Diversified Management, Inc. v. Denver Post, Inc.

*1111 ERICKSON, Justice,

respectfully dissenting:

The opinion, from which I dissent, causes a private citizen in Colorado, who has been defamed by the news media, to have his right to recover damages restricted by the imposition of a “reckless disregard” standard of care and by requiring “clear and convincing" evidence to sustain a claim for libel. No other state has gone this far to insulate the news media against claims for libel. Because I believe that defamatory utterances are not granted sanctity by the First Amendment of the United States Constitution or Article II, section 10 of the Colorado Constitution, I respectfully dissent.

The majority opinion effectively precludes recovery against the news media by a private citizen for defamation in all but the most egregious cases. New barriers have been created which all but eliminate claims for libel against the news media. First, only those individuals who can prove “reckless disregard” can recover. That standard necessarily requires a subjective inquiry into the mental state of the employees of a news media defendant. Second, before a private individual can recover he must establish his claim by the difficult to surmount “clear and convincing” quantum of proof. Third, every matter which a court deems a “matter of general or public concern,” will be insulated against redress by these standards. The amorphous and undefinable boundaries of “matters of public or general concern,” however, eludes the court today and invites continuous judicial supervision of the subject matter of speech in Colorado. Only those individuals who are able to establish that they are involved in truly “private” matters will be able to vindicate their honor, dignity, and reputation against news media defendants in a libel case.

I do not believe that the interests of a strong and vigorous press demand that the balance be so badly skewed against the interests of private individuals. We invite irresponsible, inaccurate, and unreliable journalism by granting the press all but absolute immunity for defamatory publications. Our concern should be with the quality of information which reaches the public. Unsubstantiated, inaccurate, and unprovable innuendo which is disseminated in the news media does not create “robust and uninhibited” public debate. See L. El-dredge, The Law of Defamation § 53 (1978). In my view, the majority opinion may have the effect of reducing the amount of carefully reported information which is published. 1

For the reasons set forth in the dissent in Walker v. Colorado Springs Sun, 188 Colo. 86 , 538 P.2d 450 (1975), the negligence standard should provide the threshold liability for news media defendants who are sued by private plaintiffs. I also reject the court’s “general or public concern” test- as a useful standard for determining when the recklessness standard is applied. Lastly, Colorado’s traditional preponderance of the evidence standard of proof in defamation cases should be retained.

In Walker v. Colorado Springs Sun, supra, the Court held that private individuals must prove reckless disregard on the part of a news media defendant. The majority concluded that a lesser standard would have a “chilling effect” on “robust debate” on the theory that it was necessary to the “public interest.” Today’s opinion expands *1112 Walker’s boundaries by accepting the standard for reckless set forth in St. Amant v. Thompson, 390 U.S. 727 , 88 S.Ct. 1323 , 20 L.Ed.2d 262 (1968), which held that reckless disregard could be found if there was “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Id. at 731 , 88 S.Ct. at 1325 .

In my view, freedom of the press does not require immunity from liability for a defamatory publication. We should not ignore the rights of private individuals who have no recourse apart from the law of defamation when their reputations have been sullied by journalistic excesses. See Gertz v. Robert Welch, 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974). Most courts have recognized that the press can effectively and vigorously engage in public debate under a negligence standard. The requirements that sources be checked, that allegations and innuendo be documented prior to publication, and that individuals under investigation be confronted are not onerous burdens for a responsible news media. As the dissent in Walker v. Colorado Springs Sun, 188 Colo, at 111, 538 P.2d at 465 , said:

“[T]he public official or public figure stands on an entirely different level than the involuntary news figure — the private citizen — who is defamed in a publication because the news media deems a matter to be of public interest. The private citizen has no opportunity to rebut the false charges in any effective way. It is doubtful that a retraction would reach the same group that heard or saw the initial publication, because retractions tend to have less meaning and are printed with less fervor than the initial news release. A reasonable balance between the right of the news media under the First Amendment and the right of the private citizen is the negligence test.”

