In internal e-mails, ESPN executives overseeing a 2004 documentary about boxing promoter Don King encouraged producers to portray King as a "huckster," "thug" and an "evil mob-connected guy." They even requested "more ominous" background music for parts of the documentary.
But those directives don't constitute libel, according to a Florida trial court judge who tossed out King's $2.5 billion suit in a summary judgment ruling for ESPN.
"The defendant argues that it is irrelevant whether or not the producers intended to portray King in a negative light," wrote Judge Robert Rosenberg of the 17th Judicial Circuit in Broward County, Florida. "The court agrees."
Weil, Gotshal & Manges partner James Quinn represented ESPN; the network and its parent, The Walt Disney Company, are longtime firm clients, Quinn says.
Quinn's basic argument was straightforward: King could not prove that ESPN acted with malice and that statements made in the documentary were false
-- the two criteria a public figure must meet in order to win a libel case.
Still, says Bruce Rogow, a private attorney and First Amendment expert who has represented Donald Trump and the rap group 2 Live Crew, the internal e-mails "show a reckless disregard for the truth." King's trial lawyers from Willie Gary's firm Gary, Williams, Finney, Lewis, Watson & Sperando retained Rogow to help in the case. (The dismissal added to what's already been a bad week for Gary, who submitted sex tapes in a civil case in which he's accused of raping a former secretary.)
"Public figure defamation cases are always difficult," Rogow says. "But I thought we had enough here to get by summary judgment." He says King's team will appeal to a state appeals court.
Tricia Hoffer, the lead Gary attorney on the case, was not immediately available for comment.
At the heart of King's case were five statements made in the biopic. Three concerned his alleged failure to live up to financial obligations, including an $85,000 donation to a hospital he apparently never made in full. The two others were from individuals, including a rival promoter, who claim King threatened to kill them.
King's lawyers argued ESPN's producers never tried to provide his side of the story and never revealed that the promoter, Don Elbaum, has a criminal record.
Judge Rosenberg ruled that those allegations were irrelevant; biased reporting or a failure to investigate thoroughly does not constitute libel of a public figure, the judge wrote. He also wrote that most of the material covered in the film was not new and had been covered extensively by the media.
ESPN execs claimed they interviewed 45 sources for the doc and asked King to participate, but the promoter declined to comment.
The judge used the ruling to take a shot at the state of boxing in addressing King's claims about Elbaum's records. "Contemporary boxing has been described as a 'subterranean world,'" the judge wrote. "It comes as no surprise King may have associated with people who were unsavory or labeled as 'con artists.'"
Not a ringing endorsement of the sweet science.
