Luper v. Black Dispatch Publishing Co.

MEANS, Judge,

concurring in part and dissenting in part.

I concur in part and dissent in part.

The determinative issue in this defamation case is whether the defendants published the subject material with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not — thus yielding their first amendment protection.

The resolution of almost any legal issue in a defamation case must begin with the determination of the public or private figure status of the plaintiff because that status determines “the standard by which [the defendants’] actions must be measured.” Hodges v. Oklahoma Journal Publishing Co., Okl., 617 P.2d 191, 193 (1980).

Whether a plaintiff is a public official or public figure is a question of law for the court. Rosenblatt v. Baer, 383 U.S. 75 , 86 S.Ct. 669 , 15 L.Ed.2d 597 (1966); Martin v. Griffin Television, Inc., Okl., 549 P.2d 85, 89 (1976).

In her brief, Luper admits that she is “a public school teacher and a public figure.” In a defamation action, whether the plaintiff is a public official is not determined by reference to state law standards. Hodges v. Oklahoma Journal Publishing Co., 617 P.2d at 193 . Rather, one may, in the context relevant here, be a public official either (1) by election to public office or (2) by being “a government employee with such responsibility that the public has an independent interest in his position and performance.” Johnston v. Corinthian Television Corp., Okl., 583 P.2d 1101, 1103 (1978). In Rosenblatt v. Baer, 383 U.S. at 85 , 86 S.Ct. at 675 , the Court stated: “It is clear, therefore, that the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”

Thus, in cases decided by the United States Supreme Court, a city mayor, Ocala Star-Banner Co. v. Damron, 401 U.S. 295 , 91 S.Ct. 628 , 28 L.Ed.2d 57 (1971); a deputy chief of police, Time, Inc. v. Pape, 401 U.S. 279 , 91 S.Ct. 633 , 28 L.Ed.2d 45 (1971); a deputy sheriff, St. Amant v. Thompson, 390 U.S. 727 , 88 S.Ct. 1323 , 20 L.Ed.2d 262 (1968); a state court clerk, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 , 88 S.Ct. 197 , 19 L.Ed.2d 248 (1967); a supervisor of a county ski and recreation area, Rosenblatt v. Baer, 383 U.S. 75 , 86 S.Ct. 669 , 15 L.Ed.2d 597 (1966); a judge, Garrison v. Louisiana, 379 U.S. 64 , 85 S.Ct. 209 , 13 L.Ed.2d 125 (1964); and a city commissioner, New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), were held or assumed to be public officials. Scores of cases have been decided in the state and lower federal courts holding a government officeholder or employee to be a public official. See Annot., 19 A.L.R.3d 1361 (1968).

It is not necessary that the government employee be near the top of the official *1036 hierarchy to be considered a public official for purposes of a defamation ease. For example, a public school teacher, Johnston v. Corinthian Television Corp., Okl., 583 P.2d 1101 (1978); an IRS agent, Angel v. Ward, 43 N.C.App. 288 , 258 S.E.2d 788 (1979); the administrator of a county motor pool, Clawson v. Longview Publishing Co., 91 Wash.2d 408 , 589 P.2d 1223 (1979); the chief x ray technician of a county hospital, Fopay v. Noveroske, 31 Ill.App.3d 182 , 334 N.E.2d 79 (1975); a county license tag agent, Hodges v. Oklahoma Journal Publishing Co., Okl., 617 P.2d 191 (1980); a county social worker, Press, Inc. v. Verran, 569 S.W.2d 435 (Tenn.1978); and the manager of a community center, Brown v. Kitterman, 443 S.W.2d 146 (Mo.1969), have been held to be public officials. Similarly, whether the plaintiff is involved in “real” government or not does not matter. Thus, an elected member of a student senate at a university was considered just as much a public official as if he served in off-campus government, Klahr v. Winterble, 4 Ariz.App. 158 , 418 P.2d 404 (1966).

In Garrison v. Louisiana, 379 U.S. at 77 , 85 S.Ct. at 217 , the Supreme Court stated that “any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation.” The Court noted that personal attacks on integrity and honesty are directed to the very heart of an official’s fitness for duty.

The Court took the Garrison standard even further in Monitor Patriot Co. v. Roy, 401 U.S. 265, 277 , 91 S.Ct. 621, 628 , 28 L.Ed.2d 35 (1971), when it stated:

“[A] charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official’s ... fitness for office for purposes of application of the ‘knowing falsehood or reckless disregard’ rule of New York Times Co. v. Sullivan.”