Few other jurisdictions have extended New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), and Rosenbloom v. Metromedia, Inc., 403 U.S. 29 , 91 S.Ct. 1811 , 29 L.Ed.2d 296 (1971), so far. Even the United States Supreme Court ignored the plurality opinion in Ro-senbloom when it realized the extreme implications that such an interpretation would have on state defamation laws. In Gertz , the Court held that private individuals have an interest in their reputation which is not superseded by the First Amendment’s guarantee of freedom of speech, leaving the details of accommodating such interests to each state. Id. 418 U.S. at 347-48 , 94 S.Ct. at 3010-3011 .

Today’s court finds a stricter standard for freedom of the press in the Colorado Constitution 2 than exists in the United States Constitution. I do not read Art. II, see. 10 of the Colorado Constitution as affording greater protections than the First Amendment in libel cases. In fact, the plain language of our constitutional provision emphasizes that the press shall be “responsible for all abuse” of its liberty unlike the broader language of the First Amendment. Today’s decision ignores Colorado’s restrictive language and effectively immunizes the press from all but flagrant abuses of its privilege.

Most other state supreme courts which have examined the balance between individual protection and press freedom have supported a negligence standard. 3 Only *1113 three other states have adopted the reckless disregard standard, 4 and none have expanded it as broadly as this court does today.

Because the state courts which examined the issue after Walker decision have held that negligence is the preferable standard, we should consider whether Walker was properly decided. For example, in Taskett v. King Broadcasting Co., 86 Wash.2d 439 , 546 P.2d 81 (1976), the Washington Supreme Court said that negligence is a proper standard because of the need to allow private individuals compensation for injuries to their reputation. It said that important competing policies will not “tolerate the giving of near-absolute immunity to the media.” In Martin v. Griffin Television, Inc., 549 P.2d 85 (Okl.1976), the Oklahoma Supreme Court adopted the rationale of the dissent in Walker as the best means for balancing the needs of the press and of individuals.

Justice Schaffer, in Troman v. Wood, 62 Ill.2d 184 , 340 N.E.2d 292 (1975), rejected the Walker majority, and held that a negligence standard is the best means to encourage careful journalism and to protect individual interests. Similarly, in Gobin v. Globe Publishing Co., 216 Kan. 223 , 531 P.2d 76 (1975), the Kansas Supreme Court reiterated what I believe captures the essence of the need for a reasonable balance between press and individuals: “There is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” Id. at 233 , 531 P.2d at 76 (quoting Gertz v. Robert Welch, supra). Most other supreme courts have reached similar conclusions. Wisdom dictates that we should bring our standard into compliance with the majority of the states, see supra note 3, which have rejected the Walker rationale, and have adopted the negligence standard as the means for protecting the competing social interests involved in defamation cases.

Additionally, no reason exists, in my opinion, to vary from the general standard of proof in negligence cases. Juries are capable of understanding and implementing the standard of proof in defamation cases as they would in any other case. The conduct of a news media defendant should be measured against what a reasonably prudent person would, or would not, have done under the same or similar circumstances. 5

The court has also substantially broadened the class of speech protected by its high standard. I am at a loss to see the logical limits of the court’s conclusory statements on what constitutes a matter of “public or general concern.” The majority has not provided guidance on what standards it would apply in defining such “matters.” I can see no principle which would neutrally delimit what constitutes matters *1114 of public or general concern. Any business adventure or personal activity which can somehow be construed to affect the “public” may be fair game for the press. The majority apparently holds that matters of public or general concern include anything which a “free press” deems would advance “truth, science, and morality.” There may be no topic which is excluded from the reach of that standard.

