Lovingood v. Discovery Communications Inc et al

Filing 74

MEMORANDUM OPINION - For the reasons discussed above, the Court GRANTS the Discovery defendants motion for summary judgment with respect to Dr. Lovingoods claims for defamation and false light invasion of privacy. (Doc. 62). The Court will enter a separate order consistent with this memorandum opinion. Signed by Judge Madeline Hughes Haikala on 8/1/2017. (KEK)

FILED
2017 Aug-01 AM 08:56
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JUDSON A. LOVINGOOD,
Plaintiff,
v.
DISCOVERY COMMUNICATIONS,
INC., et al.,
Defendants.

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Case No.: 5:14-cv-00684-MHH

MEMORANDUM OPINION
In 2013, The Discovery Channel broadcast a film that the British Broadcasting
Corporation made regarding the Challenger shuttle disaster. Launched in 1986, the
Space Shuttle Challenger came apart shortly after takeoff. The shuttle crashed, killing
the shuttle’s seven crew members. The BBC film entitled “The Challenger Disaster”
recounts the investigation following the crash through the eyes of Dr. Richard P.
Feynman, a physics professor who was involved in the investigation. (Doc. 60-6, p.
13).
The plaintiff in this action, Dr. Judson A. Lovingood, became involved in
NASA’s shuttle program in 1969 when NASA instituted the program. (Doc. 60-6, p.
64). In 1986, Dr. Lovingood was the deputy manager of the shuttle projects office at
Marshall Space Flight Center, and he was partially responsible for overseeing the
development and operation of the propulsion systems for the Challenger shuttle.
(Doc. 60-6, pp. 14–15). When President Ronald Reagan established a Presidential

Commission to investigate the cause of the Challenger accident, NASA tapped Dr.
Lovingood to testify before the Commission because of the depth of his knowledge
regarding the shuttle’s design. (Doc. 60-6, p. 64). In this lawsuit, Dr. Lovingood
contends that the BBC film that the Discovery defendants broadcast in the United
States defames him and places him in a false light. (Doc. 1-1).1
The scene in the Challenger film that concerns Dr. Lovingood is short but
poignant, especially to Dr. Lovingood. The scene depicts Dr. Lovingood testifying
before the Presidential Commission.

The actor who portrays Dr. Lovingood

represents to the Commission that NASA engineers had calculated, and therefore were
aware of, the probability of complete mission failure and the deaths of the members of
the Challenger crew. (Doc. 60-26). It is undisputed that there never was such a
calculation, and Dr. Lovingood never gave such testimony before the Presidential
Commission.

Dr. Lovingood contends that the Discovery Channel should have

detected the false information in the film and refused to broadcast the film with the
defamatory content.
Pursuant to Federal Rule of Civil Procedure 56, the Discovery defendants ask
the Court to enter judgment in their favor on Dr. Lovingood’s claims. The defendants
argue that Dr. Lovingood was a public official and that his status as a public official
1

Dr. Lovingood asserts his claims against three related defendants: Discovery Communications,
Inc., The Discovery Channel, and The Science Channel. (Doc. 1-1). For convenience, the Court
refers to the defendants as “Discovery Channel” or “the Discovery defendants.” Dr. Lovingood also
named the British Broadcasting Corporation, The Open University, and writer Kate Gartside as
defendants in this action. (Doc. 1-1). The Court previously dismissed Dr. Lovingood’s claims
against these defendants. (Docs. 30, 36).

2

requires him to prove by clear and convincing evidence that Discovery acted with
actual malice when it broadcast the BBC film containing the false testimony. (Doc.
63, pp. 12–14, 17–20). The defendants contend that on the record before the Court,
Dr. Lovingood cannot carry this burden. For the reasons stated below, the Court
grants the Discovery defendants’ motion for summary judgment.
I.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). To demonstrate that there is a genuine dispute
as to a material fact that precludes summary judgment, a party opposing a motion for
summary judgment must cite “to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A). “The court
need consider only the cited materials, but it may consider other materials in the
record.” FED. R. CIV. P. 56(c)(3). When considering a summary judgment motion,
the Court must view the evidence in the record in the light most favorable to the nonmoving party and draw reasonable inferences in favor of the non-moving party. White
v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).

3

II.

