Petition — Brewer v. Memphis Publishing Co.
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Office- Supreme Court, U.S.
- : 80-1787 | FILED
No. ' APR 24 198)
In the Supreme Court of the United States
October Term, 1980
JOHN L. BREWER and ANITA W. BREWER,
Petitioners,
VS.
MEMPHIS PUBLISHING COMPANY, INC.,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JoE H. DANIEL
P.O. Box 1084
Jackson, Mississippi 39205 °
(601) 969-7607
Counsel of Record for Petitioners
JOHN W. PREwITT
P.O. Drawer 750
Vicksburg, Mississippi 39180
JOHN B. CLARK
B. STEVENS Hazarp
P.O. Box 1084
Jackson, Mississippi 39205
Additional Counsel for Petitioners
E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030
i Vo
QUESTIONS PRESENTED FOR REVIEW
1. Whether one who was previously a public figure
may retreat from such status to a private existence and
thereby become entitled to the same protection from de-
famation as one who had never been a public figure.
2. Whether a defamer is entitled to New York Times
Co. v. Sullivan’ protection for publishing a defamatory
article concerning the private affairs of citizens who had
effectively retreated from public figure status, which ar-
ticle described a fictitious event which purportedly oc-
curred after retreat from public figure status.
3. Whether one who is neither an “all-purpose” pub-
lic figure as delineated in Gertz v. Robert Welch, Inc.? nor
involved in any public controversy, may be classified as a
public figure.
4. Whether the spouse of a former public figure is
by the fact of marriage rendered a public figure, so that both
husband and wife are subject to the New York Times Co.
v. Sullivan standard for an article defaming both of them.
5. Whether a defamer may create a successful de-
fense to a libel action by publishing an account of an event
which never occurred, and whether such a fictitious ac-
count can cast plaintiffs as public figures.
6. Whether publishing as fact that which a reporter
knows to be less than fact constitutes reckless disregard
of falsity, amounting to malice.
LIST OF ALL PARTIES
The caption of the case in this Court contains the
names of all parties.
1. 376 U.S. 254 (1964).
2. 418 U.S. 323 (1974).
II
TABLE OF CONTENTS
III TIE occtinssipnnsncenvicieisaieasbaabesnictbiibabante Seaibsiabina aaa 1
Statement Of The Grounds C1 Which Jurisdiction Is
BI scicnisiceihicibcers cis satibincitcicaccccigadditacaaccea tk NARI 1
eR | eR NRT 1
ts fe Eb Ne Soe ON. 2
Argument—
I. The Opinion Below Resurrects The Repudiated
Doctrine Of Rosenbloom v. Metromedia, Inc. 6
II. This Case Presents For Decision The Question
Expressly Left Open By Wolston v. Reader’s
Digest Ass’n, Which Should Be Met Squarely
By The Court And Decided .................-...c.cessssse-- 10
III. The Decision Of The Court Below Is In Con-
flict With The Decisions Of Other Courts Of
Appeal, And Of A State Court Of Last Re-
EE ee a ME TAS ER | 20
IV. The Opinion Below Fails To Recognize The
Reckless Disregard Of Respondent As “Actual
Malice” Within The Meaning Of New York
2s CO. 0. TOTOOW cvccccnceceeees 21
CORMNORIIIID, nscncciisscesonsccinentinivinaiivensimierniniccpaiicissigian ina 25
Table of Authorities
CASES
Brewer v. Memphis Pub. Co., 538 F.2d 699 (5th Cir.
SPT) <seswsssansivsindeitbinsintadilccenietiiladscgglaaae 1, 2, 5, 10, 12, 19, 21
Brewer v. Memphis Pub. Co., 626 F.2d 1238 (5th Cir.
FOP) stscsnsnennsseviniensseee tasieerisnssntengliciaaiaaan 1, 3, 6, 9, 19, 20
Bruno & Stillman, Inc. v. Globe Newspaper Co., 633
F.2d 583 (1st Cir. 1980) .......... 7,8
m1
Carson v. Allied News Co., 529 F.2d 206 (7th Cir.
fs ee Ra etree SEAR INE LEN RR a MME, CNX RR PR 24
Curtis Publishing Co. v. Butts, 388 U.S. 130 (Sees) 13, 23
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ...... 1, 7,8,
9,16
Guam Federation of Teachers v. Ysrael, 492 F.2d 428
(9th Cir.) , cert. denied, 419 U.S. 872 (1974) ................ 24
Hutchinson v. Proxmire, 443 U.S. 111 (1979) ................ 8
Lawrence v. Moss, No. 79-1922 (10th Cir., Jan. 13,
FR seintiesntonagecehn buataanianeeatag Oo a aac e 14, 20-21
Littlefield v. Fort Dodge Messenger, 614 F.2d 581 (8th
Cir.), cert. denied, 100 S.Ct. 1342 (1980) 20... 21
Mills v. Kingsport Times-News, 475 F.Supp. 1005 (W.D.
bE ARIA RRC MaRS Sc! RUM RREN Sr eee oo 21
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
sell dliapnidaeclasdishdeiecipiciguibicdntonstapiiuidatetaieciiiidks tae nat I, 16, 21, 23, 25, 26
Rancho La Costa v. Superior Court, 165 Cal.Rptr. 347,
106 Cal.App.3d 646 (1980), cert. denied, 49 U.S.L.W.
3521 (U.S. Jan. 20, 1981) (No. 80-853) 20 .. 16, 17
Rosenblatt v. Baer, 373 U.S. 597 (1966) oo... eee 10
Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971)
seas SnikdpneiatebiisssdleaioaniapusnblbaSacpiad badness deibltesaueszaGa 6, 7, 13, 16, 19, 26
Ryder v. Time, Inc., 557 F.2d 824 (D.C. Cir. 1976)
OKI eA NR ROI RSM Gen Oe a aE ERO TLE OEE YP a OY A 13, 14, 20
St. Amant v. Thompson, 390 U.S. 727 (1968) ................ 22, 24
Street v. National Broadcasting Co., No. 77-1682 (6th
RUM MMO ED seca ce 20
Time, Inc. v. Johnston, 448 F.2d 378 (4th Cir. 1971) ...... 20
Time, Inc. v. Firestone, 424 U.S. 448 (1976) .................... 7,9
. Torres-Silva v. El Mundo, 3 Med.L.Rptr. 1508 (Puerto
ER AIS SPE vicin-ssccnncngishccoccccunaitie aden, i: 17, 18, 19
Vandenburg v. Newsweek, Inc., 507 F.2d 1024 (5th Cir.
a UCHR EER CRA TONY CASES OAT SR ee 23
IV
Vegod Corp. v. American Broadcasting Cos., 25 Cal.3d
763, 603 P.2d 14, 160 Cal.Rptr. 99 (1979), cert. denied,
SIRI BTID iciics is covvinsnnsaiietonionecs Harecmssendaesdicirepensniniiamunes 21
Waldbaum v. Fairchild Pubs., Inc., 627 F.2d 1287 (D.C.
Cir.), cert. denied, 101 S.Ct. 266 (1980) ~.............. 9, 14, 20
Wolston v. Reader’s Digest Ass’n, 443 U.S. 157 (1979)
sp cibeogilisastipebiie cia: a socaiaidaduaakeededesiscaieiackehings 7, 8, 9, 10, 11, 15-16, 17
CONSTITUTIONAL PROVISIONS
I a nialetesrcabdandonie 1
STATUTES
I a sd dee eenicinasetsensebiokebpatousn 1
NE PO IS ecietinresccscarbncncasntnpacnse Siiitedicincaiebsomnehiinlirhdannitenn )
OPINIONS BELOW
The first reported opinion in this cause is found at
938 F.2d 699 (5th Cir. 1976). The second appellate opin-
ion, rendered after retrial, is reported at 626 F.2d 1238
(5th Cir. 1980). No reported opinion was rendered by
the trial court (United States District Court for the South-
ern District of Mississippi).
STATEMENT OF THE GROUNDS ON WHICH
JURISDICTION IS INVOKED
The judgment of the United States Court of Appeals
for the Fifth Circuit, reversing and rendering trial court
judgments on verdicts for petitioners, was entered on Octo-
ber 2, 1980. A timely petition for rehearing en banc was
overruled on January 26, 1981, and this petition for cer-
tiorari was filed within 90 days of that date. This Court’s
jurisdiction is conferred by 28 U.S.C. §1254(1).
CONSTITUTIONAL PROVISIONS
Petitioners assert that no constitutional provision is
involved in this case, since New York Times Co. v. Sullivan
does not apply. Respondent has invoked the First Amend-
ment, so that amendment is set out verbatim:
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise there-
of; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.
U.S. Const. Amend. I.
STATEMENT OF THE CASE
The act which gave rise to this lawsuit occurred on
September 8, 1972, when the Commercial Appeal news-
paper of Memphis, Tennessee, which is owned by respon-
dent Memphis Publishing Company, Inc.,? printed a gossip
column article sensationally entitled “Flickering Flame”.
The entire wording of the article is as follows:
“FLICKERING FLAME”: Back in 1957 Anita Wood,
who came from Jackson, Tennessee, to Memphis to
sing on TV, was Elvis Presley’s “No. 1 girl’. This
week as Elvis closed his month-long show at the Las
Vegas Hilton, Miss Wood stopped by the hotel for
what appeared to be a “reunion” of two old friends.
