Partial Transcript of Hearing

THE COURT: Good morning.

MR. CLAUSS: Good morning.

MS. SMITH: Good morning, your Honor.

THE COURT: We have cross summary judgment motions here.  We will hear from the plaintiff and then we will hear from the defendant.

MR. CLAUSS: On the summary judgment motions, your honor —

THE COURT: Do you want to take up the motions to compel first, or do you want to do the summary judgment?

MR. CLAUSS: It makes no difference to me.

MS. SMITH: We do have the summary judgment —

THE COURT: Take the summary judgment first.

MR. CLAUSS: All right.

MS. SMITH: I brought the initial summary judgment motion.  The plaintiff filed an opposition.  The plaintiffs brought this action in six counts alleging defamation and emotional distress.  Our motion for summary judgment is directed towards counts one through four, which are the defamation counts, and we are seeking summary judgment on the basis that the plaintiff has failed to state a claim from which relief can be granted on the grounds that he's failed to allege special damages.

Defamation consists of publication and harm to reputation.

THE COURT: He doesn't have to allege special damages, does he, if it is slanderous or libelous per se?

MS. SMITH: Correct.  If the allegations clearly allegedly are slander or libel per se, then special damages would not need to be proved.  Our claim is there are no, that the allegations do not fit within a category of per se defamation.

THE COURT: Well, if you accuse somebody of having homosexual tendencies with respect to young boys, it's a very serious allegation, isn't it?

MS. SMITH: But, your Honor, that's not what was said.  There are two allegations.

THE COURT: I understand what was said.  I read what was said, but I don't think that you have to think very long or hard when considering what was said to determine what was intended.

MS. SMITH: Well, I think, looking at the other facts of the case, and it has come out in testimony of the various parties, that that wasn't the intent or the innuendo behind those statements as is being alleged by the plaintiff.  Two statements are alleged, one in essence he's known for liking young boys, and another that his behavior is inappropriate and that he's preoccupied with young boys.  Those are words, those are the two statements.

THE COURT: And it was said to one boy, "And if he bothers you, tell me about it," or "let me know right away."

MS. SMITH: Correct.  "He's known for liking young boys, and if he bothers you."

THE COURT: "If he ever tries anything, just tell one of us."  Well, what do they mean by that?  Try what?

MS. SMITH: Well, see, there's the question your Honor. if it doesn't clearly charge a crime, then it's not a per se category of defamation.

THE COURT: "Well, if you said to somebody, and that is what the quote apparently is, "Watch out for John Doe because he's known for liking young boys," and "If he ever tries anything, just tell one one us," and that is said to one of the boys, correct?

MS. SMITH: Correct, that's what is alleged.

THE COURT: Well, isn't the common sense in question when one reads that, or hears that, to conclude that what the speaker was saying was that this guy likes young boys and you'd better watch out, and if he ever tries to do anything to you, you let us know right away.

MS. SMITH: Certainly it could mean a number of things.  It could mean that this —

THE COURT: What do you think it meant?

MS. SMITH: But the question is what do, first of all, a young person the age of 12 or 14, whatever this young boy might know, would be different than what I might think or —

THE COURT: What do you think the young boys thought it meant?

MS. SMITH: But that goes beyond what fits within a per se category.  We're not saying it could not be proven at some point, or someone could attempt to prove that defamation.  That goes beyond the issue of this summary judgment motion.  It does not fit within —

THE COURT: Supposing you said about a woman because apparently the law still is that accusations with respect to women being unchaste is still libelous or slanderous per se, is that correct?

MS. SMITH: Against a woman, correct.

THE COURT: So, supposing you said that, "She likes to fool around with men"?

MS. SMITH: If a judge were to rule —

THE COURT: Would you consider that to be slanderous per se?

MS. SMITH: I believe it would depend upon the circumstances it was said in, and whether there were any other meanings that could be attached to it.  It has to clearly set forth a statutory definition of a crime.  It can't, we're not saying someone can't possibly claim at some point this could be defamation.  That's not what we are getting at.  We are getting at does it fit within a very narrow exception.

THE COURT: You mean in order for this to be slanderous per se, someone would have had to have said, "He's a pedophile"?

MS. SMITH: Or they could say he has sexual —

THE COURT: And pedophilia is a crime, correct?

MS. SMITH: It really depends on the circumstances, Judge.

THE COURT: It's a crime if it's acted out.

