IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No.: 02-12642-DD
__________________________________________________

LINDA HOFFMANN-PUGH,

Plaintiff-Appellant

v.

PATRICIA RAMSEY AND JOHN RAMSEY,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA

CASE NO. 1:01-CV-0630-TWT

BRIEF OF APPELLEES PATRICIA RAMSEY AND JOHN RAMSEY

James C. Rawls L. Lin Wood
Eric P. Schroeder L. LIN WOOD P.C.
S. Derek Bauer 100 Peachtree St.
POWELL, GOLDSTEIN, FRAZER Suite 2140
& MURPHY LLP Atlanta, GA 30303
191 Peachtree St., N.E. (404) 522-1713 Sixteenth Floor
Atlanta, GA 30303
Telephone: (404) 572-6600
Facsimile: (404) 572-6999

Attorneys for Defendants-Appellees

CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT

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:

1. Evan M. Altman, Attorney for Appellant
2. S. Derek Bauer, Attorney for Appellees
3. Darnay Hoffman, Attorney for Appellant
4. Linda Hoffmann-Pugh, Appellant
5. Media/Professional Insurance Co.
6. Thomas Nelson Publishers and Subsidiaries
7. Powell, Goldstein, Frazer & Murphy LLP, Attorneys for Appellees
8. John Ramsey, Appellee
9. Patricia Ramsey, Appellee
10. James C. Rawls, Attorney for Appellees
11. Eric P. Schroeder, Attorney for Appellees
12. The Honorable Thomas W. Thrash, United States District Judge, Northern District of Georgia
13. L. Lin Wood, Attorney for Appellees

STATEMENT REGARDING ORAL ARGUMENT

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.

STATEMENT OF JURISDICTION

This Court's jurisdiction is proper pursuant to 28 U.S.C. § 1291 and Fed. R. App. P. 4(a).

STATEMENT OF ISSUES

1. Whether the District Court correctly dismissed the Complaint because Appellees' book The Death Of Innocence does not defame Appellant.

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.

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.

STATEMENT OF THE CASE
I. Course of Proceedings

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.
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.
Appellant filed her response on February 19, 2002. Briefing was completed on March 8, 2002 with Appellees' reply brief.
On April 5, 2002, the District Court dismissed the Complaint on two grounds, ruling that:
1) The Complaint fails to state a claim because the Book does not defame Linda Hoffmann-Pugh as a matter of Georgia law; and
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.
(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
Judgment was entered on April 8, 2002. This appeal followed on May 6, 2002.
II. Statement of Facts
A. The Facts Relied Upon By The District Court Are Undisputed

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.
B. The Defendants-Appellees John And Patsy Ramsey
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.
No one has been charged, indicted or arrested in connection with the murder. The case remains unsolved and the investigation open.
C. The Plaintiff-Appellant Linda Hoffmann-Pugh
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.
D. The Death Of Innocence
The Ramseys wrote The Death Of Innocence, in which they recount the investigation into the murder of their daughter.
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.
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.
In Chapter 33, titled "The Murderer", the Ramseys construct a profile of the person they believe murdered their daughter:
1) a male;

2) between 25 and 35 years old;

3) who is an ex-convict or associates with hardened criminals; and

4) had access to a stun gun.

(Book, Chapter 33, at pgs. 361-64.)
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.
E. The Complaint
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:
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.
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.
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.
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

5
The Complaint alleges this passage is false and defamatory because:
1) Appellant's sister was not "going to evict her if she didn't come up with the past-due rent";

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

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.

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.
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.
SUMMARY OF ARGUMENT
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.
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.
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.
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.
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.
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.
Appellees therefore respectfully submit that the District Court's dismissal was correct and should be affirmed.

