Monday, August 30, 2010

Don King Loses Defamation Appeal In Action Against Disney, ABC, and ESPN

On June 30, 2010 Don King Productions, Inc. and Don King lost their appeal of a final summary judgment entered against them on their claims for defamation and false light (King did not appeal on the false light claim) by a trial court in Florida.

In affirming the trial court's ruling, the Fourth District Court of Appeal of Florida ruled that "statements made during an ESPN Sports Century television program about his life and career" did not defame boxing promoter Don King.

According to the decision, there were five statements at issue:
Three of those statements were spoken by Don Elbaum, a boxing promoter who has known King for over thirty years.  Elbaum was also the source of the fourth statement, which was spoken by the program’s host, Chris Fowler. The fifth statement was spoken by Jack Newfield, a writer who had covered King for several years, and whose works on King included numerous newspaper articles, a book entitled Only in America, and a 'Frontline'documentary on the Public Broadcasting Service.
Specifically, as set forth in the decision, the five statements were as follows:
1. Elbaum indicated that King organized a benefit exhibition fight for Forest City Hospital. The hospital only received $1,500 out of the $85,000 in ticket sales.
2. Elbaum described a private conversation he had with Meldrick Taylor in which they discussed Taylor being owed $1,300,000 for a fight, and King giving Meldrick a check for only $300,000.

3. Elbaum asserted that King threatened to have Meldrick Taylor killed.

4. Elbaum stated that King convinced doctors to invest $250,000 in a movie about his life that was never made.

5. Newfield described an encounter he had with King at a press conference where King went crazy and threatened to kill him.
In holding that King failed to establish actual malice, it rejected King's argument that there was sufficient evidence that ESPN harbored "ill will towards him towards him and intended to portray him in a negative light" noting that ill will is not the same as actual malice in the defamation context and holding that "[a]ny ill will or evil intent in the emails and production notations to which King directs our attention does not amount to actual malice."

Specifically, the Court set forth King's evidence of ill will:
King directs us to several emails exchanged between ESPN producers. In these emails, the producers requested more ominous music and referred to King as a 'greedy conniver.' There were also emails exchanged between the ESPN producers and producers from Broadway Video, in which the ESPN producers requested the Broadway  Video producers portray King as a 'huckster,' 'thug,' and an 'evil mob connected guy.'  Finally, King points to several notations on the script where ESPN producers allegedly commented that King should be portrayed as 'more evil,' 'greedy,' and 'engaging in criminal activities.'
In rejecting King's argument, the Court recognized that "[i]t may also be true that ESPN chose to present the negative aspects of King’s life without balancing those with more positive images and stories. However, nothing in the record shows that ESPN purposely made false statements about King in order to bolster the theme of the program or to inflict harm on King. An intention to portray a public figure in a negative light, even when motivated by ill will or evil intent, is not sufficient to show actual malice unless the publisher intended to inflict harm through knowing or reckless falsehood."

The Court also rejected King's argument that "ESPN ignored the obvious reasons to doubt Elbaum’s and Newfield’s statements" because King has not presented any evidence that ESPN in fact doubted Elbaum’s credibility or the veracity of Newfield’s statement."

Finally, the Court addressed King's argument "that ESPN should have conducted a more searching investigation into the challenged statements, such as interviewing additional sources to verify the statements. By not doing so, King asserts that ESPN deviated from accepted standards of journalism."

The Court rejected this argument stating that "[t]he law is well established that the failure to investigate, without more, does not constitute actual malice." 

It looks like Don King's success in the Florida Courts (as in the Shine Mayorga case) has hit a wall.

Fight Lawyer