Part 1:<P>IN THE UNITED STATES COURT OF APPEALS<BR>FOR THE ELEVENTH CIRCUIT<P> <P>No.: 02-12642-DD<BR>__________________________________________________<P>LINDA HOFFMANN-PUGH,<P>Plaintiff-Appellant<P>v.<P>PATRICIA RAMSEY AND JOHN RAMSEY,<P>Defendants-Appellees.<P><BR> <P>ON APPEAL FROM THE UNITED STATES DISTRICT COURT<BR>FOR THE NORTHERN DISTRICT OF GEORGIA<P>CASE NO. 1:01-CV-0630-TWT<BR> <P>BRIEF OF APPELLEES PATRICIA RAMSEY AND JOHN RAMSEY<P> <P><BR>James C. Rawls L. Lin Wood<BR> Eric P. Schroeder L. LIN WOOD P.C.<BR> S. Derek Bauer 100 Peachtree St.<BR> POWELL, GOLDSTEIN, FRAZER Suite 2140<BR> & MURPHY LLP Atlanta, GA 30303<BR> 191 Peachtree St., N.E. (404) 522-1713 Sixteenth Floor <BR> Atlanta, GA 30303 <BR> Telephone: (404) 572-6600 <BR> Facsimile: (404) 572-6999<P>Attorneys for Defendants-Appellees<P><BR>CERTIFICATE OF INTERESTED PERSONS AND <BR>CORPORATE DISCLOSURE STATEMENT<P><BR> Pursuant to Eleventh Circuit Rule 26.1, Defendants-Appellees Patricia and John Ramsey respectfully submit this Certificate of Interested Persons and Corporate Disclosure Statement, listing in alphabetical order the trial judge and all attorneys, persons, associations of persons, firms, partnerships, or corporations with an interest in the outcome of this appeal, including subsidiaries, conglomerates, affiliates and parent corporations, any publicly held company that owns 10% or more of the party's stock, and other identifiable legal entities related to a party:<P>1. Evan M. Altman, Attorney for Appellant<BR>2. S. Derek Bauer, Attorney for Appellees<BR>3. Darnay Hoffman, Attorney for Appellant<BR>4. Linda Hoffmann-Pugh, Appellant<BR>5. Media/Professional Insurance Co.<BR>6. Thomas Nelson Publishers and Subsidiaries<BR>7. Powell, Goldstein, Frazer & Murphy LLP, Attorneys for Appellees<BR>8. John Ramsey, Appellee<BR>9. Patricia Ramsey, Appellee<BR>10. James C. Rawls, Attorney for Appellees<BR>11. Eric P. Schroeder, Attorney for Appellees<BR>12. The Honorable Thomas W. Thrash, United States District Judge, Northern District of Georgia<BR>13. L. Lin Wood, Attorney for Appellees<P><P><BR>STATEMENT REGARDING ORAL ARGUMENT<BR> <BR> Appellees do not believe oral argument is necessary to resolve the issues presented on appeal concerning the District Court's dismissal of the Complaint. The case does not present any novel issue of Georgia libel law. <P><BR>STATEMENT OF JURISDICTION<P> This Court's jurisdiction is proper pursuant to 28 U.S.C. § 1291 and Fed. R. App. P. 4(a). <P><P>STATEMENT OF ISSUES<P>1. Whether the District Court correctly dismissed the Complaint because Appellees' book The Death Of Innocence does not defame Appellant.<P>2. Whether, in the alternative, the District Court correctly dismissed the Complaint because the passages complained of in Appellees' book The Death Of Innocence are the expressions of opinion protected by the First Amendment.<P>3. Whether, in the alternative, the District Court could have also dismissed the Complaint because Appellees' book The Death Of Innocence is not libelous per se.<P><P><P>STATEMENT OF THE CASE<BR>I. Course of Proceedings<P>Before the Court is an appeal of the District Court's dismissal of claims alleging libel and slander based on statements from The Death Of Innocence, The Untold Story of JonBenét's Murder and How Its Exploitation Compromised The Pursuit of Truth (Thomas Nelson, 2000)(hereinafter, "Death of Innocence" or "Book").1 Appellees John and Patricia Ramsey (collectively, "the Ramseys") are the authors of the Book.<BR> The Complaint was filed on March 3, 2001. Appellees moved to dismiss on August 31, 2001, pursuant to Rule 12(b)(6), on the grounds that: the statements complained-of are not defamatory or, if defamatory, not libelous per se; the statements are non-actionable opinion; and the statements are protected by the First Amendment. <BR>Appellant filed her response on February 19, 2002. Briefing was completed on March 8, 2002 with Appellees' reply brief. <BR> On April 5, 2002, the District Court dismissed the Complaint on two grounds, ruling that:<BR>1) The Complaint fails to state a claim because the Book does not defame Linda Hoffmann-Pugh as a matter of Georgia law; and <BR>2) Alternatively, the Complaint fails to state a claim because even if the statements were defamatory, the alleged defamatory statements are pure opinion protected by the First Amendment. <BR>(Order of April 5, 2002 ("Order") at 8-12 (not defamatory) and 12-14 (protected opinion) ("The excerpt