Elvis recently filed for divorce from his wife of five
years, Priscilla. Miss Wood is divorced from former
Ole Miss football star Johnny Brewer.
The article was a “bit of false gossip’.* Anita Wood
Brewer had not been in Las Vegas as reported. She had
not stopped by Elvis Presley’s hotel. She had not seen
Presley. There had been no “reunion” with Presley. She
was not divorced from Johnny Brewer. At the time the
article was published Johnny and Anita Brewer were
married and living together in Pass Christian, Mississippi
with their three children. Johnny Brewer was a real
estate salesman and Anita Wood Brewer was a housewife.
There was testimony that the word “reunion”, used
in context, had a sexual meaning. The jury found that
the article defamed both petitioners “. . . by stating that
3. The respondent is a subsidiary of the E. W. Scripps
Company.
. 4. Brewer v. Memphis Pub. Co., 538 F.2d 699, 701 (5th Cir.
1976).
3
they were divorced, defamed John by conveying that he
had been cuckolded, and defamed Anita by conveying
that she was involved in an immoral or illegal relationship.”
Brewer v. Memphis Pub. Co., 626 F.2d 1238, 1243 (5th
Cir. 1980). Both the trial court and the court of appeals
held that the article was defamatory under Mississippi
law. Id. at 1242.
The “Flickering Flame” article had its origin in a
conversation between respondent’s reporter James Kingsley
and his sister, Ann Otis of Las Vegas, Nevada, On Sep-
tember 7, 1972, Otis called Kingsley to inquire about a
family matter. In passing, Otis advised Kingsley that
she had had a conversation with a salesclerk in the dress
shop of the Las Vegas Hilton. According to the sales-
clerk “a girl” who had been in the dress shop had said
that she was Anita Wood from the Memphis area and
that she was going to see the Elvis Presley show.
Kingsley reported this conversation to Hope Pectol,
copy editor of the “People” column for the Commercial
Appeal, who asked him to put the information in note
form. Pectol inquired of Kingsley concerning the marital
status of Anita Wood, and Kingsley informed Pectol that
Anita Wood had married Johnny Brewer, but gave his
“opinion” that the Brewers were divorced. Kingsley could
think of no one who had informed him that the Brewers
were divorced; he had no basis for this “opinion” (R. 1021-
22). Kingsley asked two others about the marital status
of the Brewers. One told Kingsley that he did not know;
the other stated that he did not know whether the Brewers
were divorced or not but that he had heard that they
were separated. Although Kingsley remembered telling
Pectol that it was his “opinion” that the Brewers were
divorced (R. 1008), Pectol remembered Kingsley telling
her flatly that the Brewers were divorced (R. 1246).
4
Kingsley called Otis and while he waited, Otis tele-
phoned the salesclerk who repeated the dress shop con-
versation.
- Although Otis gave Kingsley no information concerning
a “reunion” between Elvis Presley and Anita Wood Brewer
(R. 1049) and Kingsley gave no such information to Pectol
(R. 1018), Pectol testified that she received the “impres-
sion” that Elvis Presley and Anita Wood Brewer had seen
each other in the Las Vegas Hilton (R. 1239). She thevre-
fore stated it as fact, using quctation marks in the story
around her chosen word, “reunion”.
There was no attempt to accurately identify the “gir!”
in the dress shop as Anita Wood Brewer. There was no
attempt, other than the two unfruitful “in-shop” inquiries,
to verify the marital status of the Brewers. Testimony
by petitioners’ expert witnesses at trial showed that to
publish the story without verification of the facts ran
counter to the standards of responsible journalism (R.
388, 477).
Anita Brewer was born in Bells, Tennessee in 1938,
and grew up in Jackson, Tennessee. At the time she
graduated from high school in 1956 she was working on
a part-time basis for a local radio station as a disc jockey.
After high school graduation she moved to Memphis,
Tennessee where she became co-hostess of a local televi-
sion program, “Top Ten Dance Party”, for approximately
one year. She met and dated Elvis Presley off and on
until 1960 or 1961. From 1958 to 1959 Anita appeared
on the Andy Williams summer replacement television
show several times and once on the Burt Parks “Country
Fair” show. From November 15, 1962 until her marriage
to John Brewer on June 14, 1964, Anita sang once a week
on the “Good Morning from Memphis” television program.
Since Anita’s marriage to John Brewer she has been a
5
housewife. Neither the Commercial Appeal nor any other
newspaper carried any story concerning Anita’s activities
from the date of her marriage to John Brewer on June 14,
1964 until the “Flickering Flame” article was printed
on September 8, 1972.
John Brewer was born in Vicksburg, Mississippi. In
1956 he was matriculated at the University of Mississippi,
where he was a member of the football team. After
college graduation, John played professional football for
the Cleveland Browns until he was traded to the New
Orleans Saints. He retired from ,.ofessional football in
1970.
These suits were filed by Mr. and Mrs. Brewer in 1973
against the respondent, owner of the Commercial Appeal.
Jurisdiction in the trial Court was based on diversity of
citizenship and amount in controversy, pursuant to 28
U.S.C. §1332.
When initially tried in 1974, the cases resulted in a
$400,000.00 verdict for each plaintiff. These verdicts were
set aside as excessive by the trial judge, who granted
a new trial on damages alone. The second trial, later
in 1974, resulted in a $250,000.00 verdict for Anita Brewer
and a $150,000.00 verdict for John Brewer. The Brewers
c accepted a remittitur of these verdicts to $100,000.00 and
$50,000.00, respectively. On appeal by Memphis, the judg-
ments were reversed and the cases remanded for a third
trial on all issues. Brewer v. Memphis Publishing Co.,
538 F.2d 699 (5th Cir. 1976). The third trial, in 1977,
resulted in verdicts of $150,000.00 for Anita Brewer and
$60,000.00 for John Brewer. Memphis appealed again.
The opinion below, rendered October 2, 1980, holds
(1) that both Mr. and Mrs. Brewer were public figures,
who were required to prove malice to recover for libel,
Sno ee
'%
6
and (2) that they failed to prove malice with the req-
uisite “convincing clarity”. The Court of Appeals there-
fore disregarded three successive jury verdicts and the
opinion of the district court, and made nugatory more
than seven years of litigation by Mr, and Mrs. Brewer.
ARGUMENT
I. The Opinion Below Resurrects The Repudiated
Doctrine Of Rosenbloom v. Metromedia, Inc.
The trial court opined that both Mr. and Mrs. Brewer
had been public figures prior to their marriage (App. A67,
A70). However, in conformance with the direction of the
Court of Appeals on the first appeal, he submitted to the
jury the question of whether the plaintiffs were private
figures at the time of publication, and the jury found that
they were (App. A62, A65). The trial court affirmed that
finding (App. A70). The decision of the Court of Appeals
below reverses his determination, and holds as a matter of
law that the plaintiffs are held to the same standards as
public figures.
While the opinion below goes through a description
of the careers of the plaintiffs, it impliedly recognizes
that they, individually, had retreated from public figure
status. 626 F.2d at 1257. The real basis for its decision
appears to be the conjunction of the life of one of the
plaintiffs, 15 years before the publication, with “. . . one
whose career was still phenomenal, Presley”. Ibid. We
submit that the Court thereby fell into the error of resur-
recting the plurality doctrine of Rosenbloom v. Metro-
media, Inc., 403 U.S. 29, 44 (1971) that “all discussion
and communication involving matters of public or general
concern” warrant New York Times protection. In other
words, it was not the fame of either of the plaintiffs
7
which robbed them of their right to recover. It was the
reporter’s false linkage of them with the phenomenon,
Presley, a subject of public or general interest, which
created a defense for the defamer. The Court of Appeals
erroneously “concluded that . . . protection should extend
to defamatory falsehoods relating to private persons if
the statements concerned general or public interest.” See
Gertz v. Robert Welch, Inc., 418 U.S. 323, 337 (1974).
The Rosenbloom plurality rule has been soundly de-
nounced, “We repudiated this proposition in Gertz and
in Firestone, .. . and we reject it again today.” Wolston
v. Reader’s Digest Ass’n, 443 U.S. 157, 167 (1979).
. [T]he ‘extension of the New York Times test pro-
posed by the Rosenbloom plurality would abridge [a]
legitimate state interest to a degree that we find unaccept-
able.’” Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976).
Thus, in Gertz, the plaintiff, who had long been active
in community affairs, had held various offices in such
groups, had published several books and “thousands” of
articles,° was well known in professional circles, and had
been publiciz.d by newspapers, radio and television was
held not to be a public figure.
Similarly, in Time, Inc. v. Firestone, the plaintiff,
who was prominent in Palm Beach society, was married
to the scion of one of America’s wealthier industrial fam-
ilies, was an active member of the sporting set, who sub-
scribed to a press-clipping service, whose divorce elicited
88 newspaper articles, and who held several press con-
ferences,® was held not to be a public figure.
5. See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633
F.2d 583, 588, fn. 4 (1st Cir. 1980).
6. The Court implied that the press conferences were ir-
relevant, since plaintiff did not use them to “thrust herself to
the forefront of some unrelated controversy in order to influence
its resolution.” 424 U.S. at 455.
