|
|
|
|
|
|
|
|
|
|
Đại Chúng số 140 - ngày 15 tháng 8 năm 2004 |
|
|
|
VỤ
KIỆN BÁO ĐẠI CHÚNG CỦA ỦY BAN TỰ DO TÔN GIÁO CHO VIỆT NAM, ĐÀI PHÁT THANH TIẾNG NÓI VIỆT NAM HẢI NGOẠI VÀ CHỊ EM BÀ NGÔ THỊ HIỀN, NGÔ NGỌC HÙNG Sống
trên đất Mỹ có lẽ nhiều người tị
nạn trong chúng ta thường có dịp nghe đến
tổ chức tự xưng Ủy Ban Tự Do Tôn Giáo Cho
Việt Nam của bà Ngô Thị Hiền và ông TS. Nguyễn
Đình Thắng và đài phát thanh Tiếng nói Việt Nam
Hải Ngoại của ông Ngô Ngọc Hùng và bà Ngô
Thị Hiền, tên của hai tổ chức bất vụ
lợi inh ỏi nhất của người Việt tị
nạn ở miền đông bắc Hoa-kỳ và đây cũng
là hai tổ chức thường hay hăm dọa hoặc
kiện những người nào dám nói lên sự thực
về những hành vi lấp léo, thiếu thành thật
của họ.
Nếu quí thính giả và quí đồng hương
ngày đêm đã nghe chị em bà Ngô Thị Hiền và
Ngô Ngọc Hùng, đài phát thanh Tiếng Nói Việt
Nam Hải Ngoại và Ủy Ban Tự Do Tôn Giáo Cho Việt
Nam thường rêu rao trên luồng sóng của đài
Tiếng Nói Việt Nam Hải Ngoại, ngược
ngạo, khoe khoang kiện báo Đại Chúng, và ông Hoài
Thanh ra tòa vì đã viết những loạt bài vạch
trần những hành vi lấp léo, mờ ám, che đậy
sự thật về số tiền đồng bào đóng
góp để giúp các nạn nhân thiên tai bão lụt
Miền Trung năm 1999 và Miền Tây Việt Nam năm 2000.
Trắng, đen đã rõ qua hai lần xét xử
tại tòa án The Circuit Court of Montgomery County, Maryland và tòa Phá
án (The Court Of Special Appeals
Of Maryland) Thuộc Tiểu Bang Maryland, là Ủy Ban Tự Do
Tôn Giáo Cho Việt Nam, Đài Phát Thanh Tiếng Nói Việt
Nam Hải Ngoại, bà Ngô Thị Hiền, ông Ngô Ngọc Hùng,
đã sai trái, ém nhẹm và xử dụng số tiền
cứu trợ nạn nhân bão lụt một cách trái phép mà
cộng đồng Việt Nam Hải Ngoại
cũng như quần chúng đã giao phó.
Vân Nam không không muốn viết lại những gì mà
quí vị đã biết tường tận đến nhàm
tai về vấn nạn tệ hại của những người
như chị em bà Ngô Thị Hiền và Ngô Ngọc Hùng, mà
chỉ xin được tóm lược sơ qua vụ
kiện quấy phá báo Đại Chúng của chị em bà
để quí thính giả của đài phát thanh tiếng
nói Việt Nam Hải Ngoại cùng quí đồng hương
để rộng đường tìm hiểu sự
thật, xin được tóm lược như sau:
Ngày 30 tháng 8 năm 2001, bà Ngô Thị Hiền, ông Ngô
Ngọc Hùng, Đài tiếng nói Việt Nam Hải
Ngoại, và Ủy Ban Tự Do Tôn Giáo Cho Việt Nam đệ
đơn kiện báo Đại-Chúng, ông Hoài Thanh, và Vân
Nam (Hoài Thanh) (vụ kiện mang số: 224653V)
về tội Vu Khống, Mạ lỵ với 4 tội danh
trước tòa án The Circuit Of Montgomery County thuộc
tiểu bang Maryland. Trước tòa án luật sư
Nguyễn Hồng Thái đại diện cho nguyên đơn
Ngô Thị Hiền, Ngô Ngọc Hùng, đài phát thanh TNVNHN,
Ủy Ban Tự Do TGCVN tổ cáo báo Đại Chúng và ông
Hoài Thanh (Vân Nam) với những tội danh như sau:
(1) Vu khống
nguyên đơn Ngô Thị Hiền, Ngô Ngọc Hùng lợi
dụng chức vụ của CRFV (ủy ban tự do TGCVN),
VPR (đài phát thanh TNVNHN) , gian lận
$80,000 của quỹ cứu trợ nạn nhân bão
lụt.
(2) Vu không nguyên
đơn Ngô Thị Hiền, Ngô Ngọc Hùng dùng danh nghĩa
đài tiếng nói VNHN (VPR). gian lận $400,000
tiền bán radio
(3) Vu không nguyên
đơn Ngô thị Hiền, Ngô Ngọc Hùng dùng đài
tiếng nói VNHN (VPR) khích động quần chúng làm
tổn thương nhân mạng đối với những
ai có ý định tố cáo sự hoạt động
bất hợp pháp của đài tiếng nói VNHN (VPR).
(4) Vu khống
nguyên đơn Ngô Thị Hiền và Ngô Ngọc Hùng dùng
đài phát thanh tiếng nói VNHN , phỏng vấn cha
Nguyễn Văn Lý giả, trong nổ lực làm sáng
tỏ số tiền cứu trợ nạn nhân bão lụt
ở Việt Nam.
Ngày 24 tháng 9 năm 2003, tòa án The Circuit Court Of Montgomery
County mở phiên tòa xét xử vụ kiện mang số:
224653V do chánh án Patrick Woodward ngồi ghế thẩm phán.