A. The Appeal

Appellant's Complaint attempts to plead a murder action to support a claim for libel: Appellant claims Patsy Ramsey murdered her daughter, and John Ramsey covered it up; and the proffered support for the murder accusation consists almost exclusively of handwriting analysis of a copy of the ransom note found in the Ramseys' home.6
The injury Appellant puts forward, to provide a stage for the sensational murder trial she wishes to conduct, is reputational. Appellant claims on appeal that mention of her in the historical recount of the murder investigation in the Ramseys' Book is defamatory, because the "totality" of the statements implies that she is a kidnapper and murderer. (Pugh.Br., 13 & 20.)
To arrive at this "general impression" of an accusation of criminal conduct, Appellant does not, in her Brief, rely on the text of the Book. Indeed, she omits mention of much of it. Rather, she relies on omissions, unidentified media statements, unsubstantiated allegations of "secret files" and the identities of the authors. (Pugh.Br., 13-14 & 18-20.) Appellant even appears to claim that the Ramseys' protestations of innocence defame her. (Id. at 20.)
B. The Grounds For Dismissal
The District Court dismissed this action because the Book is not defamatory of Appellant and, in the alternative, the statements argued to be defamatory are protected opinion. (Order at 14.) In addition, the Complaint could also have been dismissed because the identified statements are not libelous per se, but could, if at all, be libel per quod; and libel per quod requires a pleading of "special damages" that Appellant does not make.
The Court may affirm dismissal on any one of the three grounds. See Bonanni Ship Supply, Inc. v. United States, 959 F.2d 1558, 1561 (11th Cir. 1992) ("this court may affirm the District Court where the judgment entered is correct on any legal ground regardless of the grounds addressed, adopted or rejected by the District Court").
II. Requirements Under Georgia Law For Stating A Libel Claim
A. Defamatory Meaning
A statement must first be defamatory to be libelous. See Fiske v. Stockton, 171 Ga. App. 601, 602, 320 S.E.2d 590 (1984). "A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." O.C.G.A. § 51-5-1.7
A statement is not defamatory simply because someone doesn't like its publication. Defamation consists only in statements which can do serious harm to one's reputation. Thus, to be defamatory, the statement must attack a person's character, and directly impute conduct that is "illegal, dishonest or immoral." Reece v. Grissom, 154 Ga. App. 194, 195, 267 S.E.2d 839 (1980)(innuendo cannot "enlarge the meaning of words plainly expressed therein"; article not defamatory because it named plaintiff the father of arrestee but contained no suggestion that father was connected with illegal, dishonest or immoral conduct) and Cates v. Nichols, 148 Ga. App. 558, 559, 252 S.E.2d 2 (1978)(broadcast containing "specific disclaimer of any suggestion of actual impropriety" ruled not defamatory).
Whether statements are defamatory is a threshold question for the Court, and the "publication claimed to be defamatory
must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it." Ledger-Enquirer Co. v. Brown, 214 Ga. 422, 424 (1958). See also Mead v. True Citizen, Inc., 203 Ga. App. 361, 362, 417 S.E.2d 16 (1992)(court must "look at what construction would be placed upon it by the average reader").
"Whether or not words, which are untrue in fact, are actionable depends on whether the covert meaning attributable to them is understood by the reader in the covert sense." Morrison v. Hayes, 176 Ga. App. 128, 129, 335 S.E.2d 596 (1985). "Courts will not hunt for a strained construction in order to hold the words being used as defamatory," Webster v. Wilkins, 217 Ga. App. 194, 195, 456 S.E.2d 699 (1995)(en banc), and a reader's subjective decision to impute a defamatory meaning is not actionable. Zarach v. Atlanta Claims Ass'n, 231 Ga. App. 685, 688, 500 S.E.2d 1 (1998).
Georgia law recognizes two categories of libel: libel per se and libel per quod.8 "Libel per se consists of a charge that
one is guilty of a crime, dishonesty or immorality" or injures one in their trade or profession:
Defamatory words which are actionable per se are those which are recognized as injurious on their face - without the aid of extrinsic proof. However, if the defamatory character of their words not appear on their face but only become defamatory by the aid of extrinsic facts, they are not defamatory per se, but per quod, and are said to require innuendo.

Zarach, 231 Ga. App. at 688. Thus, in Georgia, "words that are libelous per se do not need innuendo." Id.
B. Opinion Statements
Only statements of fact may be found to be defamatory. See S&W Seafoods Company v. Jacor Broadcasting of Atlanta, 194 Ga. App. 233, 235, 390 S.E.2d 228 (1990). Although there is no "wholesale exemption" for opinion in Georgia, statements of pure opinion -- that is, statements that cannot be proven to be either true or false -- receive complete First Amendment protection:
he expression of opinion on "matters with respect to which reasonable men might entertain differing opinions" is not libelous. An assertion that cannot be proved false cannot be held libelous.

Collins v. Cox Enterprises, Inc., 215 Ga. App. 679, 680, 452 S.E.2d 226 (1994), emphasis added. See also Information Systems and Network Corp. v. City of Atlanta, 281 F.3d 1220, 1228 (11th Cir. 2002)(same). Mere speculation or conjecture is not actionable. Collins, 215 Ga. App. at 679-680.
To be actionable, a statement of opinion must imply an assertion of undisclosed and defamatory fact about the plaintiff. Jaillett v. Georgia Television Co., 238 Ga. App. 885, 890, 520 S.E.2d 721 (1999), citing Restatement (Second) of Torts, § 566, pg. 170. This requirement
unquestionably excludes from defamation liability not only statements of rhetorical hyperbole . . . but also statements clearly recognizable as pure opinion because their factual premises are revealed . . . Both types of assertions have an identical impact on readers - neither reasonably appearing factual-and hence are protected equally under the principles espoused in Milkovich.