8
Again, in Hutchinson v. Proxmire, 443 U.S, 111 (1979),
a plaintiff who was a public employee, a successful appli-
cant for federal research grants with considerable resulting
publicity, and the author of various published writings,
was held not to be a public figure.
Finally, in Wolston v. Reader’s Digest Ass’n, 443 U.S.
157 (1979), a plaintiff who had been prominent in an
investigation of Soviet spy activity, who had pleaded guilty
to a contempt charge in connection with the investigation,
who was the subject of 15 newspaper articles in two cities
alone, as well as of a book and FBI report, was held
not to be a public figure.”
The theme running through all of these post-Rosen-
bloom cases is that “a private individual is not automat-
ically transformed into a public figure just by becoming
involved in or associated with a matter that attracts public
attention.” Wolston, 443 U.S. at 167. The error made
by the Court of Appeals, we submit, is that the defendant’s
false and involuntary association of these plaintiffs with
the Elvis Presley phenomenon, in the “Flickering Flame”
article, is bootstrapped into a defense. “Clearly those
charged with defamation cannot, by their own conduct,
create their own defense by making the claimant a public
figure.” Hutchinson v. Proxmire, 443 U.S. at 135 (1979).
See also Bruno & Stillman, Inc. v. Globe Newspaper Co.,
633 F.2d 583, 589 (1st Cir. 1980).
The decision below in this case actually recognizes
that plaintiffs do not fit under either the “all purpose”
or the “limited” public figure categories of Gertz. The
court then goes on to create a third category into which
7. The Court found it unnecessary to decide whether plain-
tiff there had retreated from public figure status, since they
held he had never attained such status. 443 U.S. at 166, fn. 7.
The “retreat” of the plaintiffs in this case will be discussed infra.
9
it forces plaintiffs. 626 F.2d at 1254. No authority exists,
we submit, for such a creation. In none of the post-Gertz
cases has the existence of such a third category been
revealed. To the contrary, the Supreme Court recently
observed, “We identified two ways in which a person
may become a public figure for purposes of the First
Amendment, .. .” Wolston v. Reader’s Digest Ass’n,
443 U.S. at 164.
If the rationale of the Court of Appeals was strained
as to Anita Brewer, it is stretched past the breaking point
as to her husband. Although the Court admitted that
the defamatory portions of the article did not relate to
the basis for John Brewer’s “fame”, he nevertheless is
hoist by his wife’s petard. His wife’s temporary courtship
by Presley in 1957 is held to rob him of his right to
recover for a 1972 libel. If this were the rule, Mrs.
Firestone, the wife of “. . . the scion of one of America’s
wealthier industrial families. . .”* would probably by her
marriage alone have been a public figure. The holding
of that case indicates the rule is otherwise.
We also submit that the decision of the Court of
Appeals is contrary to that Court’s own holding on the
8. A careful analysis of the two Gertz public-figure cate-
gories was carried out in Waldbaum v. Fairchild Pubs., Inc., 627
F.2d 1287 (D.C. Cir.), cert. denied, 101 S.Ct. 266 (1980). The
Waldbaum court observed,
. . . The person who lacks the level of recognition to be
classified as a general public figure no longer can be as-
sumed to have pervasive influence in society. Thus, we
must return to a more particularized inquiry into the cir-
cumstances of his case. If in fact he is shaping or is trying
to shape the outcome of a specific public controversy, he is
a public figure for that controvery; if not, he remains a
private individual.
Id. at 1298, fn. 32 (emphasis added). The Court below fell into
the error of allowing alleged newsworthiness of gossip about
Elvis Presley to suffice to drag petitioners into the public figure
spotlight, even though they were not public figures under Gertz.
9. Time, Inc. v. Firestone, 424 U.S. at 450.
10
first appeal of this case. On that appeal, the case was
remanded for a trial by jury on all issues, 538 F.2d 699.
The necessary implication of such a holding is that there
were jury issues to decide. For the Court now, after
the delay, expense and anguish of a third trial, and a.
third jury verdict for plaintiffs, to hold that there never
were any jury issues is inexplicable to layman and lawyer
alike.
II. This Case Presents For Decision The Question
Expressly Left Open By Wolston v. Reader’s Di-
gest Ass’n, Which Should Be Met Squarely By
The Court And Decided.
In 1966, in a libel case concerning a public official,
this Court stated,
. .. To be sure, there may be cases where a person
is so far removed from a former position of authority
that comment on the manner in which he performed
his responsibilities no longer has the interest neces-
sary to justify the New York Times Rule... .
The Court thus foresaw that a former public figure could
retreat from the spotlight and enjoy the privacy common
to other citizens.
In Wolston v. Reader’s Digest Ass’n, the plaintiff had
argued at trial and in the Court of Appeals that the
passage of time had restored him to private figure status.
In the Supreme Court, he pinned his case entirely on the
contention that he had never been a public figure. This
Court stated, through Mr. Justice Rehnquist,
. . . Because petitioner does not press the issue in
this Court and because we conclude that petitioner
was not a public figure in 1958, we need not and do
10. Rosenblatt v. Baer, 373 U.S. 597, 606, fn. 14 (1966).
11
not decide whether or when an individual who was
once a public figure may lose that status by the pas-
sage of time.
443 U.S. at 165, fn. 7.
Mr. Justice Blackmun, in a concurring opinion in
which Mr. Justice Marshall joined, indicated that he would
not have decided the case on the plaintiff’s original status.
The concurring opinion stated,
... Assuming, arguendo, that petitioner gained public-
figure status when he became involved in the espio-
nage controversy in 1958, he clearly had lost that
distinction by the time respondents published “KGB”
in 1974. Because I believe that the lapse of the inter-
vening 16 years renders consideration of this peti-
tioner’s original public-figure status unnecessary, I
concur only in the result.
443 U.S. at 170. Mr. Justice Blackmun stated two cogent
reasons for his position on the “passage of time” point:
.. . First, a lapse of years between a controversial
event and a libelous utterance may diminish the de-
famed party’s access to the means of counter-argument.
. . . Second, the passage of time may diminish the
“risk of public scrutiny” that a putative public figure
may fairly be said to have assumed... .
Ibid.
The present case presents the exact question which
two justices would have decided, but which the majority
found unnecessary to decide, in Wolston.
The first decision of the Court of Appeals opined that
the then-decided cases left open the issue of “the extent
to which a person who has been a public figure in the
past can retreat to private status and obtain the benefit
12
of the lesser standard of proof required for damages for
injury from libel.” 538 F.2d at 703. After remand the
question of retreat was submitted both to the Judge and
jury. The district judge was of the opinion that an
effective retreat had been accomplished." However, he
was under the impression that the opinion of the Court
of Appeals called for the issue to be submitted to the jury.”
Special interrogatories were submitted to the jury, which
found that as of September 8, 1972, both petitioners were
private figures (App. A62, A65). The jury specifically re-
jected the contention of Memphis that as of September 8,
1972, .chn and Anita Brewer were public figures (App.
A62, A65).
The trial judge specifically affirmed the findings of
the jury in his ruling on the post-trial motions filed by
Memphis:
. . . John L. Brewer literally hung up his helmet
at the end of the professional Saints’ football season
in 1970. He had done nothing to attract public atten-
tion as an athlete after that date. He was certainly
a public figure as an outstanding athlete, but volun-
tarily and deliberately withdrew to the sidelines and
became a private citizen with all of his vested rights
not to be maligned and tortured and defamed by
anyone asserting a vested right to do so.
Mrs. Brewer became Mrs. John L. Brewer on June 13,
1964 and never thereafter participated as a professional
entertainer at anytime or place. She and her husband
were happily married and at that time had two chil-
11. R. 729, App. A70.
12. The Court of Appeals had stated “. . . defendant is
entitled to have a jury, not the judge, resolve the liability and
ane under. proper instructions as to the law.” 538
.2d at 703.
13
dren and now have three children as private citizens.
The birth of these children was not even newsworthy,
so completely had she withdrawn herself from the
entertainment world... .
App. A70.
The principle of retreat from public figure status was
recognized in Ryder v. Time, Inc., 557 F.2d 824 (D.C.
Cir. 1976), which involved a plaintiff who had been a
member of the Virginia House of Delegates and an un-
successful candidate for the Virginia State Senate, all in
a three year period prior to the publication of the alleg-
edly libelous article. At the time the libel action was
filed, plaintiff “was politically active in his community,
but not the holder of any public office.’ The district
court had found plaintiff to be a “public figure” under
the holding of Curtis Publishing Co. v. Butts, 388 U.S.
130 (1967). In reversing, the Court of Appeals stated,
It is true that plaintiff had been a public official
for a time and had been a candidate for public office.
Yet these public activities had nothing to do with
Richard Ryder in the essay and, in any case, those
activities were no longer engaged in by plaintiff.
057 F.2d at 826 (emphasis added).
The Ryder Court of Appeals recognized that under
Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) (plu-
rality opinion), the “actual malice” standard would apply
if the article involved an issue of “general or public con-
cern”; but that since the repudiation of Rosenbloom, the
determination of the status of the plaintiff is controlling.
The Court of Appeals, in focusing upon the status of
the plaintiff, determined that “. . . there was no public
debate as to any conduct of Richard J. Ryder nor was
14
there any criticism of him as a public official or as a
private citizen.” 557 F.2d at 826, fn. 3.
