Gaffney v. Scott Publishing Co.

Hamley, J.

(dissenting)—The trial court precluded appellants from presenting to the jury the defense of privileged criticism. On appeal, the majority declines to review the correctness of that ruling. The reason given is that the trial court’s action was required by a holding of this court in the first Gaffney opinion, which holding became the law of the case. The holding referred to is this:

“The law properly gives to the public press encouragement to voice its criticism of the conduct of public officials; but, in the exercise of such privilege, a publication which imputes to them misconduct in office, want of official integrity or fidelity to public trust, if false, is a violation of that privilege and gives rise to an action for damages.” Gaffney v. Scott Publishing Co., 35 Wn. (2d) 272, 276, 212 P. (2d) 817 .

Is this statement the law of the case, or is it dictum of no controlling force here? The only question before us on the last appeal was whether the trial court’s action in sustaining a demurrer to the complaint was correct. Scott Publishing Company there argued that the demurrer was properly sustained because no special damages were alleged and the publication was not libelous per se. We rejected that contention. The company further argued that, even if libelous per se, the complaint showed on its face that the defense of privileged criticism applied. It was in response to this contention that we announced, in our previous Opinion, the rule quoted above.

In my view, the holding in question was unnecessary in disposing of the company’s contention. There is no defense of privileged criticism if the publication is motivated by malice. 3 Restatement, Torts, 275, 278, § 606, comment d. As reported in the first Gaffney opinion, the complaint alleged malice. This allegation was admitted by the de *196 murrer. Hence the demurrer itself negatived any reliance upon the defense of privileged criticism at that stage of the case. We expressly so held in Graham v. Star Publishing Co., 133 Wash. 387, 391 , 233 Pac. 625 .

That was all we needed to say in our earlier opinion in disposing of the company’s contention. When we went further and purported to lay down a substantive rule regarding the defense of privileged criticism, we were, in my opinion, indulging in dictum which could not become the law of the case.

Assuming, however, that the quoted holding was not dictum, or that, even if it were, it became the law of the case, it seems to me that such holding is not an answer to the contention which appellants here make.

The trial court apparently construed this portion of our previous opinion as holding that, in applying the defense of privileged criticism, defamatory expressions of opinion concerning public officers are to be divided into two categories —those which are only moderately defamatory and those which are a great deal more defamatory and go so far as to charge misconduct in office, or want of official integrity or fidelity to public trust. Under this construction, the rule, as announced in the first Gaffney opinion, would be that moderately defamatory expressions of opinion are subject to the defense of privileged criticism, but that where the expressions are extremely defamatory, the privilege has been “exceeded,” and is not available to a defendant. .

The trial court is certainly not to be blamed for so construing the quoted language, especially since the majority now apparently adopt this same construction. In my opinion, however, an analysis of the language in question, made in the light of accepted general principles, will demonstrate that no such meaning was intended.

This conclusion is more readily reached when it is appreciated that any such rule classifying defamatory expressions of opinion into two such groups, for the purpose of applying the defense in question, is not supported by the authorities. There are several earlier decisions of this court, and some independent authorities (cited in the first Gaffney *197 opinion) which use language similar to that now under examination. I believe, however, that in each case the language used had a meaning quite different from that which the trial court and the majority now attribute tó these words.

That the accepted rule relating to this defense involves no classification of libelous expressions of opinion into degrees of defamation is made clear by 3 Restatement, Torts, 275, § 606, where the defense of privileged criticism is fully set out. It is there indicated that the defense, if otherwise available, is applicable to all “defamatory” expressions. The term “defamatory” is defined as including communications which reflect unfavorably upon one’s personal morality or integrity, as well as those which are derogatory in a lesser degree. 3 Restatement, Torts, 140, § 559, comment b.

Why the quoted holding cannot mean what the trial court and the majority say it does—and what it really means— can best be demonstrated by referring to some general principles of the law of libel applicable in this case.