BACKGROUND
When the Challenger accident occurred in 1986, Dr. Lovingood was working

as the deputy manager of the space shuttle projects office at NASA’s Marshall Space
Flight Center. (Doc. 60-6, p. 14). Dr. Lovingood had distinguished himself as the
individual at NASA who had the greatest institutional knowledge of the shuttle. (Doc.
60-6, p. 64). Dr. Lovingood also was one of the few people at NASA who could
discuss the shuttle’s main engine, the solid booster, and the external tank. Other
engineers could address only one of the three components. (Doc. 60-6, pp. 63–64).
Given his breadth of knowledge, it comes as no surprise that NASA designated Dr.
Lovingood to testify before the Presidential Commission that investigated the crash of
the Challenger shuttle.
Dr. Feynman, a Nobel Laureate and physics professor at Caltech, was a
member of the Presidential Commission. He wrote a book about his experience on
the commission. The book is entitled What Do You Care What Other People Think?.
(Doc. 60-6, p. 13; see also Doc. 63, p. 10; Doc. 65, p. 4). The BBC’s film entitled
“The Challenger Disaster” is based on Dr. Feynman’s book. The BBC licensed
Discovery to broadcast the film in the United States. (Doc. 60-1, pp. 2–4; Doc. 63, ¶¶
17–18; see also Doc. 60-9). The film premiered on The Discovery Channel and The
Science Channel on November 16, 2013. (Doc. 1-1, ¶ 3).

4

“The Challenger Disaster” film begins with the following message displayed in
white letters on a black screen: “This is a true story.”2 (Doc. 60-26, 1:36).3 The text
then indicates that the film is based on Dr. Feynman’s book “and on interviews with
key individuals.” (Doc. 60-26, 1:48). A final line of text states: “Some scenes have
been created for dramatic purposes.” (Doc. 60-26, 2:06). All three messages appear
in white against a black screen, in the same font, and all three are approximately the
same size. (Doc. 60-26, 1:36–2:10).
The film, which the Discovery defendants describe as a “docudrama,” centers
on Dr. Feynman’s efforts to identify the cause of the Challenger disaster.

(See

generally Doc. 60-26).4 Along the way, Dr. Feynman encounters resistance and
secrecy from other members of the Commission and from individuals associated with
NASA and the United States government. (See generally Doc. 60-26). Dr. Feynman
persists, and ultimately he leads the Commission to discover that an improperly sealed
“O-ring” on the right solid rocket booster caused the crash. (See, e.g., Doc. 60-26,
In his complaint, Dr. Lovingood alleges that the statement, “This is a true story” appears in the
opening moments of the film in all caps like this: “THIS IS A TRUE STORY.” (Doc. 1-1, ¶ 4). In
its opinion denying the Discovery defendants’ motion to dismiss, the Court accepted Dr.
Lovingood’s allegation and stated that the film “begins with the following message displayed in bold
print: ‘THIS IS A TRUE STORY.’ (Doc. 1-1, ¶ 4).” When it reviewed the film to evaluate the
defendants’ motion for summary judgment, the Court learned that the film does not emphasize the
text as Dr. Lovingood alleges.
2

Doc. 60-26 is a DVD of “The Challenger Disaster” film that the Discovery defendants filed with
the Court. Citations to specific time signatures are approximate.
3

According to the Discovery defendants, a docudrama “is a scripted film that uses actors to portray
historical events.” (See Doc. 63, ¶ 22; see also Doc. 60-8, p. 39). Rocky Collins, Discovery’s
executive producer of “The Challenger Disaster,” referred to the film as a “fictional drama” in his
deposition. (Doc. 64-12, p. 6).
4

5

1:21:50–1:25:01; see also Doc. 1-1, ¶ 2; Doc. 60-6, p. 12). In the film, during the
course of his investigation, Dr. Feynman reveals that NASA knew of significant risks
associated with the O-rings but chose to launch the shuttle anyway. (See generally
Doc. 60-26).
Dr. Lovingood’s claims relate to two scenes in the film. In the first scene, Dr.
Feynman eats lunch with two NASA engineers in a cafeteria.

Dr. Feynman

introduces himself to the engineers and states that he is “on the Commission.” (Doc.
60-26, 21:37). One of the engineers replies, “I got nothing to hide.” (Doc. 60-26,
21:28). Dr. Feynman then asks, “If I was to ask you engineers—never mind what the
managers say, but you guys—given all your experience, what you thought the
probability was of an accident on any single launch, what would you say?” (Doc. 6026, 21:45). The engineers avoid Dr. Feynman’s eye. Dr. Feynman says, “If you don’t
want to say out loud, perhaps you could write down on a piece of paper.” (Doc. 6026, 21:54). The engineers exchange uneasy glances, and the scene cuts away. Later,
Dr. Feynman discovers a handwritten note in his coat pocket that reads, “We think
Ivory Soap.” (Doc. 60-26, 31:50). The audience later learns that “We think Ivory
Soap” is a reference to a 19th-century advertising slogan for Proctor & Gamble’s
“Ivory” soap. (Doc. 60-26, 1:07:44–1:08:14). The slogan touted Ivory soap as
99.44% pure. (See Doc. 60-26, 1:07:46).
The second scene portrays Dr. Lovingood and NASA shuttle program manager
Lawrence Mulloy testifying before the Presidential Commission. In the scene, Dr.
6

