Embrey v. Holly

Murphy, C. J.,

dissenting:

While I have no disagreement with that part of the majority opinion enunciating legal principles governing the apportionment of punitive damages, I dissent from the majority’s imposition of punitive damages against Walker’s employer, the Baltimore Radio Show, Inc. The majority’s decision flies in the face of accepted constitutional doctrine, i.e., that "States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 , 94 S. Ct. 2997 , 41 L. Ed. 2d 789 (1974).

In Gertz , the Supreme Court attempted to balance the need to avoid media self-censorship with the legitimate state *144 interest in compensating individuals harmed by defamatory falsehood. Gertz was the attorney in a civil action for a family whose son had been killed by a police officer. The defendant, Robert Welch, Inc., was the publisher of a John Birch Society newsletter. In one of its publications, the defendant characterized Gertz’s efforts on behalf of the family as part of a communist conspiracy against law enforcement officers. In addition, the publication falsely called Gertz a "communist fronter” and the "architect” of the police officer’s "frame-up.” When sued by Gertz, the defendant claimed that its statements were privileged under the New York Times v. Sullivan "actual malice” standard, because the statements dealt with matters of public concern, notwithstanding the fact that Gertz was not a public official or public figure.

The Supreme Court rejected this argument, holding that private individuals need not prove "constitutional malice,” and leaving it to the states to "define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood” as "long as they do not impose liability without fault.” 418 U.S. at 347 (emphasis added). In explaining this holding, and referring to punitive damages, the Court stated that the state interest in compensating a plaintiff for injury to reputation extends no further than actual injury. Id. at 348-49 . Additionally, the Supreme Court noted the especially compelling danger of allowing jury awards without proof of loss in First Amendment cases. Id. at 349-50 .

We embraced this reasoning in General Motors Corp. v. Piskor, 277 Md. 165, 175 , 352 A.2d 810 (1976), where we allowed a plaintiff to "recover compensation for actual injury ... but not presumed or punitive damages unless he meets the New York Times standard of knowing falsity or reckless disregard for the truth.” Accord Jacron Sales Co. v. Sindorf, 276 Md. 580, 601 , 350 A.2d 688 (1976).

Although Gertz dealt with private individuals, it is axiomatic that if a private individual cannot be awarded punitive damages, absent a showing of "constitutional malice,” neither can a public figure, such as Dennis Holly. The record reveals a finding of "constitutional malice” against Johnny *145 Walker and the imposition of liability for punitive damages against his employer based solely on vicarious liability and respondeat superior principles. The majority bootstraps this purely policy-based liability into a full-fledged finding of fault. However, fault based on imputation is not, in my opinion, appropriate in First Amendment cases. Any sanction based on imputed fault, as opposed to actual fault, merely skirts the essential thrust of Gertz . As I see it, the balance reached in Gertz is a fragile one and the majority’s opinion does nothing to maintain this equilibrium.

Dismissing the clear language of Gertz as "not dispositive” and describing, without explanation, petitioner’s constitutional claims as "illusory,” the majority declines to adopt the test contained in the Restatement, Second, of Torts, § 909 (1979), which provides:

"Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,

(a) the principal or a managerial agent authorized the doing and the manner of the act, or

(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or

(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or

(d) the principal or a managerial agent of the principal ratified or approved the act.”

The Restatement test, by requiring some degree of employer authorization, participation or ratification of an employee’s defamatory act before attaching punitive liability to the employer is constitutionally impelled by the mandate of Gertz . Therefore, I would adopt the Restatement test, reverse the punitive damage award against the employer, and remand for a new trial on that issue.

Judges Eldridge and Davidson authorize me to state that they join me in the views expressed herein.