The defense of privileged criticism is limited to expressions of opinion, and furnishes no immunity if the statement appears as fact. Burt v. Advertiser Newspaper Co., 154 Mass. 238 , 28 N. E. 1 ; Hubbard v. Allyn, 200 Mass. 166 , 86 N. E. 356 ; Eikhoff v. Gilbert, 124 Mich. 353 , 83 N. W. 110 ; Prosser on Torts 842, § 94; Odgers on Libel and Slander (5th ed.) 196, 197; 3 Restatement, Torts, 280, comment a. Hence, if the libelous matter in this editorial consists entirely of statements of fact, the only defense is truth or the existence of some absolute or conditional privilege other than privileged criticism. 3 Restatement, Torts, 214-275, 293-297, §§ 582-605, 611-612. No other absolute or conditional privilege was here urged.

The question of whether any of the derogatory words in question were expressions of opinion was for the jury. Nevada State Journal Publishing Co. v. Henderson, 294 Fed. 60, 62 ; 3 Restatement, Torts, 309, § 618 (2), comment b. We did not hold otherwise in our previous opinion. It may be observed that the publication in question is an editorial, and that editorials usually contain both statements of fact and expressions of opinion. It is also to be noted that one *198 of the derogatory statements upon which respondent relies as libelous, which statement comments on the justification for recall proceedings, is expressly labeled as “our opinion.”

Though the point seems never to have been directly decided, it may be inferred from the Washington decisions that the defense of privileged criticism is available only if the opinion is based upon a true or privileged statement of fact. See Miles v. Louis Wasmer, Inc., 172 Wash. 466 , 20 P. (2d) 847 . The rule set out in Restatement of Torts would seem to go further, and permit the defense even though the opinion is based upon false-statements of fact, if-such purported facts are otherwise known or available to the recipient as a member of the public. 3 Restatement, Torts, 275, § 606 (1) (a) (ii). . .

In advancing the defense of privileged criticism, it is not necessary to prove that the libelous expressions of opinion (as distinguished from the facts upon which they are based) are true. 3 Restatement, Torts, 275, § 606. Defamatory expressions of opinion are not, in fact, susceptible to proof as to their truth or falsity. For example, there is no way in which a jury could determine whether the expression of opinion in this editorial, that respondent should be recalled, is true or false. The policy consideration behind the rule that the truth of defamatory criticism (as distinguished from defamatory statements of fact) is not an issue, are stated with clarity by Van Vechten Veeder, writing on “Freedom of Public Discussion,” 23 Harvard L. Rev., 413; 415, 416, 422.

With these principles in mind, we can turn to the quoted holding in our prior decision which is said to warrant the trial court in excluding the defense of privileged criticism. That holding refers to the privilige of criticizing the conduct of public officials, and announces the rule that a publication which imputes to public officials misconduct in office, “if false,” is a violation of that privilege.

The use of the words “if false” is very significant. These words indicate that the court was talking about libelous statements of fact which impute misconduct, and statements of fact upon which libelous expressions of opinion were *199 based. This is true because, as we have seen, statements of fact are subject to a determination as to their truth or falsity, and expressions of opinion are not.

Hence, what the quoted holding really stands for is the rule, consonant with the principles summarized above, that a person who makes a false statement of fact tending to impute misconduct to public officials, or who bases an expression of opinion carrying such an imputation, upon a false statement of fact, enjoys no defense of privileged criticism.

It seems apparent to me that the rule, as so understood, does not preclude the defense of privileged criticism in this case., It merely states the qualifications and limitations regarding that defense which the trial court should have made known to the jury for their consideration in connection with this defense.

The jury should have been told, with respect to this phase of the defense, that there are words in this editorial which impute misconduct in office, or want of official integrity or fidelity to public trust, which words are libelous per se; that such, if any, of these words as the jury finds to be express or implied statements of fact are not protected by the defense of privileged criticism, the only defense as to such words being truth; and that as to such words, if any, which the jury finds to be expressions of opinion, the defense of privileged criticism does not apply, if any of the facts upon which the opinion is expressly or impliedly based are false. The other elements of a complete instruction regarding this defense are well summarized in 3 Restatement, Torts, 275, § 606.

Such instructions would have fully safeguarded respondent’s rights. Our previous decision does not, in my opinion, require that respondent be entirely insulated from the defense of privileged criticism. Nor do the general principles applicable in this state and elsewhere warrant such a result.

Hill and Finley, JJ., concur with Hamley, J.

November 17, 1952. Petition for rehearing denied.