Feynman asks Dr. Lovingood and Mr. Mulloy, “Can you remind me what NASA
calculates the probability of shuttle failure to be? Failure meaning the loss of the
vehicle and the deaths of the entire crew.” (Doc. 60-26, 1:19:05). The chairman of
the Commission invites Dr. Lovingood to answer, and Dr. Lovingood reads from a
stack of paper: “Certainly, that would be 1 in 10 to the power of 5.” (Doc. 60-26,
1:19:10). The scene proceeds as follows.
Dr. Feynman: “Really? Would you explain that?”
Dr. Lovingood: “Yes, the probability of mission success is 100%, minus
epsilon.”
Dr. Feynman: “Epsilon, that’s a pretty fancy word. Let’s put all that you
said there into English. So that’s, um, that’s one failure in every 100,000
flights. So you claim that the shuttle would fly every day for 300 years before
there would be a single failure. That’s crazy, I mean, how would you ever
even
test that?”
Dr. Lovingood: “NASA arrived at that figure because it was a manned
flight.”
Dr. Feynman: “Because there were people on board, but that is not a
scientific calculation, that’s a wish. And interesting that the figure is very
different from that of NASA’s own engineers based on their direct
experience and observation of many known component problems, some of
NASA’s engineers calculate the probability of success as only 99.4%, in other
words that’s roughly one flight in every 200 will fail.”
(Doc. 60-26, 1:19:17–1:20:23).5
Both scenes are fabrications. (See Doc. 65, pp. 5–11). In reality, the meeting
portrayed in the film in the cafeteria took place in a conference room at Marshall
Space Flight Cente, and Dr. Lovingood was present. (Doc. 60-6, p. 62). At the
5

Other than in this scene, Dr. Lovingood appears only for a few brief moments in the film.

7

meeting, Dr. Feynman did not ask what “the probability was of an accident on any
single launch.” (See Doc. 60-6, pp. 62, 66; p. 6, above). Rather, Dr. Feynman asked
the engineers to write down the probability of the Challenger mission not being
completed because of a failure of the main engine. (Doc. 60-6, p. 66; Doc. 63, ¶6;
Doc. 64-1, p. 5; Doc. 65, p. 5). From an engineering perspective, the distinction is
significant. Dr. Lovingood testified that, because of a series of safety redundancies
that were designed to activate upon a failure of the main engine, the likelihood that a
malfunction of the main engine would cause the mission to fail was low. (See Doc.
60-6, pp. 44–45). Indeed, the Commission concluded that the main engine functioned
properly during the Challenger flight and did not contribute to the crash. (Doc. 60-6,
pp. 21–22). In a nod to the Ivory soap slogan, one of the engineers wrote 99.44/100%
pure, which Dr. Lovingood “thought was silly,” and another engineer wrote 1 in 300.
(Doc. 60-6, p. 67; Doc. 64-1, p. 4). Dr. Lovingood provided Dr. Feynman with “the
official NASA number,” 1 in 100,000. (Doc. 60-6, pp. 72–73).6
Like the cafeteria scene, the scene that depicts Dr. Lovingood testifying before
the Presidential Commission “never took place in reality and truth.” (Doc. 65, p. 11).
Dr. Lovingood did not testify “that the probability of total mission failure was 1 in
100,000,” and “[n]o engineer ever said it was 1 in 200.” (Doc. 1-1, ¶ 7). The
probability of such an event, says Dr. Lovingood, was “[n]ever addressed at all by

6

Dr. Lovingood testified that he provided Dr. Feynman with the official NASA report that contained
the basis for the 1-in-100,000 estimate after the meeting at Marshall Space Flight Center. (Doc. 60-6,
p. 73).

8

NASA or any of the engineers.” (Doc. 60-6, pp. 346–47; see also Doc. 65, pp. 10–
11).
In short, Dr. Lovingood did provide Dr. Feynman with a 1-in-100,000 estimate,
but he provided the estimate at Marshall Space Flight Center, not before the
Presidential Commission, and the estimate was of the probability that a main-engine
malfunction would cause the Challenger mission to fail, not of the probability of “the
loss of the vehicle and the deaths of the entire crew.” In addition, NASA engineers
did provide Dr. Feynman with a 1-in-200 estimate, but the estimate, like Dr.
Lovingood’s, was of the probability that a main-engine malfunction would cause the
mission to fail, not of the probability of “an accident on any single launch.” See pp. 6,
8, above.

Mr. Collins, the executive producer of the Challenger film for the

Discovery defendants, has acknowledged that “[t]he exact dialogue that you see in the
film . . . was not actually spoken by Lovingood [or anyone else] in front of the
Commission.” (Doc. 64-12, p. 8; Doc. 65, pp. 4–5).
The suggestion of the film as a whole, and of these two scenes in particular,
according to Dr. Lovingood, is that Dr. Lovingood ignored significant risks associated
with the Challenger mission, lied under oath regarding NASA’s knowledge of the
risks, and participated in NASA’s efforts to conceal the cause of the crash. (See Doc.
60-6, pp. 44–45). It is fair to say that the tone of the film is not complimentary of
NASA. Dr. Lovingood asserts that the film defames him and places him in a false

9

light, and he asks the Court to award him compensatory and punitive damages. (Doc.
1-1, p. 74).
III.

