“A qualified privilege attaches to statements which occur under circumstances wherein any one of several persons having a common interest in a particular subject matter may reasonably believe that facts exist which another, sharing that common interest, is entitled to know.”
How later courts described this case
- “A qualified privilege attaches to statements which occur under circumstances wherein any one of several persons having a common interest in a particular subject matter may reasonably believe that facts exist which another, sharing that common interest, is entitled to know.”
- panel opinion adopted per curiam by Court en banc (1972) in light of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)
- a general claim of the denial of due process is not the sort of deprivation of right, privilege or immunity which is secured by the constitution
Written by the judges who cited it.
The opinion
JOHN R. BROWN, Chief Judge, with whom WISDOM, GOLDBERG and SIMPSON, Circuit Judges,
join specially-concurring :
While I concur in the decision reached here on the basis of the Supreme Court’s opinion in Perry v. Sindermann, 1972, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 , I wish to underscore heavily and indelibly what was said in the companion case of Board of Regents v. Roth, 1972, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 regarding the circumstances under which the termination of public employment without notice or hearing would constitute a “deprivation of liberty” proscribed by the due process clause of the Fourteenth Amendment:
The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437 , 91 S.Ct. 507, 510 , 27 L.Ed.2d 515 ; Wieman v. Updegraff, 344 U.S. 183, 191 , 73 S.Ct. 215, 219 , 97 L.Ed. 216 ; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 , 71 S.Ct. 624 , 95 L.Ed. 817 ; United States v. Lovett, 328 U.S. 303, 316-317 , 66 S.Ct. 1073, 1079 , 90 L.Ed. 1252 ; Peters v. Hobby, 349 U.S. 331, 352 , 75 S.Ct. 790, 801 , 99 L.Ed. 1129 (concurring opinion). See Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 898 , 81 S.Ct. 1743, 1750 , 6 L.Ed.2d 1230 . In such a case, due process would accord an opportunity to refute the charge before University officials.12 In the present case, however, there is no suggestion whatever that the respondent’s interest in his “good name, reputation, honor or integrity” is at stake.
12. The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.
Considered in the abstract the press release issued by the Texas Board of Mental Health and Mental Retardation, stating that Dr. McDowell’s discharge was “in the best interest of the children of the Richmond State School and the retarded of the Gulf Coast area,” may have some close to the sort of officially sanctioned innuendo which the Supreme Court had in mind. However, in view of the fact that Dr. McDowell received approximately twenty offers of employment within eleven days after being fired, one of which he accepted at a higher salary than he had previously earned, I cannot conclude on the basis of the facts revealed by this record that he has demonstrated the denial of a right protected by the due process clause. Inso *1350 far as the Court holds that the mere fact of termination is insufficient to establish the requisite “deprivation of liberty,” I agree. But it is now crystal-clear that when the proof shows that the denial or termination of public employment has been accomplished in a manner adversely affecting an individual’s “good name, reputation, honor or integrity,” some reasonable opportunity for a response must be provided. Whatever prerogatives a State may enjoy as an employer, unrestrained character assassination is not one of them.