Yeager v. National Public Radio et al

Filing 29

MEMORANDUM AND ORDER: Plaintiff is granted 21 days from the date of thisorder to file an amended complaint which states a claim upon which relief may be granted. If plaintiff does not do so, the court shall dismiss this case with prejudice for the reasons described in this order. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 7/31/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM YEAGER,
Plaintiff,
vs.

Case No. 18-4019-SAC-GEB

NATIONAL PUBLIC RADIO,
ANDREW FLANAGAN, JACOB
GANZ, and ASHLEY
MESSENGER,
Defendants.
MEMORANDUM AND ORDER
Plaintiff’s pro se complaint (Doc. No. 1) lists five causes
of action for defamation and slander at pp. 83-85.

This case is

before the court upon defendants’ motion to dismiss.

Doc. No. 12.

The motion argues that the complaint fails to state a claim and
that the court lacks personal jurisdiction over one defendant.

As

explained below, the court finds that the motion to dismiss should
be granted because plaintiff has failed to state a claim.
Plaintiff and his wife (who is not a party in this case) take
strong offense to and claim they have been damaged by the alleged
defamatory statements discussed in this opinion.

They consider

the opinions published by defendants to be carelessly and unfairly
formulated in contravention of the law and of the principles
espoused by National Public Radio.

Here, the court is concerned

only with the law which does not give judges and juries the task

1

of deciding whether many types of opinions are true or false, even
though

those

subjects.
the

may

be

unjustifiably

hurtful

to

their

The court finds for the reasons described below that

alleged

opinions

opinions

or

defamatory
opinions

statements

based

are

(correctly

largely
or

unverifiable

incorrectly)

upon

disclosed non-defamatory facts and, therefore, do not supply a
plausible basis for cause of action.
I. The parties
Plaintiff is 60 years old.

Doc. No. 1, p. 74.

According to

the complaint, plaintiff has worked as an artist, filmmaker,
musician, activist and humanitarian.

Id. at pp. 10 & 67.

currently resides in Cottonwood Falls, Kansas.

He

Id. at p. 28.

Defendant National Public Radio (NPR) published an article about
plaintiff on March 23, 2017 and broadcast an interview which
concerned plaintiff on March 24, 2017.

Defendant Andrew Flanagan

wrote the article and he and defendant Jacob Ganz participated in
the interview.

Defendant Ashley Messenger is an attorney for NPR.

II. Plaintiff’s allegations in the complaint
Plaintiff, according to his lengthy complaint, has written
and recorded over 2600 songs and pursued the business of music for
14 years between 1981 and 1995.

Id. at p. 69.

The complaint

asserts that five songs from plaintiff’s first album were finalists
in a national song writing contest; that he was discovered by
Columbia Records president Chuck Gregory in 1984 and by Grammy
2

Award winner Bruce Hornsby in 1990; that he was the guitar player
for the “[i]nternationally recognized band ‘Inner Circle’ from
1985-1986;” and that his second album was played on all of South
Florida’s radio stations in 1985.

Id. at p. 70.

Plaintiff has produced films and music videos.
has five feature films listed on IMDb.

He claims he

Id. at p. 23.

He won

awards in the mid-1990s at the Palm Beach International Film
Festival and the Dahlonega International Film Festival, and in
later years at the Delray Beach International Film Festival (2004)
and the Red Dirt International Film Festival (2015).

Id. at pp.

71-73. Another film or performance art piece produced by plaintiff
was “Jimmy’s Story” in which plaintiff portrayed a supposed lovechild of Jimi Hendrix.
Plaintiff states in the complaint that his desire to use his
artistic talents to better humanity has been posted on his website
for over 12 years.

Id. at p. 27.

endeavors.

complaint

The

His wife works with him in these

contains

multiple

references

to

plaintiff’s desire to raise money to supply wheelchairs for land
mine victims through, as an example, benefit concerts.
Plaintiff asserts that he is not a public figure.

Id. at p.

28.
On March 23, 2017, an article by Andrew Flanagan was posted
on the NPR website.

The article was titled “The Most Expensive

Record Never Sold – Discogs, Billy Yeager and the $18,000 Hoax
3

That Almost Was.”

The article begins:

hoax that almost was.

“This is the story of a

Its motivating force was a hunger for fame,

or infamy, or whispered legend in a particularly American sort of
way.”

The article describes how a test pressing of plaintiff’s

album titled “Billy Yeager 301 Jackson St.” was auctioned for
$18,000.00 on a resale website – “Discogs” – which is popular with
record collectors.

This broke the record of $15,000.00 bid for a

rare Prince album.

Flanagan wrote that this record-breaking sale

“seems to have been a fiction woven by the record’s creator” and
that the website canceled the transaction.

In other words,

according to Flanagan plaintiff appeared to bid $18,000.00 for his
own record.
almost was.”