Qua phiên xử nầy, tòa bác bỏ mọi cáo buộc
của nguyên đơn và tuyên bố cho báo Đại Chúng
và ông Hoài Thanh thắng Kiện .
Một tuần lễ sau chị em bà Ngô Thị
Hiền và Ngô ngọc Hùng lên đài phát thanh tiếng nói
VNHN, để thanh minh với thính giả của đài và
bọn cò mồi, chỉ trích chánh án Patrick Edwood đã không
công bằng qua phiên xử nói trên, bà Hiền tuyến
bố chống án lên tòa cao hơn.
Ngày 23 tháng 10, năm 2003, chị em bà Ngô Thị
Hiền và Ngô Ngọc Hùng, ủy ban tự do Tôn Giáo Cho VN
(CRFV), đài phát thanh TNVNHN (VPR) đệ đơn
chống án, theo lời của bà Ngô Thị Hiền, đây
là tòa cao hơn, sẽ phân xử công minh và chắc
chắn chị em bà Hiền và ông Hùng sẽ thắng.
Ngày 15 tháng 4 năm 2004, tòa phá án (The Court Of Special
Appeals Of Maryland) mở phiên xử để nghe hai phía
luật sư của nguyên đơn và bị cáo tranh cãi
và trưng bày chứng cớ cùngø tài liệu liên quan
đến những bài viết trên báo Đại Chúng
của Vân Nam, tố cáo nguyên đơn Ngô Thị
Hiền và Ngô Ngọc Hùng, đài tiếng nói VNHN, ủy
ban tự do TGCVN, thiếu thành thực đối với
số tiền đóng góp cho nạn nhân bão lụt
miền trung (năm 1999) và miền tây Việt Nam (năm
2000). Dùng tiền cứu trợ nạn nhân bão lụt cho các
mục đích riêng tư và các mục đích khác,
chẳng hạn như dùng tiền cứu trợ nạn nhân
bão lụt để giúp mở trường dạy may, và
cho những tổ chức khác, như giúp cho hội nhi
đồng, giúp cho các thầy chui, cha chui, v.v...Trước
tòa phá án, luật sư bàu chữa cho nguyên đơn Ngô
Thị Hiền, Ngô Ngọc Hùng, ủy ban tự do TGCVN (CRFV),
đài phát thanh tiếng nói VNHN (VPR) đưa ra những tài
liệu và các bằng chứng, đã không chứng minh
được một điều trung thực đối
với vấn đề cứu trợ nạn nhân bão
lụt miền trung và miền tây Việt Nam nên tòa phá án
chiếu y án của tòa Circuit Court of Montgomery
County và phán rằng, tất cả những bài viết
của Vân Nam và của báo Đại Chúng từ trước
đến nay là chính đáng (và ngay cả bây giờ).
(There was no evidence that Hoai or any of appellees knew that any of these
underlying facts were not true when the articless were published (or now). CÓ
PHẢI THƯỢNG TỌA THÍCH KHÔNG TÁNH ĐÃ NHẬN
$15,800 USD VÀ GỞI THƯ CẢM ƠN BÀ NGỘ
THỊ HIỀN KHÔNG?
Ít nhất đã có 2 người mang theo 2 lá thư có
chữ ký của thượng tọa Thích Không Tánh và con
dấu của chùa Liên Trì về Saigòn gặp thượng
tọa để xin xác nhận có thật đây là thư
của thượng tọa gởi cho bà Hiền để
cảm ơn số tiền $15,800 USD mà bà Hiền đã
gởi cho thượng tọa để cứu lụt ? .
Lời xác nhận của thượng tọa Thích Không Tánh
với cô Kim Huê cư ngụ tại Takoma Park Maryland và thân
phụ của luật sư Nguyễn Hồng Thái là “KHÔNG”
(Nguyễn Hồng Thái, luật sư bàu chữa cho chị
em bà Ngô Thị Hiền, Ngô Ngọc Hùng, Ủy Ban Tự
Do Tôn Giáo Cho Việt Nam.) Bà Hiền không bao giờ gởi
tiền cho thầy để cứu trợ nạn nhân bão
lụt, thầy cũng không bao giờ gởi thư cho bà
Ngô Thị Hiền chủ tịch Ủy Ban Tự Do Tôn Giáo
Cho Việt Nam để cảm ơn về số tiền
15,800 USD, như thư cảm ơn có chữ ký và con
dấu của thượng tọa đề ngày 11 tháng 3
năm 2000 và sau đó viết thư đính chính đề
ngày 11 tháng 3 năm 2001 để bổ túc cho sự sơ
suất của người đánh máy theo bà Hiền đã
giải thích. Xin bà Ngô Thị Hiền, chủ tịch
Ủy Ban Tự Do Tôn Giáo Cho Việt Nam chịu khó
giải thích cho đồng bào và quí thính giả của
đài phát thanh tiếng nói Việt Nam Hải ngoại
biết rõ trắng đen số tiền $15,800 USD đã
lọt vào tay ai ? và hai (2) là thư cảm ơn của thượng
tọa Thích Không Tánh do ai viết ?. “Nếu quí thính
giả của đài phát thanh TNVNHN và quí đồng hương
muốn xác nhận những gì Vân Nam viết ra đây, xin
đừng ngần ngại viết thư về tòa
soạn báo Đại Chúng (đại chỉ P.O. Box 485,
Garrete Park, MD 20896) hoặc gởi qua điện thư Email:
www.daichung@daichung.com, chúng tôi
sẽ chuyển thư của quí vị đến hai nhân
chứng để họ trực tiếp trả lời cho
quí vị .
