`
`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`___________________________
`
`No. 01-11201
` ___________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`September 5, 2002
`THOMAS K. KAHN
`CLERK
`
`D.C. Docket No. 99-00136-CV-JTC-3
`
`NEAL HORSLEY,
`d.b.a. Pathway Communications,
`d.b.a. ChristianGallery.com,
`d.b.a. BestChoice.com,
`d.b.a. The Creator’s Rights Party,
`
`Plaintiff-Appellant,
`
`versus
`
`GLORIA FELDT,
`PLANNED PARENTHOOD FEDERATION OF AMERICA,
`KIM GANDY, and
`NATIONAL ORGANIZATION FOR WOMEN,
`
`
`
`Defendants-Appellees.
`
`____________________________
`
`Appeal from the United States District Court
`for the Northern District of Georgia
` ____________________________
`(September 5, 2002)
`
`Before BIRCH, CARNES and COX, Circuit Judges.
`
`
`
`CARNES, Circuit Judge:
`
`This appeal is the second occasion we have had recently to decide issues
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`stemming from a defamation action brought by Neal Horsley in response to
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`criticisms of him in the wake of the murder of Doctor Barnett Slepian, an abortion
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`provider. The first occasion was in a case where Horsley claimed that Geraldo
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`Rivera had defamed him during a television program by accusing him of a felony
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`when he said that Horsley had aided and abetted murder and was an accomplice to
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`murder. Horsley v. Rivera, 292 F.3d 695 (11th Cir. 2002). This Court held the
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`statements in that case were protected as rhetorical hyperbole under the First
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`Amendment and Georgia law, and for that reason the district court should have
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`granted the defendant judgment on the pleadings. Id. at 703.
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`Although the defamation case giving rise to this appeal also had its origins in
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`criticisms of Horsley because of the murder of Dr. Slepian, it involves different
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`statements and defendants. Here Horsley’s suit is against the Planned Parenthood
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`Federation of America (Planned Parenthood); its president, Gloria Feldt; the
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`National Organization for Women (NOW); and its executive vice president, Kim
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`Gandy; and the lawsuit arises out of statements allegedly made by Feldt and Gandy
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`shortly after Dr. Slepian’s murder.
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`2
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`
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`Although applying the same principles of law as we did in the related case,
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`Rivera, we reach a somewhat different conclusion in this case. While we affirm
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`most of the district court’s judgment on the pleadings for the defendants, we
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`reverse the part of the judgment that involves one of the statements allegedly made
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`by Feldt.
`
`I. BACKGROUND AND PROCEDURAL HISTORY
`
`Horsley, an anti-abortion activist and founder of the Creator’s Rights Party,
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`created and operated an anti-abortion Internet website known as “the Nuremberg
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`Files,” which listed the names of abortion providers. Dr. Slepian was murdered on
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`October 23, 1998. His name did not appear on the Nuremberg Files website prior
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`to his murder, but on October 24, 1998, the day after the murder, Horsley added
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`Slepian’s name to the list. Also on October 24, Horsley altered the Nuremberg
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`Files website to graphically reflect which abortion providers had been wounded or
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`killed; he did so by “graying-out” the wounded and “striking-through” the dead.
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`Dr. Slepian’s name was shown with a line struck through it.
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`A. THE FELDT STATEMENTS
`
`On October 24, 1998, Defendant Gloria Feldt, in her capacity as president of
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`Planned Parenthood, held a press conference about Dr. Slepian’s murder. The
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`Associated Press ran an article reporting on Feldt’s statements at the press
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`3
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`
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`conference. The complaint alleged the article stated that Feldt “told a news
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`conference in midtown Manhattan that the name of the physician, Dr. Barnett
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`Slepian, had appeared on a list of abortion doctors marked for death that was
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`circulated on the Internet,” and that “Feldt said she didn’t know how long the
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`Internet target list that included Slepian’s name has existed, or whether either he or
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`the police were aware of it.”