Just as in the present case, in Ryder
. a private person, through no fault of his own,
has been exposed to serious damage to reputation
by the failure of defendant sufficiently to identify
the person defendant intended to reference. A mod-
icum of care would have provided the correct identity.
557 F.2d at 826.
The District of Columbia Court of Appeals has con-
tinued to recognize the principle of retreat by including
it as one of the factors which may be considered in making
a determination of the status of a defamation plaintiff.
Inquiry may be made to “see if plaintiff has shunned
the attention that the public has given him and determine
if those efforts have been successful.” Waldbaum v.
Fairchild Publications, Inc., 627 F.2d 1287, 1295 (D.C. Cir.),
cert. denied, 101 S.Ct. 266 (1980).
The Court of Appeals for the Tenth Circuit has re-
cently addressed a similar situation in Lawrence v. Moss,
No. 79-1922 (10th Cir., Jan. 13, 1981). The plaintiff was
referred to by defendant as the “bag man for Spiro
Agnew”. Slip Opinion at 3. The District Court had
granted defendants’ motion for summary judgment since
it had determined “that plaintiff was a public figure,
who could recover only on a showing of actual malice,
and that the record did not present any question of fact
on the existence of actual malice.” Slip Opinion at 2.
The alleged slander occurred on October 26, 1976.
The Court of Appeals stated the facts concerning plain-
tiff’s prior activities as follow:
7
‘
In his early youth plaintiff was interested in politics.
From January, 1970, through May, 1972, he served
15
on the staff of Vice-President Agnew and participated
in the “decision making process.” In June, 1972, he
joined the Committee for the Reelection of the Pres-
ident (CREEP) as the deputy director of administra-
tion with oversight of various political groups. In
December, 1972, he was employed as “special assistant
to the Assistant Administrator of the General Services
Administration” in Washington, D.C. Charges of im-
proper conduct were brought against him and dropped
after his January 25, 1974, resignation.
In April, 1975, plaintiff was employed by the United
States Department of Commerce, and was terminated
the next month after publication of an article in the
Washington Post which called attention to his back-
ground, his connection with General Services, and his
new employment. In May, 1976, plaintiff took courses
in campaign management sponsored by the Republican
National Committee and by the National Conservative
Political Action Committee. After completion of the
courses he raised funds in several states for various
purposes. In August, 1976, he became an independent
political campaign consultant and was retained by the
National Conservative Political Action Committee, the
Hatch for Senate Committee, and the Conservative
Victory Fund.
Slip Opinion at 4-5.
The Court of Appeals was of the opinion that since
the events pertinent to the lawsuit occurred in Utah, the
status of the plaintiff in Utah was “of prime importance”.
Slip Opinion at 5. Since the plaintiff was not a public
official the question was whether the plaintiff was a
public figure.
The plaintiff “did not thrust himself into public prom-
inence in Utah”. Slip Opinion at 8. Relying upon Wolston
16
v. Reader’s Digest Ass’n, 443 U.S. 157 (1979), the Court
of Appeals stated,
.. . The participation of plaintiff in the Hatch cam-
paign may have made him newsworthy, but did not
transform him into a public figure. The status of
the individual claiming to be defamed is the con-
trolling factor, not the nebulous interest of the public
in a matter with which he is inconspicuously involved.
[Citation omitted]. On the record presented, plaintiff
was not a public figure at the time of the alleged
defamatory statement.
Slip Opinion at 9 (emphasis added).
California recognized the principle of retreat in Rancho
La Costa v. Superior Court, 165 Cal.Rptr. 347, 106 Cal.
App.3d 646 (1980), cert. denied, 49 U.S.L.W. 3521 (US.
Jan. 20, 1981) (No. 80-853). The plaintiffs were five
corporations and four individuals. The allegedly defam-
atory article accused the individual plaintiffs “of being
mobsters, gangsters, members of organized crime. . . .”
165 Cal.Rptr. at 349, 106 Cal.App.3d at 650. The trial
court had found a corporation and two individual plaintiffs
to be public figures. 165 Cal.Rptr. at 351, 106 Cal.App.3d
at 653. The California Court of Appeal found that the
evidence did not support a decision that plaintiffs were
public figures “even for the ‘limited purpose’ definition
established in Gertz v. Welch”. 165 Cal.Rptr. at 352, 106
Cal.App.3d at 655:
Rather, the evidence would tend to support only a
definition of ‘public figure’ as expressed in Rosenbloom
v. Metromedia,
In attempting to show that plaintiffs were public
figures, defendants introduced “several boxes of books,
magazines, newspaper clippings, reports... .” 165 Cal,
17
Rptr. at 357, 106 Cal.App.3d at 662. However, the Cali-
fornia Court of Appeal rejected
... the proposition that public figure status can be es-
tablished by evidence of much publicity which . . . is
primarily or basically a voluminous amount of news-
paper or magazine articles, the “shoe-boxful” method
of proof.
165 Cal.Rptr. at 358, 106 Cal.App.3d at 664.
The Court of Appeal rejected defendant’s contentions
“that publicity per se—light or heavy—creates a public
figure.” Id.*
Although the Court of Appeal found it unnecessary to
rely upon a “passage of time argument”, it commented,
Even if one of petitioners here might be proven to
have been a public figure or a limited public figure
by reason of some involvement with or association
with one convicted of a criminal offense, passage of
time may well erase that status and reduce such a
plaintiff to the status of private individual. (Wolston
v. Reader’s Digest Assn., Inc. (1979) 443 U.S. 157, 166
fn. 7, 99 S.Ct. 2701, 2707 fn. 7, 61 L.Ed.2d 450, see con-
curring opinion Blackmun, p. 169 and note at p. 170,
99 S.Ct. p. 2708 and note at p. 2709)....
165 Cal.Rptr. at 354, fn. 6, 106 Cal.App.3d at 658, fn. 6.
Another case involving a retired entertainer is Torres-
Silva v, El Mundo, 3 Med.L.Rptr. 1508 (Puerto Rico Sup.
Ct. 1977). That case involved a newspaper account falsely
stating that an arrestee in a drug raid was the son of a
retired bandleader. The Court discussed the status of the
plaintiff in these words:
13. This “shoe-box full” method of publicity is precisely
what was used by respondent at trial to attempt to make the
Brewers public figures.
18
Torres-Silva is a well-known Bandleader, now re-
tired. He founded and conducted the Siboney Or-
chestra for more than 20 years, and in 1971 he retired
as such Director, although he occasionally attends ac-
tivities of this orchestra when the same are held close
to his residence at Vega Baja Beach. He made re-
cordings for several record companies and during fif-
teen years was in charge of the music in the “Libby’s
Show” which was transmitted by radio and TV; he
also played in dances and social activities. Torres-
Silva and his Siboney Orchestra have been mentioned
in newspapers, reviews, and in social and TV programs.
He was once interviewed in ‘“‘Tommy’s Show” by TV
producer Tommy Muniz. He never held a public post
nor has participated, directly or indirectly, in public
affairs or of general interest to the community.
Id. at 1509.
The trial court had held that “. . . Torres-Silva had
become a public figure due to his activities as Siboney
Bandleader.” Ibid, The Puerto Rican Supreme Court dis-
cussed the United States Supreme Court precedents as well
as numerous law review articles and two of its own de-
cisions, and concluded that the United States Supreme
Court had worked out a conciliatory formula between the
two competing interests, (1) freedom of the press, and
(2) reputation of the private individual. That formula
turned on “. . . the nature of the status of the defamed
person,” Id. at 1510.
In determining the status of the particular plaintiff
before it, the Court asked,
Can it be stated that appellant Torres-Silva is a pub-
lic figure according to the rules recited above? Torres-
Silva is a known bandleader and, undoubtedly, re-
spected and admired in the artistic world. Even more,
19
his name can be familiar in some sphere of the com-
munity, but does not have, however, such notoriety
and prominence in the Puerto Rican life, in the affairs
of our community, so as to make him a public figure.
He has not either been taken to a public controversy
concerning the drugs problem, the issue to which the
defamatory information giving rise to this case refers.
In the light of the foregoing, the finding of the trial
court considering him a public figure is erroneous... .
Ibid."*
The decision should be the same in the present case,
on the public figure issue. The holding in the opinion of
the Court below seems to be that public figure status is
mandated because the fictitious “Flickering Flame” article
“. . . related to one whose career was still phenomenal,
Presley.” Brewer v. Memphis Pub. Co., 626 F.2d 1238,
1257 (5th Cir. 1980). As is shown above, this is an ill-
disguised resurrection of the “public concern” test of Rosen-
bloom v. Metromedia, Inc., 403 U.S. 29, 44 (1971). The
public’s supposed interest in gossip about Elvis Presley
conferred no right on respondent to libel petitioners.
We do not argue that respondent had no right to write
history. It is not the historical comment in the Flickering
Flame article which is libelous. It is the contemporaneous
lie concerning the fictitious “reunion” draped in sexual
connotations, as well as the false accusation of divorce.
14, The concurring opinion in Torres-Silva decried one
aspect of the majority opinion, stating that under its rule,
... @ [sic] honest citizen labeled as a thief by a newspaper
would, among other things, be bound to prove his honesty.
And a similar procedural hill would have to be climbed by
a respectable woman whose honor is at stake in paper head-
lines.
Id. at 1513. Mrs. Brewer has climbed that hill, proved her case
three times to a jury’s satisfaction, only to be told by the Court
of Appeals that there was never a question for a jury to decide.