UNREPORTED IN
THE COURT OF SPECIAL APPEALS OF MARYLAND
No.
1783 September
Term, 2003 _________________________________________ HUNG
NGOC NGO, ET
AL. V. DAI
CHUNG BIWEEKLY MAGAZINE, ET
AL. _________________________________________ Sonner, Eyler,
Deborah S., Karwacki,
Robert L. (Ret’d,
Specially Assigned), JJ. ________________________________________ Opinion
by Eyler, Deborah
S., J. ________________________________________ Filed:
July 29,
2004 224653V This
is a defamation case by public figure plaintiffs against media defendants
arising out of articles about a matter of public controversy in the Vietnamese
community in the metropolitan Washington, D.C. area. The appellants, plaintiffs
below, are Vietnamese Public Radio, Inc. (“VPR”), a non-profit company
located in Bethesda, Maryland; Hung Ngoc Ngo (“Hung Ngo”), the president of
VPR and a board member of CRFV; and Hien Thi Ngo (“Hien Ngo”), the president
and chairman of the board of CRFV, and a board member of VPR. The appellees,
defendants below, are Dai Chung Biweekly Magazine (“Dai Chung”), a
Vietnamese language periodical that is distributed to the Vietnamese community
in the Washington, D.C. area and that has offices in Kensington, Maryland; and
Hoai Thanh (“Hoai”), the owner and publisher of Dai Chung.
In the Circuit Court for Montgomery County,
the appellants sued the appellees for defamation and intentional interference
with prospective advantage. The parties filed cross motions for summary
judgment. After a hearing, the circuit court granted summart judgment in favor
of the appellees on all claims, and denied the appellants’ motion.
In this appeal, the appellants pose several
questions for review, which can be reduced to one issue: Did the circuit court
err in granting summary judgment in favor of the appellees on the defamation
claim? For the following reasons, we answer that question “No,” and
accordingly shall affirm the judgment of the circuit court. FACTS
AND PROCEEDINGS
This case stems from a controversy over
relief funds that were donated to assist flood victims in Vietnam. The
controversy brewed in the Vietnamese community in the Washington, D.C. vicinity
for several months, in the first half of 2001.
Hung Ngo and Hien Ngo are talk-format audio
broadcasters on VPR. At around the same time in early 2001, each spoke,
seperately, on a VPR radio broadcast, about funds they had raised and donated to
flood victims in Vietnam, from 1999 forward. Their remarks were inconsistent
with respect to the amount of funds collected and paid out to victims. Listeners
called into the radio station about the conflicting remarks, and the controversy
began.
The controversy was the topic of a number
articles published in issues of Dai Chung from March to July 2001. On
August 30, 2001, in the Circuit Court for Montgomery County, the appellants
filed suit against the appellees for defamation and intentional interference
with prospective advantage. The appellants alleged that four defamatory
statements were made against them in some of the articles published in Dai
Chung. The allegedly defamatory statements, and the shorthand references we
have designated for them, are: ·
that appellants Hien Ngo and Hung Ngo, using their positions with CRFV
and VPR, embezzled about eighty thousand dollars ($80,000) that was raised from
public donations for Vietnamese flood relief victims (“flood relief
embezzlement statement”); ·
that appellants Hien Ngo and Hung Ngo also embezzled about four hundred
thousand dollars ($400,000) from the sales of radios on behalf of VPR (“radio
sales embezzlement statement”); ·
that appellant Hung Ngo, through VPR, encouraged and incited people to
inflict bodily harm on those who might attempt to expose VPR’s illegal
activities (“inciting violence statement”); and ·
that appellant Hien Ngo used VPR to stage a fake radio interview of
Father Ly Van Nguyen, in an effort to make it appear that the relief funds
collected had reached the floor victims in Vietnam (“fake interview
statement”). Service
was delayed for several months. After service was effected on all the appellees,
they removed the case to the federal district court for the District of
Maryland, on December 14, 2001, and filed an answer in that court. The federal
court remanded the case, however, on February 19, 2002. The curcuit court issued
a scheduling order on March 14, 2002, assigning the case to a standard track.
The appellees then moved to dismiss the complaint or in the alternative for a
more definite statement, on March 26, 2002. The appellants opposed the motion
and thereafter it was denied.
Discovery ensued, and within a few months
generated conflicts that produced motions for sanctions. On July 25, 2002, the
case was moved to track four, for complex litigation. On September 6, 2002,
Judge Patrick Woodward was specially assigned to the case and held a scheduling
conference. A scheduling order was issued on September 12, 2002.
Judge Woodward held a status conderence on
the case on November 6, 2002. At that point, because so many discovery disputes
were pending, Judge Woodward appointed a special master to address and make
recommendations about discovery issues.
On motion filed by the appellants, the court
on April 3, 2003 extended the discovery deadline until April 18, 2003.
On June 5, 2003, the appellees filed a motion
for summary judgment, memorandum of law, and 33 supporting exhibits, comprised
of the complaint, numberous interrogatory answers by the appellants, and
deposition testimony by the appellants. Only parts of four of those exhibits
(including the complaint and answer) were included by the appellants in their
ten volume record extract filed by the appellants in this Court. Some of the
exhibits have been included in an appendix in the appellees’ brief.
The appellants filed a motion for summary
judgment the same day. Their motion was supported by a memorandum of law and 15
exhibits, including excerpts from issues of Dai Chung, excerpts from
depositions, an affidavit by Hien Ngo, and pleadings.
On June 6, 2003, the court issued another
scheduling order, docketed four days later, setting the case in for a 13 day
trial beginning November 3, 2003, and ending November 20, 2003. The court also
scheduled a hearing for the motions for summary judgment on September 24, 2003,
and established deadlines of October 13 and 24, 2003, for motions in limine and
responses.