This is what Flanagan referred to as the “hoax that
The article includes the following statements:

- - Billy Yeager . . . has pursued musical fame (or at
least notoriety) for 37 years, by his own account.
Despite a clear talent for guitar and a cosmically
eccentric and dubiously effective knack for selfpromotion, Yeager has been stymied repeatedly.
- - The most eccentric – and ill-conceived – example of
his promotional facility, bar none, came when Yeager
spent two years planning and executing a hoax that would
eventually convince a television station and a weekly
paper to believe that he was Jimmy Story, the son of
Jimi Hendrix, who was in possession of lost recordings
from the psychedelic legend.
To pull off the scam,
Yeager dyed his skin brown.
- - [Bruce] Hornsby heard a demo tape of Yeager’s, liked
what he heard and connected Yeager with Capitol Records,
who gave Yeager a shot.
It was the closest he would
come to fame, but it cemented in Yeager’s mind what he’d
thought for some time: that he was destined for, perhaps

4

owed, greatness.
The catalyst Hornsby provided would
become a source of obsession.
- - Embittered, Yeager began to plan the Jimmy Story
bamboozle. After two years of preparation, Jimmy Story
became a cover star. Less than two years after that,
Yeager had assembled, roughshod and chaotic, a
documentary about his life, with the Jimmy Story hoax as
its centrifugal force.
- - A tumble down the rabbit hole of Yeager’s life is
quixotic indeed – relentless failures and his ceaseless
drive to reverse them form a closed loop that only
occasionally reaches out into the real world. Diving
in, you realize quickly you are not in control here,
like Alice chasing the rabbit.
Like a dog chasing a
car.
- - [T]he release of Jimmy’s Story . . . drew the
attention of a Spanish woman named Anais, who traveled
to Florida and became Yeager’s wife . . . After the pair
married they began producing films like Jesus of Malibu
and Sebastien Beach, One Fine Day,1 which attracted minor
attention. Eventually, Yeager began experimenting with
the web and the infinite possibilities it offers, to
those with ample time on their hands, for invention,
obfuscation and, most importantly self-mythology.
- - For all his purported virtuosity and the ostensible
existence of multiple recordings, his music is – besides
grainy footage of Yeager shredding, tank-topped and
beach-browned, in a backyard jam session – practically
inaccessible in an age of ubiquitous access.
- - The trail of (quite arguably) collectible Yeager
ephemera online forms another closed system of dubious
worth, with Yeager at its center and pseudonymous
retailers encircling him.
- - On Discogs, the user who attempted to sell “301
Jackson St.” and nearly broke the site’s record under
the name “southflamusic” has several other Yeager
records for sale, none priced less than $3,200. . . .
Reached over email, “southflamusic” responded using the
name “Al Sharpton,” a pseudonym they said was meant to
protect their business interests.
Asked how they
1

The correct spelling of the title is “Sebastian Beach, One Fine Day.”

5

acquired their copy of “301 Jackson St.,” Sharpton
responded: “I can’t say.” . . . Sharpton did not respond
at press time when asked point-blank if they were in
fact Billy Yeager.
- - The press contact Yeager lists on his site – Chris
Von Weinberg, who is also listed as the writer, producer
and director of a recent documentary about Yeager and
who has no other film credits on IMDb – did not respond
to a request for an interview.
That’s because Von
Weinberg is Yeager, says John F. Stacey.
“Chris Von
Weinberg.
That’s Billy.
As he’s migrated onto the
Internet he’s created all these fake identities.”
- - Everything about this tale points to Yeager having
bought his own unknown record from himself, short of
Yeager actually admitting it.
- - This is a man more interested in the chase than in
the catching.
The story of Billy Yeager is one of
purposeless obfuscation. Yeager told Stacey he should
be playing stadiums, not local bars.
- - Yeager, for all the belief he has in his promise and
his failures expressing it, has repeatedly poured more
of his creative energy into being a trickster-booster
than he has an artist. If that art does indeed exist,
we’ll probably never hear it at a price we’re willing to
pay.
On March 24, 2017, Audie Cornish of NPR interviewed defendants
Flanagan and Ganz regarding a few pieces of music news.

During

the interview she questioned them about Flanagan’s “reporting”
regarding Yeager and the sale of “Billy Yeager ephemera.”
No. 13-2, p. 21.

Doc.

Flanagan explained that his report started with

an email from Discogs about the record for the most expensive album
sold on the site.

Flanagan referred to Yeager as “a complete

unknown” who sold the album on Discogs to himself to “get this

6

strange type of publicity that he’s been seeking his entire life.”
Id. at p. 22.

Ganz stated:

“This guy, as good as he might possibly be, is far more
interested in infamy than he is in fame and the chase of
pulling the wool over people’s eyes. He’s a huckster.
He’s a charlatan. The fact that you can do that on the
Internet as well as you can anywhere else is just sort
of like part of the long story of people in the music
industry doing crazy things I think.”
Id.
Plaintiff alleges that he communicated several times with
Ashley Messenger, seeking without success for defendants to issue
a retraction and to have the article and interview removed from
NPR’s website.
The complaint alleges five counts of defamation or slander
arising from the original publication or broadcast of the abovedescribed article and interview or from the republication or
rebroadcast on social media or other platforms.
III. Rule 12(b)(6) standards
Defendants seek dismissal under Fed.R.Civ.P. 12(b)(6) for
failure to state a claim. To determine whether the complaint fails
to state a claim pursuant to this rule, the court must decide
whether

the

complaint

contains

“sufficient

factual

matter,

accepted as true, to ‘state a claim for relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The court

accepts the plaintiff’s well-pled factual allegations as true and
7

views them in the light most favorable to the plaintiff.
States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009).