MS. SMITH: But, your Honor, here the words could mean various things, could mean a number of things.  Maybe he likes to follow young boys around and have them pose and take photographs of them.  That's not a crime, but you might warn your son to watch out for somebody that did that.  I mean, there are a number of different things and connotations that this could carry, but going beyond that, if your Honor were to find that did fit clearly within the definition —

THE COURT: When you say to follow young boys around and take photographs, you mean just out in the open somewhere at a baseball game?

MS. SMITH: Under any context.  You know, that certainly could be a cause of concern to someone.  There are a number of different interpretations that can he attached to this, but even going beyond that, what he said was he's known for liking young boys.  He's saying this person has a reputation for liking boys.  That's the way it was phrased.  To have a reputation for liking young boys, no matter how you define liking young boys, is not a crime, and that's exactly what was said.

THE COURT: But then he said, "If he ever tries anything, just tell one of us."

MS. SMITH: Exactly, and to fit within the per se exception you have to accuse someone of having committed a crime.  You don't say he may commit a crime in the future.  This person may steal something from your house.  That's not defamation per se.  That doesn't accuse someone of having committed a crime.  It's a very narrow exception, and that's the reason for these exceptions being very narrow.

THE COURT: Supposing I took testimony and I put this young boy on the witness, whoever it was said to, and he was asked what did you think it meant when Mr. whoever said that to you, what did you think he meant by that, and supposing the boy said, "I thought that he was telling me that this guy was a homosexual and he liked young boys and I'd better be careful"?

MS. SMITH: I don't think that is the subject or intent of hearsay, what's in issue when a judge is deciding whether or not it's per se.  I think what it has to be is an objective interpretation of these words.

THE COURT: All right.  Go ahead.

MS. SMITH: So, our position is that they do not fit within any category of per se defamation.  We have further arguments in our brief, if you would like me to elaborate on those, your Honor.

THE COURT: I've read it.  All right.

MS. SMITH: In this case I will save argument for the opposition.

THE COURT: Counsel?

MR. CLAUSS: Your Honor, thank you.  Our position is obviously that the words by their plain meaning are defamatory, and what Miss Smith would have you say if you bend over backwards and think of 27 other possible interpretations, there may be an innocuous interpretation attached to these words, and therefore it takes it out of the category of defamation per se, but I think that in this day and age, as your Honor has suggested through your own questions, the words have a patently defamatory content to them.  They don't accuse them of innocuous behavior in any way.

If a person has a reputation for liking young boys and there's the admonition attached to that that if he tries anything, tell one of us, the implication is clear that he has committed that kind of conduct before, it's known to the maker of the statement, and under the statutes in this state, that's criminal conduct.

I don't think you have to say so and so committed the crime of sexual abuse in the third degree, or committed larceny, which is a class D felony, to have it constitute a crime.  I don't think the statement that is made has to use the technical definition of a crime to satisfy the requirement.

THE COURT: Supposing you said to somebody about a person. "Look out for him, he likes to take things.  If he tries anything, let us know"?

MR. CLAUSS: Well, your Honor —

THE COURT: Are you accusing him of being a thief?

MR. CLAUSS: I think, as your Honor recognized when we were here on the discovery motion back in September, there's a substantial difference between accusing somebody of having an interest in young boys.  At the time I made that motion I didn't have the transcript of that hearing, but I have it now, and if I could refresh your Honor's recollection.  The basis of the motion was to limit discovery so that when the defendants went to plaintiff's employer or the places he had worked as a counselor they couldn't ask the question, "Does John Doe have a reputation for liking young boys," because of the inherently defamatory context of that.

THE COURT: I remember that problem.

MR. CLAUSS: And you said it doesn't make any difference whether it's an allegation such as we are here for, or if somebody said he's a no good thief, and I wouldn't trust him, and he stole money while he worked for me, or whatever, and you bring a lawsuit and then you have to go back to all kinds of employers and see what he did.  Then you said, "I mean, I can understand your concern and your client's concern," and I said, "Your Honor, I think there's a fundamental difference between someone who is accused of being a thief, which is essentially a commercial crime, or just a general crime in our society, and somebody accused of potential sexual misconduct with children, an adult in the context of this day and age," and your response was, "In that context you're right.  My example was poor," and I don't mean to rub anything in.

THE COURT: You are right.  You are right.

MR. CLAUS S: It's just obvious what those words mean.