On July 7, 2003, the appellants filed an
amended motion for summary judgment, supporting memorandum of law, and 11
exhibits, including affidavits by Hien Ngo and Hung Ngo. The exhibits consist of
excerpts from issues of Dai Chung, excerpts from depositions, and
pleadings.
We note at this point that the ten volume
record extract was filed without a table of contents. Looking at the record
extract alone, it is difficult to discern the nature of most of the documents
included in it and it is impossible to tell whether and at what juncture in the
proceedings the documents were submitted to the circuit court. On May 3, 2003,
nine days before oral argument, the appellants filed a table of contents for the
record extract. The table of contents is only 3 ½ pages long and does not
contain any detail about most of the documents in the record extract. For
example, it gives page numbers for exhibits filed in support of the
appellants’ motion for summary judgment but does not identify the documents.
It appears that the record extract contains the 11 documents filed as exhibits
to the appellants’ amended motion for summary judgment, but not the 15
documents filed in support of their original motion for summary judgment.
On July 28, 2003, the parties filed
oppositions to the motions for summary judgment against them. Thereafter, they
submitted additional exhibits, on July 30 and August 4, 2003.
The court held a hearing on the summary
judgment motions on September 24, 2003. At the conclusion of the hearing, the
court decided to grant summary judgment in favor of the appellees. We shall
discuss the basis for the court’s ruling in our discussion of the issue on
appeal.
The appellants filed a notice of appeal on
October 23, 2003. On February 26, 2004, this Court remanded the case for the
limited purpose of having the court enter a separate written order documenting
its grant of summary judgment in favor of the appellees and denial of summary
judgment for the appellants. This court did so on April 15, 2004. STANDARD
OF REVIEW
A trial court may grant summary judgment when
there is no genuine dispute of material fact and the moving party is entitled to
judgment as a matter of law. Md. Rule 2-501(e); Sadler v. Dimensions
Healthcar Corp., 378 Md. 509, 523-33 (2003); Kurtz v. Erie Ins. Exchange,
157 Md. App. 143, 147 (2004). Those issues both are questions of law. Eng’g
Mgmt. Servs., Inc. v. Md. State Highway Admin., 375 Md. 211, 229
(2003). Therefore, on appeal from the grant of summary judgment, this Court
reviews the lower court’s decision de novo, for legal correctness. Tyma
v. Montgomery County, 369 Md. 497, 504 (2002); Clarence V. Gosnell, Inc.
v. Hensley, 156 Md. App. 224, 230 (2004).
To defeat a motion for summary judgment, the
opposing party must present admissible evidence demonstrating a dispute of
material fact. Rite Aid Corp. v. Hagley, 374 Md. 665, 684 (2003); Tennant
v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 386 (1997). The
evidence offered “must be sufficiently detailed and precise to illuminate its
nature.” Bagwell v. Peninsula Regional Med. Ctr., 106 Md. App. 470, 489
(1995). “[T]he mere existence of a scintilla of evidence . . . is insufficient
to preclude the grant of summary judgment.” Beatty v. Trailmaster Products,
Inc., 330 Md. 726, 738-39 (1993). There must be evidence upon which the jury
could reasonably find for the party opposing summary judgment. Id. at
739. DISCUSSION (a)
Before discussing the issue raised, we shall
review the pertinent law of defamation.
The elements of the tort of defamation are:
(1) the defendant made a defamatory statement to a third person; (2) the
statement was false; (3) the defendant was legally at fault for making the
statement; and (4) the plaintiff suffered harm as a result of the false
statement’s having been made. Gohari v. Darvish, 363 Md. 42, 54 (2001).
A statement is defamatory when it “’tends
to expose a person to public scorn, hatred, contempt, or ridicule, thereby
discouraging others in the community from having a good opinion of, or
associating with, that person.’” Gohari, supra, 363 Md. at 54
(quoting Rosenburg v. Helinski, 328 Md. 664, 675 (1992)). Whether a
statement is capable of a defamatory meaning is a question of law, for the court
to decide. Chesapeake Publ’n Corp. v. Williams, 339 Md. 285, 295
(1995); Peroutka v. Streng, 116 Md. App. 301, 311-12 (1997).
In a public figure defamation case against a
media defendant, with respect to a matter concerning the official’s public
activities (as opposed to his private conduct), the First Amendment to the
Federal Constitution gives rise to a privilege that requires that the plaintiff
prove the falsity of the statement in question. New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80 (1964); Curtis Pub. Co. v. Butts, 388
U.S. 130, 153 (1975). Cf. Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580,
590-94 (1976) (holding that under Maryland non-constitutional law a private
plaintiff in a defamation action against a non-media defendant must allege and
prove falsity of the allegedly defamatory statement). The appellants in this
case stipulated that they are public figures in the Vietnamese community in the
Washington, D.C. area, and that the allegedly false and defamatory statements
were made about their public conduct, in the context of a public controversy.
A false statement is one that is not
substantially correct. “Minor inaccuracies do not amount to falsity so long as
‘the substance, the gist, the sting of the libelous charge be justified.’”
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991) (quoting Heuer
v. Kee, 15 Cal. App. 2d 710, 714, 59 P.2d 1063, 1064 (1936)).
Also, when a defamation plaintiff is a public
figure and the allegedly defamatory statement concerns a matter relating to the
figure’s public conduct, the First Amendment requires that he prove, by clear
and convincing evidence, that the defendant made the allegedly false and
defamatory statement with actual malice. Sullivan, supra, 376 U.S.
at 279-80; Williams, supra, 339 Md. at 297. In the defamation
context, “actual malice” means that the defendant knew, with a “’high
degree of awareness,’” that his statement was false, or that he acted with
reckless disregard of its truth. Marchesi v. Franchino, 283 md. 131, 137
(1978) (quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964)). The
defendant must have “’entertained serious doubts as to the truth of his
publication.’” Id. (quoting St. Amant v. Thompson, 390 U.S.