United

The court

may also consider the exhibits attached to the complaint or
referenced in the complaint.

Id.

The court, however, is not

required to accept legal conclusions alleged in the complaint as
true.

Iqbal, 556 U.S. at 678.

Mere “labels and conclusions” and

“a formulaic recitation of the elements of a cause of action” will
not suffice” to state a claim.

Twombly, 550 U.S. at 555.

“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.

“The plausibility standard is not akin to

a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.

“Where a

complaint

with’

pleads

defendant's

facts

liability,

that
it

are

‘stops

‘merely
short

consistent

of

the

line

a

between

possibility and plausibility of “entitlement to relief.”’”

Id.

(quoting Twombly, 550 U.S. at 557).
IV. Pro se standards
“A pro se litigant's pleadings are to be construed liberally
and held to a less stringent standard than formal pleadings drafted
by lawyers.”
1991).

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

A pro se litigant, however, is not relieved from following

the same rules of procedure as any other litigant. See Green v.
8

Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).

A district court

should not “assume the role of advocate for the pro se litigant.”
Hall, supra. Nor is the court to “supply additional factual
allegations to round out a plaintiff's complaint.”

Whitney v.

State of New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).
V. Defamation standards
Kansas

law

and

federal

constitutional

Plaintiff alleges defamation and slander.2

law

apply

here.

In Kansas, the tort of

defamation includes both libel and slander. Dominguez v. Davidson,
974 P.2d 112, 117 (Kan. 1999)(quoting Lindemuth v. Goodyear Tire
& Rubber Co., 864 P.2d 744, 750 (Kan.App. 1993)).
defamation claim requires proof of:

A valid

(1) false and defamatory

statements; (2) the defendant communicated these statements to a
third party; and (3) the plaintiff’s reputation was injured by the
statements.

El-Ghori v. Grimes, 23 F.Supp.2d 1259, 1269 (D.Kan.

1998); see also In re Rockhill Pain Specialists, P.A., 412 P.3d

2

Plaintiff mentions “false light” invasion of privacy at p. 21 of the
complaint. Plaintiff relies upon the same facts and arguments to support
this claim as the facts and arguments raised to support his defamation claim.
The reasons given in this order for holding that plaintiff has failed to
state a claim for defamation apply to dismiss plaintiff’s “false light”
claim. See Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir. 1983)(applying
same defenses to both causes of action); Stead v. U.S.D. No. 259, 92
F.Supp.3d 1088, 1109 (D.Kan. 2015)(the two claims are generally treated the
same way); Castleberry v. Boeing Co., 880 F.Supp. 1435, 1442 (D.Kan.
1995)(courts treat the two claims similarly); Restatement (Second) of Torts §
652E (1977)(comment e)(it is arguable that limitations placed on defamation
should apply to false light claims).

9

1008, 1024 (Kan.App. 2017)(quoting Hall v. Kansas Farm Bureau, 50
P.3d 495 (Kan. 2002)).
Subjective statements and statements of opinion are protected
by the First Amendment as long as they do not present or imply the
existence of defamatory facts which are capable of being proven
true or false.

Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-

19 (1990); Pan Am Systems Inc. v. Atlantic Northeast Rails and
Ports, Inc., 804 F.3d 59, 65 (1st Cir. 2015).
to

be

determined

by

the

court.

This is a question

Robinson

v.

Wichita

State

University, 2017 WL 2378332 *4 (D.Kan. 5/31/2017); D’Souza-Klamath
v. Cloud Cty. Health Ctr., Inc., 2009 WL 902377 *10 (D.Kan.
3/31/2009).
Vague language that is subject to multiple interpretations is
generally not actionable.
713

(D.C.

See Montgomery v. Risen, 875 F.3d 709,

2017)(characterization

of

software

sold

to

the

government as a “hoax” is too “loose, figurative or hyperbolic” to
be

considered

defamatory);

Hogan

v.

Winder,

762

F.3d

1096,

1107(10th Cir. 2014)(“performance issues” & “erratic behavior” –
too vague and nonspecific to be defamatory); Gray v. St. Martin’s
Press, Inc., 221 F.3d 243, 249 (1st Cir. 2000)(what is success or
failure in the situation of a public communications firm is very
much a matter of opinion); Phantom Touring, Inc. v. Affiliated
Publi’ns, 953 F.2d 724, 728 (1st Cir. 1992)(description of a musical
comedy version of “Phantom” as “a rip-off, a fraud, a scandal, a
10

snake-oil job” is too subjective to be proven true or false, even
the charge of “blatantly misleading the public” is subjective and
imprecise); Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d
122, 129-30 (1st Cir. 1997)(“trashy” is subjective and cannot be
verified); McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987)(the
word “scam,” used in an article regarding a timeshare sales
program, is incapable of being proven true or false); Robinson v.
Wichita

State

University,

2018

WL

836294

*12

(D.Kan.