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`Although Horsley did not include a copy of the AP article with his
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`complaint, Feldt and Planned Parenthood attached a copy of it to their answer. The
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`attached article contained the statements quoted by Horsley in the complaint,
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`which we have quoted in the preceding paragraph, and it also reported that “[Dr.
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`Slepian’s] name . . . was ‘crossed off’ after he was gunned down in his suburban
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`Amherst home late Friday.” The article further characterized Feldt as “charg[ing] .
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`. . that police in Buffalo, N.Y., failed to protect a slain abortion doctor because of a
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`‘fundamental anti-choice philosophy’ within the department,” and it included
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`several paragraphs about Feldt’s remarks on police bias.
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`Portions of Feldt’s press conference were broadcast nationwide by CNN
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`Live News on October 24, 1998. As alleged by Horsley, the CNN broadcast
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`showed Feldt stating that “[Dr. Slepian’s] name had been on a list – you can look it
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`up on the web, christiangallery.com – a list of doctors who are subject to
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`4
`
`
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`surveillance and murder. His name was already crossed out.” Horsley did not
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`include the CNN transcript with his complaint, but Feldt and Planned Parenthood
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`included with their amended answer two CNN transcripts. Those transcripts did
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`not include the statements that Horsley alleged Feldt made, which we have quoted
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`in this paragraph, and Feldt and Planned Parenthood stated that they had been
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`unable to locate any CNN transcripts containing those statements. Horsley claimed
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`that he had a transcript of the CNN broadcast reflecting the statements he alleged
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`Feldt made, but he did not provide a copy of that transcript.
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`B. THE GANDY STATEMENTS
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`On October 26, 1998, Horsley voluntarily participated in a televised debate
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`on CNN Today with Defendant Kim Gandy, the executive vice president of NOW.
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`Horsley’s complaint alleged that the following exchange occurred during the
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`debate:
`
`JEANNE MESERVE, CNN ANCHOR: Mr. Horsley, let me start with you.
`Do you advocate the murder of doctors who perform abortions? What was
`the purpose of your Web site?
`
`NEAL HORSLEY, FOUNDER, CREATOR’S RIGHTS PARTY:
`Absolutely not. We want to make one [thing] clear, that we don’t want to
`see anybody die. But the fact is, 3,000 babies are going to die today, and
`that fact has been ignored for the last 25 years. And the thing the
`Nuremberg files– Web site is doing is reminding people that doctors who
`kill babies, even if it is authorized by the Supreme Court, might find
`themselves on trial someday in the same way that the Nazis found
`themselves on trial at Nuremberg.
`
`5
`
`
`
`MESERVE: So why, exactly, do you have their names on the Web site?
`
`HORSLEY: Because we are making a record, a database, of the people who
`are actually involved in the – in slaughtering babies and who make a living
`slaughtering babies, because we want to accumulate evidence in hopes that
`someday trials might actually be held where that evidence would be used to
`prosecute those people.
`
`KIM GANDY, NATIONAL ORGANIZATION FOR WOMEN: And for
`that, of course . . .
`
`MESERVE: Kim Gandy, your response.
`
`GANDY: . . . you need to have the names of their children, the ages of their
`children, where their children need to go to school; obviously, you need that
`kind of information. You’re not any better than the folks who sign the
`Justifiable Homicide Petition and one of those, Paul Hill, went on himself to
`murder a doctor in Pensacola, Florida.
`
`You have the blood of these doctors on your hands, because you have
`incited and you have inspired and conspired with others to result in what
`exactly has happened, that these doctors have been murdered. And until the
`United States government starts treating these, instead of treating them as
`isolated incidents, starts treating them as the conspiracy that they are and
`starts putting the same resources into these murderers that went into the
`Olympic bombings, that went into the World Trade Center bombings, we are
`going to see this continue to happen. Doctors and clinical workers will die.
