Case 5:12-cv-00836-DEP Document 97-1 Filed 09/30/15 Page 1 of 17

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK
------------------------------------

LAURIE J. FINE,

Index No. 5:12-cv-00836 (DEP)

:
Plaintiff,

-against-

ESPN, Inc., a subsidiary of Walt Disney, Inc.; MARK

SCHWARZ, in his individual capacity and as an
employee of ESPN, and ARTHUR BERKO, in his
individual capacity and as an employee of ESPN,

Defendants.

ECF Case

:
:
:

------------------------------------

MEMORANDUM IN SUPPORT OF DEFENDANTS

MOTION FOR AN ORDER FINDING PLAINTIFF TO BE
A PUBLIC FIGURE FOR PURPOSES OF THIS LAWSUIT

LEVINE SULLIVAN KOCH & SCHULZ, LLP

Nathan E. Siegel
Thomas Curley (pro hac vice)
Rachel F. Strom
Paul J. Safier (pro hac vice)
1899 L Street, N.W., Suite 200
Washington, DC 20036
(202) 508-1100
Attorneys for Defendants ESPN Inc.,
Mark Schwarz and Arthur Berko

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TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
STATEMENT OF THE FACTS .....................................................................................................1
ARGUMENT ...................................................................................................................................7
A.

THE LIMITED PURPOSE PUBLIC FIGURE DOCTRINE ..............................................7

B.

PLAINTIFF IS A LIMITED PURPOSE PUBLIC FIGURE ..............................................9

1.

Plaintiff Invited Public Attention to

Her Views Prior to the ESPN Reports .....................................................................9

2.

Plaintiff Voluntarily Injected Herself

into Several Relevant Public Controversies ...........................................................10

3.

Plaintiff assumed a position of prominence in the public controversies ...............13

4.

Plaintiff maintained regular and continuing access to the media ..........................14

CONCLUSION ..............................................................................................................................15

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PRELIMINARY STATEMENT
Defendants submit this memorandum in support of their motion to declare Plaintiff to be
a limited purpose public figure. For these purposes, [t]he essential element underlying the
category of public figures is that the publicized person has taken an affirmative step to attract
public attention in connection with public matters that relate to the subject of a news report.
James v. Gannett Co., 40 N.Y.2d 415, 422 (1976), quoted by Lerman v. Flynt Distributing Co.,
745 F.2d 123, 137 (2d Cir. 1984). Plaintiff is the archetypical limited public figure.
Mrs. Fine has long been prominent in Syracuse. But in particular, prior to the news
reports at issue she sought and received substantial public attention as a television and radio
commentator who focused on promoting two perennially debated public matters: the Syracuse
basketball team and the cause of child welfare, essentially holding herself out as a philanthropist
for at-risk youth. ESPNs news reports then addressed how she did not protect a minor
connected to the team from being abused. Mrs. Fine responded by launching this lawsuit with a
flurry of self-generated publicity. This scenario is exactly what the Supreme Court had in mind
when it articulated the public figure doctrine, and Plaintiff readily qualifies as a public figure.
STATEMENT OF THE FACTS
Plaintiff Laurie Fine married Bernie Fine in 1985. Compl. 3. For many years Mr. Fine
was an assistant basketball coach at Syracuse University, one of the most successful NCAA
programs in the country that is revered locally. Id. 19-21. As a result, Plaintiff has long
been a familiar face in Syracuse and a regular fixture at basketball games, university sports
banquets, and other such events. Id. 21 (As the wife of an assistant coach, Laurie became
close with the Syracuse community in which the basketball program was revered); Pls Dep. at

