United States District Court, N.D. Alabama, Northeastern Division
JUDSON A. LOVINGOOD, Plaintiff,
DISCOVERY COMMUNICATIONS, INC., et al., Defendants.
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
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).
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.
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.
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 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
SUMMARY JUDGMENT STANDARD
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
non-moving 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).
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
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).
Challenger Disaster” film begins with the following
message displayed in white letters on a black screen:
“This is a true story.” (Doc. 60-26,
1:36). 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.
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). 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,
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.
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. 60-26, 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. 60-26, 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).
second scene portrays Dr. Lovingood and NASA shuttle program
manager Lawrence Mulloy testifying before the Presidential
Commission. In the scene, Dr. 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
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
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).
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 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