relied upon by Plaintiff is not defamatory as it would be understood by the average reader, and any opinion of the Defendants that Plaintiff has been acting strangely before the murder was an opinion which is not actionable", id. at 14).2<BR> Judgment was entered on April 8, 2002. This appeal followed on May 6, 2002. <BR>II. Statement of Facts<BR>A. The Facts Relied Upon By The District Court Are Undisputed<P> The District Court correctly set forth the facts relevant to this action in its Order of dismissal. . These facts are not disputed on appeal.3 Appellees adopt the facts stated by the District Court for purposes of this response. There follows a short summary for the Court's convenience.<BR> B. The Defendants-Appellees John And Patsy Ramsey<BR>The Ramseys are the parents of JonBenét Ramsey, who was sexually assaulted, tortured and murdered in the Ramseys' home in Boulder, Colorado on December 25 or in the early morning hours of December 26, 1996. The murder has been the subject of books, novels, film, television shows and numerous articles in tabloids such as The Star, The Globe and The National Enquirer.<BR>No one has been charged, indicted or arrested in connection with the murder. The case remains unsolved and the investigation open. <BR>C. The Plaintiff-Appellant Linda Hoffmann-Pugh<BR> Ms. Hoffmann-Pugh was a part-time housekeeper employed by the Ramseys at the time of the murder. She was investigated by the Boulder police as a suspect. She later testified before a Boulder, Colorado grand jury investigating the murder. She has given many interviews on her views on who killed JonBenét Ramsey. <BR> D. The Death Of Innocence<BR> The Ramseys wrote The Death Of Innocence, in which they recount the investigation into the murder of their daughter. <BR>The Book does not name a killer of JonBenét, and indeed the authors make it clear that they do not know who killed their daughter. Instead, the Book expresses the Ramseys' frustration with the Boulder Police Department's failure to pursue several avenues which the Ramseys consider legitimate leads. <BR>The Book lists, by name, at least five persons who were said to be possible leads whom, the Ramseys contend, should have been investigated further. The Ramseys' Book also describes, but does not name, some eight other persons they believe should be investigated by law enforcement. (Book, pgs. 165-68, 199-205, 310-11 and 361-74.) The passage relied upon by Appellant is found elsewhere in the Book.<BR> In Chapter 33, titled "The Murderer", the Ramseys construct a profile of the person they believe murdered their daughter:<BR>1) a male;<P>2) between 25 and 35 years old;<P>3) who is an ex-convict or associates with hardened criminals; and<P>4) had access to a stun gun.<P>(Book, Chapter 33, at pgs. 361-64.) <BR>Appellant does not resemble any description of the named or un-named leads. She does not fit the profile given of the murderer. The Book nowhere suggests that she does fit that profile, or that she is someone who should be further investigated in the murder of JonBenét Ramsey. <BR>E. The Complaint<BR> The Complaint essentially accuses Patsy Ramsey of murdering her daughter and John Ramsey of covering the murder up. Appellant claims to have been defamed because of one passage in the Book. The passage at issue is found very early in the Book, and describes Patsy Ramsey's thought processes after JonBenét was discovered missing but before her body had been found: <BR>The police ask Patsy these same questions about who might have been angry or acting strangely, and she begins to think about our cleaning lady. Linda Hoffmann-Pugh had called Patsy a couple of days before Christmas, very distraught and in tears. Linda said her sister, who was also her landlord, was going to evict her if she didn't come up with the past-due rent. She asked Patsy if she could borrow twenty-five hundred dollars to cover it. Patsy had consoled Linda and agreed to lend her the money. In fact, Patsy had intended to leave the check for Linda on the kitchen counter before leaving for Michigan; Linda would let herself in the house and pick it up while we were gone for the holidays.<BR> Patsy remembers that her mother, Nedra Paugh, had said that Linda remarked to her at one time, "JonBenét is so pretty; aren't you afraid that someone might kidnap her?" Now these comments seem strangely menacing.