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14:8-15.1 For example, when she opened her own business in 2006, it attracted no fewer than
two news reports on television and two articles in the Post-Standard. Curley Decl. Exs. C & D.2
Beginning in 2009, Mrs. Fine raised her public profile even more to really come into
myself and really make a name, you know, a good name for myself. Pls Dep. at 194:16-17.
Thus, prior to November 2011, Plaintiff made numerous appearances on television and radio to
promote the basketball program and to advocate for at-risk youth. For example, in March 2010
Mrs. Fine served as a guest reporter for two news broadcasts on Syracuses WSYR television
station, going behind the scenes with Laurie Fine to interview both Bernie Fine and assistant
coach Mike Hopkins to discuss how coaches prepare for tournament games. Curley Decl. Ex. E
(March 2010 broadcasts). Plaintiff then became a substitute co-anchor of Bridge Street, a public
affairs program on WSYR. Id. Ex. B (excerpted compilation of television appearances). Mrs.
Fine also gave multiple interviews as a guest on the same program throughout 2010 and 2011.
Id.
On Bridge Street she regularly promoted the Syracuse basketball program and her own
ability to give us the inside scoop about whats going on with the basketball team. Curley
Decl. Ex. F at 3:23-5:40 (discussing player injuries and the incoming recruiting class); id. Ex. G
at 48:25-51:10 (discussing player injuries); see also Ex. B (first and third compilation excerpts).
Dubbed Coach Laurie, she interviewed her husband several times on the air, and in June 2011,

The record materials cited are attached to the accompanying declaration of Thomas
Curley (Curley Decl.). Plaintiffs deposition testimony is attached as Exhibit A. A
compilation of the relevant excerpts from the Bridge Street television programs referenced is
attached as Exhibit B. Copies of the full television programs are also attached and time codes
identifying the quoted material in relation to the start of those DVD exhibits are provided herein.
2

Courts may take notice of media coverage regarding a plaintiff for purposes of
determining public figure status. See e.g., Biro v. Conde Nast, 963 F. Supp. 2d 255, 271-72
(S.D.N.Y. 2013).
2

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she even urged children to attend the very summer Big Orange Basketball Camp that ESPN
would later report her husband had used to groom Bobby Davis and Mike Lang for sexual abuse:
Co-Anchor: What does Coach Fine do during the off-season?
Laurie Fine: Were gearing up for three weeks of Big Orange basketball camp.
One week the end of June, two weeks the end of July, we are still taking campers,
right Bern? And we need to fill up the camp, the camp is a state of the art camp,
its run at the Dome, we run about 350-400 players a week there.
Co-Anchor: Really?
Laurie Fine: Really, I think its one of the biggest camps in the Northeast.
Co-Anchor: So he [Bernie] is part of it as far as running it?
Laurie Fine: He is the camp, he is the camp. Bernie is the camp. What were
trying to do is to get people to go to camp . . . These kids Im sure were campers
[referring to highlights of Syracuse players being shown while she is speaking],
very impressive, brings back memories.
Curley Decl. Ex. H at 12:00-12:43 (Ex. B at seventh excerpt). See also id. Ex. I at 7:00-12:24
(Laurie Fine discusses the upcoming season and participates in television interview of Bernie
Fine) (Ex. B at sixth excerpt); accord M. Schwarz Dep. at 209:11-17 (because Syracuse is a
small city and Bernie Fine had been the most important assistant to Jim Boeheim for about 35
years, she was quite prominent in the Syracuse basketball family, and so she was visible in her
activities both involving the program and away from the program) (Curley Decl. Ex. J).
Plaintiff also established herself as a radio personality. In 2011 she appeared weekly on
the popular radio show Big Mike in the Morning to again provide the inside scoop on the
basketball team. Pls Dep. at 42:8-44:12. Also in 2011 she was hired by Galaxy
Communications to co-host her own radio sports program, to provide the womans perspective
on sports. Id. at 195:16-196:5. See also Compl. 26 (the media company hired Laurie to
conduct a radio show discussing the Syracuse Mens Basketball program).

