Grandparents in controversial child custody case not "public figures"

VIRGINIA — In mid-October a panel of the U.S. Court of Appeals in Richmond (4th Cir.) ruled that the grandparents of a child involved in a highly publicized custody battle are private individuals for purposes of their libel action against ABC.

In November 1992, the network broadcast a docudrama in which an actor playing the child’s mother suggests in one scene that the child, Hilary Foretich, is being kind to her “abusers” to avoid being molested again. The scene immediately followed another where Hilary was shown talking to her father and his parents. Following the broadcast, Vincent and Doris Foretich, Hilary’s paternal grandparents, filed a libel suit against ABC in U.S. District Court in Alexandria, claiming the docudrama’s dialog suggested they abused Hilary.

In 1986, Dr. Elizabeth Morgan, Hilary’s mother, filed a civil lawsuit against her husband, Eric Foretich, and his parents, Vincent and Doris Foretich, claiming that they physically and sexually abused Hilary. A jury found in favor of the father and grandparents.

Following the decision, Morgan hid Hilary and refused to disclose her whereabouts to the authorities. Morgan spent twenty-five months in jail for civil contempt. The child was eventually discovered living with her maternal grandparents in New Zealand.

Amid the highly publicized controversy surrounding the case, the grandparents granted several newspaper and magazine interviews, attended at least three press conferences, and appeared on at least two television shows to tell their side of the story.

ABC argued that the grandparents were “limited-purpose public figures” and therefore would have to prove that ABC acted with actual malice — knowledge of falsity or reckless disregard for the truth — to win the libel case. The district court judge ruled against ABC, finding that the grandparents were “private individuals” for purposes of the libel action.

The U.S. Court of Appeals affirmed the district court’s decision that the grandparents were private individuals, finding that the grandparent’s public responses to Dr. Morgan’s allegations were “responsive, proportionate and not excessively published.” The court stated that the grandparent’s statements were defensive replies rather than an effort to “thrust themselves to the forefront of a public controversy in order to influence its outcome.”

In late October, ABC petitioned for a rehearing by the entire court.

(Foretich v. Capital Cities/ABC; Media Counsel: William Bradford Reynolds, Sr., Washington, D.C.)

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