Tilton v. Cowles Publishing Co.

Rosellini, J.

(dissenting) — I would decide this appeal in favor of the appellants and reinstate the verdict. The majority does not discuss the question of the propriety of the reduction of the verdict, but content themselves with holding that, as a matter of law, there was no malice.

In doing so, they cite no authority for the proposition that the question of malice is one for the court in every case. They cite Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 , 19 L. Ed. 2d 248 , 88 S. Ct. 197 (1967), a scant per curiam opinion which simply held that there was no evidence of malice in that record. Furthermore, that case concerned a small town newspaper’s editorial criticism of an elected public official.

As a matter of fact, the Supreme Court has not held the plaintiff in a “public figure” case to the same standard of proof as it has imposed in “public official” cases. In Curtis Publishing Co. v. Butts, 388 U.S. 130 , 18 L. Ed. 2d 1094 , 87 S. Ct. 1975 (1967), four of the justices thought that a standard of “highly unreasonable conduct” should be applied to public figures, and three other justices thought the evidence of malice (failure to investigate truth of story before publishing) was sufficient. This shows that the United States Supreme Court has not said that the “awareness of probable falsity” test is applicable when the plaintiff is not a public official, but is only a public figure.

St. Amant v. Thompson, 390 U.S. 727 , 20 L. Ed. 2d 262 , 88 S. Ct. 1323 (1968), relied upon by the majority, was a case dealing with a public official and therefore it does not aid this court in deciding the degree of proof necessary in a suit by one whom the court finds to be a public figure, rather than a public official.

It is true that this court, and the majority of the court in Butts , adopted the New York Times Co. v. Sullivan, 376 U.S. 254 , 11 L. Ed. 2d 686 , 84 S. Ct. 710 (1964), definition of malice in a case involving a public figure. Grayson v. Curtis *727 Publishing Co., 72 Wn.2d 999 , 436 P.2d 756 (1967). But we did not there say that the proof necessary to establish that malice would be the same for a public figure as for a public official. It is not unreasonable that a different degree of proof should be required where the defendant is a figure of public interest but is not a public official. See Note, Constitutional Law — Defamation under the First Amendment— The Actual Malice Test and “Public Figures.” 46 N.C. L. Rev. 392 (1968). As the author of that note says, the First Amendment does not necessarily require that a man who is well known because of his personal qualities be exposed to the same amount of uncompensated libel as the man who holds a public office, simply for the sake of having one legal standard.

The jury's verdict in favor of the plaintiff was affirmed by the United States Supreme Court in Butts , which thus held that the evidence, showing not “probable awareness” but merely failure to investigate, was sufficient.

The Supreme Court of Minnesota has even found it possible to interpret New York Times as permitting the jury to find reckless disregard of the truth or falsity of an article defaming a public official, where the evidence showed that the article was published without sufficient verification but did not show probable awareness of its falsity. Mahnke v. Northwest Publications, Inc., 280 Minn. 328 , 160 N.W.2d 1 (1968). The court said that factors which the jury might consider were the gravity of the charges leveled against the plaintiff in the article, the fact that no attempt was made to contact the plaintiff for verification or denial, and the extent of the falsity of the article. In my view those same factors were valid considerations for the jury to take into account in this case, where the plaintiffs were not public officials, but private individuals who were at the most “public figures,” and I seriously question whether they can properly be so described.

The evidence in this case shows not only a total failure to check with any person representing the plaintiffs, or to check the bylaws of the council to see if the allegations of *728 the complaint had any apparent basis, but it also shows a motive to avoid investigation. The defendant newspaper took an open stand on the very issue which was the inspiration of the complaint described in the defamatory article, a stand which was opposed to that of the plaintiffs, and the author knew that those persons who gave him the story also supported the newspaper’s position. The jury could well find that he had every reason to be suspicious, and when there is added to these circumstances the very incriminating fact that the article was capped with a headline calculated to produce in the reader the impression that the members of the council had been charged with a crime, the conclusion is all but inescapable that the respondent acted with reckless disregard of the truth or falsity of the accusations.

The fact that the article was capped with a highly misleading headline is glossed over by the majority, which says that the contents of the article removed any false impression created by the headline. But I doubt that readers of newspapers generally examine an article as analytically and carefully as the court does when endeavoring to determine whether it is libelous. The ordinary reader is much more likely to glean a general impression and carry that with him, and a headline is apt to be very influential in creating that impression.

At the very least, the evidence is sufficient to support a jury finding that the article was published with reckless disregard of its truth or falsity. This was the opinion of the trial judge who said:

I have concluded that a high regard for the writers of complaints and affidavits does not as a matter of law preclude the issue of recklessness. Here, theré was just no other inquiry made, although Mr. Roberts was well acquainted with the individuals who had the information readily at hand.

In my view, the United States Supreme Court has been faced with some “hard” libel cases, particularly New York Times Co. v. Sullivan, supra, and has laid down some broad principles protecting “the right of the public to know” to *729 the exclusion of the right of the individual to maintain his good name in the community and to recover damages when it is unjustly besmirched. I cannot imagine that the New York Times philosophy will be enlarged so as to make every person whose name comes before the public in one context or another a “public figure” and place him at the mercy of the mass media. While a public figure has not been clearly defined by the court, four of the judges in Butts have indicated that, before an individual can be labeled a public figure and consequently be exposed to a greater amount of remediless defamation than the average obscure citizen, he should command sufficient continuing public interest and have sufficient access to the means of counter argument to be able to expose through discussion the falsehood and fallacies of the defamatory statements. Curtis Publishing Co. v. Butts, supra, at 155.

