STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

BURKE RAMSEY,

Plaintiff,

Case No. 16-017577-CZ

v Hon. David A. Groner

16-017577-CZ
CBS CORPORATION, CRITICAL CONTENT, LLC, FILED IN MY OFFICE
JIM CLEMENTE, LAURA RICHARDS, A. JAMES WAYNE COUNTY CLERK
KOLAR, JAMES R. FITZGERALD, STANLEY B. 1/5/2018 11:10:37 AM
BURKE, WERNER U. SPITZ, and HENRY C. LEE, CATHY M. GARRETT
/s/ Roderick Byrd
Defendants.

_____________________________________________________________________________________

OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY DISPOSITION

At a session of the court held in

1421 Coleman A. Young Municipal Center
Detroit, Michigan 48226
January 5, 2018
on _______________________________
PRESENT: JUDGE DAVID A. GRONER

This matter having come before the Court upon Defendants’ Motion for Summary
Disposition brought pursuant to MCR 2.116(C)(8), briefs being submitted, a copy of the
broadcast being provided and oral arguments having been heard, the Court finds as follows:

STATEMENT OF FACTS

In September 2016, Defendant, CBS, aired a two-part four hour television docu-series on
the subject of the highly publicized unsolved murder of JonBenét Ramsey titled The Case of
JonBenét Ramsey. Critical Content produced the series which Plaintiff alleges is based upon a
book authored by Defendant James Kolar. The series features seven world renowned
investigators/experts some of whom had worked on the initial investigation of the death (the
individually named Defendants). The seven investigators purportedly “completed a

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reinvestigation into the unresolved 1996 murder of Jon Benét and “solved” the case. This Court
takes notice that at the beginning and end of the program the following disclaimer was aired:
The killing of JonBenét Ramsey is a crime that, to this day, remains
unsolved. The opinions and conclusions of the investigators who
appear on this program about how it may have occurred represent
just some of a number of possible scenarios. 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.
As a result of the televised series Burke Ramsey (Burke), filed this defamation action
against CBS, Critical Content and the seven investigators who appeared in the television
program. Burke maintains that the program expressly, impliedly, and falsely conveyed to
millions of viewers that he killed his sister despite the fact that he was officially cleared of any
involvement in his sister’s murder. Defendants maintain that they were only presenting their
opinions and theories of what may have happened in one of the biggest unsolved mysteries to
date.

STANDARD OF REVIEW

Defendants filed this motion pursuant to MCR 2.116(C)(8). MCR 2.116(C)(8) tests the
legal sufficiency of a claim. Wade v Dep’t of Corr, 439 Mich 158, 162; 483 NW2d 26 (1992). A
motion under MCR 2.116 (C)(8) may be granted only where the claims alleged are so clearly
unenforceable as a matter of law that no factual development could possibly justify recovery.
Wade, 439 Mich at 163. In determining whether summary disposition is appropriate, the Court
must accept all well-pleaded allegations as true and construed in the light most favorable to the
nonmoving party; only when no factual development could possibly justify recovery, should the
motion be granted. Hanlin v Saugatuck Twp, 299 Mich App 233, 239; 829 NW2d 335 (2013).
Summary disposition for failure to plead a defamatory statement is appropriate only when a
publication “is incapable of defamatory meaning.” Hope-Jackson v Washington, 311 Mich App
602, 621; 877 NW2d 736 (2015).
In Clark v American Broadcasting Cos, Inc, 684 F2d 1208, 1213; 8 Med L Rep (1982)
the Sixth Circuit Court of Appeals held that the district court had a duty to determine as a matter
of law whether the broadcast was reasonably capable of a defamatory interpretation. Citing

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Schultz v Reader’s Digest Assoc, 468 F Supp 551, 554 (ED Mich 1979). Whether the broadcast
was understood as being defamatory was for jury to decide. Id at 554.

ARGUMENTS AND ANALYSIS

Defendants filed this Motion for Summary Disposition pursuant to MCR 2.116(C)(8),
asserting the 108-page Complaint fails to state a claim upon which relief can be granted. It is
Defendants’ initial position that the only arguably defamatory statement made in the docu-series
is a statement made by one of the investigators and Defendants, James Kolar, wherein he
hypothesized in response to a question that Burke “out of anger… may have struck [JonBenét]
with [a] flashlight”. Defendants claim that this statement and the other statements made in the
program and recited in the Complaint are protected by the First Amendment as statements of
subjective opinion regarding a matter of public concern.
Plaintiff’s complaint alleges that the entire “gist” of the television program was
defamatory and implies that Plaintiff killed his sister. Plaintiff claims that the statements taken in
context and the program as a whole is defamatory and is based upon knowingly untrue facts.
Plaintiff ‘s response cites to several other allegedly defamatory statements and points out how
when taken in context they are injurious to his reputation as they imply that he killed his sister. It
is Plaintiff’s position that the allegations in his complaint are sufficient to survive a Motion for
Summary Disposition based upon MCR 2.116(C)(8).
In their reply Defendants expound upon their initial argument and address Plaintiff’s
argument that the entire “gist” of the program was defamatory and argue that Plaintiff’s
complaint should be dismissed for the following reasons:
(1) controlling case law holds that a defamation claim must be based
upon a statement of objective fact that is provably true or false and
cannot be based upon an expression of subjective opinion or
conjecture;

(2) the Series at issue addresses one of the most famously unsolved
murders in American History, a crime that has been the subject of
countless, and often conflicting, theories over the past twenty
years;

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 (3) the Series repeatedly and consistently signals that it is offering the
subjective opinions of its participants and a “hypothesis” about
who killed JonBenét Ramsey; and

(4) the Series explicitly acknowledges that those opinions and

conclusions are “just some of a number of possible scenarios,” that
John and Burke Ramsey have denied any involvement in the
crime, and that Viewers should make up their own minds.

