IN THE SUPERIOR COURT OF GLYN COUNTY

STATE OF GEORGIA it 433,3?

I.
?4423 .

JACQUE 

Plaintiff,
vs. CIVIL ACTION NO. 92-01737

STANLEY BOOTH and
RANDOM HOUSE, INC.,

Defendants.

  

judgment. After consideration of said motion and Plain
thereto, and all pleadings, affidavits, and depositions of record, and the
argument of counsel, the Court finds as follows:

Plaintiff?s claim for defamation, as set out in her Complaint, as
amended, alleges Defendants published a book, Qil, "which
contained statements relating to Plaintiff?s alleged sexual conduct with
one James Brown which were false and which by their nature constitute
libel pe_r so." In Plaintiff?s deposition testimony of April 20, 1993, she
denied ever having had sexual relations with Mr. Brown, an entertainer

who was characterized in a contract (since rescinded) between Plaintiff

and the publisher of Penthouse magazine as "Soul Brother No. By
affidavit of February 7, 1994, Plaintiff alleged she "never engaged in
consensual sexual relations" with Mr. Brown. Plaintiff opposes
Defendants? motion for summary judgment on the defamation count on
the ground Mr. Booth?s report of what Plaintiff told him about a
particular incident failed to clearly state that what allegedly occurred
was "rape," leaving open the possibility readers of the literary work
might wrongfully conclude Plaintiff had voluntarily consented to having
sexual relations with Mr. Brown.1

Defendant Booth tape recorded some of his interviews with
Plaintiff. His affidavit in support of the motion for summary judgment,
which included transcriptions of excerpts of the tapes, has not been

controverted by Plaintiff. The transcription related to the incident

 

1 The report of that event in included the following:
Wheeling away from the expressway into dense
pine woods, Brown bounced the van off trees,
knocking the back doors off, getting stuck as
night fell. "He had a sawed-off shotgun pointed at
me," said. He didn?t know who
I was. He told me to get in the back.
What would you have done? I got in the back. I
thought if I could make love to him I could get
him calmed down. 511nm pg. 240-
241.

allegedly constituting the rape of Plaintiff by Mr. Brown includes the
following:

But I was so glad to get out of that van alive
and so exhausted and so tired.

Booth: I?m sure you didn?t think about it.

No, I didn?t, Stanley. I really, I, I couldn?t
believe that something like that had happened. I couldn?t.
And you know, I felt, Stanley, and in many ways, and this is
terrible to say, in parts of it I knew he was making love to me
and parts of it I wasn?t so sure. I almost felt like he was
violating me. And that?s terrible to say.

Booth: Well did you find that, um, unpleasant or
pleasant?

No, I mean, I loved him. 80, but, mean,
you know, every woman likes to feel that no matter if she?s
getting or if she?s made love to, either way, she wants

to know that what is on top of her loves her. Does that make
sense?

When combined with Plaintiff?s disclosure of Mr. Brown?s alleged
statement he could not understand Plaintiff?s "unbelievable" sexual
needs, a characterization she acknowledged, the reference in 
to Plaintiff and Mr. Brown as "lovers," offered without inclusion of the
rather graphic basis Plaintiff provided for such a conclusion, merely

reflects the substance of what the writer was told by Plaintiff. Plaintiff?s

deposition testimony and affidavit were inconsistent on the question of
her sexual relationship with Mr. Brown, but she has not controverted the
accuracy of the transcripts of the conversations with Mr. Booth set out
in his affidavit. The Court therefore finds that Defendant Booth
accurately reported what he was told by Plaintiff, that is, she and Mr.
Brown had sexual relations but there was some ambivalence as to
whether she consented to do so, or was coerced into doing so by Mr.
Brown?s allegedly erratic and dangerous behavior.

The Court finds the evidence of record establishes that Plaintiff
voluntarily became involved in a public controversy, the allegedly unfair
treatment of James Brown by the criminal justice system. She signed
a contract to disclose what she knew about that issue with Penthouse
Magazine, and she alleges she had an oral contract with Defendant
Booth as to the same issue. She thus became a limited public figure as
to her relationship with Mr. Brown. Brewer v. Regere, 211 Ga. App. 343,
347 (1993). This means anything about Plaintiff which relates to that
issue can be made public by anyone with relevant knowledge, and the
person making the disclosure is protected by the First Amendment as

long as the boundaries established by the law of defamation are not

crossed. Plaintiff?s allegation the man she considered a victim of
unfairness lost touch with reality, and had sexual relations with her
under conditions when her consent was questionable, is a matter
subject to disclosure under the protection afforded by the First
Amendment.