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In addition to promoting the basketball program, Mrs. Fine used her connection to the
university to portray herself as a philanthropist. See id. 22 (In light of her connection to the
basketball program, charitable organizations often competed to employ Laurie in various
capacities.); Pls Dep. at 28:5-24. She was particularly outspoken about the importance of
mentoring at-risk youth. For example, the first Bridge Street program she co-hosted featured a
segment about how a local organization was trying to find adult mentors for at-risk middle
school children the very age at which Davis and Lang alleged they were first molested by
Bernie Fine. Plaintiff emphasized the need to screen mentors to ensure that vulnerable minors
would not be abused:
Co-Anchor: We all know that from time to time kids can get off on the wrong
track and they need to get nudged on the right track. And certainly a good way to
do that is to have a mentor program. And thats where Jason Toriano, of the
Center for Community Alternatives joins us . . . Lets talk about this program, its
a program for children, middle-school children, who are basically at risk,
disadvantaged in some way, maybe they got in trouble with the law, maybe they
need some extra encouragement, and youre looking for some mentors to help get
these kids on the right track.
Mr. Toriano: Thats exactly right. We are working, the Center for Community
Alternatives located in Syracuse, we are working very closely with the Syracuse
city school district. And we are working at trying to place mentors in this
community with middle school students in this community. What it boils down to
is . . . you develop a relationship with the child, you work on homework, you talk
about life, you act as a positive role model for the kid.
Laurie Fine: Why middle school? Because I think a lot of these kids, too, we
start in elementary school, sometimes by the time we get them in middle school
the damage has been done unfortunately. Why middle school as opposed to
getting them when they need you right in the beginning?
*****
Laurie Fine: And you pair them with a mentor. How would you go about
getting your mentors? Do you put like a citywide callout, do you advertise, how
do get the mentors, and how do you screen the mentors that you get?
Mr. Toriano: Thats a very good question . . . As far as the screening is
concerned, clearly thats something that also needs to be done. The Center for
4

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Community Alternatives, we do provide training, but then also people who apply
to be mentors have to undergo an FBI background check.
Laurie Fine: Thats most important, thats most important. Because I think were
so willing sometimes as busy mothers and fathers to put our kids where its the
easiest. And thats why your program is so important because youre doing the
screening to get these kids where they need to be . . . Men like you do this kind of
work which is so important because these kids need positive role models to look
up to so its a great program . . . I could talk about this all day its most amazing.
Curley Decl. Ex. F at 34:39-39:07 (emphasis added); see also Ex. B at second excerpt.
Plaintiff also appeared on the same television program multiple times as a guest to be
interviewed in her own right, often to solicit contributions to the Boys and Girls Club, because
she told the audience that it is very important that we keep the kids safe and off the street.
Curley Decl. Ex. K. For example, on one program she praised the community for rall[ying] to
do a really good job to keep the kids safe, and noted it was important to raise awareness as
well about the problem. Id. at 30:55-34:19; see also Ex. B at fourth excerpt. Mrs. Fine
regularly promised Syracuse basketball memorabilia and appearances by her husband to solicit
support for this cause. See also id. Ex. G at 48:25-51:10 (Plaintiff urges viewers that we got to
keep the kids off the street, promotes a Pig with Pearl basketball tournament); id. Ex. H at
14:01-15:50 (discussing fund raising efforts for Boys and Girls Club); see also Ex. B at third and
eighth excerpts. Accord Ex. L (teddy bears for sale depicting voice recordings that say Go SUthis is Bernie Fine This is Laurie Fine).
The record demonstrates that Plaintiff succeeded in promoting herself as a champion for
at-risk youth, as indeed her own Complaint emphasizes. Compl. 23-25, 193 (asserting
Plaintiff has established a professional reputation as a nonprofit fundraiser, particularly in the
area of childrens organizations, where her experience is almost exclusively focused). See also
Pls Doc. Response No. 34 (Mrs. Fine has honored by two NBA fund raising events, as well as

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for her charitable fund raising work for Make A Wish Foundation, Miss Orange events, The
Boys and Girls Club, Enable, and The Kidney Foundation) (Curley Decl. Exhibit M).
By 2011 the Post-Standard was referring to Ms. Fine as a philanthropist and reported
about her scheduled participation in a contest featuring other local celebrities. Curley Decl. Ex.
N (attaching articles). Another Bridge Street program promoted a fundraising event at Coach
Bernie and Laurie Fines House supporting a local organization that makes such a significant
impact in the lives of at-risk youth by providing a place where they feel safe. Curley Decl.
Ex. O at 31:03-32:14; see also Ex. B at fifth excerpt. In addition to promoting such
organizations, Plaintiffs Complaint states that she also offered up her home as a haven for atrisk youth. Compl. 33 (For many years, the Fines have provided a home and family-like
setting and support to at-risk children in the area of Syracuse, New York.); id. 159.
Finally, given her prominence not only as a coachs wife but as a media personality in her
own right, Plaintiff had ready access to the media. As soon as ESPN aired its reports, she noted
that every other news entity came to that [her front] door, but she didnt want to comment to
CNN or MSNBC [or any others] because I was told not to talk on the advice of my lawyer and
I didnt talk. Pls Dep. at 179:13-22. Instead, Plaintiff responded by holding a news conference
to announce that she was going to file this lawsuit that was widely reported by local and national
media. See, e.g., Curley Decl. Ex. P (Laurie Fines lawyer, Lawrence Fisher, was peppered
with questions about that 2002 phone call while surrounded by about 50 reporters and
videographers).3