This Court’s analysis begins with the United States’ Supreme Court’s decision in
Milkovich v Lorain Journal Co, 497 US 1; 110 S Ct 2695; 111 L Ed 2d 1 (1990). Milkovich
involved a somewhat similar factual situation in that a private individual was sued a media
defendant regarding allegedly defamatory statements made about a matter of public concern. Id.
The defendant in Milkovich published a newspaper article that accused the plaintiff, a former
high school wrestling coach, of committing perjury while testifying at a high school athletic
association hearing. The defendant claimed that the speech was protected under the First
Amendment as opinion speech. The Milkovich Court held that:
where a statement of ‘opinion’ on a matter of public concern reasonably implies
false and defamatory facts regarding public figures or officials, those individuals
must show that such statements were made with knowledge of their false
implications or with reckless disregard of their truth. Similarly, where such a
statement involves a private figure on a matter of public concern, a plaintiff must
show that the false connotations were made with some level of fault. [Id at 21
(emphasis added).]

The Milkovich Court refused to extend an absolute “opinion privilege” to statements that
could otherwise be found libelous. According to the United States Supreme Court, the main
issue to be determined in Milkovich was "whether a reasonable factfinder could conclude that the
statements in the ... [newspaper] column imply an assertion that petitioner Milkovich perjured
himself in a judicial proceeding.” Id at 21.
The Milkovich Court suggested the statement, "in my opinion, John Jones is a liar,"
implies the existence of facts upon which the opinion is based and the speaker is therefore
not shielded from liability if the assessment is erroneous or the facts are incorrect or incomplete.
Id at 18-19. The mere qualification of a sentence with the phrase "in my opinion" does not
eliminate the impact on the subject of the allegedly defamatory content. Id at 19. The Supreme
Court found that if a speaker states the facts upon which he bases his opinion and those facts are

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either incorrect or incomplete, or the assessment of them is erroneous, the statement may still
imply a false statement of fact.. Simply couching a statement as an opinion does not dispel the
implications, and the statement can cause as much damage to the reputation as could were the
words not used. Id at 19; see also Cianci v. New Times Publ’g Co., 639 F.2d 54, 64; 6 Media L
Rep 2145 (2d Cir. 1980) (charges of crime, though in essence statements of opinion, not
constitutionally protected if false).
The Michigan Court of Appeals in Ireland v Edwards, 230 Mich App 607, 638; 584
NW2d 632 (2009) in interpreting Milkovich declared statements must be viewed in context to
determine whether they can reasonably be understood as stating actual facts about the plaintiff.
Id at 10. In Lasky v Am Broad Cos, Inc, 631 F Supp 962, 970 (SDNY 1986) the District Court for
the Southern District of New York explained the need to examine an entire broadcast in order to
analyze defamatory meaning:

In determining whether the [broadcast] is reasonably susceptible to a defamatory

meaning, the court must consider the program as a whole. A television documentary
program may be divided into a number of video and audio segments. . . . It is the
juxtaposition of these varying segments into an audio and video mosaic that conveys
the meaning or meanings intended. In studying a television program for possible
defamatory meanings, a court must not confine its analysis to the words alone. The
court must also consider the impact of the video portion of the program since the
television medium offers the publisher the opportunity, through visual presentation,
to emphasize certain segments in ways that cannot be ascertained from a mere reading
of the transcript.

Defendants rely heavily on the case of Partington v Bugliosi, 25 F3d 1147 (CA9, 1995).
In Partington, the plaintiff was an attorney who represented an indigent defendant who was
ultimately convicted in a high-profile murder trial. He sued another attorney who represented a
co-defendant who was acquitted in the same murders. The defendant authored a book about the
trials that criticized the plaintiff’s representation of his client in the trials. The Ninth Circuit
determined that the allegedly defamatory statements in the book were not actionable because
they were too subjective in nature and clearly the author’s opinion. This Court agrees with
Plaintiff that Partington is only protects opinions that are based on fully and accurately disclosed
true facts. In fact, in distinguishing Milkovich, the Partington Court stated the “ Milkovich
readers implicitly were told that only one conclusion was possible. The viewers of the CBS

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docu-series were similarly told that only one conclusion was possible and they were not
presented with all facts as pointed out in Plaintiff’s complaint and response to this motion.
While this is a motion based upon MCR 2.116(C)(8), this Court had the duty and
opportunity to view the program that accompanied the pleadings. This Court finds that the
statements at issue and the docu-series as a whole could reasonably be understood as stating
actual facts about Plaintiff. This Court does not find that the “disclaimer” at the beginning and at
the end of the program negate the docu-series potentially defamatory meaning. As stated in
Hope-Jackson v Washington, 311 Mich App 602, 621,; 877 NW2d 736 (2015) summary
disposition is appropriate in a defamation case only when publication is incapable of a
defamatory meaning.
For the reasons, stated above it is hereby ordered that Defendants’ Motion for Summary
Disposition is DENIED.

` Date: January 5, 2018 /s/ David A. Groner

________________________________
Circuit Court Judge