Jaillett, 238 Ga. App. at 890, emphasis added. In making this determination, the Court may consider whether the "general tenor" of the publication negates any implication of defamatory fact about the Appellant. Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990).
C. Statements Must Be Read In Context
Under Georgia law, an allegedly defamatory statement cannot be construed in isolation; instead, the publication in its entirety must expose the allegedly defamed individual to hatred, contempt or ridicule through a provably false assertion of fact. Mead, 203 Ga. App. at 362 (the court "should read and construe the publication as a whole") and Webster, 217 Ga. App. at 195 (same; opinion statements).
Likewise, the pertinent chapters of a book must be read as a whole: the Court's construction "is to be derived as well from the expressions used as from the whole scope and apparent object of the writer." Ladany v. William Morrow & Company, Inc., 465 F. Supp. 870, 876 (S.D.N.Y. 1978)(examining thrust and main purpose of whole book; held, selected statements not defamatory). See Levin v. McPhee, 119 F.3d 189, 195 & 197 (2d Cir. 1997) (scope of book and object of writer relevant to whether statements were defamatory or non-actionable opinion).
In this libel action, the whole Book was properly before the District Court as it was referenced in the Complaint and central to Appellant's claims. (Order at 2, n.1., citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278-1281 & n. 16 (11th Cir. 1999).) Appellant does not contest this on appeal.
III. The Complaint Does Not State A Claim For Libel
A. The District Court Correctly Dismissed The Complaint Because The Book Does Not Defame Appellant

1. As A Matter Of Law, The Statements Complained Of Are Not Defamatory

Appellant's assertion that determinations of defamatory meaning are "exclusively" for the jury is not correct.
(Pugh.Br. at 9.)9 A jury is required only when a statement is
ambiguous and capable of two meanings to the average reader -- "if a statement is not ambiguous and can reasonably have but one interpretation, the question is one of law". Cox Enterprises, Inc. v. Nix, 274 Ga. 801, 803, 560 S.E.2d 650 (2002) (reversing appeals court and holding
that news article was not defamatory). Georgia courts routinely dismiss cases in which the statements at issue are not defamatory. See e.g., Cox, 274 Ga. at 803; Mead, 203 Ga. App. at 362 and Farrior v. Russell & Company, 45 F. Supp.2d 1358, 1362 (N.D. Ga. 1999). Cf. Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305, 1306 (11th Cir. 2001)(affirming Rule 12(b)(6) dismissal of libel claim; Florida law).
Here, the District Court correctly ruled that the passage concerning Ms. Pugh was capable of only one meaning to the average reader, a meaning which was not defamatory, and therefore properly dismissed the Complaint.
2. The Book Does Not Defame Appellant
Appellant asserts the Book is defamatory because of the "general impression" left by four paragraphs. (Pugh.Br. at 13.) But no defamatory impression could be left with a reasonable reader, as a matter of law.
a. The Identified Passage Does Not Defame Appellant
The identified passage does not defame Ms. Hoffmann-Pugh. Indeed, on appeal she asks the Court to ignore its plain meaning -- if Ms. Hoffmann-Pugh kidnapped JonBenét Ramsey, Patsy Ramsey did not believe Appellant would hurt her -- and to essentially substitute the opposite, that Ms. Hoffmann-Pugh did kidnap and did hurt JonBenét. (Book, pg. 20.) In effect, Appellant claims that "won't hurt" means "did hurt", see Pugh.Br. at 13-14, or even "would hurt", but the reading Appellant puts forth is simply not a reasonable one. (Order at 10.)
The passage did not say that the Ramseys or police consider Appellant a suspect in the murder of JonBenét Ramsey, nor was any such suspicion implied. The passage does not state she is guilty of any crime; it does not state that the Ramseys believed even for a few moments in December 1996 that Appellant kidnapped or murdered JonBenét; and it does not state that the Ramseys later believed or now believe that Appellant was involved in the crime.
Instead, the passage sets forth Patsy Ramsey's thought process in 1996: Ms. Ramsey thought Appellant may have been acting out-of-the-ordinary recently, but did not think Ms. Hoffmann-Pugh was capable of murdering or even hurting her child. Voicing past thoughts that someone had been acting
strangely or may have had a reason to be angry is not libelous. See Collins, 215 Ga. App. at 680 (speculation about motive not libelous) and Garrett v. Tandy Corp., 142 F. Supp.2d 117, 120-21 (D. Maine 2001) (statement that manager suspected customer of theft was not defamatory).
Moreover, the "if" portion of the statement ("if it's Linda, it's okay") is quickly answered in the negative for any reader who did not know this already -- JonBenét Ramsey was murdered, and was not kidnapped, see Book at page 22, a fact which eliminates any possible accusation of kidnapping. As the District Court correctly ruled, Appellant could not have been defamed when she was mentioned hypothetically as a possible kidnapper, in a case in which the Book states with clarity that the kidnapping did not occur. (Order at 11-12.) See Cates, 148 Ga. App. at 559 (broadcast with specific disclaimer of any suggestion of actual impropriety ruled not defamatory as a matter of law) and Farrior, 45 F. Supp.2d at 1363 ("Georgia courts will not 'hunt for a strained construction in order to hold the words libelous.'")
b. The Book Read As A Whole Does Not Defame Appellant
Appellant divorces this passage from the rest of the Book, but that is not appropriate, where, as here, the Book read in context eliminates any possible suggestion of defamatory meaning. Mead, 203 Ga. App. at 362 (court "should read and construe the publication as a whole").
As explained above, Chapter 33 of the Book states that a male, aged 25 - 35, murdered JonBenét. The profile of the murderer does not remotely resemble Appellant. (Book, pgs. 363-64.) Moreover, Appellant is not mentioned as one of the many leads named in the Book, and does not fit the description of the unidentified leads also mentioned in the Book. (Id. at pgs. 165-68, 199-205, 310-11 and 361-374.)
Thus, Appellant is not named or described as a possible lead or suspect, and does not match the suggested profile of the murderer. She is therefore not defamed. See Cox, 274 Ga. at 803-04 (discussion of Appellant that is "set apart" from discussion of others accused of criminal conduct is not defamatory) and Forsher v. Bugliosi, 26 Cal.3d 792, 608 P.2d 716 (1980)(book mentioning plaintiff not reasonably susceptible to portraying plaintiff as possible suspect in "Manson" murders).
As the District Court correctly noted, the California case of Forsher v. Bugliosi is factually analogous to the case at bar. (Order at 8-9.) In Forsher, the libel claim arose from Helter Skelter, Vincent Bugliosi's best-selling book about murders committed by the "Manson Family." As here, the Forsher claimant alleged that statements in the book had the "cumulative" effect of implying that he was involved in the murder of Manson Family attorney Richard Hughes. 608 P.2d at 722.
The California Supreme Court upheld dismissal of the complaint, stating that the court could not discern, in the context of the whole book, that it could be "reasonably said a defamatory picture" was painted of the plaintiff, as the gist of the book was that a Manson Family member committed the murder, plaintiff was not listed as a member of the Manson Family in the book's "cast of characters", the book later stated that plaintiff was not a Manson Family member, and the book suggested that two other Manson Family members were responsible for the murder. 608 P.2d at 722-724. The same result is appropriate here: the Complaint should be dismissed.
The central purpose of the Ramseys' Book was to demonstrate the failure of police authorities to properly investigate the murder of JonBenét Ramsey. Nowhere were the police said to have failed in any respect to investigate the Appellant. A case for defamation is not made here.
3. Georgia Does Not Recognize "Libel By Omission"