`
`C. THE DISTRICT COURT PROCEEDINGS
`
`Horsley filed a complaint against Feldt, Planned Parenthood, Gandy, and
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`NOW, claiming they had defamed him by accusing him of conspiring in Dr.
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`Slepian’s murder, and claiming that they had conspired together to defame him.
`
`6
`
`
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`The defendants filed answers and some motions, including motions for judgment
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`on the pleadings, contending that Feldt’s and Gandy’s statements were protected
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`expressions of opinion and rhetorical hyperbole. Horsley moved for production of
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`documents, but the district court suspended discovery pending a ruling on the
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`defendants’ motions for judgment on the pleadings. Thereafter, the district court
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`granted judgment on the pleadings in favor of the defendants. Horsley filed a
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`timely appeal.1
`
`II. DISCUSSION
`
`Horsley contends the district court erred in determining based on the
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`pleadings that Feldt’s and Gandy’s statements were not actionable.2 We review de
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`1Horsley does not raise before us any challenge to the part of the judgment in
`favor of the defendants insofar as it concerns his claim that they had conspired
`against him. So, we will not mention it any further here. See Marek v. Singletary,
`62 F.3d 1295, 1298 n.2 (11th Cir. 1995) (issues not argued on appeal deemed
`waived).
`
`2Horsley also contends the district court erred in suspending discovery. We
`review the district court’s decision to do that only for abuse of discretion. See Lee
`v. Etowah County Bd. of Educ., 963 F.2d 1416, 1420 (11th Cir. 1992). There was
`none, because the defendants’ motions for judgment on the pleadings are facial
`challenges to the legal sufficiency of Horsley’s complaint that “present[] a purely
`legal question; there are no issues of fact because the allegations contained in the
`pleadings are presumed to be true.” Chudasama v. Mazda Motor Corp., 123 F.3d
`1353, 1367 (11th Cir. 1997) (citations omitted). For that reason, there was no need
`for discovery before the district court ruled on those motions. Id.
`
`7
`
`
`
`novo a district court’s entry of judgment on the pleadings, accepting the facts in the
`
`complaint as true and viewing them in the light most favorable to the nonmoving
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`party. See Ortega v. Christian, 85 F.3d 1521, 1524-25 (11th Cir. 1996). “Judgment
`
`on the pleadings is appropriate only when the plaintiff can prove no set of facts in
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`support of his claim which would entitle him to relief.” Moore v. Liberty Nat’l
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`Life Ins. Co., 267 F.3d 1209, 1213 (11th Cir. 2001) (internal marks omitted), cert.
`
`denied, 122 S. Ct. 1608 (2002). We begin with the Gandy statements, because it is
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`easier to sort out the alleged facts relating to them.
`
`A. THE GANDY STATEMENTS
`
`Horsley contends Gandy defamed him during their televised debate on CNN.
`
`The Supreme Court has long recognized “a profound national commitment to the
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`principle that debate on public issues should be uninhibited, robust, and wide-
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`open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721
`
`(1964). Acknowledging that debate “may well include vehement, caustic, and
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`sometimes unpleasantly sharp attacks,” id., the Court nevertheless has decided that
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`such attacks are constitutionally protected and those who make them are exempt
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`from liability for defamation if the attacks are simply “rhetorical hyperbole.” See,
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`e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695, 2706
`
`(1990); Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin,
`
`8
`
`
`
`418 U.S. 264, 285-86, 94 S. Ct. 2770, 2782 (1974) (Letter Carriers); Greenbelt
`
`Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14, 90 S. Ct. 1537, 1542 (1970). The
`
`constitutional protection provided rhetorical hyperbole “reflects ‘the reality that
`
`exaggeration and non-literal commentary have become an integral part of social
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`discourse.’” Rivera, 292 F.3d at 701 (quoting Levinsky’s, Inc. v. Wal-Mart Stores,
`
`Inc., 127 F.3d 122, 128 (1st Cir. 1997)). Gandy and NOW contend that her
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`statements were merely rhetorical hyperbole for which they cannot be held liable.