A vigorous press is necessary to guard the public weal, but I see no reason to shield the news media from their own excesses. Private individuals have a right to expect conscientious and competent reporting before they are thrust into the public limelight by the publication of false and defamatory information. Paradoxically, the press now has an incentive to operate less professionally when it is investigating private individuals. It can effectively shield itself from tort liability for the publication of false information relating to private individuals on the basis of standards created in the majority opinion. See, e.g., Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809 (Tex.1976); Taskett v. King Broadcasting Co., supra. I believe that traditional defamation law placed a premium on quality and competent journalism when the news media chose to focus on private individuals outside the public arena. We should retain this preference for individual freedom over sensationalist reporting, because, as the United States Supreme Court said in Gertz , “private individuals are more vulnerable to journalistic excess because they lack effective opportunities for rebuttal, unlike public officials or figures.” 418 U.S. at 344-46 , 94 S.Ct. at 3009-3010 .

There are other reasons why the “matter of public or general concern” subject matter test is unadvisable. First, it requires that state courts determine on an ad hoc basis what constitutes a matter of public interest. See Troman v. Wood, supra; Collins & Diushal, The Reaction of State Courts to Gertz v. Robert Welch Inc., 28 Case W. Res.L.Rev. 306 (1978). I doubt if this court can ever satisfactorily set forth a comprehensive and principled test of what the public interest includes. 6 Second, it places a substantial power with the press to determine what is in the public interest by the mere fact that the press deems the information newsworthy. There is, correspondingly, a reduction in protection afforded the private individual. Troman v. Wood, supra. Third, Colorado courts will now have the burdensome task of segregating “non-public interest,” non-protected defamation from “public interest,” protected defamation in cases where a story involves both public concerns and non-public concerns. For these additional reasons, I oppose the adoption of this unworkable standard and the saddling of Colorado’s courts with the task of making hair-splitting distinctions in every defamation case.

It may be that the “public figure or official” requirement is not substantially more workable, but I believe it provides a more appropriate solution to the policies extant in these cases. I would therefore support the line of United States Supreme Court cases which uphold these distinctions. New York Times v. Sullivan, supra; Hutchinson v. Proxmire, 443 U.S. 111 , 99 S.Ct. 2675 , 61 L.Ed.2d 411 (1979); Wolston v. Readers Digest Association, Inc., 443 U.S. 157 , 99 S.Ct. 2701 , 61 L.Ed.2d 450 (1979).

The general policy concerns which this case has so clearly provoked illustrate the inability of the judicial branch to reach a satisfactory solution. I find the issue of the scope of Colorado’s defamation laws best *1115 left for legislative resolution and would therefore defer to the General Assembly for adoption of defamation standards. See, e.g., section 13-25-127, C.R.S.1973. The policy considerations and compromise inherent in the legislative process make it a better forum for determining the balance between freedom of the press and individual liberty. 7 If change is to occur, the press should seek legislative relief from what it perceives are overly restrictive defamation laws. The judicial branch remains to insure that the General Assembly’s judgment does not exceed the boundaries of Art. II, sec. 10 of the Colorado Constitution.

Private individuals continue to need an effective remedy to vindicate their interests when the press utilizes its great powers and publishes false and defamatory material. Accordingly, I dissent.

. I agree with the Washington Supreme Court in Taskett v. King Broadcasting Co., 86 Wash.2d 439 , 546 P.2d 81 (1976), which dealt with the news media’s argument:

“It has been argued by the defense that to reduce the standard first enunciated in New York Times, and subsequently adopted in Ro-senbloom will have a ‘chilling effect’ upon the press and, therefore, result in self-censorship. We find this contention to be without merit. It is true that greater caution must now be exercised where the subject of a publication is a private person, yet such a rule is totally justifiable in light of the state’s overriding interest in providing a realistic remedy to an otherwise helpless private citizen. It cannot be gainsaid that any social value derived through a defamatory falsehood pertaining to a truly private individual is ‘clearly outweighed by the social interest in order and morality.’ ”

Id. at 446, 546 P.2d at 86 (citations omitted).

. Art. II, section 10 of the Colorado Constitution provides:

“Freedom of speech and press. No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liDerty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.”

