JonBenet Ramsey’s Brother’s Defamation Lawsuit Against CBS May Hinge on Fact Vs. Opinion

Burke Ramsey’s massive, $750 million lawsuit against CBS will face many of the same hurdles as any other defamation claim: a high bar to prove that the producers of the September documentary series were negligent or reckless in presenting a project where the “gist” was that he was the culprit behind sister JonBenet Ramsey’s 1996 death.

But in their 456-page complaint and retraction letter to CBS, his legal team identify more than 700 statements and instances they say contributed to the “false and defamatory gist” of the two-part TV series, called “The Case Of: JonBenet Ramsey,” which was pegged to the 20th anniversary of JonBenet’s murder this month and capitalized on a public thirst for the true crime genre.

Do they have a case?

First Amendment experts say that a significant factor may be whether the conclusions raised by the project’s many talking heads are considered their opinions, or would be taken as fact.

“CBS will argue that a contextual analysis of the series reveals that it was promulgating opinions and theories not facts and is, therefore, not defamatory,” James Sammataro, partner with Stroock & Stroock and national head of the firm’s entertainment litigation practice group, said via e-mail. “Television shows that offer alternative theories of unsolved (or even solved crimes) are a fixture in today’s media (‘Making a Murderer’) and CBS can likely persuasively argue that the average viewer reasonably understood that the docuseries was merely offering the opinions of several experts.”

But Larry Iser, a partner at the Los Angeles firm of Kinsella, Weitzman, Iser, Kump & Aldisert, said that Ramsey’s case will be bolstered if he can show what was offered in the documentary series were false facts.

“The First Amendment is not absolute. It doesn’t protect against yelling fire in a crowded theatre, and it doesn’t insulate a filmmaker or a media defendant that intentionally or recklessly publishes false facts,” he said.  “In his complaint, Burke Ramsey claims that the documentary is rife with outright lies, half-truths, manufactured information, and the intentional omission and avoidance of truthful information about the murder of his sister. If he can prove that, the defendants would be liable for defamation.”

In his lawsuit, Ramsey’s attorneys argue that the implication of the documentary, right up to the end, was that he was responsible for JonBenet’s death, and that his parents, John and Patsy, engaged in a cover up to protect him. He was 9 years old at the time.

The lawsuit contends that producers overlooked a significant range of evidence that points to his innocence, along with the conclusions of law enforcement officials. They also point to the 2008 conclusion of Boulder District Attorney Mary Lacy, who publicly exonerated the entire Ramsey family based on DNA evidence and test results. The current district attorney recently reopened the case along with other unsolved crimes, citing new technology for examining DNA evidence.

Ramsey’s legal team is led by Lin Wood, who also represented Richard Jewell, who was exonerated after being falsely identified by several media outlets in 1996 as a key suspect in the bombing during the Olympic Games that year in Atlanta.

The suit also names as defendants the project’s producer, Critical Content, as well as seven individuals who were featured in the documentary series as criminal experts or students of the case: Jim Clemente, Laura Richards, Henry Lee, A. James Kolar, James Fitzgerald, Stanley Burke and Werner Spitz. Kolar wrote a book about the case, “Foreign Faction,” that was heavily cited in the series.

In a letter sent to CBS shortly before the documentary aired, Wood threatened to sue, saying that the verdict in the Hulk Hogan case “will pale in comparison to the result I will obtain for Burke.” His reference was to a $140 million jury verdict awarded to the wrestler in his privacy case against Gawker Media.

Burke Ramsey’s lawsuit claims CBS and other defendants “predetermined the result” of the documentary, even though they portrayed it as being a “complete reinvestigation.” His legal team also noted that about 15 years ago, John and Patsy Ramsey sued when tabloids like The Star and the Globe published similar accusations about their son — and the suits were eventually dismissed after reaching confidential settlements.

CBS, which licensed the project from Critical Content, has not responded to the lawsuit. At the end of the documentary, producers did feature a disclaimer that seemed to bolster the idea that what they were presenting were “opinions and conclusions” of identified experts in the program.

It noted that the crime “remains unsolved.”

“The opinions and conclusions of the investigators who appear on this program about how it may have occurred represent just some of the number of possible scenarios,” the disclaimer said. “John Ramsey and Burke Ramsey have denied any involvement in the crime including in recent televised interviews. We encourage viewers to reach their own conclusions.”

Iser said that such a message doesn’t necessarily shield a producer from liability. He says that “there is no need to disclaim opinion because opinion is not actionable — only the assertion of false facts is actionable as defamation. A disclaimer does not insulate a defendant from liability for knowingly or recklessly publishing false facts.”

But the relentless attention on the unsolved case, even two decades later, also can be a factor in a defamation claim.

Jean-Paul Jassy, a specialist in media and First Amendment with the firm of Jassy Vick Carolan, said that such a disclaimer can help, but that it was “important to understand that multiple interpretations surrounding a controversial event get a lot of constitutional protection.”

Another issue is whether Burke Ramsey is a public or private figure. His attorneys contend that he is a private figure, not a public one, in which the threshold for proving defamation is higher. The burden is to show that the defendants had actual malice. Even so, his lawsuit suggests that they would meet that threshold anyway, by arguing that the defendants knew the claims were false or that they had a reckless disregard for the truth. His attorneys noted that he has avoided media interviews until this year when, aware of the need to counter the upcoming CBS project, he sat down with Dr. Phil McGraw on “Dr. Phil.”

Sammataro said that if the case proceeds, what will loom over the question of private vs. public figure is the 1974 Supreme Court decision in Gertz vs. Robert Welch, which found that it was “possible for someone to become a public figure and, thus, subject to the actual malice standard through no purposeful action of his own.” The size of the damages sought — $250 million in compensatory damages and $500 million in punitive — “does little to aid any suggestion that Burke is a private figure,” Sammataro said, as it seeks like it is designed to get attention.

Michael Overing, an adjunct professor at USC Annenberg whose practice has a specialty in First Amendment law, said that he had not yet read the complaint, but “seriously, this is a real uphill battle for Burke Ramsey.”

“Obviously, the case is exceptionally newsworthy and is going to be given the greatest First Amendment protection, even before adding the comment that this was ‘opinion,'” he said via email. “He certainly seems to be a public figure, and as such, how can he really claim that CBS was acting with actual malice toward him in their failure to investigate the alleged ‘facts’?  This isn’t a lawsuit that I would expect will gain much traction.  He also has to prove that his reputation has been sullied — that alone may be difficult to prove given the notoriety of the case.”

CBS and other defendants are likely to seek an immediate dismissal, but, Sammataro notes, even if they don’t succeed there, they get “to conduct discovery on whether Burke had any involvement in his sister’s death.  [CBS] has a prospective path to a treasure trove of information and potentially an informational advantage over its competitors on a story that continues to enthrall the public and garner ratings.”

But Sammataro acknowledges that there is a “countervailing argument” to make sure that the case doesn’t get to a jury, given the recent verdicts in the Hulk Hogan case and more recently against Rolling Stone. A jury could frown upon some of the producers tactics. He cites one instance in the documentary: “The staged demonstration of a young boy beating a pig skin is not a ‘jury-friendly’ fact.”

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