DISCUSSION
A.

Dr. Lovingood’s defamation claim

To establish a prima facie case of defamation under Alabama law, a plaintiff
must show: “[1] that the defendant was at least negligent [2] in publishing [3] a false
and defamatory statement to another [4] concerning the plaintiff, [5] which is either
actionable without having to prove special harm (actionable per se) or actionable upon
allegations and proof of special harm (actionable per quod).” Ex parte Bole, 103 So.
3d 40, 51 (Ala. 2012) (quoting Ex parte Crawford Broad. Co., 904 So. 2d 221, 225
(Ala. 2004)) (emphasis and internal quotation marks omitted). If a court determines
that a plaintiff in a defamation action is “a public official, public figure, or limitedpurpose public figure,” then the plaintiff must establish by clear and convincing
evidence “that the defamatory statement was made with ‘actual malice’—that is, with
knowledge that it was false or with reckless disregard to whether it was false or not.”
Cottrell v. Nat’l Collegiate Athletic Ass’n, 975 So. 2d 306, 333 (Ala. 2007) (citing
New York Times, Co. v. Sullivan, 376 U.S. 254, 280 (1964)); Gertz v. Robert Welch,
Inc., 418 U.S. 323, 342 (1974); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 162–164
(1967) (internal quotation marks omitted).
This case concerns Discovery’s republication of false information concerning
Dr. Lovingood and the engineers who worked on the Challenger mission. “[O]ne who
10

repeats or otherwise republishes defamatory matter is subject to liability as if he had
originally published it.” Restatement (Second) of Torts § 578. “[T]he republisher of
a defamatory statement made by another remains subject to liability (Restatement
(Second) of Torts § 578 (1977)), but he cannot be held liable unless he himself knew
at the time when the statement was published that it was false, or acted in reckless
disregard for its truth or falsity.” Schwartz v. Am. Coll. of Emergency Physicians, 215
F.3d 1140, 1145 (10th Cir. 2000) (quoting Catalano v. Pechous, 419 N.E.2d 350, 361
(Ill. 1980)) (internal quotation marks omitted).7
The Discovery defendants argue that they are entitled to judgment as a matter
of law on Dr. Lovingood’s defamation claim because Dr. Lovingood is a public
official, and he cannot prove by clear and convincing evidence that the Discovery
defendants acted with actual malice when they broadcast the film that contains false
information about Dr. Lovingood. (Doc. 63). On the record in this case, the Court
agrees that the defendants are entitled to judgment on Dr. Lovingood’s claims.8
1.

Dr. Lovingood’s status

7

The Court has located no Alabama Supreme Court or Alabama Court of Civil Appeals decisions
concerning republication of defamatory material; however, the Alabama Supreme Court follows the
Restatement (Second) of Torts in defamation cases, and many states have adopted the Restatement
standard regarding republication. See, e.g., Hillman v. Yarbrough, 936 So. 2d 1056 (Ala. 2006);
Larrimore v. Dubose, 827 So. 2d 60, 61 (Ala. 2001); Catalano v. Pechous, 419 N.E.2d 350 (Ill.
1980).
8

Because the Court finds that the Discovery defendants are entitled to summary judgment for the
reasons stated below, the Court does not discuss the defendants’ alternative arguments in favor of
their motion for summary judgment.

11

Whether Dr. Lovingood is a public official, a public figure, or a private
individual is a question of law for the trial judge. See Ex parte Rudder, 507 So. 2d
411, 416 (Ala. 1987); see also Rosenblatt v. Baer, 383 U.S. 75, 88 (1966); Barnett v.
Mobile Cty. Personnel Bd., 536 So. 2d 46, 54 (Ala. 1988). The record in this case,
viewed in the light most favorable to Dr. Lovingood, demonstrates that Dr. Lovingood
is a public official.
Although it is not clear “‘how far down into the lower ranks of government
employees the ‘public official’ designation’” extends, the United States Supreme
Court has held that the designation “applies at the very least to those among the
hierarchy of government employees who have, or appear to the public to have,
substantial responsibility for or control over the conduct of governmental affairs.”
Rosenblatt, 383 U.S. at 85 (quoting New York Times, 376 U.S. at 283 n. 23). “Where
a position [] has such apparent importance that the public has an independent interest
in the qualifications and performance of the person who holds it, beyond the general
public interest in the qualifications and performance of all government employees, . . .
the New York Times malice standards apply.” Rosenblatt, 383 U.S. at 86. According
to the Alabama Supreme Court, “[a] ‘public official’ must hold a position that would
invite public scrutiny of the person holding it, apart from the scrutiny and discussion
occasioned by the allegedly defamatory remarks.” Barnett, 536 So. 2d at 54.
In Barnett, the Alabama Supreme Court ascribed public official status to a
former town clerk who “had the primary responsibility for organizing and issuing the
12

