Court Rejects Lawsuit Against Nancy Grace Over True-Crime Podcast Related to Prosecution for Rape of Madison Brooks

From Carver v. Grace, decided today by Judge Carl Barber (E.D. La.):

This defamation case derives from the alleged rape and tragic death of an LSU student, Madison Brooks, in Baton Rouge, Louisiana. After a heavy night of drinking, Madison Brooks left a Baton Rouge bar with Plaintiffs Casen Carver and Everett Lee and their two male companions, Kaivon Washington and Desmond Carter.

Less than an hour later, Madison Brooks was dropped off at Pelican Lakes Neighborhood, the entrance of which is off Burbank Drive. Madison Brooks was later hit and killed by a motor vehicle on Burbank Drive. Kaivon Washington and Desmond Carter were indicted for raping Madison Brooks in the backseat of the car. Plaintiff Casen Carver, the driver, was indicted for first-degree rape, third-degree rape, and video voyeurism Plaintiff Everett Lee rode in the passenger seat and remains under investigation….

Plaintiffs allege Nancy Grace and iHeartMedia made defamatory statements by … on (1) [Nancy Grace's] YouTube program titled "Nancy Grace Analyzes Defense Reaction to Damning Video of Attack on LSU Coed" ("Crime Online Show") and (2) on an episode of Nancy Grace's podcast, distributed by iHeartMedia, Crime Stories with Nancy Grace, titled "Haunting Video of LSU Beauty Madi Brooks Who Dies After 3 Men Allegedly Sex Assault" (Crime Stories Podcast")….

Considering the statements as whole in the context in which they were made, the Court finds Nancy Grace and iHeartMedia's statements are not actionable. The statements are not defamatory because they are either not "of and concerning" the Plaintiffs; substantially true; Nancy Grace's opinion; and/or based on statements of law enforcement officials….

[Defendants] first allege the following statement by Nancy Grace is not actionable in defamation:

There's no way, this little girl, consented to have sex in the backseat, of a car, while someone is videoing, and laughing, and she's saying no, and she's drunk, and they find I believe it's anal tears and bruising and they find the defendants[2] DNA on her person, is it so hard for you to believe Ferrintino that the perps withdrew before they ejaculated, I mean there's really no nice way to explain that, but is that so hard for anybody to believe because I find it very easy to believe.

[2] Note: Plaintiffs' petition does not use an apostrophe 's' after defendant, thus making it 'defendants DNA'; whereas the Defendants' motion and attached transcript uses an apostrophe 's' therefore, making it 'defendant's DNA.'

… After considering the statement in its context, the Court does not find this statement defamatory. First, it is not 'of and concerning' the Defendants. This statement made by Nancy Grace was only five minutes and twenty-two seconds into the YouTube video. At the time of this statement in the program, Nancy Grace has neither shown a picture of Plaintiff Casen Carver nor of Plaintiff Everett Lee. Even more so, Nancy Grace has not stated Plaintiffs' names as this point. In fact, Nancy Grace started this program off by referring to the "rape Defendants;" thereby indicating that she is analyzing the defense of the "rape Defendants" in the criminal action associated with Madison Brooks' death. Plaintiff Everett Lee is not a "rape Defendant" nor a defendant in the criminal action. Moreover, Nancy Grace did not misidentify or improperly quote either of the Plaintiffs during the program. Nancy Grace also showed photos of Kaivon Washington and Desmond Carter. Thus, Plaintiffs attempt to argue that this statement is 'of and concerning' the Plaintiffs because of mere photographs shown or names stated is unpersuasive.

Regarding the statement itself, the Court finds that this is not 'of and concerning' the Plaintiffs because the first half of the statement—"There's no way, this little girl, consented to have sex in the backseat, of a car, while someone is videoing, and laughing, and she's saying no, and she's drunk, and they find I believe it's anal tears and bruising and"—is not "of and concerning" the Plaintiffs, but concerns Madison Brooks. Also, Nancy Grace, as a former prosecutor turned journalist, is stating her opinion as to her belief why Madison Brooks did not consent. This opinion was based on disclosed facts by the Plaintiff Carver's Affidavit for Arrest Warrant that Madison Brooks was intoxicated and by a news media reporter that "someone [was] videotaping and laughing." Nancy Grace uses phrases like "There's no way" and "I believe"; therefore, indicating it is her opinion. Thus, an ordinary viewer of reasonable intelligence and sensibilities hearing the statement would conclude that Nancy is asserting her opinion.