20
We do not complain of “. . . a publication relating to a past
event in the career of a ‘public figure’.”"*> We complain
of a defamatory account of an imaginary current event con-
cerning two citizens who were at the time of publication
linked with a public figure only by the pernicious specula-
tion of a gossip columnist.’®
III. The Decision Of The Court Below Is In Conflict
With The Decisions Of Other Courts Of Appeal,
And Of A State Court Of Last Resort.
Boiled down to its essence, the decision below stands
for the proposition that false allegations of trivial or tan-
gential™ involvement with “. .. one whose career was still
phenomenal, Presley,’’’* are sufficient to make these peti-
tioners public figures, burdened with the requirement to
prove malice before being compensated for libel. This hold-
ing is contrary to the principles of the federal court of ap-
peals decisions of Ryder v. Time, Inc., 557 F.2d 824 (D.C.
Cir. 1976) (discussed supra at 13-14) and Lawrence v.
on 15. See Time Inc. v. Johnston, 448 F.2d 378, 382 (4th Cir.
1).
16. This case is thus distinct from Street v. National Broad-
casting Co., No, 77-1682 (6th Cir. March 13, 1981). There, the
publication complained of concerned strictly the historical event
which had made the plaintiff a public figure (the “Scottsboro
Boys” trial). There was no libel relating to alleged activities of
the plaintiff concurrent with publication, such as the Flickering
Flame article falsely portrayed.
The decision in Street v. National Broadcasting Co., how-
ever (in which the district judge and one dissenting circuit
judge would have held the plaintiff to be a private figure, but
were overruled by two circuit judges), does point up the im-
portance of the question presented by the present case. Counsel
for plaintiff in the Street case has advised counsel for petitioners
in this case that it is his intention to petition for certiorari.
There are no doubt many other cases in the country in need
of a definitive ruling on the “retreat” question.
17. See Waldbaum v. Fairchild Pubs., Inc., 627 F.2d 1287,
1297 (D.C. Cir.), cert. denied, 101 S.Ct. 266 (1980).
18.. 626 F.2d at 1257.
21
Moss, No. 79-1922 (10th Cir., Jan. 13, 1981) (discussed
supra at 14-16). It is also contrary to the principles of
Littlefield v. Fort Dodge Messenger, 614 F.2d 581 (8th
Cir.), cert. denied, 100 S.Ct. 1342 (1980) (“. .. the public’s
interest should not be considered in making the public
figure/private individual determination.” Id. at 584).
Further, the decision below is contrary to the principles
of Vegod Corp. v. American Broadcasting Cos., 25 Cal.3d
763, 603 P.2d 14, 160 Cal.Rptr. 99 (1979), cert. denied, 66
L.Ed.2d 113 (1980) (“Merely doing business with parties
to a public controversy does not elevate one to public figure
status”. Id., 603 P.2d at 17).
Although we realize that it is not technically a reason
for granting certiorari, we also point out that the decision
below is contrary to certain district court decisions. One
of these is Mills v. Kingsport Times-News, 475 F.Supp. 1005
(W.D. Va. 1979) (“. .. if the reported inaccuracy is of a
different subject or incident [from the one allegedly cre-
ating original public figure status], then an action for
libel lies.” Id. at 1008).
We submit that this petition should be granted in order
for this proliferation of conflicting decisions to be set at
rest by a definitive ruling.
IV. The Opinion Below Fails To Recognize The
Reckless Disregard Of Respondent As ‘Actual
Malice’’ Within The Meaning Of New York Times
Co. v. Sullivan.
Assuming for the sake of argument that John and
Anita Brewer were “public figures” at the time of pub-
lication of the “bit of false gossip”,’® petitioners met the
burden of showing with convincing clarity a high degree
19. Brewer v. Memphis Publishing Co., 538 F.2d 699, 701
(5th Cir. 1976).
22
of awareness by respondent of the article’s falsity or reck-
less disregard of whether it was false or not.
The jury found from clear and convincing proof that
respondent published the article in question “either know-
ing it to be false, or with knowledge of its probable falsity.
... (App. A62, A65-A66). The jury further found that
respondent had no reasonable grounds to believe that the
statements made were true (App. A62-A63, A66). Further,
the trial judge found that the article “was prepared and
published in great haste in reckless and wanton disregard
of the facts” (App. A70).
Although respondent contended that the article was
published in good faith, the defendant
. . . cannot automatically insure a favorable verdict
by testifying that he published with a belief that the
statements were true. The finder of fact must deter-
mine whether the publication was indeed made in good
faith.
St. Amant v. Thompson, 390 U.S. 727, 732 (1968) (em-
phasis added).
In the present case, the finder of fact has determined
that the article was not published in good faith.
The “Flickering Flame” article published by respon-
dent originated with a salesclerk who casually related it
to Otis, who, without identifying the “girl” in the dress
shop, related it to Kingsley, who added his “opinion” re-
garding the Brewers’ marital status® and relayed it to
Pectol, who invented the “reunion” and wrote the article.
20. Respondent has never explained why it was necessary
to form “opinions” about simple matters of fact, which rudi-
mentary investigation would have shown to be either true or
false.
23.
The actions of respondent clearly and convincingly
show a disregard of whether the article was false or not
by the standard of Curtis Publishing Co. v. Butts, 388 U.S.
130 (1967). Butts involved the publication of an article
stating that Butts, an athletic director, had given an op-
posing football coach all of the “significant secrets” of Butts’
football team resulting in the loss of the game by Butts’
team. The article was based on a telephone conversation
between Butts and the opposing coach which was over-
heard by a third party. The Supreme Court recognized
that, as in the present case (R. 1026-27) the story was
not “hot news”. 388 U.S. at 157.2. Further the Court
found that a need for a thorough investigation had been
recognized by Curtis but that elementary precautions had
been ignored. Ibid. After outlining other shortcomings in
the preparation of the article, the Court concluded that
In short, the evidence is ample to support a finding of
highly unreasonable conduct constituting an extreme
departure from the standard of investigation and re-
porting ordinarily adhered to by responsible publishers.
388 U.S. at 158.
In a concurring opinion, Chief Justice Warren noted
that Curtis “proceeded on its reckless course with full
knowledge of the harm that would likely result from
publication of the article.” 388 U.S. at 170. Having de-
cided that the New York Times standard had been met,
the Chief Justice observed “Freedom of the press under
21. As stated by the Fifth Circuit Court of Appeals,
. .- [W]Jhen a story is not “hot news”. . . the investigation
must be more thorough, and “actual malice may be inferred
when the investigation . . . was grossly inadequate in the
circumstances.”
Vandenburg v. Newsweek, Inc., 507 F.2d 1024, 1026 (5th Cir.
1975).
24
the First Amendment does not include an absolute license
to destroy lives or careers.” Ibid.
In Carson v. Allied News Co., 529 F.2d 206 (7th
Cir. 1976) the plaintiffs were admitted public figures. The
Court noted that the article in question contained “fab-
ricated marriage-breaker accusations” and “wholly imag-
ined but precisely quoted conversations” and remanded
the case to the District Court for a determination of whether
actual malice existed, relying upon Guam Federation of
Teachers v. Ysrael, 492 F.2d 428 (9th Cir.), cert. denied, 419
U.S. 872 (1974).
On remand, the Carson District Court granted plain-
tiffs’ summary judgment motion, finding actual malice since
the reporter had done no research to determine the truth
of his allegations and admitted making up certain conversa-
tions quoted in the article, explaining that the conversa-
tions ‘Seemed to be a logical extension of what must have
gone on... .” 482 F.Supp. 406, 408. This “logical ex-
tension” is the same reasoning applied by Pectol when she
formed the “impression” from Kingsley’s notes that Presley
and Mrs. Brewer saw each other in the hotel, which she
chose to call a “reunion” (R. 1239) and by Kingsley in ex-
pressing the divorce “opinion”. This Court has expressly
warned that a profession of good faith would be unlikely
to be persuasive when “a story is fabricated by the de-
fendant, [or] is the product of his imagination... .” St.
Amant v, Thompson, 390 U.S. 727, 732 (1968).
The testimony of Kingsley and Pectol show that the
article was based on “opinions” stated as fact, “impres-
sions” formed by Pectol from Kingsley’s notes of a meet-
ing which was not described in the notes, the “invention”
of a “reunion”, and sheer fabrication. Under the above-
cited authorities, reckless disregard is clearly and convinc-
25
ingly shown, since the potential for harm was readily ap-
parent. It is therefore submitted that “actual malice” was
proved by clear and convincing evidence and the Court
of Appeals failed to follow this Court’s precedents in re-
versing the jury verdicts so finding.
CONCLUSION
A question of great importance, previously reserved by
this Court, presents itself in this case. There are few who
have achieved any degree of success who have known no
recognition during some phase of their lives. Whether
through athletics, entertainment, scholarship, business, poli-
tics or otherwise, many have become well-known in their
particular areas of endeavor. Some remain in their orig-
inal careers, while others choose to leave them. The ques-
tion in this case is what protection do those who leave
the source of their recognition have in regard to defamation.