payroll for the town.” 536 So. 2d at 47, 54. Citing Rosenblatt, the Court based its
determination on the town clerk’s role as “a governmental employee who had
substantial responsibility for, or control over, the conduct of governmental affairs.”
Id. (citing Rosenblatt, 383 U.S. at 85). In Warren v. Birmingham Board of Education,
the Alabama Court of Civil Appeals found that the principal of an elementary school
was a public official, “similar to the . . . town clerk in Barnett.” 739 So. 2d 1125,
1129, 1133 (Ala. Civ. App. 1999). In Stewart v. Town of Zolfo Springs, Florida, the
United States District Court for the Middle District of Florida found that a municipal
police officer was a public official and applied the New York Times actual malice
standard to its analysis of the officer’s defamation claim. 1997 WL 689448, *3 (M.D.
Fla. Aug. 27, 1997).
Courts outside the Eleventh Circuit also have attributed public official status to
positions within the “lower ranks of government employees.” Rosenblatt, 383 U.S. at
85; see, e.g., Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1069 (5th Cir. 1987)
(attributing public official status to county law enforcement officers); Price v. Viking
Penguin, Inc., 676 F. Supp. 1501 (D. Minn. 1988) (attributing public official status to
an FBI agent); see also L. Tribe, American Constitutional Law 866 (2d ed. 1988)
(“[T]he term ‘public official’ now embraces virtually all persons affiliated with the
government, such as most ordinary civil servants, including public school teachers
and policemen.”).

13

There is no doubt that NASA’s space program is a matter of public interest, and
NASA employees involved in the design of NASA’s space shuttles invite public
scrutiny of their work, particularly with respect to the shuttles’ ability to provide safe
passage to the members of the shuttles’ crews. As the deputy manager of the space
shuttle projects office at Marshall Space Flight Center, Dr. Lovingood was partially
responsible for overseeing the development and operation of the propulsion systems
for the Challenger shuttle. (Doc. 60-6, pp. 14–15). After the crash, Dr. Lovingood
was “the Marshall lead man in briefing the Presidential Commission on the space
shuttle main engine, the solid booster, and the external tank.” (Doc. 60-6, p. 63). Dr.
Lovingood testified that he “was considered to be the person who knew the most
about the space shuttle.” (Doc. 60-6, p. 64).
Thus, Dr. Lovingood was a government employee who had “substantial
responsibility for or control over the conduct of governmental affairs.” Rosenblatt,
383 U.S. at 85.

Dr. Lovingood’s roles in the Challenger mission and in the

Commission’s subsequent investigation were of particular importance, such that “the
public has an independent interest in [Dr. Lovingood’s] qualifications and
performance.” Rosenblatt, 383 U.S. at 86; see also Barnett, 536 So. 2d at 54.9

9

Dr. Lovingood retired from NASA in 1988. (Doc. 60-6, p. 222; see generally Doc. 60-6, pp. 222–
225). For purposes of this litigation, he did not lose his status as a public official when he retired.
See Zarangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1069 (5th Cir. 1987) (explaining that the
court of appeals located “no cases holding that public official status erodes with the passage of time”
and that “[o]ther courts have held that ex-public officials must prove that ‘actual malice’ prompted
speech concerning their in-office activities. See, e.g., Rosenblatt v. Baer, 383 U.S. 75, 87 n. 14, 86
S.Ct. 669, 677 n. 14, 15 L.Ed.2d 597 (1966); Pierce v. Capital Cities Communications, Inc., 576 F.2d

14

Consequently, the Court finds as a matter of law that Dr. Lovingood is a public
official.10
2.

Actual malice

Because he is a public official for purposes of this litigation, to survive the
Discovery defendants’ summary judgment motion, Dr. Lovingood must be able to
show by clear and convincing evidence that the Discovery defendants acted with
actual malice when they broadcast in the United States a BBC film that falsely
portrays Dr. Lovingood’s testimony before the Presidential Commission and NASA
engineers’ conversation with Dr. Feynman at Marshall Space Flight Center. HarteHanks Commc’ns v. Connaughton, 491 U.S. 657, 666 (1989).
“[T]he actual malice standard is not satisfied merely through a showing of ill
will or ‘malice’ in the ordinary sense of the term.” Harte-Hanks Commc’ns, 491 U.S.
at 666. Instead, in a defamation action concerning a public official, the public official
must be able to prove by clear and convincing evidence that the defendant acted with

495 (3d Cir.), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 170 (1978); Arnheiter v. Random
House, Inc., 578 F.2d 804 (9th Cir.1978).”).
10

Dr. Lovingood argues that he is a private citizen rather than a public figure or a limited purpose
public figure, but Dr. Lovingood does not address Discovery’s arguments that he is a public official.
(See Doc. 63, pp. 12–14; Doc. 65, pp. 19–23, 30; Doc. 67, pp. 3–4). “In defamation actions, a
plaintiff is [] a private person, a public official, or a public figure, either in general or for the limited
purpose of a particular controversy.” Cottrell v. Nat’l Collegiate Athletic Ass’n, 975 So.2d 306, 333
(Ala. 2007). Public officials hold governmental office, whereas public figures “seek the public’s
attention” or gain it “by reason of the notoriety of their achievements.” See Gertz v. Robert Welch,
Inc., 418 U.S. 323, 342 (1974); see also Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967)
(distinguishing between a public official and a public figure and extending New York Times
protection to the latter). Dr. Lovingood’s arguments that he is not a public figure do not diminish his
role as a public official.

