The opinion
Robert H. Dudley, Justice, concurring. While concurring in the decision, I disagree with the reasoning of the majority which is bottomed on the premise that it takes “a strained and forced interpretation to say Wortham was defamed.” This case is before us on a motion for summary judgment and we are required to view the evidence in the light most favorable to the party resisting the motion, appellant Wortham, with all doubts and inferences being resolved against the moving party, appellee Little Rock Newspapers. The published articles continually used the phrases “may violate the law,” “appear to viólate State laws,” “apparently violate State laws,” “possible illegal license,” and the “apparent illegality of the Sportsman’s Inn permit.” Most reasonable and fair-minded readers would have concluded that appellant Wortham or the Director of the Department of Alcoholic Beverage Control, or both, violated the law. In truth, no law was violated. Logically, this summary judgment procedure mandates a finding that a valid dispute exists about whether Wortham was defamed.
Appellant, in order to operate his two taverns, had to obtain the required licenses from the Department of Alcoholic Beverage Control. The sale of intoxicating liquors is the most heavily regulated of public privileges. Ark. Stat. Ann. Title 48. As a part of the process to obtain licenses Wortham had to publish public, notices of his applications. Ark. Stat. Ann. § 48-528 (G) (Repl. 1977). Those notices, which the applicant must have “caused to be published at least once a week for two consecutive weeks in a legal newspaper of general circulation ...,” must give the name of the applicant and the name of his proposed business, state that he is of good moral character, has never been convicted of a felony, and has never been convicted of violating liquor laws. The Director must then notify the sheriff, the chief of police, the prosecuting attorney, the circuit judge and the city board of directors of the pending application. § 48-528 (I). If any one of these public officials protests the granting of the license to the applicant, it must be delayed until a public hearing is conducted. § 48-528 (J). Clearly, a person becomes a public figure by the time he obtains a public liquor or beer license.
Given this set of facts we must cope with the. problem of whether the matter is privileged, for if it is, then no action will lie, and if it is not, the summary judgment must be reversed. To struggle with the facts in each case is quite hopeless and, in my opinion, a needless quagmire.
The narrow issue is freedom of the press to criticize, albeit wrong, the governmental issuance of a beer permit to an individual who is a public licensee. The majority would leave the would-be critic subject to the quieting effect of possible libel actions to be decided on a case by case basis. The result will be to dampen the vigor and limit the variety of public debate, an erosion of the First Amendment protection. To allow the imposition of damages through libel laws for a discussion of public affairs is to impinge upon free and open discussion. Only the hardiest of publishers will engage in public debate in the face of such financial risk.
I would hold that Wortham, a public licensee, was defamed but that the First Amendment prohibits the imposition of damages for this discussion of public affairs.