`
`In determining whether an expression is protected rhetorical hyperbole, “we
`
`must consider the circumstances in which the statement was expressed.” Rivera,
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`292 F.3d at 702. In Rivera, although Geraldo Rivera had stated that Horsley was
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`“an accomplice to homicide” and that he had “aid[ed] and abet[ted] a homicide,”
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`the context of those remarks led us to conclude that they were non-defamatory
`
`rhetorical hyperbole. Id. at 698, 702. Rivera’s comments were made during “an
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`emotional debate concerning emotionally-charged issues of significant public
`
`concern”; both Rivera and Horsley had “used non-literal, figurative language in
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`expressing their views”; Horsley’s statements showed “that he understood Rivera
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`to be speaking in a figurative rather than literal sense”; and statements by both of
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`them “instill[ed] upon a reasonable viewer the impression that the parties were
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`exchanging dialogue at a non-literal level.” Id. For those reasons, we held that
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`9
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`
`
`“[a] reasonable viewer would have understood Rivera’s comments merely as
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`expressing his belief that Horsley shared in the moral culpability for Dr. Slepian’s
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`death, not as a literal assertion that Horsley had, by his actions, committed a
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`felony.” Id.; see also Bresler, 398 U.S. at 7-8, 12-14, 90 S. Ct. at 1538, 1541-42
`
`(holding that statements characterizing plaintiff’s negotiating position as
`
`“blackmail” were not defamatory but instead were “vigorous epithet[s] used by
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`those who considered [the plaintiff’s] negotiating position extremely
`
`unreasonable,” because statements were made during a “tumultuous” public
`
`meeting where “[t]he debates themselves were heated, as debates about
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`controversial issues usually are”).
`
`The same is true here. The context of Gandy’s statements and their flavor
`
`convince us that they are rhetorical hyperbole. Gandy and Horsley were engaged
`
`in heated debate on the highly controversial topic of abortion and the emotionally-
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`charged subject of the Nuremberg Files and the murder of abortion providers.
`
`See, e.g., Rivera, 292 F.3d at 702; see also Stenberg v. Carhart, 530 U.S. 914, 947,
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`120 S. Ct. 2597, 2617 (2000) (O’Connor, J., concurring) (“The issue of abortion is
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`one of the most contentious and controversial in contemporary American
`
`society.”). Their debate occurred only three days after Dr. Slepian was killed.
`
`Gandy made the statements in question after Horsley had said that “the Nuremberg
`
`10
`
`
`
`files . . . is reminding people that doctors who kill babies, even if it is authorized by
`
`the Supreme Court, might find themselves on trial someday in the same way that
`
`the Nazis found themselves on trial at Nuremberg,” and that “we are making a
`
`record, a database, of the people who are actually involved in . . . slaughtering
`
`babies and who make a living slaughtering babies, because we want to accumulate
`
`evidence in hopes that someday trials might actually be held where that evidence
`
`would be used to prosecute those people.” Gandy responded to Horsley:
`
`You’re not any better than the folks who sign the Justifiable Homicide
`Petition and one of those, Paul Hill, went on himself to murder a doctor in
`Pensacola, Florida.
`
`You have the blood of these doctors on your hands, because you have
`incited and you have inspired and conspired with others to result in what
`exactly has happened, that these doctors have been murdered. And until the
`United States government starts treating these, instead of treating them as
`isolated incidents, starts treating them as the conspiracy that they are and
`starts putting the same resources into these murderers that went into the
`Olympic bombings, that went into the World Trade Center bombings, we are
`going to see this continue to happen. Doctors and clinical workers will die.
`
`(Emphasis added).
`
`Taken in context, Gandy’s statements “consisted of the sort of loose,
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`figurative language that no reasonable person would believe presented facts.”
`
`Rivera, 292 F.3d at 702; see also Milkovich, 497 U.S. at 20, 110 S. Ct. at 2706.