To recover for defamation, a person who is a limited public figure
has the burden of producing evidence of actual malice, by clear and
convincing evidence, and this rule applies to summary judgment
proceedings. Stange v. Qox Enterprises, 211 Ga. App. 731,733 (1994).
Plaintiff?s contention actual malice is shown by Mr. Booth?s assertion of
a consensual sexual relationship between her and Mr. Brown in 
is negated by what Plaintiff herself told him. The other alleged
ground for actual malice on the part of Mr. Booth, Plaintiff?s potential
cooperation with law enforcement authorities in an investigation
involving one of his friends, is without merit for two reasons. Plaintiff
has not included evidence in the record which affirmatively shows the
alleged threats of retaliation by Mr. Booth pre-dated the first (British)
publication of Qil. She also has not provided evidence that she

did, in fact, engage in the conduct which was supposed to result in

efforts by Mr. Booth to discredit her. Therefore, notwithstanding the
Court?s finding the publication at issue was not false as a matter of law,
Plaintiff may not recover damages for defamation on the additional
ground she has not meet her burden of producing clear and convincing
evidence of actual malice on the part of either Defendant. The Court
finds Plaintiff cannot recover against either Defendant under Count 
of her Complaint.

Plaintiff seeks to recover damages from Defendant Random House
on the ground it breached an obligation to verify that Mr. Booth was
authorized to publish disclosures about Plaintiff?s private life. A
publisher is not chargeable with actual malice for failure to make an
independent investigation of a literary work. WW,
supra at 783. As shown by the affidavit of Erroll McDonald, Random
House had no actual knowledge of any alleged collaborative relationship
between Plaintiff and Mr. Booth. There is no basis for recovery by
Plaintiff against Defendant Random House on the legal theory alleged
in Count VII of her Complaint.

Counts IV, and of the Complaint allege invasion of Plaintiff?s

right of privacy. The concept of invasion of privacy embraces four

distinct torts: (1) intrusion upon the plaintiff?s seclusion or solitude, or
into his private affairs; (2) public disclosure of embarrassing private
facts about the plaintiff; (3) publicity which places the plaintiff in a false
light in the public eye; (4) appropriation, for the defendant?s advantage,
of the plaintiff?s name or likeness. Qabaniss v. ljipsley, 114 Ga. App.
367, 370 (1966). As shown above, what was revealed about Plaintiff
was information she gave to Defendant Booth, a journalist. According
to Plaintiff, her intention is making that disclosure was to get some of
the information she gave to Mr. Booth published in a magazine with
nationwide circulation. She entered into a contract with the publisher
of Penthouse Magazine to reveal the same facts, although the contract
was dissolved by mutual consent. Plaintiff asserts her privacy was
violated because Defendant Booth?s publication went beyond what she
expected him to reveal about her relationship with James Brown.
While a party can allege multiple legal theories for recovery, they
may allege only one version of the relevant facts. Plaintiff has elected
to pursue a claim based on an affirmative contractual right to share in
the proceeds from the disclosure of her relationship with James Brown.

To support this claim, she has acknowledged by affidavit and in her

deposition testimony that she did reveal private facts about their
relationship to a person known to her as a professional writer engaged
in a project involving Mr. Brown. Under these circumstances, the
release of facts about what Plaintiff described as her "life with James
Brown" could support a claim for breach of the alleged contract. But a
release of what Plaintiff herself sought to have made public cannot
support claims for invasion of privacy, since Plaintiff?s right of privacy
was waived by her entry into a contract for disclosure of her relationship

with Mr. Brown. See McQueen v. Wilson, 117 Ga. App. 488, 490, Lel?d

224 Ga. 420 (1968). The Court thus concludes that
Plaintiff is not entitled to recover under Counts IV, and of the
Complaint.

Defendant Booth contends Plaintiff cannot recover for breach of
contract under Counts I, II, and VI of the Complaint, because the
contract, which was not to be performed within a year, was subject to
the Statute of Frauds, O.C.G.A. Under O.C.G.A. 13-5-31,
performance by one party to an oral contract takes the case out of the
Statute. The Court finds jury questions to be presented on the issues

of whether there was an oral contract between Plaintiff and Defendant

Booth. If there was such a contract, the jury will determine whether
Plaintiff performed her obligations thereunder, so as to avoid the bar of

the Statute of Frauds.

Summary judgment is GRANTED to Defendant Random House on
all counts, and this action is dismissed as to that Defendant. Summary
judgment is GRANTED to Defendant Booth on Counts IV, V, VII, and
of the Complaint, and DENIED as to Counts I, II, and VI of the

Complaint.

so ORDERED, this the 2_ day of August,

 

A. BLENNTAYLO,
CHIEF JUDGE, SUPERIOR URTS
BRUNSWICK JUDICIAL CIRCUIT