2/13/2018)(“too bureaucratic” is subjective and nondefamatory);
Ayyadurai v. Floor64, Inc., 270 F.Supp.3d 343, 361-62 (D.Mass.
2017)(“charlatan” used in a loose figurative manner cannot be
defamatory); Robinson, 2017 WL 2378332 at *4 (“too hierarchal” and
“too

punishment-centered”

are

subjective

and

nondefamatory);

D.Kan. 5/31/2017); Clark v. Time Inc., 242 F.Supp.3d 1194, 1219
(D.Kan. 2017)(“disturbing” management style is subjective and
nondefamatory); McKee v. Cosby, 236 F.Supp.3d 427, 445 (D.Mass.)
aff’d, 874 F.3d 54 (1st Cir. 2017)(“The judgment of an individual’s
credibility is not an objective fact capable of being proven true
or false”); Paterson v. Little, Brown & Co., 502 F.Supp.2d 1124,
1135

(W.D.Wash.

2007)(“ripoff”

is

imprecise

and

incapable

of

defamatory meaning); Metcalf v. KFOR-TV, Inc., 828 F.Supp. 1515,
1530 (W.D.Okla. 1992)(statement that a medical organization was a
“sham” perpetrated by “greedy doctors” is a matter of opinion);
NBC Subsidiary (KCNC-TV), Inc. v. Living Will Center, 879 P.2d 6,
11

11 (Colo. 1994)(en banc)(statement that a product is a “scam” as
a statement of its value is not a defamatory statement).
Defamation cannot arise where the speaker communicates the
nondefamatory facts that undergird his opinion.

Piccone vs.

Bartels, 785 F.3d 766, 771 (1st Cir. 2015); Ross v. Rothstein, 2014
WL 1385128 *8 (D.Kan. 4/9/2014).

Even if an expression of opinion

may have been skewed by a vindictive motive, if it is “‘based on
disclosed or assumed nondefamatory facts [then it] is not itself
sufficient for an action of defamation, no matter how unjustified
or unreasonable the opinion may be or how derogatory it is.'”
Piccone, 785 F.3d at 774 (quoting Yohe v. Nugent, 321 F.3d 35, 42
(1st Cir. 2003))).

“[E]ven a provably false statement is not

actionable if it is plain the speaker is expressing a subjective
view, an interpretation, a theory, conjecture, or surmise, rather
than claiming to be in possession of objectively verifiable facts.”
Riley v. Harr, 292 F.3d 282, 289 (1st Cir. 2002)(interior quotation
omitted).

If defendants fully disclosed the facts supporting an

opinion and if those facts are not false and defamatory, then
neither the opinion nor the statement of facts is defamatory
because it is a pure opinion.

Piccone, 785 F.3d at 771-72;

Restatement (Second) of Torts § 566 (1977).
If the subject of an alleged defamatory statement is a matter
of public concern, then the First Amendment requires that the
alleged defamatory statement be published with actual malice.
12

Brokers’ Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d
1081, 1109 (10th Cir. 2017). “[P]ublic concern is something that
is a subject of legitimate news interest; that is, a subject of
general interest and of value and concern to the public at the
time of publication.”
84 (2004).

City of San Diego v. Roe, 543 U.S. 77, 83-

Actual malice must also be proven for a public figure

to recover damages for defamation.
1004 (10th Cir. 2010).

Mink v. Knox, 613 F.3d 995,

Public figures can be “general-purpose

public figure[s]” — people of “such pervasive fame or notoriety”
that they are public figures “for all purposes and in all contexts”
— or “limited-purpose public figure[s]” — people who voluntarily
enter or are “drawn into a particular public controversy” and
thereby become public figures “for a limited range of issues”
defined by their “participation in the particular controversy
giving rise to the defamation.”
U.S. 323, 351–52 (1974).

Gertz v. Robert Welch, Inc., 418

This is a question of law.

Ruebke v.

Globe Communications Corp., 738 P.2d 1246, 1251 (Kan. 1987).
“Actual malice” is “knowledge that [the statement] was false
or with reckless disregard of whether it was false or not.”
York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

New
“The

mere failure to investigate cannot establish reckless disregard
for the truth.”

Gertz, 418 U.S. at 332.

“Rather, there must be

‘sufficient evidence to permit the conclusion that the defendant
in

fact

entertained

serious

doubts
13

as

to

the

truth

of

his

publication.’”

Revell v. Hoffman, 309 F.3d 1228, 1233 (10th Cir.

2002)(quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)).
This is a subjective inquiry – “’there must be sufficient evidence
to permit the conclusion that the defendant had a high degree of
awareness of . . . probable falsity.’”
Communications,

Inc.

v.

Id. (quoting Harte-Hanks

Connaughton,

491

(1989)(interior quotation marks omitted)).

U.S.

657,

688

“Reckless disregard

‘is not measured by whether a reasonably prudent man would have
published, or would have investigated before publishing.’”

Id.

(quoting St. Amant, 390 U.S. at 731).
VI. The alleged false and defamatory statements do not plausibly
support a claim for defamation or slander.
The complaint does not present a crystal clear list of the
statements which plaintiff alleges are defamatory.