`
`Her comments were “lusty and imaginative expression[s] of the contempt felt by
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`[her] towards [Horsley],” Letter Carriers, 418 U.S. at 286, 94 S. Ct. at 2782, but
`
`11
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`
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`they did not actually accuse Horsley of criminal action. Although Gandy
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`compared Horsley with the Justifiable Homicide Petition signers, she then
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`distinguished him from Paul Hill by stating that Hill “went on himself to murder a
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`doctor.”
`
`Gandy’s statement that Horsley had “conspired with others to result in what
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`exactly has happened, that these doctors have been murdered,” was part of her
`
`expression of contempt for Horsley’s message and his way of getting that message
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`out, and a way of voicing her opinion that his message had contributed to the
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`atmosphere of violence that had led to the deaths of abortion providers. In view of
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`the undisputed facts, it was fair comment or, more to the point, constitutionally
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`protected comment. Given the context and the surrounding comments of both
`
`Horsley and Gandy, a reasonable listener would not have taken the statement as a
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`literal assertion that Horsley had actually conspired in the technical legal sense
`
`with those who actually murdered Dr. Slepian to bring about his death, thereby
`
`committing a felony. See Rivera, 292 F.3d at 702. Importantly, Gandy did not
`
`imply that she had access to any facts, beyond those that were undisputed, which
`
`cast Horsley in a bad light. In their context, the inflammatory words Gandy used
`
`hyperbolically accused Horsley only of that actual conduct to which he freely
`
`admitted – providing to the world a list of abortion providers and then striking
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`12
`
`
`
`through the names as they were killed. The point of her words was that specific
`
`conduct made Horsley morally culpable of murder – the same, in her view, as if he
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`had actually conspired with those who committed it. The district court did not err
`
`in granting judgment on the pleadings.3
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`B. THE FELDT STATEMENTS
`
`Horsley also challenges the district court’s grant of judgment on the
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`pleadings to Feldt and Planned Parenthood on his defamation claim involving
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`Feldt’s alleged statements at the press conference as reported in the AP article and
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`broadcast on CNN. The theory of that claim, as with the one involving the Gandy
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`statements, is that Feldt’s statements implicitly accused Horsley of conspiring in
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`Dr. Slepian’s murder. Before applying the law, we have to determine what the
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`alleged facts are, and that requires a decision about the scope of the materials that
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`define the facts, because Feldt and Planned Parenthood attached to their amended
`
`answer materials that were not included in the complaint. They ask us to consider
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`3Gandy’s comments were also protected as hyperbolic expression under
`Georgia law, “which similarly provides that the pivotal question in a defamation
`action is whether the challenged statement(s) can reasonably be interpreted as
`stating or implying defamatory facts.” Rivera, 292 F.3d at 702 n.2 (citing Jaillett
`v. Ga. Television Co., 520 S.E.2d 721, 725-26 (Ga. Ct. App. 1999); Webster v.
`Wilkins, 456 S.E.2d 699, 700 (Ga. Ct. App. 1995)).
`
`13
`
`
`
`those materials, and Horsley objects to our doing so. We will dispose of that
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`preliminary issue before turning to the merits of the judgment on the pleadings.
`
`1. Whether Attachments to the Answer May Be Considered
`in Deciding a Motion for Judgment on the Pleadings
`
`In his complaint, Horsley quoted Feldt’s alleged statements from an AP
`
`article and a CNN broadcast, but he did not attach either the article itself or a
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`transcript of the broadcast. Feldt and Planned Parenthood included as exhibits to
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`their amended answer both an AP article and “[t]he actual available transcripts of
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`the two CNN broadcasts that contain excerpts from the press conference . . . .” In
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`granting judgment on the pleadings in favor of Feldt and Planned Parenthood, the
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`district court considered the AP article attached to the amended answer.4
`
`Federal Rule of Civil Procedure 12(c) contains a conversion provision which
`
`states that: “[i]f, on a motion for judgment on the pleadings, matters outside the
`
`pleadings are presented to and not excluded by the court, the motion shall be
`
`treated as one for summary judgment and disposed of as provided in Rule 56, and
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`all parties shall be given reasonable opportunity to present all material made
`
`pertinent to such a motion by Rule 56.” Rule 7(a) defines “pleadings” to include
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`4It is not clear whether the district court also considered the CNN transcripts
`that were attached to the amended answer, but it does not matter because our
`review is de novo.