<BR> Finding the phone number in her digital Rolodex, Patsy tells a police officer where Linda lives in Ft. Lupton, Colorado. Patsy later tells me she was thinking, If it's Linda, it's okay, because she is a good, sweet person. She is just upset. She may need the money, but she won't hurt JonBenét.<BR>The police tell us they will arrange for the Ft. Lupton police to drive by Linda's house to see if they notice anything unusual, but they don't want to alert anyone there that they are being watched.4<P>5 <BR>The Complaint alleges this passage is false and defamatory because:<BR>1) Appellant's sister was not "going to evict her if she didn't come up with the past-due rent";<P>2) Appellant did not tell Nedra Paugh, or anyone else, that "JonBenét is so pretty; aren't you afraid that someone might kidnap her?"; and<P>3) Appellant did not murder JonBenét Ramsey and therefore the statement "If it's Linda, it's okay, because she is a good, sweet person. She is just upset. She may need the money, but she won't hurt JonBenét" is false because it is made in the hope of convincing the reader that Linda Hoffmann-Pugh was the kidnapper and murderer of JonBenét Ramsey.<P><BR> The Complaint does not contest that Appellant did ask Ms. Ramsey for money. Nor does the Complaint question that Ms. Paugh made the " is so pretty; aren't you afraid that someone might kidnap her" statement to Patsy Ramsey. <BR>The "theory" of the Complaint is that because Patsy Ramsey killed her daughter and John Ramsey covered up the murder, the Ramseys know there should be no other suspect or lead; that therefore they knew that no one else should be implicated; and that Appellant was implicated by the Book in the crime.<BR>SUMMARY OF ARGUMENT<BR>Appellant accuses Patsy Ramsey of murdering JonBenét Ramsey, and her husband John Ramsey of covering the murder up. On the basis of this accusation, Appellant claims that any mention of her in the Book is libelous, because, as the Ramseys are guilty, mention of Appellant is simply an effort to cast blame elsewhere. In short, she pleads a murder case to support a libel action. This claim cannot succeed, as Appellant was not defamed by the Book. <BR>On appeal, Appellant claims the "general impression" of The Death Of Innocence is that it accuses her of kidnapping and murder in a four-paragraph passage. (Appellant's Brief ("Pugh.Br.") at 13.) This passage, however, states Patsy Ramsey's 1996 belief that Appellant was a "good sweet person" who "won't hurt" her daughter "if" she had kidnapped JonBenét Ramsey. The passage does not state that Appellant did kidnap JonBenét Ramsey. In fact, the Book, soon after, eliminates any possibility of kidnapping. The passage does not state that Appellant murdered JonBenét Ramsey. Indeed, the passage forthrightly expresses Ms. Ramsey's opinion that Appellant was not capable of murder, or even of hurting JonBenét Ramsey.<BR>Moreover, Appellant asks the Court to ignore the other 389 pages of the Book, in which the Book effectively eliminates Appellant as a lead, naming or describing at least 13 other people that the Ramseys believe should be investigated. In short, no reasonable person could read this Book in context and believe the Book accuses Appellant of involvement in the JonBenét Ramsey murder. <BR>If the passage could have been read to place possible guilt on Appellant, Ms. Ramsey's statements that Appellant was "acting strangely" and would not hurt her daughter are pure opinion, protected by the First Amendment. No unknown and defamatory facts are implied by the passage, and the passage fully reveals the factual premise for the opinion.<BR>Finally, although the district court did not need to reach this question, the passage is clearly not "libelous per se", as alleged in the Complaint. Appellant relies on extrinsic facts to try to alter the plain text of the Book and render it an accusation of murder. Reliance on facts outside the text, however, turns the claim into one for libel per quod, which requires a pleading of special damages not made here.<BR>In apparent desperation, Appellant claims that the speech of murder suspects is akin to obscenity and "fighting words," and not entitled to any protection. The effort to strip the Ramseys of the constitutional protection of speech furnished by the First Amendment fails for good reason: state defamation laws and First Amendment protections for speech do not hinge on the identity or popularity of the speaker.<BR>Appellees therefore respectfully submit that the District Court's dismissal was correct and should be affirmed.<P>