. Mobile Press Register, Inc. v. Faulkner, 372 So.2d 1282 (Ala.1979); Pea gler v. Phoenix Newspapers, Inc., 114 Ariz. 309 , 560 P.2d 1216 (1977); Corbett v. Register Publishing Co., 33 Conn.Supp. 4 , 356 A.2d 472 (1975); Karp v. Miami-Herald Publishing Co., 359 So.2d 580 (Fla.App.1978); Cahill v. Hawaiian Paradise Park, 56 Haw. 522 , 543 P.2d 1356 (1975); Troman v. Wood, 62 Ill.2d 184 , 340 N.E.2d 292 (1975); Newell v. Field Enterprises, 91 Ill.App.3d 735 , 47 Ill.Dec. 429 , 415 N.E.2d 434 (1980); Gobin v. Globe Publishing Co., 216 *1113 Kan. 223 , 531 P.2d 76 (1975); Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580 , 350 A.2d 688 (1976); Stone v. Essex County Newspapers, Inc., 367 Mass. 849 , 330 N.E.2d 161 (1975); Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co., 43 Ohio App.2d 105 , 334 N.E.2d 494 (1974), cert. denied, 423 U.S. 883 , 96 S.Ct. 151 , 46 L.Ed.2d 111 (1975); Martín v. Griffin Television Inc., 549 P.2d 85 (Okl.1976); Memphis Publishing Co. Nichols, 569 S.W.2d 412 (Tenn.1978); Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809 (Tex.1976); Taskett v. King Broadcasting Co., 86 Wash.2d 439 , 546 P.2d 81 (1976). See also Rollenhagen v. City of Orange, 116 Cal.App.3d 414 , 172 Cal.Rptr. 49 (1981); Lawrence v. Bauer Publishing & Print Co., 176 N.J.Super. (A.D.) 378, 423 A.2d 655 (1980); Colombo v. Times-Argus Ass’n, Inc., 135 Vt. 454 , 380 A.2d 80 (1977).

. AAFCO Heating & Air Conditioning Co. v. Northwest Publications Inc., 162 Ind.App. 671 , 321 N.E.2d 580 (1975); Chapadeau v. Utica Observer-Dispatch, Inc., 379 N.Y.S.2d 61 , 38 N.Y.2d 196 , 341 N.E.2d 569 (1975); Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132 (1976).

. I would adopt the negligence standard as set forth by the American Law Institute in the Restatement (Second) of Torts § 580B (1976):

“One who publishes a false and defamatory communication concerning a private person, or concerning a public official or public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if, he

(a) knows that the statement is false and that it defames the other,

(b) acts in reckless disregard of these matters, or

(c) acts negligently in failing to ascertain them.”

. As Justice Powell, writing for the court in Gertz , stated:

“The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of ‘general or public interest’ and which do not — to determine, in the words of MR. JUSTICE MARSHALL, ‘what information is relevant to self-government.’ Rosenbloom v. Metromedia, Inc., 403 U.S., at 79 [ 91 S.Ct. at 1837 ]. We doubt the wisdom of committing this task to the conscience of judges. Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error.”

418 U.S. at 346 , 94 S.Ct. at 3010 .

. I agree substantially with what the Hawaii Supreme Court said in Cahill v. Hawaiian Paradise Park, supra:

“The plurality opinion in Rosenbloom and the decisions of the Indiana and Colorado courts cited are founded on the intuitive finding of the Justices, unaided by any empirical evidence, that exposure of the news media to liability for negligence in actions by private individuals for defamatory falsehoods has unduly restrained their freedom of expression. We have not been referred to any instance in which a matter of general or public interest has not been adequately reported because of self-censorship on the part of the news media. We do not have the means to develop empirical evidence to confirm or refute the intuitive findings of the Rosenbloom plurality. The nature and scope of the investigation which would be required for this purpose may be more suitable to a legislative resolution of this issue than one achieved by judicial decision. Moreover, experience with the public interest test of Rosenbloom has indicated that there are difficulties in its application.”

453 P.2d at 1366 (footnotes omitted).