727, 731 (1968)). In Bagwell, .supra, we explained that,
“’actual malice’ cannot be established
merely by showing that: the publication was erroneous, derogatory, or untrue;
the publisher acted out of ill will, hatred, or a desire to injure . . .; the
publisher acted negligently . . . . Moreover, malice is not established if there
is evidence to show that the [defendant] acted on a reasonable belief that the
defamatory material was ‘substantially correct’ . . . .” 106
Md. App. at 512-13 (quoting Capital-Gazette Newspapers, Inc. v. Stack,
293 Md. 528, 539-40, cert. denied, 459 U.S. 989 (1982) (citations
omitted)) (emphasis omitted).
When actual malice is the standard of
conduct, the plaintiff must allege and prove “with some clarity and precision
those facts which make the act malicious.” Elliott v. Kupferman, 58 Md.
App. 510, 528 (1984). “Merely asserting that an act was done maliciously, or
without just cause, or illegally, or with wanton disregard, or recklessly, or
for improper motive does not suffice.” Id. See also Phillips v. Washington
Magazine, Inc., 58 Md. App. 30, 40 (1984) (affirming dismissal when “there
[was] no fact pleaded . . . from which actual malice of [the] defendants [could]
be inferred”). “’The question whether the evidence in the record in a
defamation case is sufficient to support a finding of actual malice is a
question of law.’” Waicker v. Scranton Times Ltd. P’ship, 113 Md.
App. 621, 637 (1997) (quoting Harte-Hanks Communications, Inc. v. Connaughton,
491 U.S. 657, 685 (1989)). (b)
In ruling on the appellants’ summary
judgment motion, Judge Woodward addressed one-by-one the four defamatory
statements alleged in the complaint.
With respect to the “flood relief
embezzlement statement,” Judge Woodward concluded that the evidence produced
on summary judgment was undisputed that the words alleged to have been published
did not appear in any article in Dai Chung. The magazine articles in
question reported that, in their seperate broadcasts on VPR, Hien Ngo had said
that $90,000 had been collected for their flood relief victims and Hung Ngo had
said that $50,000 had been collected, and when callers contacted the studio
during the live broadcast about the discrepancy, Hien Ngo refused to answer any
questions about it; that Father Ly, who was in charge of one of the flood relief
organizations in Vietnam, reportedly later said that he “only got 10,000”;
and that the discrepancies in these numbers needed to be explained. The
newspaper then published documents that it received from the appellants in
explanation of the discrepancies; letters to the editor commenting on the
discrepancy in the figures; and articles reporting what information had been
received on the subject. None of the articles said that the appellants had
embezzled $80,000.
When counsel for the appellants suggested
that he might wish to amend the complain to include other words that were
published from which, he argued, one could infer that the appellees were
suggesting that Hien Ngo and Hung Ngo had not forwarded all of the money they
had collected and therefore were thieves, the court ruled that the appellants
were bound to the defamatory words they had pleaded in their complaint, and
could not turn the case into a “moving target.” He also ruled that, given
the late stage of the case, with discovery closed, amendment of the complaint
would not be proper.
Importantly, Judge Woodward ruled further
that even if the appellants were to amend their complaint to cover the
additional words, the evidence presented on summary judgment nevertheless was
legally insufficient to support a finding that the words were published with
actual malice.
With respect to the “radio sales
embezzlement statement,” Judge Woodward concluded likewise that there was no
evidence that the words in question were published in any article in Dai
Chung. Hien Ngo withdrew this allegation in her deposition. In his
deposition, Hung Ngo acknowledged that the articles in question reported only
that the Ngo family had become millionaires from selling radios through VPR, a
for-profit company that they had an interest in. Thus, the articles merely were
reporting that the Ngo family had profited in a business endeavor that was meant
for profit. Judge Woodward found that there was no evidence that these
statements were false, defamatory, or made with actual malice.
The “inciting violence statement”
emanated from a Dai Chung article reporting that, during one of Hung
Ngo’s radio broadcasts, while the controversy was ongoing, a caller said she
wanted to stab Hoai and would hire two people to do so. The caller was allowed
to air that opinion for six minutes, during which Hung Ngo did not openly
express disagreement with her views. The article commented on that event’s
having happened. Judge Woodward concluded that the evidence could not support a
finding that the “inciting violence statement” had been made, i.e.,
that the appellees had published words encouraging and inciting people to
inflict bodily harm on those who might attempt to expose VPR’s illegal
activities. He further found that the words in fact published were not false and
did not have a defamatory meaning; and were not published with actual malice.
The “fake interview statement” referred
to a several page Dai Chung article published on April 30, 2001, that
included the question, among a list of questions, “Was the person who went on
the radio and appealed for help really Father Ly?” The article appeared after
VPR had broadcast what it claimed was an interview of Father Ly, conducted over
international telephone lines. The article reviewed the financial information
about flood relief that the appellants had provided to Dai Chung, which
showed that more than two-thirds of the flood relief funds had been turned over
to Father Ly, and then detailed the magazine’s efforts to track down and
interview Father Ly. The article explained that the magazine’s special
correspondent had gone to Vietnam and had attempted to find Father Ly, but had
been unable to do so because Father Ly was under “house arrest” by
governmental authorities, in a place that did not have access to telephone
lines. The article stated the correspondent’s findings that even other priests
could not gain access to Father Ly, and questioned how the appellants could have
accomplished that task. It also compared the statements made by Father Ly in the
interview with others he had made previously, and pointed out differences
between them that tended to show that they did not come from the same source.