THE COURT: You're right, you are correct.  It's an inapt comparison.  There is no question that accusing somebody of being a homosexual who is attracted to young children is vastly different than accusing someone of being just a common thief.  You are correct.

MR. CLAUSS: And I think also that as far as the damage issue, while if the allegation is defamatory per se, we obviously don't have to plead special damages.  Special damages come essentially in two forms, one of them is pecuniary and another is, another specified loss that you can show.  At the time I made this motion, and I will concede as of today there are no pecuniary damages that I can prove, however, this man had been a regular participant in the Happy Hills Camp sessions, and now can never go there again.

At the time I made this motion he had not been asked to attend this summer session, but since then he has been.  He submitted an application, and he was denied the opportunity to attend this summer session.  I have quoted in my papers sessions from the deposition testimony of defendants where they say it wouldn't be to his benefit or theirs for him to attend a session in the future.  The complaint alleges this is one of the premier physical fitness organizations in the country, that it's significant in this man's involvement with physical fitness, and I think that in this day and age you might even say that being involved at his level and the level of the Happy Hills Camp physical fitness program and physical fitness in general is almost equivalent to a profession or professional involvement, even though he's not making his income from it.

THE COURT: What does he do for a living.

MR. CLAUSS: He's a research scientist.  Also with respect to the issue of damaging this man in his profession, your Honor limited the discovery inquiries at his place of business because it's just this kind of information that would be enormously damaging in his profession.  It doesn't matter what you do, this is not an allegation that is a nice allegation.

THE COURT: Mr. Clauss, what happens in the case if the case is tried, these motions are denied, and the case is tried and the defendants assert as a defense truth?

MR. CLAUSS: Your Honor, they have asserted the defensive truth, and I would say that it's probably time to make a motion to dismiss that defense.  I would point out that the response to my motion, my cross motion for summary judgment, in that the defendants asked for an extension of time to obtain affidavits.  Presumably to submit some kind of evidence in opposition, I assume.  There's not a single affidavit submitted in opposition, factual affidavit, and by the standards which they recount in their own motion they can't hide their evidence, if they have evidence they have to come forward with it at this time to establish that defense.

In my initial set of interrogatories I asked them to identify any person who had any information concerning John Doe's inappropriate conduct, and I defined the term.  They objected to my definition, but said, "We can't identify anybody."  They haven't come forward to this day with anybody who can identify any inappropriate conduct of the type that this language clearly alleges, and, you know, if the case is tried — 

THE COURT: Let me ask a questions.  Both of you, Mr. Clauss and of you, Miss Smith.  It seems to me discovery is just about over.

MS. SMITH: Correct, the end of this month.

THE COURT: And you both have just about finished, there's nothing more to be done.

MR. CLAUSS: I am still taking some depositions.  I have had difficulty in locating several of the witnesses, including one of the boys who was involved, who apparently has been on sabbatical with his parents in France.

THE COURT: Well, all right.

MR. CLAUSS: So, I have still some plans to take further depositions before the end of the month.

THE COURT: Would it be feasible to hold off resolving this question of law, whether what was said here was per se defamatory, and then try the case so that the Court hears everything that happened, hears some witnesses who were there, and the Court then has a much better idea of what was said, the context in which it was said, who was there, how they were influenced by it and so forth and so forth, and reserve the question of this question of law as to whether or not it's defamatory per se until after the trial?

MR. CLAUSS: Of course that's feasible, but I think the standard that's been established is what do the words mean on their face, and I think that my view is that we meet the burden on the issue of a crime, on the issue of damage to profession, even on the issue of special damages, which really isn't terribly pertinent.  I think in essence, your Honor has already ruled, albeit in a different context, that these words are defamatory on their face, and that is not necessary to really have further testimony on what people thought.

I think it's clear from the deposition testimony that came out already that the defendants were clearly concerned with possible sexual misconduct.  I think if you want to know what they were concerned with, you can also —

THE COURT: I don't know why you would oppose that suggestion, Mr. Clauss.  It seems to me if anyone was going to oppose it, it would be Miss Smith, but I don't see why you are opposing it.  It would seem to me it would work to your advantage.

MR. CLAUSS: If I can win now rather than later, I would rather win now, obviously.  If the testimony if we have a trial I am more than happy to come in here, and I will put on witnesses, and I think I can still make my case.  If I didn't I wouldn't be here.  I should point out that if we have a trial two children, 13- and 14-year-old boys, are going to be asked to testify.  That may simply be something that has to happen, that no one has any control over if we have a trial, but I think your Honor ought to keep that in mind.

