Rutt v. Bethlehems' Globe Publishing Co.

BECK, Judge,

concurring and dissenting:

I agree with the result reached in the comprehensive and excellent majority opinion. 1 The burden on the plaintiff in this case is limited to the proof of negligence, not actual malice. I reach this result, though, for different reasons from those relied on by the majority, and write to state my view that the analysis by the majority is not in conformity with the law as stated by the Pennsylvania Supreme Court in Matus v. Triangle Publications, 445 Pa. 384 , 286 A.2d 357 (1971), cert. denied, 408 U.S. 930 , 92 S.Ct. 2494 , 33 L.Ed.2d 343 (1972).

The majority departs from the analysis of our Supreme Court in Matus v. Triangle Publications. Matus adopted the approach of a plurality of the United States Supreme Court in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 , 91 S.Ct. 1811 , 29 L.Ed.2d 296 (1971), under which a private plaintiff is required to prove malice (“knowing or reckless disregard of falsity”) in a defamation action against a news media defendant if the alleged defamatory statement related to the plaintiffs “involvement in an event of public or general concern.” See Matus, 445 Pa. at 395 , 286 A.2d at 363 . Instead, the majority favors an analysis under which the burden of proof turns simply on whether the plaintiff is a public or private figure.

Contrary to the majority, I do not believe that subsequent constitutional rulings of the United States Supreme Court and decisions of inferior federal courts interpreting Pennsylvania law direct us to abandon Matus and Rosenbloom *190 entirely. Therefore, I would reaffirm that Matus is still the law in Pennsylvania to the extent that it does not violate constitutional mandate. Applying the Rosenbloom test as Matus dictates, I would then hold that plaintiff/appellant is not required to prove malice, because the alleged defamatory statement in this case does not involve a matter of public or general concern.

My disagreement with the majority centers on the question of the implications of Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974), decided three years after Matus . In Gertz , the Supreme Court retreated from Rosenbloom , finding that the Rosenbloom plurality’s approach was not required by the First Amendment. Rather, the Gertz Court held that the States were free to define for themselves the standard of liability in private-plaintiff defamation actions so long as they did not impose strict liability. Gertz therefore does invite the States to reexamine their libel laws within its framework.

The lack of any post-Gertz decisions on this issue by our Supreme Court means that Pennsylvania has not yet undertaken to reassess or revise the law as stated in Matus . I believe that in this situation we must assume that Matus is still good law to the extent that it does not offend the constitutionally required standards of Gertz and will remain good law until our Supreme Court decides to the contrary.

The holding of Gertz that the imposition of strict liability on the news media for defamation is constitutionally impermissible is an interpretation of the Constitution which is binding on the courts of this Commonwealth. Commonwealth v. Ware, 446 Pa. 52 , 284 A.2d 700 (1971), cert. denied, 406 U.S. 910 , 92 S.Ct. 1606 , 31 L.Ed.2d 821 (1972). Gertz then delineates an area within which the States are free to act. Decisions within that area are therefore a matter of state libel law. Interpretations of state law by the federal courts, while persuasive, 2 do not carry the force of binding precedent. Commonwealth v. Geschwendt, 500 *191 Pa. 120 , 454 A.2d 991 (1982); Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609 , 182 A.2d 199 (1962).

The majority cites several cases in which lower and intermediate federal courts concluded that if the Pennsylvania Supreme Court were to reexamine Pennsylvania law in light of Gertz , it would reject Matus as no longer good law and apply a negligence standard to all private-plaintiff libel actions whether or not the matter involved was of public or general concern. 3 Federal courts sitting in diversity cases have the luxury of deciding what a state’s highest court would say in a given situation. We, on the other hand, are bound by what the Supreme Court of this Commonwealth has said, and it has said that Rosenbloom is the law in Pennsylvania. I do not find anything in Gertz which prohibits a State from applying a malice standard where Ro-senbloom would require malice and applying a negligence standard in all other cases. Whether our Supreme Court wishes to overrule even this constitutionally permissible aspect of Matus is for the Supreme Court to decide. Until it so decides, we are constrained to adhere to its prior decisions.