As for the second half of statement, Plaintiffs "cherry pick" at Nancy Grace's use of the term "defendants DNA" and "perps" and "they ejaculated" arguing that Defendants "clearly" were referring to Plaintiffs. The Court disagrees. Shortly after the statement was made, Nancy Grace clearly identifies that the DNA found on Madison Brooks' person was Kavion Washington. Nancy Grace referred to a WBRZ article. Put in context, this statement is part of a question to guest attorney Jarrett Ferrintino— "I mean, is it that hard for you to believe, Ferentino, that the perps withdrew and then ejaculated?" … Therefore, given the context of the statement, the Court finds that it is not "of and concerning" the Plaintiffs.

Second, Defendants move to dismiss Plaintiffs' claims that the statement in paragraphs 78 and 98 of the petition is actionable in defamation— "In the middle of the night, the rain, heavy traffic flying by, they put her out the car and bam, she gets run over, and dies, after she gets raped." Plaintiffs focus on the phrase "they put her out of the car" and argue that this is defamatory because "any reasonable watcher or listener would interpret this statement to mean that Plaintiffs kicked Ms. Brooks out of the vehicle in the middle of a busy highway…" Additionally, Plaintiffs argue that during the episode "Casen Carver's name is mentioned 7 times … and Everett Lee's name was mentioned twice" and that Defendants showed actual images of both Plaintiffs. Thus, "this is certainly "of and concerning" plaintiffs."

After reviewing the programs at issue, the Court finds this is not defamatory. Nancy Grace made this statement approximately seven minutes into the program. Like the previous statement at issue, neither Plaintiffs' pictures were shown, nor were their named yet mentioned at the time Nancy Grace made this statement. Again, Nancy Grace started the Crime Show Online by referring to the "rape Defendants;" thereby indicating that she is analyzing the defense of the "rape Defendants" in the criminal action associated with Madison Brooks' death. Plaintiff Everett Lee is not a "rape Defendant" nor a defendant in the criminal action. Moreover, Nancy Grace did not misidentify or improperly quote either of the Plaintiffs during the program. Nancy Grace also showed photos of Kaivon Washington and Desmond Carter. Thus, Plaintiffs attempt to argue that this statement is 'of and concerning' the Plaintiffs because of mere photographs shown or names stated is unpersuasive. It otherwise would be a "chilling effect" on exercise the First Amendment, not allowing Nancy Grace "breathing space." Since the Court finds that the statement is not "of and concerning" the Plaintiffs, it does not address the parties' other arguments, since if one of the elements for a defamation claim is absent, the cause of action fails.

Third, Defendants move to dismiss Plaintiffs' claims that the statement in paragraphs 79 and 99 of the petition as not actionable in defamation. The statement is as follows:

They're really lucky, and I don't get it, that they haven't been charged with felony murder, because she is dead, while a felony was ensuing, they raped her, according to the state it's got to be proven in a court of law of course, then put her out of the car on a busy freeway which is abandoned and malignant heart, which is a theory of murder.

… The Court finds this statement is not defamatory per se. Accusations of a crime are considered defamatory per se in Louisiana. Given the context, the statement is substantially true and Nancy Grace's opinion and not an accusation of a crime. In denying Plaintiffs' Motion to Remand, the Court previously considered whether a similar statement was defamatory. The Court considered whether Defendant Ashley Baustert's statement suggesting, according to Plaintiffs, that "they" caused Madison Brooks' death by dropping her off "on Burbank Drive" was defamatory. The Court found the "gist" or "sting" of Defendant Baustert's statement was the fact that the Plaintiffs dropped off Madison Brooks alone on a road at night when she was highly intoxicated without a cell phone, not that she was dropped off on Burbank Drive. The Court reasoned that the Plaintiffs acknowledged that Madison Brooks was alone and intoxicated when they dropped her off and do not dispute that she was left without a cell phone in their petition.

The Court finds its prior reasoning applicable here. Nancy Grace is reporting on a crime, a matter of public interest. This inaccuracy of the location of where Madison Brooks exited the vehicle should not lend itself to be actionable as defamation, because it is not a significant variation from the truth. Plaintiffs dropped off Madison Brooks in the vicinity of Burbank Drive, which is the "gist" of Nancy Grace statement; and thus substantially true.

Additionally, the Court finds that this statement is Nancy Grace's opinion. The Court finds that a reasonable viewer of the program would conclude "They're really lucky, and I don't get it, that they haven't been charged with felony murder…" to be Nancy Grace's opinion because she expresses her personal feelings or a critique of the legal system. This is not a direct accusation as she states "it's got to be proven in a court of law of course." The phrase "I don't get it" indicates Nancy Grace's confusion to understand why the Plaintiffs not being charged with felony murder occurred. Her use of the term "lucky" is also subjective and appears to reflect her perception that criminal defendants are fortunate given their circumstances.