Appellant argues the Book is libelous because it omits an express statement that she was "cleared" by authorities and appeared as a grand jury witness. (Pugh.Br. at 14.) The argument carries no weight.
Georgia does not recognize a claim of "libel by omission". E.g., Comer v. National Bank of Georgia, 184 Ga. App. 867, 868, 363 S.E.2d 153 (1987)("Plaintiff has cited no case and we are unfamiliar with any which provide that the failure to make a written statement has been upheld as the basis for a libel action.").10
4. Appellant's Reliance On Harcrow v. Struhar Is Misplaced

Appellant relies heavily on Harcrow v. Struhar, 236 Ga. App. 403, 511 S.E.2d 545 (1999). (Pugh.Br. at 11, 14, 17 & 19.) The case does not help her.
Harcrow involved dramatically different facts: the defendant stated the plaintiffs were the current "prime suspects" of the Smyrna police, and it would be "in character" for the plaintiffs to have shot the defendant's cat. 236 Ga. App. at 404. Here Appellees' Book does not state that Appellant was or is a "prime suspect" of the police or of Appellees, nor does it suggest that she should be; and there is no suggestion that a murder or kidnapping was "in character" for her. The District Court was right: "Harcrow is simply not the present case." (Order at 11.)
Furthermore, it should be noted how Harcrow has already been distinguished by the Georgia Supreme Court. In Nix v. Cox Enterprises, Inc., 247 Ga. App. 689 (2001), the Georgia Court of Appeals had relied on Harcrow to rule that a passage
mentioning the plaintiff in a news article discussing "rogue"
lawyers could be defamatory because the news article could be read to impute criminal conduct to the plaintiff. 247 Ga. App. at 694. The Georgia Supreme Court, however, reversed, holding that the article could not be defamatory of the plaintiff, as the discussion of the plaintiff was "set apart" from any discussion of lawyers accused of criminal conduct. Cox, 274 Ga. at 803. See also Cates, 148 Ga. App. at 559. The same distinction is fatal to Appellant here, as the complained of passage discussing the former housekeeper is set apart from any discussion of suspects, leads or profile.
5. Appellant's Reliance On Judge Carnes' Order In Wolf v. Ramsey Is Similarly Misplaced