I also recommend adherence to Rosenbloom because I believe it is a better statement of the law. We are presented in this case, as in all libel cases involving news reporting, with the difficult but unavoidable task of striking a delicate balance between the freedom of expression safeguarded by the First Amendment and the reputational and privacy interests of individuals. The Supreme Court has recognized that “[s]ome tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury.” Gertz, supra, 418 U.S. at 342 , 94 S.Ct. at 3008 . In this context, choosing among standards of liability becomes a way of according varying amounts of protection against the possible chilling effect of libel laws on protected speech. Since we are called upon to *192 forge a careful accommodation between two highly important interests, we should articulate a closely tailored standard which provides the greatest amount of protection to the most highly valued speech.

It is my belief that the plurality in Rosenbloom stated such a rule. At the heart of the First Amendment is a “profound national commitment that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 , 84 S.Ct. 710, 720 , 11 L.Ed.2d 686 (1964). The Rosenbloom standard best serves this interest by focusing our inquiry on whether the speech in question concerns the plaintiffs involvement in events of public or general interest, i.e., in public issues. A rule based solely on the characterization of plaintiff as a public or private figure does not adequately address this First Amendment concern. In the words of Justice Brennan, speaking for the Rosenbloom plurality:

If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not “voluntarily” choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant’s prior anonymity or notoriety.1 ... We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.

Rosenbloom, supra, 403 U.S. at 43-44 , 91 S.Ct. at 1819-1820 (footnote omitted).

I also agree with Justice Brennan’s view that the public figure/private figure distinction is overinclusive and under-inclusive in its protection of both the First Amendment and the personal reputation interests. I am unable to improve *193 on Justice Brennan’s excellent statement of this point in Rosenbloom :

Voluntarily or not, we are all “public” men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. See n. 12, supra; Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965). Thus, the idea that certain “public” figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of “public figures” that are not in the area of public or general concern.

Id. at 48, 91 S.Ct. at 1822 (footnote omitted).

In Gertz , the Court took the laudable step of sharpening the public figure/private figure distinction by introducing the concept of a limited purpose public figure who becomes a public figure only “for a limited range of issues” (Majority at 80-81). However, Justice Brennan evidently felt that this redefinition of the public figure/private figure distinction did not adequately address the concerns he expressed in Rosenbloom , because he reiterated them in his dissenting opinion in Gertz. See 418 U.S. at 363-364 , 94 S.Ct. at 3018-3019 (Brennan, J., dissenting). 4 I agree with Justice Brennan’s views, and for these reasons I believe the Rosen-bloom rule most effectively fosters free debate on public issues while offering the greatest protection against reputa-tional injury caused by careless intrusions into the private aspects of one’s life whether that person be a public or private individual.

*194 Applying Rosenbloom to the facts of the instant case, I would find that the obituary in question does not concern appellant’s involvement in an event of public or general concern. Appellant’s son was not in the public eye, so the circumstances surrounding his death are not generally a matter of public interest. Although the matter of suicide among young people may be a public concern, it does not follow that the particulars of any individual young person’s suicide are a matter of public interest. Were this so, the details of every poor person’s life would be a matter of public interest simply because poverty is a general public concern. From time to time appellant was involved in issues of public concern, such as the mayoral election and working conditions in the police department. This article does not concern itself with appellant’s involvement in any of these issues. Therefore, being of the opinion that Rosen-bloom would not require a malice standard to be applied here, I am in agreement with the majority’s result in this appeal. The summary judgment entered in favor of appel-lees on the issue of plaintiff’s burden of proof must be vacated and the case remanded for further proceedings in which a negligence standard applies.

. I also agree with the majority that the publication at issue is capable of defamatory meaning.

. But see infra note 3.

. Contra to the cases cited by the majority is Lorentz v. Westinghouse Elec. Corp., 472 F.Supp. 946 (W.D.Pa.1979). In Lorentz , the district court followed Matus but added a cautionary footnote stating that it was unclear whether Matus was still good law.

. Apparently Justice Brennan was correct. As the majority notes (at 80), in Wolston v. Readers’ Digest Association, 443 U.S. 157 , 99 S.Ct. 2701 , 61 L.Ed.2d 450 (1979), the Supreme Court held that involvement in an issue of public or general concern did not necessarily confer on that person the status of a limited public figure.