UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIE HAROLD BROWNING,
Plaintiff-Appellant,

v.                                                                     No. 95-2895

THE WASHINGTON POST COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CA-95-2687-7-20)

Argued: June 6, 1996

Decided: August 6, 1996

Before WILLIAMS and MICHAEL, Circuit Judges, and
JACKSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James B. Richardson, Jr., SVALINA, RICHARDSON &
SMITH, Columbia, South Carolina, for Appellant. Kevin Taylor
Baine, WILLIAMS & CONNOLLY, Washington, D.C., for Appellee.
ON BRIEF: Stephen D. Schusterman, Rock Hill, South Carolina;
James R. Honeycutt, Fort Mill, South Carolina, for Appellant. Katha-
rine B. Weymouth, WILLIAMS & CONNOLLY, Washington, D.C.;
Jerry Jay Bender, BAKER, BARWICK, RAVENEL & BENDER,
Columbia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Willie Browning appeals the decision of the district court that
granted the Washington Post Company's motion to dismiss for failure
to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Browning initiated this action for defamation stemming
from a newspaper article, published by the Washington Post Com-
pany (the "Post"), which identified Browning as an individual ques-
tioned in connection with a carjacking and kidnapping.

I.

The Post published the article on November 7, 1994 following the
discovery of the missing children of Susan Smith in Union, South
Carolina. Gary Lee, Black Residents Angered by Reaction to False
Story: "No One Has Rushed Forward to Apologize," WASH. POST,
Nov. 7, 1994, at A10. Smith had alleged that an African-American
man hijacked her car while her two children were in the car. The Post
published the article after Smith confessed to drowning her children
and to fabricating the story about an African-American man abduct-
ing her children. The article begins with the statement that the inci-
dent had provoked uneasiness and a sense of betrayal among African-
Americans. Id. Part of the "lead-in" to the portion of the article about
which Browning complains indicates that "[p]olice responded to
Smith's accusations by launching a search for the alleged carjacker
among local blacks." Id. The portion of the article that refers to Brow-
ning is as follows:

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          Soon after Smith reported her sons missing, Union police
          arrived early one morning at the home of Harold Browning,
          a local African American construction worker. They ques-
          tioned him for a couple of hours and released him.

          At least a half dozen other local black males were
          detained, a police source acknowledged. And police also
          started going from door to door in Union's black community
          looking for information in the case.

          "I was scared at first," Browning said. "I knew I didn't do
          it, but people started to look at me kind of funny after that."

Id. Browning alleges that this portion of the article is completely
false. He further alleges that the Post knew that the statements were
false or acted with reckless disregard as to the truth or falsity of the
statements. Browning charges that the publication defamed him by
insinuating that he had been the object of the police's suspicions. He
argues that the article held him up to and caused public shame, con-
tempt, and obloquy.

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
the district court dismissed the complaint because it determined that
the article is "not reasonably susceptible of a defamatory meaning."*
(J.A. at 23.) The district court cited Pierce v. Northwestern Mut. Life
Ins. Co., 444 F. Supp. 1098, 1101 (D.S.C. 1978) for the proposition
that it is the function of the court to determine whether a statement
is susceptible of a defamatory meaning and that in making that deter-
mination, the court must consider the context of the entire article.

II.

We review de novo the district court's dismissal for failure to state
a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Proce-
_________________________________________________________________
*Browning's response to the Post's motion to dismiss was due on Sep-
tember 6, 1995, and on September 18, 1995, he filed a motion for an
extension of time. (J.A. at 22.) In its order granting the motion to dis-
miss, the district court denied Browning's request for an extension. (J.A.
at 23.)

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dure. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991), cert.
denied, 503 U.S. 936 (1992). Rule 12(b)(6) provides a defense to a
lawsuit where the plaintiff fails to state a claim upon which relief can
be granted. When "passing on a motion to dismiss . . . for failure to
state a cause of action, the allegations of the complaint should be con-
strued favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232,
236 (1974). The facts set forth in the complaint must be assumed to
be true. Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir. 1969). Fur-
thermore, "a motion to dismiss for failure to state a claim for relief
should not be granted unless it appears to a certainty that the plaintiff
would be entitled to no relief under any state of facts which could be
proved in support of his claim." Id.

III.

As the district court did, we must first consider the article in its
entirety and then determine whether the portion of the article about
which Browning complains is susceptible of a defamatory meaning.
Pierce v. Northwestern Mut. Life Ins. Co., 444 F. Supp. 1098, 1101
(D.S.C. 1978). "[A]n alleged defamatory statement must be deter-
mined from the document or material as a whole, from beginning to
end, and words cannot be singled out as libelous, but rather, the mate-
rial must be libelous within the context of the entire writing." Id.

Having reviewed the article, we concur with the district court's
determination that the article is not susceptible of a defamatory mean-
ing. As discussed below, we reject Browning's arguments.

Browning argues that the article implies to the ordinary reader that
the police had some basis for believing that he may have been
involved in the crime, that he was guilty, or that he was "one of `the
usual suspects' to be rounded up and questioned when a major and
notorious crime has been committed." (Appellant's Br. at 6.) Citing
Warner v. Rudnik, 313 S.E.2d 359, 360 (S.C. 1984), the Post counters
that the words, given their plain and ordinary meaning, are not defam-
atory. In Warner, the Court of Appeals of South Carolina cited its
Supreme Court as having provided the following guidance for deter-
mining whether words are libelous: "`In determining whether words
are libelous, they are to be given their ordinary and popular meaning
. . . . If the words are plainly libelous or wanting in any defamatory

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signification, it is the province and duty of the court to say so.'"
Warner, 313 S.E.2d at 360. The Post's defense is that, read in context,
the words are not susceptible of defamatory meaning. The district
court agreed with the Post and found that "[t]he only reasonable inter-
pretation of the article is that the black community suffered from the
false accusation made by Susan Smith that a black man had abducted
her children. Browning was simply portrayed as an example of how
Susan Smith's accusation affected innocent citizens." (J.A. at 23.) The
article does not imply or raise a strong suspicion that Browning was
involved in the crime. The article instead characterizes Browning as
one of the unfortunate individuals whom the police chose to question
based solely upon Smith's false accusations and his race.

Browning further contends that the district court invaded the prov-
ince of the jury: determining whether a communication, capable of a
defamatory meaning, was so understood by its recipient. However,
Browning ignores that the district court, as the gate-keeper, first had
to determine whether the article is capable of bearing the meaning
that Browning ascribes to it and whether that meaning is defamatory.
Restatement (Second) of Torts § 614 (1977). If the district court had
found the communication capable of bearing a defamatory meaning,
then a jury would have decided whether the communication is so
understood by readers. Id. The district court did not find, as Browning
argues, that the article is capable of implying that the police reason-
ably suspected Browning or that he was one of "the usual suspects."
Reading the entire article, we also do not find that the article is sus-
ceptible of a defamatory meaning.

IV.

Accordingly, for the reasons stated above, we affirm the judgment
of the district court.

AFFIRMED

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