The same day, WSYR aired a news story examining whether Plaintiff is a public figure
for purposes of this case. Its conclusion was that you could probably make a pretty good
argument she is a public figure here in Central New York. Curley Decl. Ex. Q.
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ARGUMENT
A.

THE LIMITED PURPOSE PUBLIC FIGURE DOCTRINE

The First Amendment public figure doctrine strikes a balance between the states interest
in protecting against and remedying harm to an individuals reputation, on the one hand, and
a profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open, on the other. Contemporary Mission, Inc. v. New York
Times Co., 842 F.2d 612, 619 (2d Cir. 1988) (quoting New York Times v. Sullivan, 376 U.S. 254,
270 (1964)). Essentially, individuals who have chosen to engage in public commentary or
activity must accept a greater risk of adverse comment in light of this profound national
commitment to freedom of speech as embodied in the First Amendment. Id. Whether a
plaintiff is a public figure is a question of law for the court. Celle v. Filipino Reporter Enters.,
209 F.3d 163, 176 (2d Cir. 2000). The determination is based on objective circumstances, not on
whether a plaintiff subjectively considers herself to be a public or private figure. See, e.g.,
Rosanova v. Playboy Enterprises, Inc., 580 F.2d 859, 861 (5th Cir. 1978); McManus v.
Doubleday & Co., Inc., 513 F. Supp. 1383, 1386-87 (S.D.N.Y. 1981).
Importantly, general fame and celebrity is not a necessary element of being a public
figure for purposes of a defamation lawsuit.4 Rather, defamation law recognizes a category of
limited purpose public figures who have voluntarily exposed themselves to increased risk of
injury from defamatory falsehood concerning them by their participation in the public arena,
and typically they have greater access to the media and thus are in a better position to contradict
a lie or correct an error. Contemporary Mission, Inc. v. New York Times Co., 842 F.2d 612,
4

There are two main types of public figures under defamation law. So-called general
purpose public figures are celebrities individuals whose prominence is so pervasive that they
are public figures regardless of the subject matter of the challenged publication. By contrast,
limited purpose public figures are public figures for the range of subject matters related to their
words and/or activities in the public arena. See Gertz, 418 U.S. at 350-51.
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619-20 (2d Cir. 1988) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-45 (1974)). Thus,
numerous persons who are far less prominent than Plaintiff have been declared limited public
figures, simply because they chose to engage in some speech and/or activity that caused attention
to be drawn to them. See, e.g., Curry v. Roman, 635 N.Y.S.2d 391 (4th Dept 1995) (auctioneer
who raised publicity for auction); Wilsey v. Saratoga Harness Racing, Inc., 140 A.D.2d 857 (3rd
Dept 1988) (successful harness track horse racing driver in Saratoga); James v. Gannett Co., 40
N.Y.2d at 423 (Rochester belly dancer); Celle, 209 F.3d at 177 (radio commentator popular in
FilipinoAmerican community).
The Second Circuit has identified four factors which are typically taken into account in
determining whether a defamation plaintiff will be deemed a limited purpose public figure:
A defendant must show the plaintiff has: (1) successfully invited
public attention to his views in an effort to influence others prior to
the incident that is the subject of litigation; (2) voluntarily injected
himself into a public controversy related to the subject of the
litigation; (3) assumed a position of prominence in the public
controversy; and (4) maintained regular and continuing access to
the media.
Lerman, 745 F.2d at 136-37. The New York Court of Appeals has similarly framed the public
figure analysis:
[t]he essential element underlying the category of public figures is
that the publicized person has taken an affirmative step to attract
public attention. Of course, not all persons reported upon in the
media have sought the publicity. However, there are individuals
who, for a variety of reasons, have strived to achieve a measure of
public acclaim.
James, 40 N.Y.2d at 422-23. Even these factors are not necessarily exclusive, and must be
evaluated in light of the purposes of the public figure doctrine articulated in Gertz. See, e.g.,
Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987) (en banc).