I don't involve children in these things lightly, but it's a situation where I may have no choice but to do that.

THE COURT: Well, how old were they then?

MR. CLAUSS: Actually, I guess they were 13, and I think they were both 13 then, so they'll be 14 now.

THE COURT: Miss Smith, what do you think of that suggestion?

MS. SMITH: Well, our position is that we feel very strongly that these do not fit within any category of per se, and we would prefer a ruling at this time, but I have no problem with postponing it until the trial.  I do strongly disagree with several of the other positions taken by plaintiff.  First of all, the previous order by the Court which had to do with discovery that we had submitted interrogatory responses and, in turn, led to a protective order in our depositions, certainly has nothing to do with this issue.

The judge did not rule as to whether these were per se violations or not, and that's far from the point.  In addition, plaintiff went and spoke to his employer and discussed very thoroughly apparently, according the the employer's deposition, the nature of the lawsuit, so it was made moot by the plaintiff himself.

Furthermore, the argument that —

THE COURT: Where is that?  You mean the plaintiff's current employer is aware of the nature of this lawsuit?

MS. SMITH: Correct.

THE COURT: How did this come out?

MS. SMITH: It came out at the employer's deposition when I deposed the employer.  He told me this, I did not ask any direct questions, obviously, that went beyond protective order.  That was something that —

THE COURT: It just came out?

MS. SMITH: It came out.

MR. CLAUSS: Your Honor, can I respond?

MS. SMITH: Plaintiff was present at the deposition, as well.  Furthermore, to claim that these alleged statements fall within the exception to the special damages requirement under the fact that they affect his business reputation are far afield, and they are certainly no evidence, or no case law that would show that, and to the business exception has to do with you commenting on someone's skill in their particular business.  This person happens to be a research scientist.

There's absolutely no connection to that exception, and it certainly shouldn't be expanded to include this.  There's a further argument made that the unchaste woman exception should include this particular allegation, allegations of this case.  I further say there's no evidence, no case law, and that the affidavit submitted does not fulfill the requirements of an affidavit.

THE COURT: It seems to me that a statement that a person has, that a person is a homosexual and likes young boys, is far more defamatory in the current climate of liberation and sexual freedom and alleging a woman is unchaste.

MS. SMITH: But, your Honor, there is no category for that's been said.  It's not that someone can't bring a case and try to prove it's defamatory, that's not the issue here, Is it a defamatory statement per se, and all the case law and evidence that's been brought out shows it clearly is not.  It does not fall within one of those narrow exceptions, and the exceptions have not been expanded in over a hundred years, from what I can tell from the case law.

As far as postponing of the decision, I would not object to that.

THE COURT: Mr. Clauss, you wanted to respond?

MR. CLAUSS: Yes.  Two things.  One is with respect to this unchaste woman exception, it may be true that the case law hasn't been expanded for a hundred years, but that's no reason not to do it now.  I think your Honor recognizes by your own statement that this is a terribly defamatory statement in the context of our society.  The purpose of the doctor's affidavit was to demonstrate the parallel development of the two concepts of why it's damaging to women to be called unchaste and why it's damaging to a man in the context of today's society to be called in essence a child abuser, and how that has developed over the years.

I think his affidavit is appropriate for that purpose.  I agree that he can't opine as to what the law should be, but on that issue, I think the affidavit is entirely appropriate.

THE COURT: Let me ask you, Miss Smith, getting back, and I don't mean to harp on this unchaste woman thing, but Miss Smith, supposing somebody said about a woman, "She sleeps around," would you say that was defamatory in that she was being accused of being unchaste?

MS. SMITH: I think there may be case law in the area of that exception that may have examples such as that.  I think it has to be taken in the context, and I don't have any cases that would say that.

THE COURT: But taking your argument, couldn't you say, "Well, that means she just likes to spend different nights at different homes of different friends"?

MS. SMITH: The cases regarding the two different exceptions to the rule have very different interpretations and court reasoning behind them.  The one with regard to the crime, which is the one at issue here, the case law has clearly said you must clearly accuse someone of a crime.  Even if someone interprets the words, "Liking young boys," which is subject to a number of interpretations, and certainly clearly charging someone with a crime, but if the court found that they didn't say he likes young boys, or he sodomized this boy, or he did something specific, it's he had a reputation, he's known for liking young boys.  To have a reputation for liking young boys is not a pleasant thing, but it's not a crime.