Likewise, Appellant's extensive reliance on Judge Julie Carnes' Order in a different case is misplaced. Mr. Wolf, the plaintiff in the case before Judge Carnes, pleaded a very different claim based on different passages asserting different conduct. (Pugh.Br. at 2, 4-5 & 11.) Indeed, as the District Court specifically noted, the Book's statement that Mr. Wolf was on the Ramseys' "suspect list" is the express basis for Judge Carnes' finding that the Book was susceptible to a defamatory interpretation as far as Mr. Wolf was concerned. (Order at 11.)
Here, Appellant was never said to be on the Ramseys' "suspect list", and the passage complained of is not in the sections discussing possible suspects or leads. As the District Court ruled: "Plaintiff is missing from their ranks." (Id.) Appellant's reliance on a case with a different plaintiff addressing different facts and relying on different statements provides no support for her here: passages about Mr. Wolf do not change the meaning of passages about Appellant.
6. The District Court Correctly Discussed Forsher v. Bugliosi

Appellant's primary claim on appeal is that the District Court should not have relied on the California Supreme Court's decision in Forsher, 608 P.2d 716. (Pugh.Br. at 19.) The argument is based on mistaken premises. The District Court did not rule that Forsher was "controlling", and did not state that it was applying California law. Instead, the District Court explicitly based its decision on Georgia law, Order at 5-7 & 11, and considered Forsher as a decision which was persuasive based on the application of California's similar law to a case which was analogous in fact.
As noted by the District Court and discussed above, the facts of Forsher are analogous to the facts here, and application of Georgia libel law reaches the same proper result: dismissal. (Order at 10.) Appellant cites no difference between Georgia and California law regarding defamatory meaning that could warrant any change in analysis: both states require that the average reader reasonably understand a statement is defamatory for the statement to be found actionable. Compare Mead, 203 Ga. App. at 362 with Forsher, 608 P.2d at 722-24.
Appellants' posited distinction between Forsher and her Complaint -- that the author in Forsher was a
prosecutor but the authors here are supposed murder suspects --
is quite irrelevant to whether the Book is defamatory. The question of defamatory meaning is limited to the average reader's interpretation of the text of the document. Mead, 203 Ga. App. at 362 and Zarach, 231 Ga. App. at 688.
Finally, Harcrow, as discussed above, is not "controlling authority" in favor of the Appellant. Indeed, Cox v. Nix, supra, is dispositive against Appellant. See also Cates, 148 Ga. App. at 559.
B. The District Court Correctly Dismissed The Complaint Because The Allegedly Defamatory Statements Are Pure Expressions of Opinion, Fully Protected By The First Amendment

Although this Court need not reach this question, the Book is non-actionable opinion protected by the First Amendment. This is a "threshold question" appropriate for Rule 12(b)(6)
dismissal. Collins, 215 Ga. App. at 680 (whether a given statement is an assertion of fact or is non-actionable opinion is a question of law to be determined by the court as a threshold issue).
Were they susceptible to a defamatory meaning, which they are not, the identified statements from the Book are expressed as pure conjecture on who may have been "angry or acting strangely" in the weeks preceding the morning of the murder. The statement specifically identified by Appellant as defamatory and imputing the crime of murder -- "If it's Linda, it's okay . . ." -- is pure opinion: it is a conditional statement offering speculation on the hypothetical commission of kidnapping. It cannot be proven true or false. Appellant cannot demonstrate that "If it's Linda, it's not okay . . . ." Further, the statement "now these comments seem strangely menacing" is pure opinion -- it cannot be proven true or false. Both are non-actionable. See Jaillet, 238 Ga. App. at 890 (statements that cannot be proven true or false are non-actionable opinion) and Moulton v. VC3, 2000 WL 33310901 (N.D. Ga. 2000)(statement that employees were "stupid" was non-actionable opinion).
The Book's text describes subjective impressions about which reasonable persons can differ: whether Appellant had a financial motive to kidnap, or a capability to harm, JonBenét Ramsey. No reasonable reader could read the Book and believe that the Ramseys accuse Appellant of kidnap or murder in a statement of objective fact. The Book instead offers what is an obviously an hypothesis, in a case of unsolved murder, in which the Ramseys acknowledge they do not know all the facts and do not know who killed their daughter. See Collins, 215 Ga. App. at 680 (speculation as to plaintiff's motive based on his behavior is non-actionable pure opinion); and Webster, 217 Ga. App. at 195 (statement that plaintiff was "unfit to be a mother" was non-actionable pure opinion).11
Further, the passage does not imply the existence of undisclosed defamatory facts. The passage does not suggest that the Ramseys have facts which are not disclosed to the reader that prove Appellant was involved in the kidnapping or murder of JonBenét Ramsey. See Jaillett, 238 Ga. App. at 890 (statements of opinion based on revealed factual premises are not actionable). Cf. Levin v. McPhee, 917 F.Supp. 230, 241 (S.D.N.Y. 1996), aff'd., 119 F.3d 189 (2d Cir. 1997) ("If the author imputes criminality to the Appellant as a hypothesis drawn from stated facts, rather than as an assertion of fact in
itself, he has not vouched for the truthfulness of the