Applying this test to the plaintiffs in this action, it should be readily apparent that they do not qualify as public figures. If they had access to any means of counter argument, the record does not disclose it. It is true that they, as representatives of a private organization, participated in public debate on a public issue, but there is no showing that they were able to thrust themselves sufficiently “into the vortex” to command the attention of the public and the cooperation of the news media when they spoke. It would seem to me that, if the justification for denying to a public figure a reasonably accessible remedy for defamation is that he can expose the falsehood because he has the ear of the public and it will listen to his denials and explanations, then it must be shown as a fact that an individual does have access to means of communication sufficient to counteract the attacks upon him before he can be held to be a public figure.

What I fear the courts are overlooking in their ebullient eagerness to apply the philosophy of New York Times to every case of libel, is the awesome power of the mass media and the relative helplessness of the individual who gets caught in its jaws.

*730 Marshall S. Shapo, Associate Professor of Law at the University of Texas, has published an article in 46 Tex. L. Rev. 650 (1968) entitled Media Injuries to Personality: An Essay on Legal Regulation of Public Communication, in which he makes the following very significant observations:

[I]n our natural attempt to ameliorate the impersonality of society, in our eagerness to communicate with one another, in our hunger for news and gossip, we have bestowed upon the media a power over our lives that ranks them with any monopoly or oligopoly in our society. Indeed, the media serve as a pressure group of unparalleled power, collectively possessing control of all the significant means of governmental access to the people save the mails.

This concentration of power does not always contribute to the robustness of local political life. There are many cities in which it is common knowledge that one who wishes to run for political office is well advised to receive the benediction of the editor of the city’s one newspaper, for that medium’s endorsement is tantamount to election and its opposition a virtual guarantee of defeat. . . .

. . . I respectfully suggest that the New York Times rule demands an expanded interpretation over the next decade. The necessary development is a perception that the power relationship in the individual situation should bear upon the applicable law. Thus the law should place the media in a favorable position when it undertakes to investigate and criticize institutions that wield great political and economic power and that have a high capability for cloaking their proceedings in secrecy. But it also should make clear that the media shall not be permitted to attack defenseless individuals who lack effective reply or remedy. The New York Times doctrine needs the enrichment of explicit recognition not only of the necessity of a free press, but of the realities of power that lie behind the production of the daily paper, the nightly TV news, and the weekly magazine.

(Footnote omitted.) Pp. 653, 657-58.

The majority concluded that, because the plaintiffs are officers of a private organization and, as such, participated in public debate on a public issue, they are public figures. *731 The only public feature of their activities is the participation in public debate, as I see it, otherwise every person who stands for office in a private organization, formed for private purposes, becomes automatically a public figure. In this case, the organization of which the plaintiffs were officers existed solely to promote the interests of the members; it was not an organization open to the public or designed to serve the public, and the public had no more interest in it than it would have in any other organization of public employees.

If the fact that the plaintiffs are public employees gives them the status of public figures, then so are all the other millions of government employees, no matter how obscure may be their actual status. I doubt that the majority would subscribe to such a thesis. Nor is it reasonable to hold that officers of a private organization, whose purpose is solely to protect the interests of its members, are “public” figures. To be such a figure, in my opinion, an individual must engage in activities which invite and command the attention of the public to that individual, and the interest of the public in his activities must be such that his utterances will be published or broadcast and attended to by readers and listeners.

If the fact that the plaintiffs participated in public debate is all that is required to establish “public figure” status, every individual who exercises his right of free speech or of political activity thereby renders himself vulnerable to attack by any publisher or media owner who disagrees with his position; and if he is defamed the defamer can stave off liability with a cry of “public figure!” The same is true of every group of individuals which organizes and acts together in an attempt to increase its effectiveness in influencing political decisions.

Thus the court has taken the New York Times doctrine, ostensibly enunciated for the protection of freedom of press, and converted it into an instrument for the repression of other First Amendment freedoms, those of speech and assembly. For to subject individuals or groups to the mercies of the media without affording them any practical *732 redress is bound to inhibit the exercise of those freedoms. The result is a rule of law which provides a license for abuse by the powerful and intimidation for the weak.

In my opinion, in a case such as this where the defendant’s newspapers are virtually a monopoly and those papers have taken an editorial stand on a controversial issue of local concern, the court should be inclined to impose upon that defendant an obligation to treat those having opposing views with absolute fairness rather than to prove a protective shield for its defamatory attacks upon them, whether such attacks are disguised as a report of accusations made by third parties or published as accusations by the editors themselves. Otherwise, First Amendment rights may soon be enjoyed only by the privileged few who hold the power of the mass media and will be effectively denied to the individual, contrary, I think to the spirit of the constitution.

Such fairness would require the publisher of an article making charges of unlawful conduct against opponents of its editorial views to at least contact the persons charged and publish their denials, refutations, or explanations at the same time that it published the accusations.

In this case the jury, which heard all of the evidence and deliberated its verdict under instructions which were, if anything, more favorable than the defendant deserved, found that the publication was substantially false and that it was published with reckless disregard of its truth or falsity. In my opinion these questions were for the jury and not for this court, there being substantial evidence to support its findings. The question of damages was also for the jury, and, considering the reprehensible conduct of which the plaintiffs were accused in the publication and the fact that such charges are seldom entirely forgotten, the verdict of $13,000 for each plaintiff does not shock the conscience of this member of the court.

I would reinstate the verdict.

Hale, J., concurs with Rosellini, J.

December 18, 1969. Petition for rehearing denied.