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B.

PLAINTIFF IS A LIMITED PURPOSE PUBLIC FIGURE

Applying these principles, Plaintiff is a limited public figure. Indeed, this case
exemplifies the type of freedom of speech that the doctrine was designed to protect: the presss
ability to raise questions about the validity and integrity of matters that a person voluntarily
chose to publicly comment on. See, e.g., Brewer v. Memphis Pub. Co., Inc., 626 F.2d 1238,
1255 (5th Cir. 1980). All of the Lerman factors support the conclusion that Plaintiff is a public
figure.
1.

Plaintiff Invited Public Attention to Her Views Prior to the ESPN Reports

The Complaint acknowledges that for many years Plaintiff has attracted attention and
achieved prominence in the Syracuse community as the wife of a top coach for a popular
basketball program. See, e.g., Compl. 21-22. See also Deborah Gaetano Dep. at 60:13-17
(Plaintiffs best friend testified that in this community . . . [s]he made a point of getting herself
known so she was out there. Everybody knew her.) (Curley Decl. Ex. R); Drake Gaetano Dep.
at 7:12-8:3 ( But she got a lot of press from other stations because it [the pet business Plaintiff
started in 2006] was something new, and the fact that a lot of people knew, she was like a socalled celebrity I guess.) (Curley Decl. Ex. S). That alone would likely make her a limited
public figure for purposes of news reports like ESPNs that concerned her own conduct related to
that basketball program. See Marcone v. Penthouse Intl Magazine for Men, 754 F.2d 1072,
1083 (3d Cir. 1985) (courts have classified some people as limited public figures because of
their status, position, or associations); accord, e.g., Brewer, 626 F.2d at 1257-58 (entertainer
who once dated Elvis Presley held public figure).
In any event, the record demonstrates that Mrs. Fine in her own right successfully
invited public attention to [her] views in an effort to influence others prior to the incident that is

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the subject of litigation. Lerman, 745 F.2d at 136. She engaged in many media appearances in
which she promoted herself, the basketball program, and the cause of at-risk youth. In fact, one
of Plaintiffs principal grounds for damages is her allegation that her budding career as a media
sports commentator and fundraiser for childrens causes was cut short by ESPNs stories, which
merely illustrates why she is a limited public figure with respect to those subjects. See Compl.
194; Pls Dep. at 44:3-12, 195:2-196:5, 322:20-24; see also Medure v. New York Times Co.,
60 F.Supp.2d 477, 485 (W.D.Pa. 1999) (the fact that the loss of potential contracts forms the
basis of his demand for damages in this action demonstrates why private developer is a limited
public figure). Many plaintiffs have been found to be limited public figures based on just a
single interview or because of an appearance in an obscure publication, far less than the repeated
engagement with the media the record shows that Plaintiff enjoyed prior to the ESPN reports.
See, e.g., Chandok v. Klessig, 648 F. Supp. 2d 449, 458-59 (N.D.N.Y. 2009) (chemist who
published scientific papers on plant biology held to be public figure); James, 40 N.Y.2d at 42223 (Rochester belly dancer who gave newspaper interview held to be public figure); Beatty v.
Republican Herald Publg Co., 189 N.W.2d 182 (1971) (neighborhood resident opposing a
single development project was a public figure for purposes of articles about the proposed
development).
2. Plaintiff Voluntarily Injected Herself into Several Relevant Public Controversies
The second Lerman factor considers whether the plaintiff voluntarily injected himself
into a public controversy related to the subject of the litigation. Lerman, 745 F.2d at 136. In
the context of defamation law, a public controversy does not require political debate or criticism
of public officials. Id. at 138. Rather, it refers broadly to all topics of continued and general
public interest . . . upon which sizeable segments of society have different, strongly held views.