defamatory statement, and a reasonable reader could not conclude that it was an assertion of fact").
Here, as the District Court correctly ruled, the factual premises supporting Patsy Ramsey's conjecture are set forth in full: Appellant had asked the Ramseys for money; and Patsy
Ramsey had been told by Nedra Paugh that Appellant had questioned whether the Ramseys were worried about whether
JonBenét might be kidnapped. Neither statement is claimed to be false.12 Neither statement is defamatory on its own.13 Neither statement makes Patsy Ramsey's opinion actionable. (Order at 13-15.) See Sumner, 200 Ga. App. at 730 (1991).14
Appellant's Brief's reference to "secret" investigative files, Pugh.Br. at 18, is puzzling. The Ramseys' investigation was not secret: it is described in the Book, as are possible leads and a profile of the murderer. (Book, Chapters 14, 16, 19 & 33.) No secret files whatsoever are mentioned or implied.
Finally, Appellant's accusation that Patsy Ramsey killed JonBenét or knows who did is not relevant to the question whether the statements in the Book about the Appellant are non-actionable opinion. Contrary to Judge Carnes' decision in the Wolf case, whether an opinion is actionable depends not
upon the author's subjective belief in his or her opinion, but on whether the average reader would interpret the statement as stating provable fact. See Jaillett, 238 Ga. App. at 890. In other words, if an idea, no matter how offensive, is expressed as pure opinion, the speaker's belief in the opinion is completely immaterial to the legal issue whether the statement is actionable: it is the statement's effect on the reader that matters under the law. Id.15
C. In The Alternative, Dismissal Should Be Affirmed Because The Book Is Not Libel Per Se

In the alternative, if the Court were to find that the passage claimed to be defamatory may be considered to be defamatory and is not necessarily protected opinion, the Complaint should be dismissed because the Book is not libelous per se and no special damages are alleged.

Appellant's Brief does not claim that the text of the Book on its face accuses her of a crime: instead, Appellant relies
extensively on alleged facts extrinsic to the identified text to explain why the Book is defamatory. These extrinsic facts include: 1) the identity of the authors, Pugh.Br. at 22; 2) unidentified media statements and book advertisements, Pugh.Br. at 18; 3) public knowledge of the ransom note, Pugh.Br. at 14; 4) "secret" investigative files, Pugh.Br. at 18; and 5) omissions, Pugh.Br. at 14. Appellant even asks the Court to take "judicial notice" of irrelevant facts. (Pugh.Br. at 2-3.)
As a result, if the Book may be said to be defamatory at all, such defamation could not be libelous per se. Instead the claim is one for libel per quod. But such a claim requires a pleading of special damages which is neither made nor attempted here. Zarach, 231 Ga. App. at 688 ("An essential element of an action for libel per quod is that the plaintiff be able to show special damages."). Dismissal is thus warranted for this additional reason.

Appellant repeatedly argues on appeal that the Ramseys' speech is not protected by the First Amendment. Essentially, Appellant asks this Court to rule that the protections of the First Amendment and state defamation laws do not apply to the Ramseys, and thus Appellant is not required to demonstrate that the Book is defamatory and is not opinion, because the Complaint alleges that the Ramseys are murder suspects.
The theory has no basis in the First Amendment or state law -- it seeks to remove First Amendment and state defamation law protections based on the status or popularity of the speaker, and not on the content of the speech. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978) ("he inherent worth of . . . speech in terms of its capacity for informing the public does not depend on its source, whether corporation, association, union, or individual.") and Gertz v. Welch, 418 U.S. 323, 349 (1974) (punishment of speech due to unpopularity of speaker impinges on First Amendment).
The Book is a first-person subjective account of the investigation into the unsolved sexual assault, torture and murder of a small child, as told by the victim's parents. It raises serious questions about the focus of the investigation and police conduct, and gives voice to the Ramsey's opinions and interpretations of controversial, ambiguous and unknown historical facts concerning the death of their daughter, inviting the reader to come to his or her own conclusions. The Book never accuses Appellant of being a suspect in connection with the murder of JonBenét Ramsey.
In short, the Book is speech which the First Amendment is fundamentally designed to protect:
When, as here, an author writing about a controversial occurrence fairly describes the general events involved and offers his personal perspective about some of its ambiguities and disputed facts, his statements should generally be protected by the First Amendment.