Defendants

have compiled a list in an appendix to the motion to dismiss (Doc.
No. 13-1) which plaintiff in his response brief has not disputed
or claimed to be incomplete.
the

list

does

not

mention

But, it appears to the court that
statements

plaintiff

defamatory in ¶¶ 151, 154 and 156 of the complaint.

alleges

are

Defendants,

however, have broadly alleged reasons to find that plaintiff has
failed to state a defamation claim and defendants assert that these
reasons

apply,

complaint.

in

whole

or

in

Doc. No. 14, pp. 15-17.

part,

to

plaintiff’s

entire

As explained below, the court

agrees that least some of those reasons apply to all of the

14

statements

plaintiff

alleges

to

be

defamatory,

even

those

statements which are not listed in the appendix to defendants’
motion to dismiss.
The court relies upon some of the legal principles and cases
cited in the previous section of this order in the rulings made
here. The court finds that the article and the interview described
in the complaint involve a matter of public concern and that
plaintiff’s part in the story makes him in a limited-purpose public
figure.

See

Ruebke,

738

P.2d

at

1251

(an

individual

who

voluntarily injects himself or is drawn into a particular public
controversy may become a public figure for a limited range of
issues).

The court reaches this conclusion for the following

reasons.

Plaintiff’s album’s sale on Discogs for $18,000 broke by

$3,000 the mark set by a Prince album for most money paid for an
album on Discogs.

Prince is a world-famous musician of course,

who died approximately eleven months before the publication of the
article

and

the

interview

at

issue

in

this

case.

Discogs

publicized the sale with an email received by defendants Flanagan
and Ganz, who considered it sufficiently newsworthy to investigate
and compose an article for a major national news source.
A. “He’s a huckster.

He’s a charlatan.”

In ¶ 141 of the complaint, plaintiff alleges this statement
by defendant Ganz during the broadcast of “All Things Considered”
was slander.

The facts plaintiff asserts do not plausibly support
15

this claim. Defendants contend, and the court agrees, that this
comment

constitutes

an

opinion

therefore is not defamatory.

based

on

disclosed

facts

and

During the interview, Ganz and

Flanagan describe their investigation of the largest amount bid
for an album on Discogs and how it “seemed” that plaintiff bid the
record-breaking sum on his own album.

Ganz concluded that this

was a use of the Internet by plaintiff to gain attention and “part
of the long story of people in the music industry doing crazy
things.”

Doc. No. 13-2, p. 22.

This supplies the factual basis

for the opinion that plaintiff was a “huckster” or a “charlatan.”
The alleged fact that plaintiff bid on his own album on Discogs is
not defamatory, even if it is false.3

Therefore, the statement is

not defamatory because it is an opinion drawn from an alleged nondefamatory fact.
In addition, the terms “huckster” and “charlatan” are vague
and subject to multiple interpretations.

Ayyadurai, 270 F.Supp.3d

at 361-62 (so finding in regards to “charlatan”).

They could be

terms, for example, for a salesperson, a puffer, a politician or
a performance artist.

Therefore, they are not capable of being

proved to be true or false.

3

Plaintiff also has not alleged facts which would plausibly demonstrate actual
malice by defendants in concluding that plaintiff bid on his own album.

16

B. “This is the story of a hoax that almost was.
motivating force was a hunger for fame or infamy.”

Its

In ¶ 143 of the complaint, plaintiff alleges that this
statement

in

defendant

Flanagan’s

article

was

defamatory.

Plaintiff’s alleged facts do not plausibly support this charge.
The

statement

is

an

expression

of

opinion

based

upon

facts

disclosed in the article. Moreover, the description of plaintiff’s
motivation is not verifiable. Ayyadurai, 270 F.Supp.3d at 365 (a
number of courts have recognized that a person’s motivations can
never been known for sure); Murray v. Huffington Post.com, Inc.,
21

F.Supp.3d

879,

886

(S.D.Ohio

2014)(suggestion

of

improper

motive is not verifiable because there are no objective tests to
determine

internal

motivation).

Plaintiff

takes

particular

offense toward comments suggesting he has sought fame and offers
testimony in support of his artistic and humanitarian impulses.
The court will not dispute the considerable evidence plaintiff has
mustered in support of his character and abilities.
not an issue for litigation here.

But, this is

The court sides with the view

in other defamation cases that statements concerning plaintiff’s
“motivation or intent are not actionable because they are incapable
of being proved true or false.”

Ayyadurai, 270 F.Supp.3d at 365.

C. “Billy Yeager, a Florida man who has pursued musical fame
(or at least notoriety) for 37 years, by his own account”
In ¶¶ 144 and 145 plaintiff asserts that this statement is
false and defamatory in two respects.
17

First, plaintiff contends

that it is defamatory to state that he pursued fame and notoriety.
Second,

plaintiff

claims

that

it

is

defamatory

to

say

that

plaintiff has engaged in that pursuit for 37 years because it makes
plaintiff appear pathetic.

Plaintiff does not argue that he has

been involved in the business of music and filmmaking for 37 years.
He argues that he has never pursued notoriety or fame.
contention,

however,

returns

the

court

to

the

question

plaintiff’s motivation which is not an actionable claim.