Judge Woodward concluded that the evidence
did not show that the article accused the appellants of staging a fake interview
of Father Ly. Rather, the article questioned, in opinion form based on disclosed
facts, whether the person interviewed in fact was Father Ly. He further
concluded that the evidence could not support a finding that the words that were
published were false of had a defamatory meaning.
Finally, as with all three of the other
alleged statements, Judge Woodward concluded that the evidence as presented on
summary judgment did not generate an issue of malice, as a matter of law.
In summarizing his decision to grant summary
judgment, Judge Woodward returned to the issue of actual malice, and explained:
So, given the total context of the evidence
before me, it seems that there is not sufficient evidence for a jury to conclude
by clear and convincing evidence that there was actual malice perpetrated by the
defendants in this particular case . . . and this lack of actual malice applies
to all of the alleged statements, and this would apply even if the other
statements that I have indicated are not the basis of the complaint would be
permitted to be the basis of the complaint.
In other words, I think the plaintiff is
limited to that which is stated in the complaint for the purposes of this motion
as ripe now, but even if he wasn’t limited and could go to various other
statements in the various articles, I still think that there is insufficient
evidence for a jury to conclude that there was actual malice by clear and
convincing evidence.
. . . [T]his appears to be fair comment by a
publisher of a paper regarding a public figure concerning an issue of importance
to the community, based upon full disclosure of information that was given to
the defendant by the plaintiff, by receiving comments back from the public that
questioned the use of those funds and questioned the actions of the plaintiffs.
That opinion or those comments certainly were
appropriate to be aired by the defendants, and they did so without actual
knowledge of the falsity of those statements, their personal belief being not
determinative of this issue. (c)
The appellants advance three arguments to
support their contention that the circuit court erred in granting summary
judgment in favor of the appellees on the defamation claim. We shall take the
arguments in reverse order.
Before doing so, we feel compelled to comment
that at no point in their initial brief in this Court do the appellants quote or
even paraphrase the defamatory words they claim the appellants published in
their magazine: either those alleged in their complaint, or those they maintain
they should have been given leave to amend their complaint to include. The most
factually specific assertion in the initial brief is a reference to the circuit
court’s attention having been directed “to defamatory statements made by
Appellees alleging that Appellants [sic] talking, misusing, misappropriating,
engage [sic] in criminal conduct relating to the funds that were collected on
behalf of Vietnamese flood victims.” In their reply brief, the appellants make
two general references to statements “accus[ing them] of either embezzling
funds, stealing funds, misappropriating funds, and/or misusing funds that were
raised for flood victims in Vietnam”; they do not quote or paraphrase the
words allegedly published, however.
Due to its factual obscurity, the
appellants’ initial brief necessarily is short on legal analysis. While it
includes general recitations of the pertinent law, it does not advance any
argument applying the law to the facts -- because the facts are not recited with
enough specificity to permit such an argument. The reply brief is likewise
lacking in legal argument.
That having been said, the appellants make
the following arguments. First (in Parts III and IV of their initial brief),
they maintain that, with respect to the four statements alleged in the
complaint, the circuit court erred either in concluding that there was not a
genuine dispute of material fact on the issues of actual malice, falsity, and
the defamatory meaning, or correctly concluded that there was no genuine dispute
of material fact on those issues but erred by not concluding that the evidence
compelled summary judgment in their favor. After setting forth general
princeples about the elements of a cause of action for defamation, including
what constitutes “actual malice,” the appellants argue:
Based on this analysis, Appellants’
opposition to Appellees[‘] motion for summary judgment, memorandum of points
and authorities in support of Appellants[‘] opposition (E65-95), and exhibits
(E99-576) submitted to the trial court clearly demonstrated that there is no
genuine dispute of material facts that Appellees’ published defamatory
statements are false, and that Appellees published such defamatory statements
with actual malice by clear and convincing evidence.
At the minimum, there is a genuine dispute of
material facts as to whether statemenrs published by Appellees are false and
defamatory, and that there are sufficient facts for the jury to conclude by
clear and convincing evidence that Appellees published the various false and
defamatory articles about the appellants with actual malice. ·
* *
* ·
Based on Maryland Rule 2-501 and the laws set
forth in Section III [of the appellants’ brief], the Circuit Court also erred
in denying Appellants’ motion for summary judgment. Appellants hereby submits
[sic] its motion for summary judgment (E577-579), memorandum of points and
authorities (E580-609), and accompanying exhibits (E610-E688) for this Court for
review, and incorporated herein in this section by reference. This
is the entire legal analysis presented by the appellants on this issue.
Second (in Part I of their initial brief),
the appellants assert that the circuit court abused its discretion by ruling
that they were bound in the summary judgment proceedings to the particular
defamatory words they alleged in their complaint, i.e., they could not
assert that their defamation claim was based on words other than those set forth
in the complaint. They maintain that because “notice pleading” is the
standard in Maryland, it was sufficient that they informed the appellees
generally of the nature of the defamatory words they claimed were written, and
not the specific words, and therefore they were not limited in prosecuting their
claim to the precise false and defamatory words alleged in the complaint.