Partington v. Bugliosi, 56 F.3d 1147, 1153-54 (9th Cir. 1995)(dismissing defamation claim arising out of book about celebrated murder trial).
The strained reading of the Book offered by the Complaint, along with the tone of Appellant's Brief, lead Appellees to conclude that this case is not in fact about injury to reputation, but is instead a vehicle designed to prosecute the Ramseys for murder and to silence them from stating their views. Appellant seeks to cut off debate over the Ramseys' daughter's death, and over the adequacy of the police investigation of the murder, by removing the Ramseys' speech from the protection of defamation laws. Such a doctrine perverts the First Amendment guarantee of free speech.
The First Amendment mandates that debate on public issues remain "uninhibited, robust and wide open". New York Times v. Sullivan, 376 U.S. 250, 270 (1964). Access to this debate does not turn on whether the speaker is considered a murder suspect in some tabloid media circles, or even by some members of the police department which has failed to solve the crime.16 The Complaint, which seeks to shut off or punish free and fair debate, was correctly dismissed.
The police, who investigated the murder of JonBenét Ramsey, knew they had a brutal crime to solve, but have never charged any Appellee with murder. The Boulder County grand jury heard the evidence of the crime and did not indict any Appellee. Those public actors had a very good reason, and indeed a clear duty, to pursue a murder prosecution if such pursuit were warranted. Here, however, Appellant, having no such reason and no such duty, tries to found a murder prosecution on nothing at all -- instead, the case demonstrates the complete absence of any real or potential harm to her reputation. This attempt should not succeed.

CONCLUSION
The Book does not defame Appellant, and is opinion protected by the First Amendment. The Complaint was correctly dismissed. Defendants-Appellees Patricia and John Ramsey therefore respectfully submit that the District Court's ruling should be affirmed.
Respectfully submitted this 23rd day of July, 2002.

James C. Rawls
Georgia Bar No. 596050
Eric P. Schroeder
Georgia Bar No. 629880
S. Derek Bauer
Georgia Bar No. 042537

POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 Peachtree Street, N.E.
Sixteenth Floor
Atlanta, Georgia 30303
Telephone: (404) 572-6600
Facsimile: (404) 572-6999

L. Lin Wood
Georgia Bar No. 774588

L. LIN WOOD, P.C.
The Equitable Building
Suite 2140
100 Peachtree Street
Atlanta, GA 30303
TEL: (404) 522-1713

Attorneys for Patricia Ramsey
And John Ramsey

CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 7,435 words. The brief is typed in New Courier, 12 point.

Eric P. Schroeder

CERTIFICATE OF SERVICE
This is to certify that I have this day served opposing counsel in the foregoing matter with a copy of BRIEF OF DEFENDANTS-APPELLEES PATRICIA RAMSEY AND JOHN RAMSEY by depositing in the United States Mail a copy of same in a properly addressed envelope, adequate postage affixed thereto and addressed as follows:
Evan M. Altman
5901-C Peachtree Dunwoody Road
Atlanta, Georgia 30328

Darnay Hoffman
Law Office of Darnay Hoffman
210 West 70th Street
New York, New York 10023

This 23rd day of July, 2002.