This
of
In

addition, fame and notoriety have vague meanings which include
being generally known or talked of.

It is impossible to base a

defamation claim upon such vague language.
D. “Yeager has been stymied repeatedly.”
In ¶ 146 plaintiff asserts that this statement from defendant
Flanagan’s article is false and defamatory and, as rebuttal, cites
many accomplishments in his music and film careers. This statement
is a subjective opinion based on disclosed facts.

In his article,

Flanagan describes the “Jimmy Story” project, the canceled sale of
the

“301

Jackson

St.”

album,

Yeager’s

contract

with

Capitol

Records, and the “minor attention” given to Yeager’s films to
support this opinion.4

Therefore, plaintiff has not stated a claim

for defamation in ¶ 146.

In addition, “success” is a vague term

which can be defined by any number of criteria.

4

Gray, 221 F.3d at

Again, plaintiff does not allege facts plausibly demonstrating actual malice
by defendants in reciting the “disclosed facts” to support defendants’ opinions.

18

248. Plaintiff’s argument appears to be that it was defamatory for
Flanagan to state that he has been “stymied” or unsuccessful.
This, however, cannot be proven as true or false.
E. “Yeager spent two years planning and executing a hoax.”
Plaintiff asserts in ¶ 147 that this statement is false and
defamatory because the “Jimmy Story” effort was not a hoax; rather
it was performance art and artistic protest.

The use of the term

“hoax” is a subjective opinion supported by disclosed facts.5

It

is also a vague term which cannot be proven true or false in a
defamation trial.

Montgomery, 875 F.3d at 713.

Therefore, ¶ 147

does not assert a plausible claim of defamation.
F. “Embittered,
bamboozle.”

Yeager

began

to

plan

the

Jimmy

Story

In ¶ 9 of the complaint, plaintiff lists this statement, among
others,

as

defamatory.

Like

the

statements

discussed

in

subsections VI(B) and VI(E), this statement is a subjective opinion
supported by disclosed facts.

It also makes assertions regarding

emotion or motivation which cannot be verified.

Finally, it uses

a vague term (“bamboozle”) which also cannot be verified as true
or false.

Therefore, the statement does not provide plausible

grounds for a defamation claim.

5

This applies as well to the use of the term “hoax” in the alleged defamatory
statement discussed in subsection VI(B).

19

G. “To pull off his scam.”6
Plaintiff

alleges

in

¶

148

of

statement was false and defamatory.
basically

the

same

as

those

the

complaint

that

this

Plaintiff’s arguments are

discussed

in

subsection

VI(E).

Plaintiff denies that he swindled anyone and claims that this
alleged defamatory statement says otherwise.

The context of the

statement is a discussion of the “Jimmy Story” project.

The

article does not allege people were cheated out of money or
possessions.

But it quotes a Miami Herald article describing the

“Jimmy Story” effort as:
“an incredibly detailed hoax - - including forged
photos, signatures and birth certificate - - that was
two years in the making by itinerant surfer/musician
Billy Yeager. He then called The Herald to claim, er,
credit for the hoax, executed for attention.”
The court concludes for the reasons given in relation to ¶ 147,
that the term “scam” was used as a subjective characterization
supported by disclosed nondefamatory facts.

Moreover, “scam” is

a vague and imprecise term which cannot be proven as true or false.
McCabe, 814 F.2d at 842.

Therefore, plaintiff has failed to state

a claim as to the statement alleged in ¶ 148.

6

The actual statement in the article appears to be “To pull off the scam,
Yeager died his skin brown.” Doc. No. 13-2, p. 6.

20

H. “[N]ote that many – to most of the clippings included in
that image, such as the story from ‘New York Times’ are clearly
fake.”
In ¶ 149, plaintiff alleges that this statement is false and
defamatory.

The statement apparently refers to an image of a

collage of articles which once appeared on plaintiff’s website.
See Doc. No. 13-2, p. 33.

In the center of the image are pictures

of front-pages of several major metropolitan American newspapers
and a few foreign newspapers.

These pictures do not appear to

show articles about plaintiff.

The outer portion of the collage

contains

regarding

pictures

of

articles

plaintiff

from

other

newspapers or periodicals.
Plaintiff does not provide a plausible basis to claim that
the statement in ¶ 149 constitutes defamation for the following
reasons. First, the statement is an opinion based upon a disclosed
non-defamatory fact.

Second, plaintiff has not alleged facts

plausibly demonstrating that the statement was made with actual
malice.

Finally, whether in fact the “fake clippings” constitute

“many” or “most” of the clippings in the collage is not material
to whether the statement is defamatory.

Brokers’ Choice of

America, 861 F.3d at 1107 (“Minor inaccuracies do not amount to
falsity so long as the substance, the gist, the sting, of the
libelous charge is justified.”).

21

I. “Hornsby heard a demo tape of Yeager’s, liked what he heard
and connected Yeager with Capitol Records, who gave Yeager a shot.
It was the closest he would come to fame, but it cemented in
Yeager’s mind what he’d thought for some time:
that he was
destined for, perhaps owed, greatness.”
In

¶

150

of

the

complaint,

plaintiff

asserts

that

the

underlined portion of this statement from the Flanagan article is
false and defamatory.
despised

fame

unless

humanitarian reasons.”