Finally (in Part II of their initial brief),
the appellants argue that if the court did not abuse its discretion by so
ruling, it abused its discretion by not granting them leave to amend their
complaint to include false and defamatory words in addition to those already
alleged. (d)
The evidence presented to the circuit court
on summary judgent plainly could not support a factual finding that the
appellees published either the “radio sales embezzlement statement” or the
“inciting violence statement.” None of the Dai Chung articles in
question reported that the appellants had embezzled money from the sale of
radios on behalf of VPR. As noted above, Hien Ngo withdrew that allegation
entirely, and Hung Ngo acknowledged that the words were published stated
merely that the Ngo family had become wealthy selling radios, in a for-profit
enterprise. The Dai Chung articles also did not say that the appellees
were inciting or encouraging violence against the appellants. Rather, the
articles accurately recounted the remarks expressed by a caller to Hung Ngo’s
radio program about that topic, and his response (or lack of response) to it.
Because there was no evidence submitted on
summary judgment to show that the “radio sales embezzlement statement” or
the “inciting violence statement” were published, the circuit court properly
concluded that the defamation claim could not proceed to trial on the basis of
those alleged statements. Quite simply, it was the appellants’ burden to
present evidence on summary judgment from which they could prove, inter alia,
that the allegedly defamatory statements were made; and for those two
statements, they did not do so.
It is not necessary to address the
appellants’ first two subcontentions - - whether Judge Woodward abused his
discretion in ruling that they were limited to the precise “flood relief
embezzlement statement” they alleged in the complain and that they could not
amend their complaint to add other statements in the Dai Chung articles
that they were asserting accused them of stealing flood relief money - - because
we agree that, even if an amendment to the complain had been allowed, the
appellants did no present evidence that could support a finding that the
statement alleged or those that could be alleged upon amendment of the complaint
were made with actual malice. Likewise, the appellants did not offer evidence to
the court on summary judgment to support a finding of actual malice with regard
to the “fake interview statement.”
The appellants submitted three items of
evidence to support their allegation that the appellees acted with actual
malice. First, according to the undisputed deposition testimony, after Dai
Chung published the first article about the controversy, reporting about the
conflicting figures in the radio broadcasts, Hien Ngo and Hung Ngo delivered to
the magazine what they claimed to be their entire flood relief file. After
perusing the documents for about 30 minutes, Hoai said something to the effect
that they “looked good.” The magazine then published the full documents in
its next issue, with an acknowledgment that the appellants had provided them and
a statement thanking them for doing so.
There was no dispute that the documents were
published fully and accurately. In later issues, the magazine, using the
documents and the results of its own investigation, questioned where all the
flood relief money had gone, suggesting that it had not all gone to Father Ly
and the other relief organizations, and that someone, including the appellants,
could be at fault. According to the appellants, Hoai’s statement that the
documents “looked good” was evidence that, in publishing the suggestions
that the appellants had not acted on the up-and-up, and might not have turned
over all the money, he acted with knowledge of the falsity of those
publications.
Second, the appellants cited certain
deposition testimony of Hoai. Judge Woodward read this testimony into the record
at the hearing, as follows (with Hoai’s testimony appearing in answer form):
It says, “From Articles 68 to 78 [of Dai
Chung], did you at any time state that Ms. Hien Ngo did something wrong with
the flood victims’ money?” “Answer.
Me personally or with the idea of the public opinion?” “Question.
No. Yourself.” “Answer.
I think that my personal - - personally me, no.” “Question.
You don’t think here Mrs. Hien Ngo did anything wrong with the flood
victims’ money[?]” “Answer.
Until today I still don’t think that Ms. Hien did something wrong or right,
because I still haven’t gather [sic] all the documents.” The
appellants argued that this testimony was evidence of actual malice on the
appellees’ part in that it showed that Hoai published the statements
suggesting that the flood relief money was not properly handled by them, and
that they may not have turned all of it over to the proper relief organizations,
when in fact he did not think they had done anything wrong.
Finally, the appellants argued that, if the
appellees in fact had thought they had acted wrongfully with respect to the
flood relief funds, they would have accused them of fabricating the wire relief
funds, they would have accused them of fabricating the wire transfer receipts
that were included in the documents they turned over; therefore, the appellees
did not think they had acted wrongfully, and thus published the statements
suggesting otherwise with actual knowledge that they were false.
As noted above, the appellants stipulated
below that for purposes of this defamation action, they are public figures. A
person may be a public figure generally, or may become a public figure by
voluntarily injecting himself into a particular public controversy, thereby
becoming a public figure for a limited range of issues. Waicker, supra,
113 Md. App. at 629-30. Here, as the appellants acknowledge, they are well known
figures in the Washington, D.C. area Vietnamese community, being radio
broadcasters on VPR, and it was in the course of broadcasts in which they
discussed their flood relief effort activities that the controversy addressed in
the Dai Chung articles in question first arose. Also as noted above, the
appellees are media defendants. Thus, this case falls into a highly protected
category of speech, covered by the constitutional privilege first articulated in
Sullivan, supra, requiring proof, by clear and convincing
evidence, that the allegedly defamatory statements were made with actual malice.
To prove actual malice in a defamation case,
it is insufficient for the plaintiff to show merely that the statements in
question were false, or that they were made with ill-will. Bagwell,
supra, 106 Md. App. at 512-13. The proof must be show a high degree of
actual awareness by the defamation defendant of the probably falsity of the
statements. Freyd v. Whitfield, 972 F. Supp. 485, 489 (D. Md. 1996). In
addition, as we have stated, the standard of proof is high -- clear and
convincing evidence.
The record extract in this case, albeit
poorly organized and difficult to navigate, contains translations of all the
articles in the Dai Chung issues that are the centerpiece of this case.
The articles are lengthy, but for the most part can be summed up and
characterized as investigative reporting into where the flood relief funds
collected by the appellants wound up and how they were used, and exhortations to
the appellants to provide documentation that makes a complete accounting of
those funds. The first article, as we have noted, reported about the
inconsistent figures given by Hien Ngo and Hung Ngo on their radio shows, and
the public’s reaction to that, and asked them to provide documents clarifying
the flood relief information; and the second issue detailed the information in
the documents the appellants provided.
