (2) that the defendant's motivation for the portrayal was to cause injury to the plaintiff; (3) that the portrayal is “of and concerning” the plaintiff as a matter of identity; and (4) that such portrayal could be reasonably understood as describing actual qualities of the plaintiff or actual events in which plaintiff participated. Id. at 2. The second element of this test would, of course, need to be modified in cases involving private plaintiffs when no issue of public concern is involved. In such cases, the inquiry is whether the defendant negligently published a falsehood.

            The defendant urges the court to adopt a different standard because the article is completely fabricated and could not be taken as true. As pure fiction or fantasy the defendant argues the article is not reasonably susceptible to a defamatory meaning. The court cannot say this article is clearly fiction. Nor do we believe the court should act as a literary critic and determine to what genre a particular publication belongs. However, the particular style of the writing involved is part of the context to be examined in evaluating the alleged defamatory statements. We do believe the main focus of the inquiry should be modified somewhat. The court believes a workable solution was proposed by the court in Pring v. Penthouse International, Ltd., 695 F.2d 438 (10th Cir.1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3112, 77 L.Ed.2d 1367 (1983).

            Pring was a defamation case concerning an article which appeared in Penthouse. The subject of the article involved the Miss America contest and a Miss Wyoming contestant. The defendant argued the story was a “spoof of the contest, ridicule, an attempt to be humorous, ‘black humor,’ a complete fantasy which could not be taken literally.” Pring, 695 F.2d at 439.

The court noted:

            The test is not whether the story is or is not characterized as ‘fiction,’ ‘humor,’ or anything else in the publication, but whether the charged portions in context could be reasonably understood as describing actual facts about the plaintiff or actual events in which she participated. If it could not be so understood, the charged portions could not be taken literally.

            The basic question to be resolved was stated in two parts—“whether the publication was about the plaintiff, that is, whether it was of and concerning her as a matter of identity; and secondly, whether the story must reasonably be understood as describing actual facts or events about plaintiff or actual conduct of the plaintiff.”

            The material at issue “must convey to a reasonable reader the impression that they describe actual facts about the plaintiff or activities in which she participated to be actionable. When one cannot reasonably interpret the material as portraying actual facts about the plaintiff, no damage to reputation can result.”

            In some circumstances the context in which the statements are made and the incidents related may compel the conclusion that the story could not be taken literally. In other circumstances the material complained of may be susceptible to defamatory meaning. In the terms used in Pring the alleged defamatory material could reasonably be understood to convey actual facts about the plaintiff or actual events in which she participated. Under the circumstances present herein, it is the province of the trier of fact to determine whether the material could be so understood.

             The article in question bore the plaintiff's picture.FN1 Therefore, the central issue is whether the article could be reasonably understood to describe actual facts about the plaintiff. Defendant referring to the Guinness Book of World Records informs the court that “everyone is well aware that it is physically impossible for a 101 or 96–year–old woman to be pregnant.” Additionally, we are told that the deposition testimony of the plaintiff and Vada Sheid support a finding that no one could understand the article to set forth true facts.

***The court cannot say as a matter of law that the article is incapable of being interpreted as portraying actual events or facts regarding the plaintiff. The “facts” conveyed are not so inherently impossible or fantastic that they could not be understood to convey actual facts. Nor can we say that no person could take them seriously. Moreover, even if the headline and certain facts contained in the article could not be reasonably believed other facts e.g., the implication of sexual promiscuity, could reasonably be believed.

            In making this determination we “consider the surrounding circumstances in which the statements were made, the medium by which they were published and the audience for which they were intended.” articles are written in a purportedly factual manner. No distinction is made between those articles that are wholly fictional and the articles that are intended to be factual. Fictional articles are not denoted as such. The Sun apparently intends for the readers to determine which articles are fact and which are fiction or what percentage of a given article is fact or fiction.

            The layout, captions, and style of writing contained in the article is similar in format to news articles. There are no cautionary statements appearing in this article or to the court's knowledge in the entire edition of the Sun.

            For these reasons, the motion for summary judgment will be denied. A separate order in accordance herewith will be concurrently entered.