Furthermore, to start expanding these exceptions now would open the door to exceptions to a lot of the different specific areas, and by leaving the exceptions as they remain now, certainly doesn't preclude a plaintiff from bringing a case and proving their defamation claim.  It just requires a different burden of proof.

I do believe the affidavit does not fall within the requirements of a Rule 56 affidavit for the reasons stated in the brief.

MR. CLAUSS: Your Honor, it's hard to imagine anything worse that could be said about a man in this day and age than what was said about this plaintiff.  I think the words are clear.  There is the case of Ventresca which I cited, where the statement was made, "This lady is known for running around with her boarders," That was found to be defamatory per se.

I think simply looking at the words themselves, which is really the threshold issue —

THE COURT: But Miss Smith's point, as I understand it, is that that related to the unchaste woman exceptions. there is no — or that the unchaste woman rule, which says accusing a woman of being unchaste is defamatory per se, but her argument, if I understand it, is that that rule has no relationship to this because in order for you to prevail here and to convince me as a matter of law that this statement is defamatory per se it has to accuse him of a crime. Isn't that your point, Miss Smith?

MS. SMITH: Yes, your Honor.

THE COURT: And that the statement does not accuse him of a crime.

MR. CLAUSS: First of all, I think the statement together with the warning of, "If he tried anything," that he has a reputation in essence for trying things which constitute crimes under the law of this state meets that burden.  Secondly, I think when you take the statement — let me step back a second.

Miss Smith has said two things.  First of all, if you take the statement on its face, then she said well, you have to consider the context.  I think on the face it meets the burden of proof of a crime, and in the context of what they did of asking this man to leave, refusing to permit him ever to come back to this organization, stating in this memorandum, this memo of a meeting they had where it explicitly uses the phrase, "inappropriate behavior, i.e. preoccupation with young boys," they state their concern about physical fitness, about John's reputation, about the school, they want to watch him when he's there like a criminal to make sure he doesn't do anything to anybody.

I think the context clearly makes it a crime.  As far as extending the unchaste woman exception, I regret to say I'm not a constitutional scholar, but there's something that seems discriminatory to say that you can accuse a woman of being unchaste, and that's a crime, and you can say a man is a child abuser or words to that effect, which I think these are, but if he doesn't have a monetary loss as a result of that statement, he has no remedy.

Also, I would remind the Court, and this may sound tangential, but in the case of Roe versus Wade, when this was decided by the Supreme Court one of the factors that influenced their decision, which has been written about relatively extensively, is that medicine has changed.  It changed from the ti me when the laws about abortion were initially established and the time of the Supreme Court.  Medicine had changed so that abortion was safer for a woman than pregnancy, and that was a significant factor in the Court's decision.  Nothing to do with the law.

I think that the purpose of the Underwager affidavit, your own acknowledgment of the damage of the statement in this day and age with our liberated sexual mores, but calling somebody a homo with interest in young boys is akin to that kind of evidence that was before the Supreme Court and made them change the law.  So, I think that we are not sitting here in a vacuum in a room with no people who can't see the plain meaning of those words.

We're not sitting here back in 1899 when the issue of child abuse wasn't half as significant as it is today.  I think the court can consider those factors and take them into consideration in ruling on the motions, and because of those things I would favor a ruling on the issue of per se now so that the only issue I have to try is the issue of damages at trial.

MS. SMITH: May I just clarify one fact:

THE COURT: Sure.

MS. SMITH: The plaintiffs —

THE COURT: I'm not going to decide Roe versus Wade, I can tell you that, if you want to clarify that.

MS. JONES: Plaintiff's counsel has indicated that the defendants have refused to permit plaintiff ever to come back. that is simply not true.  There is not evidence of that, nothing like that has occurred.  Plaintiff did apply to come this summer, and the response was you have sued us and we don't think it's appropriate for you to come while the lawsuit is pending, which seems pretty obvious to me.  I wanted to correct that.  I don't believe there's anything that would substantiate that suggestion.

MR. CLAUSS: Your Honor, I don't want to go back and forth too much, but the testimony which I have submitted as an exhibit to my papers where the questions is specifically put, "Will you let John Doe come back in the future," and the response is, "That wouldn't be good for him and that wouldn't be good for us."  We can't know until the future comes whether they will let him come back.  I can't be in here suing every year because they haven't let him back.

THE COURT: All right.  Let's take up the motion to compel.