Fourth, Defendants move to dismiss Plaintiffs' claims that the following statement in paragraphs 82 and 103 of the petition is actionable in defamation:

These guys should be thanking their lucky stars they're not charged with murder, not sure why they aren't charged with murder, but yet they are actually complaining.

The Court finds this statement is Nancy Grace's opinion as she is first expressing her personal perception that the criminal defendants are fortunate; and second, she is critiquing the state's prosecutorial discretion. This statement is neither true nor false and is purely subjective. Nancy Grace's opinion was based on established facts from police reports and other media outlets. Both the Fifth Circuit and Louisiana state courts have protected expressions of "strong" opinions about persons connected to criminal activity, even if those persons have not been charged with crimes.

Fifth, Defendants move to dismiss the Plaintiffs' claims that the following statement in paragraphs 83 and 104 is actionable in defamation:

Sometimes you have to go to hell to get the witness to put the devil in jail. I really believe if you tried these four together, put them on the same pot to stew, there would be a conviction, on every one of them, because they're in it together and the video, truly the video, they thought was such a good idea, that is the nail in the coffin.

The Court finds this statement is Nancy Grace's subjective opinion. First, Nancy Grace's signals she is offering opinion rather than asserting facts because of her use of figurative and hyperbolic language such as "go to hell," "put the devil jail" and "nail in the coffin." Although Nancy Grace references "conviction" and the involvement of "four" individuals, she does not provide factual allegations that can be objectively proven true or false. Additionally, the statement hinges on a hypothetical scenario, "if you tried these four together…" and then Nancy Grace speculates the outcome, "there would be a conviction." Thus, a reasonable viewer of the Crime Online Show would conclude that Nancy Grace is offering her opinion, not accusing Plaintiff "Lee of rape" as the Plaintiffs suggests.

Sixth, Defendants move to dismiss Plaintiffs' claims that the following statement in paragraphs 14, 84, and 105 of the petition is actionable in defamation:

[T]hey gave very detailed statements about what happened to Madi, in fact, the ones in the front seat rotating into the back seat so they can also assault her.

The falsity of the reference to "the ones in the front seat rotating into the back seat" is not disputed. However, the Court must view Nancy Grace's statement in the context of the Crime Stories Podcast. Shortly following this statement, Nancy Grace directs the listener to listen to a voiceover, which clearly states:

[Madison Brooks was] either raped or ha[d] consensual sex with two of these young men. They take turns. One gets out of the vehicle while the other one has sex with her or rapes her, then they swap over. While this happens, [Plaintiff] Casen Carver, the driver, and the oldest defendant, his name is [Plaintiff] Everett Lee, they're in the two front seats of this vehicle.

Thus, the voiceover amends Nancy Grace's statement to make it clear to the listener that Plaintiffs did not rotate from the front seat to the back seat. Considering the entirety of the Crime Stories Podcasts, the context in which the allegedly defamatory statement was used, including the amendment made by the voice over, the Court finds, when considered as a whole, that the statement does not make a false and defamatory statement because it is substantially true. The "gist" of the story was that two people took turns assaulting Madison Brooks when one person assaulted her in the back seat and exited the vehicle and the second person "rotated" or "swapped" into the back seat. Additionally, as the voiceover amends the statement, a reasonable listener to the Crime Stories Podcast would know that Plaintiffs Casen Carver and Everett Lee stayed in front seat while their two companions rotated out of the back seat, assaulting Madison Brooks.

Seventh and eighth, Defendants move to dismiss Plaintiffs' claims that the statements, "it gives me no joy in saying any of the things I'm saying tonight, but they are true" in paragraphs 86 and 106; and "may he rot in hell" in paragraph 85 of the petition are defamatory. With regards to the statement in paragraphs 86 and 106, the Plaintiffs argue that "[t]he purpose of this statement … is to demonstrate Defendant Grace's actual malice" because Grace had knowledge that Madison Brooks was "dropped off in a neighborhood, yet she maliciously, in reckless disregard for the truth, repeatedly lied and levied additional charges for murder" and therefore, Plaintiffs argue "[t]his proves that all statements pertaining to 'putting Ms. Brooks out of the car' and a 'busy highway' are ALL in reckless disregard of the truth. Regarding the statement "may he rot in hell," Plaintiffs argue the statement shows Defendant Grace's actual malice. Since the Plaintiffs do not argue that these statements are defamatory in and of themselves, the Court finds these statements are not actionable in defamation.

Additionally, as discussed above, the alleged defamatory statements have failed for other reasons and therefore the Court does not discuss the element of actual malice….