`
`14
`
`
`
`both the complaint and the answer, and Rule 10(c) provides that “[a] copy of any
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`written instrument which is an exhibit to a pleading is a part thereof for all
`
`purposes.” It would seem to follow that if an attachment to an answer is a “written
`
`instrument,” it is part of the pleadings and can be considered on a Rule 12(c)
`
`motion for judgment on the pleadings without the motion being converted to one
`
`for summary judgment. See Northern Ind. Gun & Outdoor Shows, Inc. v. City of
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`South Bend, 163 F.3d 449, 453 n.5 (7th Cir. 1998); cf. Brooks v. Blue Cross and
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`Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (in context of Rule
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`12(b)(6)).
`
`Although we have not previously examined Rule 10(c)’s written instrument
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`provision in the context of a Rule 12(c) motion for judgment on the pleadings, we
`
`have addressed a similar issue under Rule 12(b)(6) involving matters attached to a
`
`motion to dismiss. Our analysis there is instructive, because the conversion
`
`provision applicable to Rule 12(b)(6) motions is identical to the one applicable to
`
`Rule 12(c) motions, and they serve the identical purpose of preventing the
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`circumvention of the Rule 56 notice and opportunity to be heard provisions when
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`extraneous materials are considered.
`
`Our Rule 12(b)(6) decisions have adopted the “incorporation by reference”
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`doctrine, see In re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970 (9th Cir.
`
`15
`
`
`
`1999), under which a document attached to a motion to dismiss may be considered
`
`by the court without converting the motion into one for summary judgment only if
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`the attached document is: (1) central to the plaintiff’s claim; and (2) undisputed.
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`See Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999). “Undisputed” in
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`this context means that the authenticity of the document is not challenged. See,
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`e.g., Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 16-17 (1st Cir. 1998);
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`GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
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`1997); Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Given that the
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`operative rule language is identical and that the provisions serve the same purpose,
`
`we believe that the Rule 12(b)(6) incorporation by reference doctrine should apply
`
`in Rule 12(c) cases as well.
`
`We recognize, of course, that the “written instrument” provision of Rule
`
`10(c) (“[a] copy of any written instrument which is an exhibit to a pleading is a
`
`part thereof for all purposes”) is applicable to pleadings and not to motions, but
`
`we do not believe it dictates a different result insofar as the incorporation by
`
`reference doctrine is concerned. That doctrine with its two requirements must
`
`apply for Rule 12(c) purposes to documents attached to answers just as it applies
`
`for Rule 12(b)(6) purposes to documents attached to motions to dismiss.
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`Otherwise, the conversion clause of Rule 12(c) would be too easily circumvented
`
`16
`
`
`
`and disputed documents attached to an answer would have to be taken as true at the
`
`pleadings stage. The written instrument provision of Rule 10(c) does not require
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`that.
`
`Applying the incorporation by reference doctrine to the pleadings in this
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`case leads us to conclude that the AP article attached to the amended answer
`
`should be considered as part of the pleadings for Rule 12(c) purposes, because that
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`article is central to one of the claims and its authenticity is undisputed.