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Id. For example, in Lerman one of the relevant public controversies was simply relations
between the sexes. Id. at 137. Here, the topics Plaintiff most frequently spoke out about the
Syracuse basketball team and child welfare -- are quintessential public controversies.
The promotion of any particular team or collegiate program, for example, is perhaps the
most widespread public controversy that exists in contemporary culture, provoking different,
strongly held views. For every Syracuse and Coach Boeheim booster, there is a Georgetown
(and perhaps now Duke) loyalist who is a fierce detractor, and the Syracuse program has been
the subject of many controversies (and sanctions) over the years concerning its integrity. See,
e.g., Glenn Coin, Hoops Inc.: The color of money is Orange for SUs $17 million basketball
business, POST-STANDARD, Mar. 19, 2010; Liz Clark, A rivalry for the ages, and a new
generation; Georgetown and Syracuse are mighty again, injecting new energy into a matchup
with many memories, WASH. POST, Jan. 25, 2010; Bill Finley, Coach vs. Coach, Clash Without
End, N.Y. TIMES, Mar. 5, 2005, Mike Waters, How Syracuses move to the ACC will impact the
Orange basketball program, POST-STANDARD, Sept. 18, 2011; Syracuse coaches again top
school earnings list, ASSOCIATED PRESS, Nov. 16, 2004.
In fact, the very concept of a public figure was articulated in a defamation case brought
by an athletic director who was linked to a scandal concerning a collegiate athletic program. See
Curtis Publg Co. v. Butts, 388 U.S. 130 (1967). As a result, coaches, athletes, administrators,
and boosters of sports teams are routinely held to be limited public figures for purposes of news
reports concerning their teams. See, e.g., Guillory v. NCAA, 2012 WL 2831806 (Cal. App. June
4, 2012) (noting that trial court found USC booster was a limited public figure for purposes of
an ESPN report about improper payments to student-athletes); Bradford v. Judson, 12 So.3d 974
(La. App. 2009) (president of Grambling alumni association active in promoting schools

11

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football program was a limited public figure for purposes of a statement alleging he mishandled
university funds). See also Brewer, 626 F.2d at 1254-55; Chuy v. Philadelphia Eagles Football
Club, 431 F. Supp. 254, 267 (E.D. Pa. 1977); Holt v. Cox Enterprises, 590 F. Supp. 408 (N.D.
Ga. 1984); Cottrell v. NCAA, 975 So.2d 306 (Ala. 2007); McGarry v. Univ. of San Diego, 154
Cal. App. 4th 97 (2007); Wilsey, 140 A.D.2d at 858.
In addition, the problem of at-risk youth is one of the most debated social questions of
our time, especially so given the multiple scandals involving sexual abuse by supposed adult
mentors to which some of Plaintiffs own comments on television alluded. See Compl. 61.
And both topics are related to the subject of the litigation, Lerman, 745 F.2d at 137, since they
are at the heart of what the ESPN reports addressed.
Similarly, by holding herself out as a philanthropist for children, Plaintiff naturally
invited attention to her own conduct towards minors. See Chapin v. Knight-Ridder Co., 993 F.2d
1087, 1092 n. 4 (4th Cir. 1993) (plaintiff who sought attention for his charitable efforts is public
figure with respect to report questioning degree to which he personally profited); Chafoulias v.
Peterson, 668 N.W.2d 642 (Minn. 2003) (businessman was a limited public figure for purposes
of a television report alleging that he failed to stop sexual abuse of staff at his hotels, since [b]y
seeking public and government support for development projects that have a significant impact
on Rochester, [plaintiff] has assumed a position that invites attention and comment about the
manner in which he conducts his business affairs.); Arias-Zeballos v. Tan, 2008 WL 833225
(S.D.N.Y. March 28, 2008) (head of non-profit organization was a limited purpose public figure
for purposes of issues related to womens rights).
To note just a few examples, having gone on television to get people to go to [Bernie
Fines] camp, Curley Decl. Ex. H, she became a public figure for purposes of reports that she

