ZERAN V. DIAMOND BROADCASTING, INC. 203 F.3d 714 (10th Cir. 2000) CASE BRIEF

ZERAN V. DIAMOND BROADCASTING, INC.

203 F.3d 714 (10th Cir. 2000)

NATURE OF THE CASE: Zeran (P) appealed a summary judgment to Diamond (D) on P's claims alleging defamation, false light invasion of privacy, and intentional infliction of emotional distress. D cross-appealed the denial of its application for costs.

FACTS: After the bombing of the Alfred P. Murrah Federal Building in downtown Oklahoma City, a posting appeared on an Internet bulletin board announcing the availability for sale of 'Naughty Oklahoma T-Shirts,' bearing such slogans, to repeat only the least offensive, as 'Rack'em, Stack'em and Pack'em -- Oklahoma 1995' and 'Visit Oklahoma -- it's a Blast.' Another slogan crudely referenced the children who died in the bombing. The posting was made by someone using the screen name 'Ken ZZ03 ' and indicated that the shirts could be ordered by telephone. The number provided was P's business telephone number. P is an accomplished artist, photographer, and film maker. The true identity of Ken ZZ03 remains unknown, as the account was opened with false information under AOL services. The perpetrator continued under different names to post P's phone number. P began receiving phone calls, which he described as 'negative,' 'unpleasant,' and 'nasty and threatening.' The additional postings were made on April 26, 1995, and on April 28, 1995. P demanded AOL remove the postings but it declined. D owns KRXO, a classic-rock radio station in Oklahoma City. On April 29, 1995, an AOL member sent an e-mail containing a copy of the original, offensive posting to one of KRXO's on-air personalities, Mark ('Shannon') Fullerton, who, together with Ron ('Spinozi') Benton, hosted the 'Shannon & Spinozi Show,' a drive-time morning show, which usually consisted of light-hearted commentary, humor, and games. In the aftermath of the bombing, and continuing for a period of four to six weeks thereafter, however, the show had become a forum for discussion of the bombing and expression of the emotions it aroused. Its tone was serious and somber. Shannon immediately learned that the AOL screen name was not longer valid. Shannon did not call the number because it was before business hours. Shannon then went live and read P's phone number on air. P got 80 very angry phone calls which included death threats. D eventually retracted the statements. P visited a family physician and got an anti-anxiety drug. P sued D for defamation, false light invasion of privacy, and intentional infliction of emotional distress. The district court granted D's motion for summary judgment on all claims. P appealed.

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