Plaintiff asserts that he “has always
it

is

used

for

raising

Doc. No. 1, pp. 75-6.

awareness

for

Plaintiff contends

he has been guided to choose a path other than fame and that he
has always known that his purpose was to help his fellow man.

Id.

Again, while the court does not dispute plaintiff’s description of
his motivation, the statement referred to in ¶ 150 is a nonverifiable commentary regarding plaintiff’s incentive or purpose.
As such, it does not provide a plausible basis for a defamation
claim.
J. “The catalyst Hornsby provided would become a source of
obsession.”
In ¶ 151 of the complaint, plaintiff alleges that this
statement was false and defamatory.

Plaintiff claims that he was

inspired by and extremely grateful to Hornsby, but that plaintiff
was not obsessed “with anything other than using his talents to
help

those

who

cannot

help

themselves,

raising

conscious

awareness, becoming truth, and standing on the pillar of truth
blasting a trumpet that calls all people to repent of their

22

vanities and stupidities . . .”

Id. at pp. 76-77.

and obsession are both related to motivation.

Inspiration

Whether plaintiff

was inspired or obsessed with Hornsby’s favorable interaction is
not verifiable and cannot be grounds for a defamation claim as
previously discussed.
K. “A tumble down the rabbit hole of Yeager’s life is quixotic
indeed – relentless failures and his ceaseless drive to reverse
them form a closed loop that only occasionally reaches out into
the real world.”
In ¶ 153 of the complaint, plaintiff asserts that this
statement in the Flanagan article is false and defamatory because
he has not suffered relentless failures.

Plaintiff asserts that

the claim has been proven false, apparently referring to his
rebuttal of the claim that he has been “stymied repeatedly.”

This

commentary by Flanagan is not plausibly defamatory for the reasons
given in relation to the remark that plaintiff has been “stymied
repeatedly.”

The question of success or failure may always be

legitimately debated, particularly in the field of art or music.
The opinion stated by Flanagan cannot be verified as wrong and
even if it were considered wrong, it is not defamatory because it
is based on disclosed nondefamatory facts.

23

L. “But the release of ‘Jimmy’s Story,’ which Stacey praised,
drew the attention of a Spanish woman named Anais, who traveled to
Florida and became Yeager’s wife.”7
In ¶ 154 of the complaint, plaintiff asserts that this
statement is false and defamatory.

“A statement is defamatory if

it diminishes the esteem, respect, goodwill or confidence in which
the plaintiff is held or excites adverse, derogatory or unpleasant
feelings

or

opinions

against

him.

A

necessarily involves the idea of disgrace.”
at 1217 (interior quotations omitted).

defamatory

statement

Clark, 242 F.Supp.3d

There is no derogatory

meaning conveyed in the statement described in ¶ 154.

Therefore,

it does not provide plausible grounds for a defamation claim.
M. “For all his purported virtuosity and the ostensible
existence of multiple recordings, his music is – besides grainy
footage of Yeager shredding, tank-topped and beach browned, in a
backyard jam session – practically inaccessible in an age of
ubiquitous access.”
Plaintiff asserts in ¶ 156 that this statement is false and
defamatory because there are eight other videos that feature
plaintiff’s music.

Plaintiff does not allege facts plausibly

showing that this statement was made with actual malice. Moreover,
the term “practically inaccessible” is vague and unverifiable.
“Practically” indicates exceptions exist to the observation that
plaintiff’s music is “inaccessible” and provides grounds to find
that the statement is not defamatory. See Robinson, 2018 WL 836294

7

“Stacey” is John F. Stacey who Flanagan describes as the author of an
“excellent piece” in the New Times Broward-Palm Beach regarding the production
of “Jimmy’s Story.”

24

at *18 (finding terms “too bureaucratic” and “too hierarchal” to
be unverifiable and nondefamatory).
derogatory.

Also, the statement is not

For all of these reasons, plaintiff may not base a

defamation claim upon the statement highlighted in ¶ 156.
N. “The
obfuscation.”

story

of

Billy

Yeager

is

one

of

purposeless

In ¶ 157, plaintiff asserts that this statement is false and
defamatory because it suggests that plaintiff has no purpose other
to obfuscate and that his art strives to make things unclear or
unintelligible.

This statement is clearly a subjective opinion

based upon disclosed facts drawn from events in plaintiff’s career
which are described in Flanagan’s article.

Plaintiff does not

allege facts plausibly showing that the disclosed facts were stated
with actual malice or are defamatory.

Therefore, the statement in

¶ 157 does not plausibly support a defamation claim.
O. “Yeager, for all the belief he has in his promise and his
failures expressing it, has repeatedly poured more of his creative
energy into being a trickster-booster than he has an artist.”
In ¶ 158, plaintiff contends that this statement is false and
defamatory.
article.

This is the next-to-last sentence in the Flanagan

The final sentence is:

“If that art does indeed exist,

we’ll probably never hear it at a price we’re willing to pay.”
The statement to which plaintiff objects is another expression of
opinion based upon a review of events or projects in plaintiff’s
career. Flanagan concluded from his review that plaintiff employed

25

subterfuge to advance his career.