The third article set forth in full three
letters received from readers in response to the article setting forth the
appellants’ documentation. The letters raised questions about the completeness
and accuracy of the documents, pointed out that not all transfers were
documented and that the expenditures and contributions did not match up in time,
and asked for an explanation of the discrepancies. The letters also pointed out
that the documents in some instances showed that money collected was not used
for flood relief; for example, some money was donated to a person in Vietnam to
use for teaching a sewing class.
The next article explained that many people
who had examined the appellants’ documents had questions about discrepancies,
errors, and lack of adequate documentation of expenditures; and commented that
only some of the transactions were supported by receipts. The article set forth
a series of rhetorical questions, all in the nature of acknowledged speculation,
asking what might have happened to the total amount of relief money donated, as
it was not completely accounted for in the documents furnished by the
appellants, and criticizing anyone -- including the appellants and various
relief people in Vietnam, including Father Ly - who may have been responsible if
the funds did not all reach the intended flood victims. The article also
contained the questions we have discussed above about how likely it was that
Father Ly could have been interviewed, given his “house arrest” status. That
information was based on reports from the special correspondent the appellees
have sent to Vietnam to investigate the matter.
There followed an article in which the
appellees reported that their special correspondant was still attempting to
contact Father Ly; set forth in detail information received in Vietnam by that
reporter about the numbers of people and items of property harmed by flooding in
Vietnam since 1999, and the supplies that were given to them by Father Ly and
others; and again asked the appellants to produce documents fully accounting for
all the donated money.
The next article was a narrative account by
the special correspondent of his trip to Vietnam; his unsuccessful efforts to
contact Father Ly; and his meeting Father Tran Van Qui, another priest involved
in the relief effort, and review of Father Qui’s documents. Those documents
included a letter from Father Ly in which he acknowledged that he had recieved
$10,000 from VPR, to pay from aluminum roofing sheets.
The next article was a brief commentary about
a radio broadcast the appellants aired on VPR, in which they criticized the
investigation conducted by Dai Chung’s special correspondent, followed
by a lengthy defense of the investigation, including that it had revealed
additional information, such as the letter by Father Ly, that demanded answers
from the appellants. The final two articles reported that Hien Ngo had said
publicy she was going to sue Dai Chung for defamation, and continued to
demand accountings by the appellants for all the relief funds collected. Almost
all of the articles, and particularly those that were later in the series rather
than earlier, were laced with political commentary and criticism directed toward
the communist government of Vietnam.
The articles in question clearly conveyed the
idea that the appellants had not provided complete documentation to show where
the flood relief funds they had collected were transferred and how they were
spent; that they owed the donors and the flood victims in Vietnam a
responsibility to give a full explanation; that the documents the appellants in
fact provided contained discrepancies and errors, and showed in at least one
instance that the funds were not used for flood victims; that the appellants’
statements and documents were not supported by flood relief documents given to Dai
Chung’s special correspondent in Vietnam, especially one document written
by Father Ly; and that, if the flood victims did not receive all the monies that
were donated, they had been cheated. The articles strongly suggested that the
appellants had not handed over all the money they had collected, or that it had
been used for purposes other than to aid flood relief victims.
There was no evidence, however, that any of
the information published by Dai Chung in this series of articles, even
if false, was known by the appellants to be false, or should have been so known.
The three items of evidence offered by the appellants did not show knowledge of
falsity of reckless disregard. The first item, evidence that Hoai said that the
appellants’ documents “looked good,” reflected only an initial reaction
that changed after the magazine and its readers more thoroughly reviewed the
documents and discovered the errors and discrepancies in them -- and that they
did not fully account for all the funds that had been donated.
Hoai’s deposition testimony also did not
evidence knowledge of falsity. The point he made in his answer was that, because
the appellants still had not furnished complete documents, he personally had not
reached a conclusion one way or the other as to whether Hien Ngo had or had not
committed wrongdoing vis-a-vis the flood relief money.
Hoai’s own personal opinion did not negate
the fact that one could draw a reasonable inference from the incomplete state of
the appellants’ documents, the fact that they did not account for all of the
donations, the errors in the documents, the evidence that at least some money
had gone to a non-flood-relief purpose, and the discrepancy in the amount of
money Father Ly acknowledged receipt of and the amount the appellants did not
make sure that the full amount of flood relief donations they collected went to
help flood relief victims. There was no evidene that Hoai or any of the
appellees knew that any of these underlying facts were not true when the
articles were published (or now).
Finally, the fact that the appellees did not
accuse the appellants of fabricating the wire transfers that were included in
the documents the appellants handed over could not support and inference that
the appellees knew that any of the information they were reporting about this
topic of public controversy was false. The accusations arose out of inferences
that could be drawn from, inter alia, the incomplete state of the
appellants’ documents. The appellants could believe that some of the documents
produced were accurate, and still conclude that the monies had not all been
properly handled.
Likewise, the appellants did not produce any
evidence on summary judgment to support a reasonable finding that the appellees
published the “fake interview statement” with actual malice. The appellants
did not offer any evidence at all to show that this statement was made with
knowledge of its falsity, and there is no such evidence. On the basis of
information about Father Ly’s being under “house arrest,” the appellants
voiced skepticism that he possibly could have given a telephone interview. The
information they relied on was confirmed by their special correspondent in
Vietnam. There simply was no evidence that the statement was made with actual
malice. JUDGMENT
AFFIRMED. COSTS TO BE PAID
BY THE APPELLANTS. |
|
|
|
|
Copyright (c) DaiChung News Media 2002
|