15

reckless disregard of the truth. Id.; see also Cottrell, 975 So. 2d at 333 (citing New
York Times, 376 U.S. at 280). A defendant acts with reckless disregard for the falsity
of allegedly defamatory remarks when the defendant “in fact entertained serious
doubts as to the truth of [its] publication . . . or acted with a ‘high degree of awareness
of . . . probable falsity.’” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510
(1991) (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968) and Garrison v.
Louisiana, 379 U.S. 64, 74 (1964)). “The meaning of terms such as ‘actual malice’and, more particularly, ‘reckless disregard’” are “not readily captured in one infallible
definition.” Harte-Hanks Commc’ns, 491 U.S. at 686 (some internal quotation marks
and citation omitted). “Rather, only through the course of case-by-case adjudication”
may a court “give content to these otherwise elusive constitutional standards.” Id.
The United States Supreme Court and the Alabama Supreme Court have
provided some guidance regarding the nature of the evidence that a public official
must present to prove by clear and convincing evidence that the defendant knew that
information that the defendant republished about a public official was false or that the
defendant republished the information about the official in reckless disregard for the
truth or falsity of the information. Extending the rationale of Cottrell to republication,
to create a jury question, a public official must present sufficient evidence that the
defendant knew that the republished information was fabricated, realized that the
information was “so inherently improbable that only a reckless man would have put
[it] in circulation,” or recognized that the information came from “a source that the
16

defendant had obvious reasons to doubt, such as an unverified anonymous telephone
call.” Cottrell, 975 So. 2d at 349 (citations, internal quotation marks, and emphasis
omitted). Per Harte-Hanks Commc’ns, the evidence upon which a public official
relies must show “more than a departure from reasonably prudent conduct.” HarteHanks Commc’ns, 491 U.S. at 688. Instead, there must be evidence that indicates that
the defendant “‘entertained serious doubts as to the truth of [the] publication.’”
Harte-Hanks Commc’ns, 491 U.S. at 688 (quoting St. Amant, 390 U.S. at 731). The
standard is subjective. Harte-Hanks Commc’ns, 491 U.S. at 688; Cottrell, 975 So. 2d
at 349.
When, as in this case, the public official’s claim rests on a failure to investigate
theory, the “failure to investigate before publishing, even when a reasonably prudent
person would have done so, is not sufficient to establish reckless disregard.” HarteHanks Commc’ns, 491 U.S. at 688. Instead, the official must show that the defendant
“purposeful[ly] avoid[ed] [] the truth.” Id. at 692; see also Cottrell, 975 So. 2d at 349
(“[T]he failure to investigate does not constitute malice, unless the failure evidences
purposeful avoidance, that is, an intent to avoid the truth.”) (citations and internal
quotation marks omitted).
In Harte-Hanks Commc’ns, the United States Supreme Court found that
evidence of conduct that amounted to willful ignorance of objective information that
contradicted a source’s charges about a judicial candidate supported a jury verdict for
the candidate and against the defendant newspaper that published an article maligning
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the candidate. The article stated that the candidate offered jobs and a trip to Florida to
certain individuals who were in a position to discredit the candidate’s opponent. See
Harte-Hanks Commc’ns, 491 U.S. at 660. The Supreme Court found that evidence
that “no one at the newspaper took the time to listen” to interview tapes that were
available to the newspaper and undermined the source’s charges against the candidate
supported a finding that “the newspaper’s inaction was a product of a deliberate
decision not to acquire knowledge of facts that might confirm the probable falsity of
[the source’s] charges.” Id. at 692.
In Harte-Hanks Commc’ns, the Supreme Court likened the situation before it to
the circumstances that supported a finding of actual malice in Curtis Publishing Co. v.
Butts, 388 U.S. 130 (1967). The Supreme Court explained:
In Butts the evidence showed that the Saturday Evening Post had
published an accurate account of an unreliable informant’s false
description of the Georgia athletic director’s purported agreement to
“fix” a college football game. Although there was reason to question the
informant’s veracity, . . . the editors did not interview a witness who had
the same access to the facts as the informant and did not look at films
that revealed what actually happened at the game in question. This
evidence of an intent to avoid the truth was not only sufficient to
convince the plurality that there had been an extreme departure from
professional publishing standards, but it was also sufficient to satisfy the
more demanding New York Times [actual malice] standard . . . .
Harte-Hanks Commc’ns, 491 U.S. at 692–93. As the Eleventh Circuit Court of
Appeals held in Hunt v. Liberty Lobby, 720 F.2d 631 (11th Cir. 1983), when a party
has reason to question the neutrality of the source of its information yet publishes
information that is not “‘hot news,’ that is, information that must be printed
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immediately or it will lose its newsworthy value,” without taking the time to examine
available resources that would permit verification of the information being published,
a jury question exits regarding the publisher’s intent. 720 F.2d at 645.
Here, there is nothing in the Challenger film that is “hot news.” The film
portrays events that occurred more than two decades before the BBC made the film.
The evidence, viewed in the light most favorable to Dr. Lovingood, shows that The
Discovery Channel knew that in the Challenger film, the BBC embellished or perhaps
even fabricated aspects of the actual events for the film because the film was a
docudrama. Rocky Collins, the executive producer of the film for The Discovery
Channel, watched the film before Discovery aired the film in the United States. (Doc.
60-7, p. 74). The first few frames of the film contain the statement, “Some scenes
have been created for dramatic purposes.” (Doc. 60-26, 2:06).
Discovery Channel obtained the film from the BBC via a five-year “Master
First Look, Co-Production and Licence [sic] Agreement” pursuant to which Discovery
Channel agreed to pay the BBC $22 million annually to co-produce programming.
(Doc. 60-9; see also Doc. 60-1, ¶ 7; Doc. 63, pp. 18–19 n. 1).