This opinion is not plausibly

defamatory because it is based upon nondefamatory facts disclosed
in the article and there has been no plausible showing of actual
malice.
P. “Eventually, Yeager began experimenting with the web and
the infinite possibilities it offers, to those with ample time on
their hands, for invention, obfuscation, and most important, selfmythology.”
In ¶ 165, plaintiff alleges this statement is defamatory.
But, this is another example of a subjective opinion which is based
on disclosed facts.
defamation.

Therefore, it does not support a claim of

Plaintiff further asserts that the statement suggests

that plaintiff doesn’t produce meaningful films or music videos
where the contrary is the case.

A defamation claim, however, is

not supported by what is omitted from a publication. “The omission
of

additional

publication

favorable

does

not

information

render

a

from

statement

an

otherwise

materially

true

false.”

Broker’s Choice of America, Inc., 861 F.3d at 1108; see also,
Martin v. Hearst Corp., 777 F.3d 546, 553 (2d Cir. 2015); Janklow
v. Newsweek, Inc., 759 F.2d 644, 648 (8th Cir. 1985).
Finally, plaintiff contends that the statement implies that
plaintiff is lazy because he must have “ample time” on his hands
or just sits in a “cramped apartment.”

The “cramped apartment”

phrase is drawn from a quotation used in the Flanagan article where
it is stated:

“As the [Miami] Herald wrote, years after Hornsby’s

26

co-sign, Yeager was far from success, surviving ‘on odd jobs,’
living ‘in a cramped beach apartment with surfboards on the walls’
with ‘a drawer jammed with hundreds of terse rejection letters
from recording companies.’”

Doc. No. 13-2, p. 7.

not

Herald

claim

that

the

Miami

was

quoted

Plaintiff does

out

of

context.

Moreover, the statements to which he refers in ¶ 165 are vague,
cannot be proven false, and are not derogatory.

Accordingly, the

statements that plaintiff had “ample time” on his hands or sat in
a “cramped apartment” do not plausibly support a defamation claim.
VII. Independent grounds exist to dismiss defendant Messenger.
Defendant Ashley Messenger is legal counsel for NPR.

The

complaint alleges that plaintiff engaged in at least three months
of correspondence with Messenger, insisting that the Flanagan
article and the interview were defamatory and inaccurate, and that
they be taken down, removed or retracted.

Messenger did not take

down, remove or retract the article or interview, although she did
offer on behalf of NPR to consider publishing a response (up to
1500 words) from plaintiff.
The

complaint

does

Plaintiff did not accept this offer.
not

allege

communicated a defamatory statement.

that

Messenger

made

or

Instead, it alleges that

Messenger refused to remove the alleged defamatory material from
the NPR website or other platforms and refused to retract the

27

statements.8

The court believes Kansas law would follow the

holding of other courts that it is not defamation to refuse to
retract a statement or to refuse to remove an alleged defamatory
statement from a website.
Fed.Appx.

495,

506-07

See Clark v. Viacom Intern. Inc., 617
(6th

Cir.

2015)(a

statement

is

not

republished by keeping it continuously available on a website);
Roberts

v.

McAfee,

Inc.,

660

F.3d

1156,

1167-68

(9th

Cir.

2011)(failing to take down a press release does not amount to
republication); McFarlane v. Sheridan Square Press, Inc., 91 F.3d
1501, 1515 (D.C.Cir. 1996)(finding no authority that liability for
defamation may stem from failure to retract a statement); D.A.R.E.
America

v.

Rolling

Stone

Magazine,

101

F.Supp.2d

1270,

1287

(C.D.Cal. 2000)(same).

8

The motion to dismiss contends that this court lacks personal jurisdiction
over Messenger, who does not live or work in Kansas.
Plaintiff, however,
alleges without dispute that Messenger did not take down, remove or retract the
alleged defamatory material after a series of communications between the two
over a three-month period.
The court disagrees with plaintiff that his
allegations are sufficient to state a claim. But, plaintiff makes a barely
sufficient prima facie showing that Messenger purposefully directed allegedly
wrongful actions at plaintiff in Kansas where plaintiff’s career was being
conducted in part and was allegedly damaged. This can be considered adequate
grounds for the exercise of personal jurisdiction over Messenger in this court.
See Calder v. Jones, 465 U.S. 783 (1984); cf., Shrader v. Biddinger, 633 F.3d
1235, 1240-42 (10th Cir. 2011)(no personal jurisdiction over operator of online
internet forum which allegedly defamed author living in Oklahoma where author’s
work was not connected to Oklahoma and the forum did not target an Oklahoma
audience); Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 107273 (10th Cir. 2008)(finding personal jurisdiction over non-resident copyright
holder who allegedly sent erroneous copyright claim to internet auction site
with knowledge that it would damage plaintiff’s business).

28

VIII. Conclusion
The court shall grant plaintiff 21 days from the date of this
order to file an amended complaint which states a claim upon which
relief may be granted.

If plaintiff does not do so, the court

shall dismiss this case with prejudice for the reasons described
in this order.
IT IS SO ORDERED.
Dated this 31st day of July, 2018, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

29