# Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc. > Indiana Court of Appeals · December 30, 1974 · 162 Ind. App. 671 URL: https://www.frixlaw.com/law-library/cases/9520301 ## Case - **Full name:** Aafco Heating and Air Conditioning Company v. Northwest Publications, Inc. - **Court:** Indiana Court of Appeals - **Decided:** December 30, 1974 - **Citations:** 162 Ind. App. 671; 321 N.E.2d 580; 1 Media L. Rep. (BNA) 1683; 1974 Ind. App. LEXIS 894 - **Precedential status:** Published - **Opinion:** Dissent by Garrard - **Judges:** Staton, Garrard - **Cited by:** 75 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9520301 ## How later opinions describe it (automated extraction) - holding that a private individual who brings a defamation action involving an event of general public interest must prove that the defamatory falsehood was published with knowledge of its falsity or with reckless disregard of whether it was false - affirming the trial court’s grant of summary judgment on appeal even though the articles conveyed a false impression of the plaintiff because there was no evidence that the newspaper acted with malice - holding that mere negligence or failure to investigate is not sufficient to establish actual malice under Indiana law ## Opinion text DISSENTING OPINION Garrard, J. I agree that in the case before us, the materials presented to the trial court for consideration upon the motion for summary judgment were insufficient to establish a genuine issue of material fact upon the defense issue of constitutional malice as defined in New York Times v. Sullivan (1964), 376 U.S. 254 . Furthermore, at the time the trial court rendered its decision, it was guided only by the plurality opinion of Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29 , which indicated that application of the New York Times standard would be proper. However, on June 25, 1974, the Supreme Court issued its decision in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323 , 94 S.Ct. 2997 , and by a majority of the Court redefined the applicability of First Amendment privilege as a defense in certain libel actions. It therefore becomes necessary to determine whether Aafco has presented a viable claim on the facts presented under the modification announced in Gertz . In New York Times the Court determined that a libelous communication by the news media was privileged unless accompanied by what has come to be known as “constitutional malice”. Such malice exists only where the publisher of the libel has actual knowledge of the falsity of the statement or publishes with reckless disregard of probable falsity. Subsequent decisions have further defined what conduct suffices to establish malice through recklessness. See, e.g. Garrison v. Louisiana (1964), 379 U.S. 64 ; St. Amant v. Thompson (1968), 390 U.S. 727 . *690 Here, however, we are concerned with what I conceive, to be a more basic application of the New York-Timesconcept. The essence of Neto York Times is the balance between the right of individual members of the public to protection against false and defamatory accusations and the right of the public, in general, to knowledge of the events and affairs that shape their lives. 1 In attempting to achieve this balance, the Court has, and I believe properly so, recognized that if the essential value of an informed public is to be preserved, those responsible for providing that information must be accorded some margin for error. The chilling effect of providing no “breathing space” upon the dissemination of vital information which is either true, but difficult to verify under the burden of proof imposed at trial, or substantially true but containing minor inaccuracies, is well discussed in the federal cases. Yet it is to be remembered that consideration of the privilege necessarily postulates a defamatory falsehood. As Mr. Justice White, writing for the majority in St. Amant , stated: “It may be said that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity.” * * * “Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.” 390 U.S. at 731-32 . Therefore, in broad measure, the public significance of the events at issue has a very real, if difficult to define, bearing on the public justification for sacrificing truth and private reputation. This was well recognized by the Court in *691 Gertz , but was abandoned as the appropriate rule of law in favor of one providing more predictability. In New York Times and St. Amant the Court determined that privilege based on the absence of constitutional malice was justified in reports concerning public officials. Curtis Publishing Co. v. Butts and Associated Press v. Walker (1967), 388 U.S. 130 , extended application of the standard to “public figures” because they “are nevertheless intimately involved in the resolution of important public questions, or, by reason of their fame, shape events in areas of concern to society at large.” 