Petitioners are not complaining of a publication con-
cerning an historical event in which they participated and
became well-known. Rather, the article in this case re-
lates to a fictional event which allegedly occurred con-
currently with the publication of the article. The question
is whether in this situation the defamer is entitled to New
‘York Times protection. Although an individual might once
have had access to channels of communication to “expose
the falsehood and fallacies” of a defamatory statement,
such channels more than likely will have been lost by
the passage of time in the case of one who has retreated.
Certainly there was no showing of access to the media
by these petitioners at the time the “Flickering Flame”
article was published.
26
Further, there is no reason why such individuals as
these petitioners are “less deserving of protection” than
those who have never achieved any amount of success
in their chosen professions. While it may be that John
Brewer exposed himself to injury by a sportswriter ques-
tioning his ability as a football player, or that Anita
Brewer exposed herself to injury by a critic of her enter-
tainment ability, they did not voluntarily expose them-
selves to the risk of a gossip columnist reporting as fact a
fictional illegal or immoral sexual affair and a fictional
divorce, all of which allegedly occurred years after the
Brewers had left the fields of their modest successes and
contemporaneously with the publication of the article.
For the defamer to cloak itself with the protection of
New York Times simply by associating petitioners with
another “whose career was still phenomenal” because the
false association may somehow be a matter “of public or
general concern” is no more than a resurrection of the re-
pudiated Rosenbloom doctrine.
These petitioners were not all-purpose public figures
nor did they inject themselves into any public controversy.
Rather, the Court of Appeals opined that Anita Brewer
was a public figure because of her relationship with Presley
years before the publication of the article in question and
that John Brewer could not recover on a showing of negli-
gence because this would “strip the required protection
from the press to write such a story about Anita”. We
submit that the Court of Appeals thus erroneously created
a third category of public figures.
The questions of the creation of a third category of
public figures and the retreat of former public figures are
ones which are arising and will likely arise time and time
again, until a definitive ruling is given by this Court. We
submit that this case squarely presents those precise ques-
27
tions for the Court’s consideration. We earnestly request
the Court to grant the petition for certiorari.
Respectfully submitted,
JoE H. DANIEL
P.O. Box 1084
Jackson, Mississippi 39205
JOHN W. PREWITT
P.O. Drawer 750
Vicksburg, Mississippi 39180
JoHN B. CLARK
P.O. Box 1084
Jackson, Mississippi 39205
B. STEVENS HAzarp
P.O. Box 1084
Jackson, Mississippi 39205
Counsel for Petitioners
Al
APPENDIX
John L. BREWER, Plaintiff-Appellee,
v.
MEMPHIS PUBLISHING COMPANY,
INC., Defendant-Appellant.
Anita W. BREWER, Plaintiff-Appellee,
v.
MEMPHIS PUBLISHING COMPANY,
INC., Defendant-Appellant.
No. 77-2254.
United States Court of Appeals,
Fifth Circuit.
Oct. 2, 1980.
Following remand, 538 F.2d 699, of defamation action
husband and wife brought against newspaper in connection
with newspaper item concerning marital status of husband
and wife and concerning alleged romantic encounter be-
tween wife and famous pop star, the United States District
Court for the Southern District of Mississippi, William
Harold Cox, J., entered judgment, and appeal was again
taken. The Court of Appeals, Hill, Circuit Judge, held that:
(1) wife, who had gained media exposure and fame through
her entertainment career and her romantic relationship with
famous pop star and whose name continued to appear in
stories about the pop star after her retirement, was “pub-
lic figure” and was required to prove malice, and malice
standard also applied to defamation claim by husband, who
was former professional athlete, and thus both husband
and wife were required, in order to recover, to present evi-
dence that showed with convincing clarity high degree
A2
of awareness by newspaper of article’s falsity or probable
falsity, and (2) record failed to establish with convincing
clarity that newspaper knew the item was false or that it
recklessly disregarded question whether it was false, thus
precluding recovery.
Reversed.
Godbold, Circuit Judge, concurred specially and filed
opinion.
1. Libel and Slander (Key) 6(1)
Under Mississippi law, newspaper item allegedly stat-
ing that husband was divorced and allegedly suggesting
that he had been cuckolded was within definition of def-
amation.
2. Libel and Slander (Key) 21
Newspaper item allegedly stating that husband was
divorced and allegedly suggesting that he had been cuck-
olded sufficiently referred to husband to entitle him, under
Mississippi law, to assert defamation claim.
3. Libel and Slander (Key) 123(2)
Under Mississippi law, trial court, in defamation ac-
tion, must initially determine whether language is action-
able, and if language is ambiguous, of doubtful import, or
susceptible of two or more interpretations, its actionability
must ordinarily be decided by jury under appropriate in-
structions from court.
4. Libel and Slander (Key) 6(1)
Under Mississippi law, newspaper item susceptible to
interpretation that wife’s encounter with married man was
romantic was susceptible, under Mississippi law, to defama-
tory meaning whether or not it indicated that wife was
having affair with the married man.
A3
5. Libel and Slander (Key) 33, 89(1)
Under Mississippi law, all libel is actionable per se, and
thus husband and wife were not required to plead and prove
special damages in their action against newspaper.
6. Libel and Slander (Key) 123(9)
In defamation action by husband and wife against news-
paper in connection with newspaper item concerning mari-
tal status of husband and wife and concerning alleged ro-
mantic encounter between wife and married man, evidence
was sufficient, under Mississippi law, for jury on issue
whether injury to reputation and injury from personal hu-
miliation, mental anguish, and suffering warranted award
of damages.
7. Libel and Slander (Key) 4
Negligence, and not malice, was standard of fault,
under Mississippi law, for libel action.
8. Libel and Slander (Key) 123(8)
It was for trial judge, and not jury, to determine
whatever evidence in defamation action showed that plain-
tiff was public figure. U.S.C.A.Const. Amend. 1.
9. Libel and Slander (Key) 48(1)
Wife, who had gained media exposure and fame through
her entertainment career and her romantic relationship
with famous pop star and whose name continued to appear
in stories about the pop star after her retirement, was
“public figure” and was required to prove malice in defama-
tion action against newspaper in connection with news-
paper item concerning alleged continuing romantic rela-
tionship with the pop star and incidentally concerning her
marital status, and malice standard also applied to defama-
tion claim by husband, who was former professional athlete,
A
=.
A4
and thus both husband and wife were required, in order
to recover, to present evidence that showed with convincing
clarity high degree of awareness by newspaper of article’s
falsity or probable falsity. U.S.C.A.Const. Amend. 1.
See publication Words and Phrases for other ju-
dicial constructions and definitions.
10. Libel and Slander (Key) 112(2)
In defamation action by husband and wife against
newspaper in connection with newspaper item concerning
marital status of husband and wife and concerning alleged
romantic encounter between wife and famous pop star,
record failed to establish with convincing clarity that news-
paper knew the item was false or that it recklessly dis-
regarded question whether it was false, thus precluding
recovery. U.S.C.A.Const. Amend. 1.
Frank E. Everett, Jr., Vicksburg, Miss., Russell E.
Leasure, Bruce Sanford, Cleveland, Ohio, for defendant-
appellant.
John W. Prewitt, Vicksburg, Miss., Joe H. Daniel,
John B. Clark, Jackson, Miss., for plaintiffs-appellees,
Appeals from the United States District Court for the
Southern District of Mississippi.
Before GODBOLD, HILL and POLITZ, Circuit Judges.
HILL, Circuit Judge:
The Commercial Appeal of Memphis, Tennessee in- |
cluded the following item in its “People” column on Sep-
tember 8, 1972:
FLICKERING FLAME: Back in 1957 Anita
Wood, who came from Jackson, Tenn., to Memphis to
sing on TV, was Elvis Presley’s “No. 1 girl.” This
A5
week as Elvis closed his month-long show at the Las
Vegas Hilton, Miss Wood stopped by the hotel for what
appeared to be a “reunion” of two old friends. Elvis
recently filed for divorce from his wife of five years,
Priscilla. Miss Wood is divorced from former Ole
Miss football star Johnny Brewer.
A photograph with the caption “Anita Wood” appeared
near the top of the column. On April 25, 1973 John Brewer
contacted the newspaper by letter alleging that the article
was false and defamatory. On May 12, 1973 the newspaper
published the following in its “People” column:
CORRECTION—On September 8 of last year an
item in this column reported that the former Anita
Wood, now Mrs. John Brewer, had been in Las Vegas,
Nev., a few days previously and had stopped by the
Las Vegas Hilton to visit Elvis Presley, an old friend,
who was entertaining there. That apparently was a
case of mistaken identity, because Mrs. Brewer says
she was not in Las Vegas on or anywhere near that
date. The item also said she and former Ole Miss foot-
ball star Johnny Brewer were divorced, which was in-
correct. The Commercial Appeal regrets the error.
John and Anita Brewer brought separate defamation
actions against Memphis Publishing Company in United
States District Court for the Southern District of Mississippi
on June 23, 1973 and September 6, 1973, respectively. Ju-
1. Mississippi law requires such notification, at least ten
days prior to bringing any civil action for publication, to afford
the newspaper the opportunity to make corrections prior to suit.
The statute further ee that if it appears at trial that the
article was published in good faith, that its falsity was due to
an honest mistake of facts, that there were reasonable grounds
for believing the statements in the article, and if the jury finds
that the newspaper published a “full and fair correction, apology
and retraction” within ten days of such notice, then the plaintiff
shall recover “only actual damages.” Miss.Code Ann. § 95-1-5.