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suspected her husband had used that camp to groom minors for sexual abuse. Having used her
position as a television co-anchor to warn parents to be wary of volunteer mentors because I
think were so willing sometimes as busy mothers and fathers to put our kids where its the
easiest, id., Ex. F, she invited questions about whether her own home was one of those
seemingly easy places parents should avoid. See also Ex. B (compilation of excerpted television
appearances). Likewise, by promoting her home as a family-like setting [for] at-risk children,
Compl. 33, and encouraging the public to donate money to keep the kids safe, Curley Decl.
Ex. K, she opened herself up to scrutiny about whether her home was anything but safe. See,
e.g., Steaks Unlimited v. Deaner, 623 F.2d 264 (3d. Cir. 1980) (having promoted itself in the
media as a supplier of high-quality beef, plaintiff was a limited public figure for purposes of
news reports questioning its quality and safety).
3. Plaintiff assumed a position of prominence in the public controversies.
Generally, courts have found that voluntarily assuming a role related to an organization
that is inherently subject to regular public scrutiny is sufficient to achieve prominence in
controversies related to it. Thus, simply by embracing a public role as a coachs spouse and
promoter of the basketball program, Plaintiff assumed a position of prominence in controversies
concerning that program. See, e.g., Lohrenz v. Donnelly, 350 F.3d 1272, 1282 (D.C. Cir. 2003)
(by becoming the navys first female combat pilots, plaintiffs necessarily assumed positions of
prominence in debates about women in the military); Silvester v. American Broadcasting Cos.,
Inc., 839 F.2d 1491, 1497 (11th Cir.1988) (businessmen who chose to become involved in
highly-regulated jai alai industry assumed positions of prominence in any controversies
concerning the industry). In any event, persons who choose to openly avail[] themselves of the
media to mak[e] public statements necessarily assume positions of prominence in the
controversies upon which they comment. Contemporary Mission, Inc. v. New York Times Co.,
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842 F.2d 612, 618 (2d Cir. 1988). Having achieved sufficient prominence to have been
repeatedly referred to as Coach Laurie in television reports about the team, and to be lauded as
a philanthropist by the Post-Standard for her work on child welfare, Plaintiff held a prominent
position with respect to both matters.
4.

Plaintiff maintained regular and continuing access to the media

Finally, there can be no doubt that Mrs. Fine has maintained regular and continuing
access to the media, Lerman, 745 F.2d at 136-37, and as such had the ability (and still does) to
forcefully respond to perceived misstatements about herself. Contemporary Mission, Inc., 842
F.2d at 619-20. Mrs. Fine had herself become a member of the media, and has regularly been
sought out by the media for comment and interviews, both before and after publication of the
ESPN news reports. See Celle, 209 F.3d at 177 (radio commentator in FilipinoAmerican
community held to be public figure); Silvester, 839 F.2d at 1495 (press articles regarding
plaintiff over several years demonstrated media access). Moreover, the flurry of self-generated
publicity surrounding the filing of this suit further demonstrates that her media access was
regular and continuing. See, e.g., Biro, 963 F. Supp. 2d at 275 n. 15 (observing that plaintiffs
filing of the instant suit garnered, and continues to garner, a great deal of press attention, which
also points to [his] access to self-help through the media).
At bottom, Plaintiff is quintessentially the type of person who for a variety of reasons,
[has] strived to achieve a measure of public acclaim. James, 40 N.Y.2d at 422-23. Having
voluntarily exposed [herself] to increased risk of public scrutiny, Gertz, 418 U.S. at 345, Mrs.
Fine is a public figure for purposes of this lawsuit.

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Case 5:12-cv-00836-DEP Document 97-1 Filed 09/30/15 Page 17 of 17

CONCLUSION
Defendants respectfully request the Court to enter an order finding plaintiff to be a
limited purpose public figure for the purpose of this lawsuit.
Dated: September 30, 2015

Respectfully submitted,
LEVINE SULLIVAN KOCH & SCHULZ, LLP

By:

/s/ Nathan E. Siegel

Nathan E. Siegel
Thomas Curley (pro hac vice)
Rachel F. Strom
Paul J. Safier (pro hac vice)
1899 L Street, N.W., Suite 200
Washington, DC 20036
(202) 508-1100
Attorneys for Defendants

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