`
`The CNN transcripts are a different story. Feldt and Planned Parenthood
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`state in their amended answer that what they have attached are “[t]rue and correct
`
`copies of the available transcripts of the CNN broadcasts containing excerpts of
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`Ms. Feldt’s actual statements at the press conference. . . .”5 In his response to the
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`motion for judgment on the pleadings, however, Horsley disputes the authenticity
`
`of those transcripts; he says that neither one is the transcript referred to in his
`
`complaint. Moreover, according to the amended answer itself, the attached
`
`5Feldt and Planned Parenthood state that they were “unable to locate or
`obtain any transcript or video footage containing either the complete press
`conference or the purported excerpt of the press conference set forth in the
`Complaint, either from CNN or from any other source. The actual available
`transcripts of the two CNN broadcasts that contain excerpts from the press
`conference have been attached to Defendants’ Amended Answer. These transcripts
`form the basis of Defendants’ denial in the Amended Answer that the alleged
`statements on which Horsley bases his claims were broadcast by and are available
`from CNN.”
`
`17
`
`
`
`transcripts contain only “excerpts of Ms. Feldt’s actual statements.” They do not
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`contain the statements the complaint insists that Feldt made, and for all we know at
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`this stage those statements were left out of the excerpts. Because the authenticity
`
`of the transcripts attached to the amended answer is disputed, and because they are
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`not complete transcripts of all of Ms. Feldt’s statements in the broadcast, they may
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`not be considered in deciding the Rule 12(c) motion for judgment on the pleadings.
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`2. The Merits of the Judgment on the Pleadings
`
`With the alleged facts settled for present purposes, we now decide whether
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`Horsley’s defamation claim based on the press conference survives the defendants’
`
`motion for judgment on the pleadings. We will consider the press conference
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`statements allegedly reported in the AP article separately from those allegedly
`
`broadcast over CNN, because although Feldt spoke at only one press conference,
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`her comments were reported separately by CNN and the AP to distinct audiences
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`and thus constituted separate publications. See generally Southern Bell Tel. and
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`Tel. Co. v. Coastal Transmission Serv., Inc., 307 S.E.2d 83, 88 (Ga. Ct. App. 1983)
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`(“Any act by which the defamatory matter is intentionally or negligently
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`communicated to a third person is a publication.”); see also Restatement (Second)
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`Torts § 577 cmt. a (1977) (same). Only if everyone who read the AP article heard
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`the CNN broadcast, and vice versa, could we consider them together to the benefit
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`of Feldt and Planned Parenthood, and no one suggests that happened.
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`a. The Alleged Statements in the AP Article
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`The relevant part of the AP article reporting on Feldt’s statements at the
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`press conference is as follows:
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`Gloria Feldt also told a news conference in midtown Manhattan that the
`name of the physician, Dr. Barnett Slepian, had appeared on a list of
`abortion doctors marked for death that was circulated on the Internet. The
`name, she said, was “crossed off” after he was gunned down in his suburban
`Amherst home late Friday.
`
`***
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`Feldt said she didn’t know how long the Internet target list that included
`Slepian’s name has existed, or whether either he or the police were aware of
`it. However, she said, “lists of this sort have existed for years, and are taken
`very, very seriously” by pro-choice groups, if not always by law
`enforcement authorities.
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`Those statements are not defamatory.
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`For one thing, nowhere in the article is Horsley mentioned either by name or
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`ascertainable implication. To be actionable, “[t]he [allegedly] defamatory words
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`must refer to some ascertained or ascertainable person, and that person must be the
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`plaintiff.” Fiske v. Stockton, 320 S.E.2d 590, 592 (Ga. Ct. App. 1984). A plaintiff
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`“cannot rely on rumor, innuendo, and extraneous circumstances to create an
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`inference of defamation.” Willis v. United Family Life Ins., 487 S.E.2d 376, 379
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`19
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`
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`(Ga. Ct. App. 1997). The AP article does not say that Feldt mentioned Horsley’s
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`name or the name of the website containing the “target list,” or even that there was
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`a website (as distinguished from a list of names “that was circulated on the
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`Internet”).
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`Second, even if Horsley’s identity were ascertainable from Feldt’s
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`statements discussed in the AP article, those statements did not implicate Horsley
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`in a conspiracy to murder Dr. Slepian. According to the article, Feldt said that Dr.
