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C. Delores Tucker, the former politician who became a crusader against “gangsta rap” music, on Tuesday lost her bid to revive a defamation suit against Time and Newsweek magazines, but won the right to pursue the same claim against a lawyer. A unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals found that Tucker, a public figure, could not show that the news magazines acted with “actual malice” when they printed accounts of her lawsuit against now-deceased rapper Tupac Shakur that said Tucker was claiming Shakur had destroyed her sex life. But, voting 2-1, the same panel found that Tucker should be allowed to pursue her claim against attorney Richard Fischbein because Fischbein continued, in media interviews, to describe her husband’s loss-of-consortium claim that way even after he received a copy of a suit from Tucker that accused him of defamation for doing so. Tucker’s defamation suit was dismissed by U.S. District Judge Ronald L. Buckwalter, who found that the statements were not capable of defamatory meaning. U.S. Circuit Judge Samuel A. Alito found that the news accounts of Tucker’s suit against Shakur could have damaged Tucker’s reputation by falsely portraying her as claiming that Shakur had destroyed her sex like. In the suit, Tucker focused on five statements: � The statement in Time‘s Sept. 22, 1997 article, “Shakur Booty,” that “The prize for the most bizarre suit … goes to anti-rap warrior C. Delores Tucker, who claims that remarks made about her on Shakur’s album ‘All Eyez on Me’ caused her so much distress that she and her husband have not been able to have sex. She wants $10 million.” � The statement in Newsweek‘s Sept. 1, 1997, article, “Grabbing at a Dead Star,” that “[Tucker] and her husband claim that a lyrical attack by Tupac iced their sex life.” � Fischbein’s comment, quoted in an Aug. 2, 1997, Philadelphia Daily News article, that “It’s hard for me to conceive how these lyrics could destroy her sex life … but we can only wait for the proof to be revealed at trial.” � Fischbein’s Aug. 20, 1997, statement to Newsweek columnist Johnnie L. Roberts that Tucker was bringing suit, in part, to recover for damage to her sex life, and his statement, quoted in the Newsweek article, that “I can’t wait to hear her testimony on that subject.” � Fischbein’s statement to Belinda Luscombe of Time that the suit against Shakur “was brought for emotional distress and that part of that was that … her sexual relationship with her husband was affected.” Buckwalter found that while the statements might be annoying or embarrassing, they could not support a cause of action for defamation. “There is a vast difference between being annoyed and/or embarrassed on the one hand, and being disgraced and ridiculed to the extent that one’s reputation is harmed and lowered in the estimation of the community, on the other,” Buckwalter wrote. Alito disagreed, saying Pennsylvania courts have greenlighted defamation suits over statements “considerably milder than or comparable to those at issue here.” Reading the statements in context and considering “the impression that they were likely to engender in the minds of the average reader,” Alito found that each one was capable of a defamatory meaning. “Mrs. Tucker has led a campaign against the immorality of gangsta rap and those who profit from it. The statements made by the defendants — to the effect that Mrs. Tucker and her husband brought a $10 million lawsuit because Shakur’s lyrics damaged their sex life — carry numerous disparaging implications,” Alito wrote. “Because of the inherent implausibility of the idea that lyrics alone could cause millions of dollars of damage to a couple’s sexual relationship, the statements were capable of making the Tuckers look insincere, excessively litigious, avaricious, and perhaps unstable.” The statements also “tended to suggest that the Tuckers are hypocritical,” Alito found, by implying that after condemning the gangsta rap industry for profiting from pornography, the Tuckers were “only too willing to open up their own sex life for public inspection in order to reap a pecuniary gain.” But Alito found that Tucker had no valid claim against either of the news magazines since she could not meet the test for “actual malice,” which requires proof that the defendant had a “subjective belief that the statement was false when made.” However, the claim against Fischbein presented a different question, Alito found. On appeal, Tucker’s lawyer, Richard C. Angino of Harrisburg, Pa., argued that Fischbein, as a lawyer, should have known that a loss-of-consortium claim may have nothing to do with sexual relations. Alito rejected that argument, finding that since a consortium claim may involve sex, Tucker could never meet the clear-and-convincing test for showing that Fischbein knew that his statements were false. But Alito found that Tucker made a winning argument when she focused on Fischbein’s decision to continue making similar remarks even after he was served with an amended copy of her suit against Shakur that added a claim against Fischbein for making the original remarks. Fischbein’s interview with Time came after the amended suit was personally served on him, Alito noted. “Based on this sequence of events, we are convinced that a reasonable jury could find by clear and convincing evidence that, at least as of the date of the service of the First Amended Complaint, Fischbein had actual knowledge that the Tuckers were not seeking to recover for damage to their sexual relationship,” Alito wrote in an opinion joined by Senior U.S. Circuit Judge Max Rosenn. “Since the First Amended Complaint alleged that Fischbein had defamed the Tuckers by stating that they were attempting to recover for damage to their sexual relations, a reasonable jury could certainly conclude that an attorney who read the complaint would understand that the Tuckers were not going to attempt to recover for such damage,” Alito wrote. Fischbein testified that he did not read the First Amended Complaint before speaking to the Time reporter, but Alito found that “a reasonable jury could believe that a person who is added as a defendant in a multi-million dollar lawsuit is very likely to read the complaint shortly after receiving it in order to see why he or she has been sued.” The jury could disbelieve Fischbein’s story, Alito said, and find by clear and convincing evidence that Fischbein did read the First Amended Complaint before the interview. DISSENT In dissent, U.S. Circuit Judge Richard L. Nygaard said that while he agreed with the dismissal of the claims against Time and Newsweek, he would have upheld Buckwalter’s decision to dismiss the entire suit. “The question over which the majority and I disagree is a fairly narrow one, and I would characterize it in the following manner: After all of the Tuckers’ actions and comments to the contrary, did the language in the Amended Complaint sufficiently clarify the parameters of the loss of consortium claim so that a reasonable jury could find that Fischbein’s comments to Time magazine were made with a reckless disregard for the truth? I strongly believe the answer is no.” Nygaard found that the language of the Amended Complaint, in the context of the Tuckers’ previous statements and actions, was insufficient to indicate a change in their attitude toward alleging a loss of sexual relations. “In spite of all the media attention, and all the harm that it supposedly caused, the complaint failed to contain a simple, categorical statement that the Tuckers were foregoing any claim for interference with sexual relations. Instead, it continued to allege that Mr. Tucker had ‘suffered a loss of … consortium,’ using the very same language that was contained in the original.” The only addition, Nygaard said, was a short paragraph stating that Mrs. Tucker did not file the original suit because of a loss of sexual relations. “My conclusion is underscored by the fact that one month later, and simultaneous with the filing of the complaint at issue in this appeal, the Tuckers filed a Second Amended Complaint to Tucker II, in which they unequivocally stated, for the first time, that they were not seeking damages for interference with sexual relations. This came far too late to serve as an effective form of notice to Fischbein.” The evidence, Nygaard said, showed that Fischbein, at the time of his conversation with Time magazine, was not aware that the Tuckers intended to relinquish their claims for interference with sexual relations, and that, “even if he was, his comments were not reckless.” As a result, Nygaard said, “I conclude that the Tuckers cannot meet their burden of demonstrating facts sufficient to show that Fischbein made any statements that he suspected were false.”

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