388 U.S. 164 . Then in Rosenbloom v. Metromedia, Inc., supra, the Court found the necessity for “constitutional malice” if a mere “private citizen” was to recover for statements made in connection with events involving the discovery of allegedly obscene materials. Justices Burger, Brennan and Blackmun found the qualified privilege requiring application of the New York Times standard to be present in “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous”. 403 U.S. 44 . Mr. Justice White would have limited this extension to those private citizens involved in or affected by the official acts of public servants, which he felt should be reported in full detail. In this context, the Court came to Gertz v. Robert Welch, Inc., supra. Gertz was an attorney. A Chicago policeman was convicted of murder and Gertz was retained by the victim’s family to represent them in civil litigation against the policeman. An article appearing in defendant’s magazine alleged that the policeman’s murder trial was part of a communist conspiracy, implied that Gertz (who had no role in the criminal case) had a criminal record, and asserted he was a communistfronter. When Gertz sued, the court entered judgment n.o.v. for the defendant on the basis that there was no showing of the constitutional malice required under the New York Times standard. *692 ■ The Supreme Court in reversing recognized the legitimate state interest in compensating' injury to the' reputation of private individuals who have been defamed and held that such interest was unduly abridged by the test proposed by the Rosenbloom plurality. The Court also anticipated the disadvantages of ad hoc determinations that would follow the quest to determine which events were of “public” or “general” interest. Thus, in an effort at balancing once again the competing interests of the public, the Court, while affirming the “public official” and “public figure” standards previously announced, held that in the case of the non-public official/figure, the interest of protecting the redress for injury inflicted by defamatory falsehood outweighed the “breathing room” requirements necessary to full implementation of the First Amendment, except to the extent that the redress sought would permit recovery for more than compensation for actual injury, 2 or would impose liability without fault. In other words, Gertz holds that in the case of the non-public official/figure, the First Amendment privilege protects only against liability without fault and (in the absence of constitutional malice) limits damages to actual injury. Accordingly, when the Court says “the states may define for themselves the appropriate standard of liability”, it is merely iterating the absence of constitutional limitation.. • In turning then to Indiana law, I -find no merit in Judge Staton’s ready assumption that Article 1, Section 9 of the Indiana Constitution provides a broader privilege in defense of libel than appears in the First Amendment. Any plain reading of Section 9 must dispel such a notion. Instead, Indiana case law establishes that in the absence of First Amendment privilege, malice in the connotation of New York Times is not a necessary element to recovery. *693 Wabash Printing and Publishing Co. v. Crumrine (1889), 123 Ind. 89 , 21 N.E. 904 ; Gabe v. McGinnis (1879), 68 Ind. 538 ; Hotel and Restaurant Employees, etc. v. Zurzolo (1968), 142 Ind. App. 242 , 233 N.E.2d 784 . ' Furthermore, while I am very much in accord with preservation of the “breathing room” dimension necessary to a successful protection of the purposes of the First Amendment, I do not believe that it is emasculated by the recognition the Gertz majority gives to the competing interest in preserving from defamation one’s reputation. Where either a public official or a public figure is the subject of the report, the privilege exists in the absence of constitutional malice. When, however, the report concerns an otherwise anonymous, or mere “private” citizen, then liability for actual injury will be imposed for a defamatory untruth upon a showing of fault, although that fault be based upon negligence. While an ad hoc determination of whether a particular event is a matter of public interest might be more in keeping with the ultimate purposes of the First Amendment, I am forced to agree that the lack of predictability in that approach might well provide the chilling effect upon reporting which we seek to avoid. The materials presented to the court below were sufficient to disclose the existence of a disputed genuine issue of material fact: whether appellee negligently libeled a mere private citizen causing actual injury. I therefore believe the summary judgment should be set aside in favor of a trial on the merits. Note. — Reported at 321 N.E.2d 580 . . The First Amendment also has as its purpose protection of the individual’s right to express his opinion. I, however, find those applications beyond the purview of those here considered. See, Curtis Publishing Co. v. Butts, infra. . Presumed or punitive damages are precluded. Actual injury includes impairment of reputation and standing in the community, personal humiliation, mental anguish and suffering. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9520301. Public record. Not legal advice.