Although the

agreement gave the BBC “final artistic and editorial control” of each co-produced
program, and although the BBC expressly warranted that, “to the best of its
knowledge and belief (having exercised due diligence in its enquiries),” no coproduced program would “defame any individual or entity,” the agreement also
required Discovery Channel and the BBC to consult “on the form and content” and
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“all creative aspects” of each program, “throughout all phases of production,” and
“tak[e] into account the requirements of [Discovery’s] audience.” (Doc. 60-9, p. 20, ¶
15.1; p. 28, ¶ 20.1.8). In addition, the agreement gave Discovery Channel the limited
right to edit a program before publishing the program in the United States, and the
agreement prohibited Discovery from using any program produced pursuant to the
agreement “in any manner . . . which is defamatory or invades the privacy of any
person.” (Doc. 60-9, pp. 20-21, ¶¶ 15.5–15.8).
Mr. Collins testified that he relied on the BBC “to undertake [] diligent research
in keeping with the best standards and [he] relied on them and expected them to do all
of their work.” (Doc. 64-12, p. 17). Yet, Mr. Collins recognized that as the executive
producer of Discovery’s version of the film, it was his job “to make sure” that the
BBC was performing its due diligence. (See Doc. 64-12, p. 17). According to Mr.
Collins, the BBC had “satisfactory answers” every time he asked about the potential
legal consequences of a given aspect of the film. (See Doc. 64-12, p. 17). Mr. Collins
testified that he “had absolutely no reason to believe that the [BBC] did not do [its]
job.” (Doc. 64-12, p. 17).11

Discovery Channel argues that Mr. Collins’s efforts were adequate, and the company offered
testimony from James Hirsch to prove the point. Mr. Hirsch testified that it was customary in the
entertainment industry for Discovery Channel to “rely[] on the [BBC] to ‘get it right,’ both legally
and creatively.” (Doc. 60-28, p. 5). Mr. Hirsch’s professional biography is located at Doc. 60-28,
pp. 11–14. Dr. Lovingood filed a motion to exclude Mr. Hirsch’s testimony on grounds that the
testimony does not satisfy the requirements of Federal Rule of Evidence 702. (Doc. 50). Because
the Court has not relied on Mr. Hirsh’s opinion in reaching its decision, the Court denies Dr.
Lovingood’s motion to strike because the motion is moot.
11

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Nevertheless, it is undisputed that Mr. Collins had available to him two
resources that he could have used to verify the accuracy of scenes in the film. He
could have consulted Dr. Feynman’s book. Doing so would have revealed that
engineers gave Dr. Feynman the Ivory soap estimate of success at Marshall Space
Flight Center, not in a cafeteria; Dr. Lovingood participated in the conversation; and
the discussion concerned the possibility of main engine failure (a statistic that
NASA’s engineers could calculate and guard against), not mission failure.

Mr.

Collins never questioned the BBC about the scene involving Dr. Lovingood. (Doc.
60-7, pp. 144–45). Mr. Collins only skimmed Dr. Feynman’s book, so he did not
realize that the discussion between Dr. Lovingood and Dr. Feynman about the
probability of a main engine malfunction took place at Marshall Space Flight Center
in Huntsville rather than before the Presidential Commission. (Doc. 60-7, pp. 146–
49). After reading the book, Mr. Collins acknowledged that there was a “substantial
difference” between the book’s depiction of the encounter between Dr. Feynman and
Dr. Lovingood and the film’s depiction of the event. (Doc. 60-7, pp. 148–49). There
is a transcript of Dr. Lovingood’s testimony before the Presidential Commission.
(Doc. 60-6, pp. 91–92). There is no evidence that Mr. Collins reviewed that transcript
to determine whether the BBC’s portrayal of Dr. Lovingood’s testimony was accurate.
In short, Mr. Collins made virtually no independent effort to determine whether the
BBC accurately portrayed Dr. Lovingood in the docudrama.