A6
risdiction was based on diversity? and the suits were con-
solidated.
In 1974 the first jury found for the Brewers and
awarded each plaintiff $400,000. The district judge found
the amount of the verdicts unconscionable and granted a
new trial on damages alone. The second jury awarded
Anita Brewer $250,000 and John Brewer $150,000; they
accepted a remittitur to $100,000 and $50,000, respectively.
The defendant appealed and plaintiff cross-appealed. This
court reversed and remanded, holding that the finding of
liability in the first trial, held before the decision in Gertz
v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d
789 (1974), was infected by several errors: (1) the ques-
tion of whether plaintiffs were public figures or private per-
sons was never directly addressed; (2) the jury was in-
structed that defendant might be liable without fault
and that plaintiffs might recover without showing any in-
jury because the article was libelous per se and because
the law presumes that damages flow from written publica-
tion of such a defamation. In addition to remanding for
proper fault and damage instructions, the court stated:
. . . The initial question is, of course, whether Anita
Wood Brewer or John Brewer, or both, are public fig-
ures within the context of . . . Supreme Court cases.
An important question relevant to this issue left open
2. Plaintiffs were Mississippi residents when they filed suit
and when the article was published. In their complaints they
alleged that defendant, a foreign corporation, had its principal
place of business in Tennessee but was “doing business” in Mis-
sissippi where service of process could be obtained upon its agent.
Defendant waived any question of personal jurisdiction that may
have existed, see Breckenridge v. Time, Inc., 253 Miss. 835, 179
So.2d 781 (1965), and Lee v. Memphis Pub. Co., 195 Miss. 264,
14 So.2d 351 (1943). In its answer it admitted for purposes of
these suits only that it was doing business in Mississippi, that
process could be served on its agent there, and that jurisdiction
was vested in the district court. Appellant appeared in that court
to defend these suits.
—
A7
by the presently decided cases concerns the extent to
which a person who has been a public figure in the
past can retreat to private status and obtain the bene-
fit of the lesser standard of proof required for dam-
ages for injury from libel.
Brewer v. Memphis Pub. Co., Inc., 538 F.2d 699, 703 (5th
Cir. 1976).
The third trial also resulted in verdicts for the plain-
tiffs, $150,000 to Anita Brewer and $60,000 to John Brewer.
On appeal defendant asserts: (1) under Mississippi law (a)
the article did not defame either plaintiff; (b) if defama-
tory, the article was at most libel per quod requiring plain-
tiffs to plead and prove special damages with particularly
which neither did; and (c) liability was permitted for
simple negligence while state law requires proof of actual
malice for libel liability; and (2) the first amendment
(a) requires the trial court to find that both plaintiffs were
public figures; and (b) dictates a finding that the evidence
did not prove “actual malice” with convincing clarity.’
Ultimately our holding in this case is based upon
federal constitutional issues. We reach those constitutional
issues after first attempting to decide whether we can
dispose of the appeal under state law. We should first
3. Appellant also argues that (1) the article’s content did
not make substantial damage to reputation apparent, that its
contents did not warn a reasonably prudent editor of its defama-
tory potential and that the Supreme Court in dicta has indicated
that in such cases even a private individual, i. e., one who is
neither a public official nor a public figure, might not be permitted
to recover; and (2) the awards here are constitutionally im-
permissible because they are not supported by competent evi-
dence of actual injury and, instead, amount to presumed or
penalty damages. Because of our resolution of other issues here
presented, we need not and do not address the merits of these
arguments.
7%
A8
seek such a resolution.* Here we are required to predict
how the Mississippi Supreme Court would have decided
several issues. Our predictions are that as to each state
issue the Mississippi Supreme Court would conclude that
appellees, and each of them had valid claims. While this
excursion into Mississippi law is a necessary prelude to our
reaching the constitutional issues, we find it not deter-
minative of the rights and liabilities of the parties. Of
course, in the further development of the law of libel in the
state of Mississippi its Supreme Court may decide quite
differently from the predictions we make here.
4. In a recent libel case, the Supreme Court reiterated the
principle that “dispositive issues of statutory and local law are
to be treated before reaching constitutional issues” and interpreted
a footnote in the opinion of the Court of Appeals for the District
of Columbia that “cast substantial doubt on” an interpretation
of local law that would have been dispositive as an indication of
the view of the Court of Appeals that the interpretation was in-
accurate and that, “therefore, the appeal could not be decided
without reaching the constitutional question.” Wolston v. Read-
er’s Digest Assn., Inc., 443 U.S. 157, 160 n.2, 99 S.Ct. 2701, 2704
n.2, 61 L.Ed.2d 450 (1979). Because defendant raises points of
state law that, if correct would obviate the need for this court
to reach the constitutional questions, we address them first.
We recognize that where local law would permit recovery in
a libel case, it is not “dispositive.” In our view, however, the
Supreme Court’s pronouncements in this area, e. g., Wolston,
supra; Dillard v. Industrial Commission of Virginia, 416 U.S. 783,
784, 94 S.Ct. 2028, 2030, 40 L.Ed.2d 540 (1974); Alma Motor Co. v.
Tinken-Detroit Axle Co., 329 U.S. 129, 136, 67 S.Ct. 231, 233, 91
L.Ed. 128 (1946); Siler v. Louisville & Nashville R. Co., 213 U.S.
175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909), require us at
least to take a broad look at potentially dispositive state law
issues to determine whether we must rule on constitutional issues.
Judge Godbold’s special concurrence points up some of the futility,
and peril to the state’s development of its jurisprudence in our
excursion into unresolved state law issues. The rights and lia-
bilities of the parties are not, as it turns out, affected by our
resolution, largely by prediction, of the questions of state law.
Much of what we find it necessary to write in this opinion may be
likened unto deciding whether or not a base runner touched third
when it is clear that he was thrown out at home plate.
A9
State Law
After careful consideration of defendant’s arguments,
we conclude, not without some difficulty,’ that both plain-
tiffs would be permitted to recover some amount* in dam-
ages from the defendant under Mississippi libel law.”
5. The difficulty arises, in part, from the fact that we could
locate no Mississippi case where a plaintiff claimed to be de-
famed by erroneous reports that he was divorced or cuckolded
not any reported state decisions re-evaluating common law
defamation in light of the damage and fault mandates of Gertz
v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d
789 (1974), and its progeny. On August 1, 1980, well after oral
argument in this case took place, the Supreme Court of Missis-
sippi adopted a rule allowing the Supreme Court of the United
States and federal circuit courts of appeals to certify questions
and propositions of state law to the Supreme Court of Mississippi.
Supreme Court Rule 46. This rule, however, limits certification
to “questions or propositions of law of this state which are de-
terminative of said cause independently of any other questions
involved in said case” and thus appears not to allow certification
of the state law questions raised here which could only, if re-
solved in defendant’s favor, pretermit our resolution constitutional
issues; the state law issues would not determine the cause “in-
dependently of any other questions [here constitutional] involved.”
The state law issues might be dispositive, but might not. We shall
not impose upon the Mississippi Supreme Court, as our first ac-
ceptance of its welcome invitation to certify, such an “iffy” issue.
6. Because of our resolution of the first amendment issues
in this case, we need not decide whether the awards are ex-
cessive.
Defendant also argues that the verdict and award may not
stand because the trial judge erred in excluding certain evi-
dence, gave instructions that were erroneous in part and erred
in overruling its motion for a mistrial based on the judge’s com-
ments during trial. Because we find that the first amendment
would not permit a verdict for plaintiffs in this case, we decline
to examine these grounds which, if resolved in defendant’s favor,
could only result in a pointless fourth trial.
7. The district court sitting in Mississippi was required to
apply Mississippi choice-of-law in the event of a conflict of laws.
Defendant’s principal place of business was Tennessee and it is
there that defendant’s allegedly faulty activities occurred. In
their complaints plaintiffs did not particularize the location of
publication (the place where the statement was received by a
third person and, hence, where the injury to reputation occurred).
Anita’s evidence consisted of the testimony of five witness, all
Tennessee residents; they testified about their own reactions to
(Continued on following page)
Al0
Appellant argues that the article did not defame either
plaintiff. Anita Brewer claimed in her complaint that by
Footnote continued—
the article and their observations of its effect on others in Ten-
nessee. Anita testified that she received several telephone calls
inquiring about the article, including one from a Mississippi resi-
dent who heard about the article from a relative in Tennessee.
Both Anita and John testified that Anita became and remained
upset over the article; this occurred in Mississippi. John testi-
fied that several co-workers (in Mississippi) asked him about
the article and this humiliated and embarrassed him. He also
stated that he received telephone calls from as far away as
Arkansas. Two Arkansas residents testified that they read the
the article in that state and described their reactions and those
of people in the Jonesboro, Arkansas area. John is a Mississippi
native who lived in several other states during his professional
football career and for a time thereafter. Anita is a Tennessee
native and resided there until her marriage to John; while mar-
ried she lived in several states before moving to Mississippi.
In Mitchell v. Craft, 211 So.2d 509 (1968), the Supreme Court
of Mississippi referred to the Restatement (Second) of Conflict of
Laws and to Leflar, Choice-Influencing Considerations in Con-
flicts Law, 41 N.Y.U.L.Rev. 267 (1966), for help in deciding a
choice-of-law question. The latter work presents the more mod-
ern analytical approach and criticizes the Restatement (Second).