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`Slepian’s name was crossed off the Internet list after he was murdered. Feldt’s
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`statements did refer to “a list of abortion doctors marked for death” and “the
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`Internet target list,” but those are imaginative and perhaps hyperbolic expressions
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`reflecting her opinion about why the list was created and maintained; they do not
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`state an allegedly false historical fact and therefore are not actionable. See
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`Milkovich, 497 U.S. at 20, 110 S. Ct. at 2706; Collins v. Cox Enter., Inc., 452
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`S.E.2d 226, 227 (Ga. Ct. App. 1994) (holding that trial court did not err in granting
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`motion for judgment on pleadings where defendant’s editorial implied plaintiff
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`acted with dishonest motive).6 For what it is worth, we also note that the article in
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`6In support of his contention that reasonable people would have believed that
`Feldt’s press conference statements as reported in the AP article defamed him,
`Horsley proffers a New York Times article and forty emails he received, and he
`points to the fact that the Justice Department is conducting an investigation about
`him. None of those matters were alleged in the complaint. Whatever their
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`20
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`its entirety reveals that the focus of Feldt’s statements was primarily on her belief
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`that law enforcement’s “fundamental anti-choice philosophy” contributed to Dr.
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`Slepian’s death.
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`b. The Alleged Statements in the CNN Broadcast
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`As alleged in the complaint, CNN broadcast that Feldt made the following
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`statements, among others, at the press conference:
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`[Dr. Slepian’s] name had been on a list – you can look it up on the web,
`christiangallery.com – a list of doctors who are subject to surveillance and
`murder. His name was already crossed out.
`
`The statement that “[Dr. Slepian’s] name was already crossed out” is ambiguous.
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`On the one hand, it could mean that his name was “already crossed out” at some
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`unspecified time after his murder and before Feldt made her statements. If that is
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`what it means, Horsley concedes it is accurate. On the other hand, the statement
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`could mean that the name was “already crossed out” before the time the murder
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`occurred. The latter reading certainly implies that the person who crossed out the
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`name, the person who was running the website, had knowledge that the murder
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`was going to happen. As Feldt and Planned Parenthood conceded at oral
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`relevance might be in deciding a motion for summary judgment, we will not
`consider matters outside the pleadings when passing on a Rule 12(c) motion for
`judgment on the pleadings. See Fed. R. Civ. P. 12(c); Int’l Ass’n of Machinists and
`Aerospace Workers v. United Technologies Corp., 704 F.2d 569, 572 (11th Cir.
`1983).
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`21
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`argument, stating as a factual matter that someone had advance knowledge of a
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`murder and did nothing to prevent it is defamatory. The ambiguity in the “already
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`crossed out” statement prevents us from granting judgment on the pleadings in
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`favor of the defendants. See Dun & Bradstreet, Inc. v. Miller, 398 F.2d 218, 222-
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`23 (5th Cir. 1968) (applying Georgia law); Ferguson v. Park Newspapers of Ga.,
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`Inc., 253 S.E.2d 231, 231-32 (Ga. Ct. App. 1979).
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`The fact that Feldt’s alleged comments on the CNN broadcast did not
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`explicitly name Horsley does not stop them from being reasonably susceptible of a
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`defamatory reading. Unlike the statements reported in the AP article, those
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`allegedly contained in the CNN broadcast made Horsley’s identity readily
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`ascertainable, because in them Feldt specifically mentioned christiangallery.com,
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`which was created and maintained by Horsley. See Fiske, 320 S.E.2d at 592-93.
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`Accordingly, the district court erred in granting judgment on the pleadings for
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`Horsley’s defamation claim based on Feldt’s alleged statements as broadcast on
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`CNN Live News. See Moore v. Liberty Nat’l Life Ins. Co., 267 F.3d 1209, 1213
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`(11th Cir. 2001), cert. denied, 122 S. Ct. 1608 (2002). Of course, there will be no
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`genuine issue of material fact if all t