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Although Discovery Channel clearly had the means and the opportunity to be
more proactive in its monitoring of the content of the Challenger film, and a jury
potentially could infer from the evidence that Discovery Channel willfully avoided the
opportunity, the Court finds on the record in this particular case that the evidence that
Dr. Lovingood has offered does not satisfy the “elusive constitutional standard” for
actual malice. A number of circumstances compel the Court’s conclusion.
First, unlike Harte-Hanks Commc’ns and Hunt, cases in which the United
States Supreme Court and the Eleventh Circuit Court of Appeals found that trial
courts properly allowed juries to resolve factual disputes concerning the defendant
publisher’s intent, this case does not involve a newspaper article and a reporter’s
potentially unreliable sources. This case concerns a docudrama. The “drama” aspect
of the film presupposes that aspects of the historical event are fictionalized in the film
for entertainment purposes.

See Davis v. Costa-Gavras, 654 F.Supp. 653, 658

(S.D.N.Y. 1987) (explaining that the docudrama genre “utilize[s] simulated dialogue,
composite characters, and a telescoping of events occurring over a period into a
composite scene or scenes” whereas a documentary is “a nonfictional story or series
of historical events portrayed in their actual location; a film of real people and real
events as they occur.

A documentary maintains strict fidelity to fact.”).

Thus,

changing the location in which a conversation took place and reducing the number of
people involved in the conversation is not the sort of false information that a

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docudrama’s co-producer would be expected to detect and identify as potentially
libelous material.
The falsification of sworn testimony is another matter. Such conduct has a
significant potential to damage the reputation of the individual depicted in the
historical dramatization. Under certain circumstances, a jury question concerning
actual malice could exist where a defendant published—or republished—a false
reenactment of sworn testimony where the defendant had available to it the means to
verify the accuracy of the dramatic depiction of the testimony but willfully or
recklessly disregarded the opportunity.
In this case though, there is nothing so improbable in the scene of Dr.
Lovingood’s testimony before the Presidential Commission that would have prompted
Mr. Collins to obtain a transcript of the hearing to investigate the accuracy of the
scene. Although it is abundantly clear to Dr. Lovingood and to his colleagues from
NASA that the scene contains false information, there is nothing that would prompt an
observer lacking Dr. Lovingood’s expertise to recognize the significant engineering
distinction between main engine failure and mission failure. The analysis is not
altered by the fact that Mr. Collins now acknowledges in retrospect and in light of this
litigation that the statements attributed to Dr. Lovingood in the Challenger film are
inaccurate because the record contains no evidence that indicates that the distinction
was discernible when Mr. Collins first reviewed the movie. And unlike the evidence
in Harte-Hanks Commc’ns and Hunt that suggested that the reporters’ sources were
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unreliable, there is no evidence in the record here that the BBC is not a reputable
producer of television programs and movies. Therefore, there is no evidence from
which jurors could reasonably infer that the Discovery defendants had reason to doubt
the accuracy of the scenes in the Challenger film or that the defendants’ failure to do
more to investigate the accuracy of the two scenes at issue evidences “an intent to
avoid the truth.” See p. 17, above. The evidence in the record may rise to the level of
negligence, but it does not go further.
Consequently, the Discovery defendants are entitled to judgment as a matter of
law on Dr. Lovingood’s defamation claim.
B.

Dr. Lovingood’s false light invasion of privacy claim

To be subject to liability for the tort of false light invasion of privacy, a
defendant must have “knowledge of or act[] in reckless disregard as to the falsity of
the publicized matter and the false light in which the other would be placed.” Ex
parte Bole, 103 So. 3d at 51 (citations and internal quotation marks omitted).
Because, as discussed above, Dr. Lovingood has not provided evidence that shows
that Discovery acted recklessly when it broadcast “The Challenger Disaster,”
Discovery is entitled to judgment as a matter of law on Dr. Lovingood’s false light
invasion of privacy claim. See Smith v. Huntsville Times, Co., Inc., 888 So. 2d 492,
496 n. 1 (Ala. 2004) (explaining that the “same standard applies to all of [the
plaintiff’s] claims, regardless of whether they are stated as ‘defamation’ or ‘false light
invasion of privacy”).
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IV.

CONCLUSION
For the reasons discussed above, the Court GRANTS the Discovery

defendants’ motion for summary judgment with respect to Dr. Lovingood’s claims for
defamation and false light invasion of privacy. (Doc. 62). The Court will enter a
separate order consistent with this memorandum opinion.

DONE and ORDERED this August 1, 2017.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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