________________________
Eric P. Schroeder

::ODMA\PCDOCS\ATL\593435\1

TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT C-1
TABLE OF CONTENTS i
TABLE OF AUTHORITIES iii
STATEMENT REGARDING ORAL ARGUMENT I
STATEMENT OF JURISDICTION II
STATEMENT OF ISSUES 1
STATEMENT OF THE CASE 2
I. Course of Proceedings 2
II. Statement of Facts 3
A. The Facts Relied Upon By The District Court Are Undisputed 3
B. The Defendants-Appellees John And Patsy Ramsey 4
C. The Plaintiff-Appellant Linda Hoffmann-Pugh 4
D. The Death Of Innocence 5
E. The Complaint 6
SUMMARY OF ARGUMENT 8
ARGUMENT AND CITATIONS OF AUTHORITY 11
I. Introduction 11
A. The Appeal 11
B. The Grounds For Dismissal 12
II. Requirements Under Georgia Law For Stating A Libel Claim 12
A. Defamatory Meaning 12
B. Opinion Statements 15
C. Statements Must Be Read In Context 16
III. The Complaint Does Not State A Claim For Libel 17
A. The District Court Correctly Dismissed The Complaint Because The Book Does Not Defame Appellant 17
1. As A Matter Of Law, The Statements Complained Of Are Not Defamatory 17
2. The Book Does Not Defame Appellant 18
a. The Identified Passage Does Not Defame Appellant 18
b. The Book Read As A Whole Does Not Defame Appellant 20
3. Georgia Does Not Recognize "Libel By Omission" 22
4. Appellant's Reliance On Harcrow v. Struhar Is Misplaced 23
5. Appellant's Reliance On Judge Carnes' Order In Wolf v. Ramsey Is Similarly Misplaced 24
6. The District Court Correctly Discussed Forsher v. Bugliosi 25
B. The District Court Correctly Dismissed The Complaint Because The Alleged Defamatory Statements Are Pure Expressions of Opinion, Fully Protected By The First Amendment 26
C. In The Alternative, Dismissal Should Be Affirmed Because The Book Is Not Libel Per Se 30
D. Appellant's Argument That The First Amendment Does Not Apply To The Ramseys Is Insubstantial 31
CONCLUSION 35
CERTIFICATE OF COMPLIANCE A
CERTIFICATE OF SERVICE B
1 A paperback version of the Book was published in 2001. All references herein are to the hardcover version of the Book, a copy of which was provided to the District Court as Exhibit A to the Memorandum of Law in Support of Defendants' Motion to Dismiss.
2 The District Court also ruled that any action for pre-March 8, 2000 statements is time-barred, and that the Complaint does not state a claim for slander. (Order at 7-8.) Appellant does not contest these rulings on appeal.
3 Appellant does not submit a separate "Statement of Facts", thus violating Fed. R. App. P. 28(a)(7).
4 Further mentions of Appellant in the Book describe Appellant's having declared her belief that the Ramseys did not murder JonBenét, Appellant's televised comments in 1998 contradicting herself, and Appellant's public comments when the grand jury heard evidence (and delivered no indictment). (Book, pgs. 166, 280-83 & 320-21.)
5 Appellant claims that the Ramseys have made unidentified statements "on television and in the printed media", meant to create the impression that Appellant murdered JonBenét Ramsey. These other claimed statements, however, have never been identified.
6 The theory is, Appellees submit, fundamentally groundless: Appellant's claim to have solved the murder based solely on untested handwriting "evidence" is not supported by any precedent. Compare Pugh.Br. at 3 & 23 with United States v. Saelee, 162 F. Supp.2d 1097 (D. Alaska 2001) and United States v. Fujii, 152 F. Supp.2d 939 (N.D. Ill. 2000)(handwriting expert testimony inadmissible under Daubert and Kumho because it is unreliable).
7 Appellant does not dispute that Georgia law controls here. See Poe v. Sears, Roebuck & Co., 1 F. Supp.2d 1472, 1475-76 (N.D. Ga. 1998)(in diversity action where the Appellant fails to plead a foreign statute, it is presumed that foreign state follows the common law and court should apply Georgia law).
8 Unlike libel per se, actions alleging libel per quod must plead and prove "special damages", or the action must be dismissed. See Sumner v. First Union Nat'l Bank, 200 Ga. App. 729, 409 S.E.2d 212 (1991).
9 The cases cited by Appellant do not support her "jury only" assertion, and are not even libel cases. See Bryant, 187 F.3d 1271 (discussing allegations required for securities class action lawsuit) and South Florida Water Management District v. Montalvo, 84 F.3d 402 (11th Cir. 1996) (affirming Rule 12(b)(6) dismissal of CERCLA action).
10 Moreover, as the Book does not accuse Appellant, it would have been superfluous to state she was "cleared".
11 Cf. McPhee, 119 F.3d at 197 (when author acknowledges that the facts underlying murder are unknown, reasonable reader would understand that allegations of murder "are nothing more than conjecture and rumor" and thus the allegations are non-actionable opinion).
12 Appellant does not contest that she asked Ms. Ramsey for money, or that Ms. Paugh made the statement to Patsy Ramsey.
13 Thus to ask to borrow money is completely innocent, as is to inquire about fear of possible crime. Neither behavior reveals bad character or lessens one's reputation.
14 See also Grayson v. Savannah News-Press, Inc., 110 Ga. App. 561, 568-69, 139 S.E.2d 347 (1964)(false factual statement contained in protected opinion not actionable unless it is itself defamatory) and Jaillet, 238 Ga. App. at 890-91 (same).
15 Judge Carnes' Order is heavily relied upon by Appellant on this point. But Judge Carnes' Order disregarded the Jaillett rule. See also Milkovich, 497 U.S. at 20 n. 7 (voicing an opinion which one does not subjectively believe is not the "falsity" required for a defamation action, but goes only to "malice").
16 Even convicted criminals retain their right to speak. See Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991)(statute that placed financial burden on speech of convicted criminals was "presumptively inconsistent" with the First Amendment). Here no Appellee has even been charged.
1

4

Linda Hoffmann-Pugh v. Patricia Ramsey and John Ramsey, Case Nos. 02-12642-DD

Lin Wood goes on to say that NYL was asking the court "... to rule that the protections of the First Amendment and state defamation laws do not apply to the Ramseys" because NYL alleges that the Ramseys are murder suspects.

lin says the law does not allow for the court to remove First Amendment and state defamation law protections "based on the status or popularity of the speaker, and not on the content of the speech."

I LIKE the next part:

The First Amendment mandates that debate on public issues remain "uninhibited, robust and wide open". New York Times v. Sullivan, 376 U.S. 250, 270 (1964). Access to this debate does not turn on whether the speaker is considered a murder suspect in some tabloid media circles, or even by some members of the police department which has failed to solve the crime.16 The Complaint, which seeks to shut off or punish free and fair debate, was correctly dismissed.

I hope the appeal is denied and that the judge in the Wolf case finds the same. NYL is being a jerk when he files these lawsuits.

the Ramseys did not say eother Wolf of LHP killed their daughter. They wrote intheir book, and continue to say privately, that they don't know who killed their daughter. They want the case solved - - they don't know who did it and hope one day they will.