In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710, 725-26 , 11 L.Ed.2d 686 (1964), the Court held that the Constitution required “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” In New York Times, the Court recognized that the guarantees of freedom of the press protected by the first amendment will inevitably conflict with laws designed to protect one’s reputation. Recognizing this tension, the Court identified public officials as a class of potential plaintiffs and held them to a particularly high standard regarding defamation actions — actual knowledge of the falsehood or a reckless disregard for the truth. The New York Times rule has been with us for nearly twenty years. The rule has been both expanded and explained yet the rule still seems to perplex our courts. 1

As a public official and/or a public figure suing for defamation, Luper must meet this federal constitutional standard. She must prove that the defamatory falsehood was made with actual malice. This actual malice standard of fault “is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” St. Amant v. Thompson, 390 U.S. at 731 , 88 S.Ct. at 1325 (emphasis added).

The actual malice test is entirely subjective. Herbert v. Lando, 441 U.S. 153, 160 , 99 S.Ct. 1635, 1640 , 60 L.Ed.2d 115 (1979). *1037 Neither the failure to investigate prior to publication, nor the failure to realize the importance or the consequences of what is published are sufficient to establish a reckless disregard. St. Amant v. Thompson, 390 U.S. at 732-33 , 88 S.Ct. at 1326 . Instead, the “plaintiff must demonstrate actual knowledge of probable falsity to recover as a public official suing to recover for a defamatory falsehood.” Jurkowski v. Crawley, Okl., 637 P.2d 56, 60 (1981) (emphasis supplied).

As pointed out in the majority opinion, there is no evidence in the record to demonstrate that the first publication was made with actual malice — that the defendants entertained serious doubts as to the truth of the publication or that they had a high degree of awareness of probable falsity. To the contrary, defendant Nash testified that he published the first article believing it to be true.

The state of mind of the defendants pri- or to publication is the subject with which this court must be concerned. As stated by the Oklahoma Supreme Court in Jurkowski v. Crawley, 637 P.2d at 61 -62 (quoting St. Amant v. Thompson) (emphasis added; footnotes omitted):

“ ‘[Rjeckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth ...’

“The above quotation illustrates the indispensability of the requirement that the defendant in fact entertain serious doubt when showing actual malice through reckless disregard for the truth. The essence of the requirement would seem to stem from the disability of the government under the First Amendment to interfere with the judgment of a publisher; thus unless there is evidence of ‘guilty knowledge’ of the falsehood, in fact, laid at the publisher’s feet prior to publication, recovery would have a chilling effect on the First Amendment.... It is proof of the guilty knowledge prior to publication that demonstrates the First Amendment immunity does not apply; nothing more is required to escape defendant’s summary judgment and nothing less is permitted.”

The Jurkowski court noted that the record was totally barren of evidentiary material disclosing that the defendants were aware of the probable falsity of their statements. The record before us, like that before the court in Jurkowski , is absolutely devoid of any evidence to establish actual malice before the first publication. In this respect, I must dissent from the majority.

However, where the plaintiff pleads malice and a reckless disregard for the truth and conflicting inferences and conclusions may be drawn from the evidence, a substantial controversy exists rendering summary judgment inappropriate. Johnston v. Corinthian Television Corp., 583 P.2d at 1104 .

Reasonable conclusions to be drawn from Luper’s evidence tend to show that at least some of the defendants had serious doubts as to the truth of the statements before the second publication was made. The statements by defendant Sanford that he ordered defendant Nash to refrain from publishing further statements about Luper would seem to be sufficient to withstand a motion for summary judgment. Certainly one reasonable inference to be derived from defendant Nash’s acts could be that he acted with “a high degree of awareness of probable falsity.”

As the Court stated in St. Amant v. Thompson, 390 U.S. at 732 , 88 S.Ct. at 1326 :

“The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will *1038 they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”

Although a public official or public figure has a higher standard of proof in a defamation action, whether the defendants here acted in reckless disregard of the truth in publishing further defamatory statements should be a decision for the trier of fact.

There is evidence in the record that a trier of fact could find, regarding the second publication, that the defendants had a high degree of awareness of probable falsity. Thus, there is a substantial controversy as to a material fact regarding the second publication only and summary judgment in that regard was inappropriate.

. See C. Lawhorne, The Supreme Court and Libel (1981); C. Morris, Modern Defamation Law (1978); R. Phelps & E. Hamilton, Libel: Rights, Risks and Responsibilities (rev. ed. 1978); R. Sack, Libel, Slander, and Related Problems (1980); Eaton, The American Law of Defamation through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349 (1975); Elder, The Law of Defamation and Constitutional Privilege: A Contextual Analysis of Oklahoma Law in Light of Gertz v. Robert Welch, Inc. through Hutchinson v. Proxmire, 4 Okla. City U.L.Rev. 17 (1979); Hill, Defamation and Privacy Under the First Amendment, 76 Colum.L.Rev. 1205 (1976); Melon, Media Defamation in Oklahoma: A Modest Proposal and New Perspectives —Part I, 34 Okla.L.Rev. 478 (1981); Nelon, Media Defamation in Oklahoma: A Modest Proposal and New Perspectives —Part II, 34 Okla.L.Rev. 737 (1981).