Restatement § 150(a) states that the state of the plaintiff's
domicile will usually be the state with the most significant rela-
tionship to the occurrence and the parties, and hence, the state
whose law should be applied in the event of conflict, if the
defamatory statement is published to third parties in more than
one state including the state of plaintiff's domicile. Section 149,
on the other hand, emphasizes the state where publication to a
third party occurred (and not the state of plaintiff's domicile)
when such ge wc is confined to one state. In Rose, Interstate
Libel for the Future, 30 Hastings, L.J. 1515 (1979), the author
argues that the series of first amendment libel cases starting with
New York Times Co, v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.E.2d 686 (1964), have focused on the defendant’s fault rather
than the plaintiff's reputation, and thus call for focusing on the
place of the defendant’s actions rather than on the place of publi-
cation to a third party.
Neither party raised this issue at any of the trials in this
case or in appellate briefs and the district court apparently
did not consider the issue. At oral argument, a member of this
court asked appellant whether any thought had been given either
to whether the “single publication rule” applied to this fact situ-
ation (appellant answered no) or to the application of Mississippi
law, when the record showed all of about fourteen copies of the
newspaper were distributed in the county of plaintiff's residence,
(Continued on following page)
All.
this article the defendant intended to convey that she was
divorced and “openly involved in a relationship with a mar-
ried man.” John Brewer claimed that the defendant in-
tended to convey that he was divorced from his present wife
and that his wife was openly involved in a relationship with
a married man. Both asserted in their complaints that
readers so understood the words of the article and that
their reputations were thereby injured and that they suf-
Footnote continued—
instead of the law of Tennessee, the situs of the publisher’s op-
eration. (Appellant responded that this had never been salsed.)
The paper’s managing editor testified that total circulation in
Mississippi on September 8, 1972 was approximately 49,000
and that total circulation in the mid-South that day was ap-
proximately 220,000. Record, vol. IV, at 919.
We are mindful that we are to treat dispositive issues of
local law before reaching constitutional issues. We are also
acutely aware of the fact that this case is before this court for
the second time following three trials, that the propriety of this
court’s raising this issue sua sponte (and either deciding it or
remanding for further proceedings that might result in yet a
fourth trial and third appeal if Tennessee law conflicted with
Mississippi law and if the former should be applied) is less than
crystal clear. In Pierce v. Capital Cities Communications, Inc., 576
F.2d 495 (3d Cir. 1978), cert. denied, 439 U.S. 861, 99 S.Ct. 181,
58 L.Ed.2d 170, neither party had addressed the question of
whether applicable state defamation law gave rise to a cause of
action for the broadcast in question. At oral argument both agreed
that the law of Pennsylvania governed; according to the court,
that position
apparently rests on the fact that the business activities of
the television station and the reporter charged with defa-
mation are based in Philadelphia and, as a result, that ju-
risdiction has an abiding interest in the lawsuit. In the
absence of any suggestion that there exists here a true con-
flict of law—that is, that Pennsylvania law differs from that
of another interested forum having a strong competing stake
in the case arguably outweighed Pennsylvania interest—
there is no occasion to diverge from the parties’ position.
Id. at 501-02 (footnote omitted).
Here, similarly, there has been no suggestion that Tennessee
and Mississippi law would conflict on any issue in the case;
identification of such a conflict is, of course, the first step in a
choice-of-law analysis. Further, because of our resolution of the
first amendment issues, such a use of the courts’ and parties’
resources at this late date is not necessary.
Al2
fered severe “shame, embarrassment, humiliation, mental
anguish and emotional distress and strain” because of the
article. Essentially, then, plaintiffs claim the article de-
famed them both by stating that they were divorced, de-
famed John by conveying that he had been cuckolded,
and defamed Anita by conveying that she was involved
in an immoral or illegal relationship.
Under Mississippi common law
any written or printed language which tends to injure
one’s reputation, and thereby expose him to public
hatred, contempt or ridicule, degrade him in society,
lessen him in public esteem or lower him in the con-
fidence of the community is actionable per se.
Henry v. Collins, 253 Miss, 34, 158 So.2d 28 (1963), rev’d on
other grounds, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892
(1965); Natchez Times Pub. Co. v. Dunigan, 221 Miss. 320,
72 So.2d 681 (1954), Conroy v. Breland, 185 Miss. 787, 189
So. 814 (1939). We discuss the per se aspect of this defini-
tion below and view the remainder of the quotation as
comprising Mississippi’s definition of libel. Appellant
urges that defamation in Mississippi is limited to attacks
on integrity and moral character (plus business reputation),
citing a passage to that effect in Manasco v. Walley, 216
Miss. 614, 63 So.2d 91 (1953), and argues that a statement
that a person is divorced or is cuckolded does not reflect
on integrity or moral character and thus is not defamatory.
Manasco, however, did not involve common law defamation
but a statute requiring a newspaper to print the reply of a
candidate for public office when it had earlier printed a
story that reflected on the candidate’s honesty, integrity,
or moral character. According to the Supreme Court of
Mississippi, the legislature intended to limit the statute
to cases in which the editorial comment or the news
story is defamatory, and defamatory in a particular
Al3
manner, that is to say, where the editorial or news
story reflects upon the honesty or integrity or moral
character of the candidate (emphasis added)
Id. at 627, 63 So.2d at 95. Both Natchez and Henry, supra
were decided after Manasco and neither adopts the stat-
ute’s limitation to particular sorts of defamation.
[1] While the parties cite no Mississippi case involv-
ing statements that a person is divorced or is a cuckold,
and we have found none, such statements appear to fit with-
in the state’s definition of defamation, i. e., such statements
may well injure one’s reputation and thereby expose him
to public contempt or ridicule, degrade him in society, or
lessen him in public esteem, while not necessarily re-
flecting on his integrity or moral character. We also
note that other courts have sustained defamation actions
based on statements about marital discord. See, e. g., Gar-
iepy v. Pearson, 207 F.2d 15 (D.C.Cir.1953), Thackrey v.
Patterson, 157 F.2d 614 (D.C.Cir.1946). See generally An-
not., 9 A.L.R. 1128 (1934).
[2] Appellant asserts that John Brewer may not base
his defamation claim on what was said about Anita Brewer.
It is said that a general principle of libel law is that
only the person defamed, the person to whom the article
refers, has a cause of action; his or her relatives do not.®
It is also true, however, that certain defamations of one
8. E. g., Wilson v. Retail Credit Co., 325 F.Supp. 460, 463
(S.D.Miss.1971); Restatement (Second) of Torts § 564 & Com-
ment (e) ; 53 C.J.S. Libel and Slander §§ 11 and 145.
In Wilson, however, the court recognized that Mississippi law
on this point was uncertain; no case directly addressed the issue.
We have located no subsequent Mississippi cases treating this
issue.
Al4 °
person also defame another who may not be named® In our
view this is such a defamation. John Brewer did not
assert his wife’s claim but, instead, claimed that this state-
ment about her also defamed him.
Clearly, the defendant could not escape liability for
printing such a statement by including the additional de-
famatory statement that John Brewer was divorced; such
a rule of law would not only be facially inequitable but also
would permit a newspaper to limit its potential liability
for one statement by adding a statement that a person is
divorced even when it positively knew that was untrue.
[3, 4] In her complaint, Anita Brewer claimed that
the article conveyed that she was “openly involved in a
relationship with a married man.” On appeal she urges
that the article “unmistakably meant that an affair be-
tween Elvis Presley and Anita Brewer had occurred at
the Las Vegas Hilton Hotel.” Brief for Appellee at 20.
Appellant argues that the article described an “entirely
innocent and proper” reunion of two old friends. Brief
for Appellant at 20. Under Mississippi law, the trial court
must initially determine whether language is actionable,
and if the language is “ambiguous, of doubtful import, or
susceptible of two or more interpretations, its actionability
must ordinarily be decided by the jury under appropriate
instructions from the court.” Cameron Bros. v. Posey, 237
9. Comment (e) to § 564 of the Restatement, supra, includes
the following illustrations:
2. A calls B a cuckold in the presence of C. A has defamed
B’s wife.
3. A states to B that C is an illegitimate child. A has
defamed C’s mother.
The fact that the unnamed person in both examples is defamed
through an imputation of unchastity, a traditional slander per se
category, while John Brewer asserts that the present article
defamed him by calling him a cuckold, does not affect the de-
termination of whether the latter is a defamation.
»
Al5
Miss. 432, 115 So.2d 138 (1959). That is, the court must
decide whether the language is capable of the defamatory
meaning asserted by the plaintiff; if so, the jury decides
whether readers understood the article to mean that, id.
Bearing in mind that a statement may be defamatory under
Mississippi law although it does not attack the integrity or
moral character of the plaintiff, we find that this article
was susceptible to a defamatory meaning. Whether or not
it indicated that Anita Brewer was having an affair with
a married man as she argues, it is susceptible to the inter-
pretation that her encounter with a married man was
romantic.’°
[5] Appellant asserts that Mississippi defamation law
distinguishes libel per quod from libel per se and requires
a plaintiff to plead and prove special damages with par-
ticularity in the former case while presuming damages in
the latter. According to appellant, under Mississippi law
special damages include only material and pecuniary dam-
ages, not emotional injury, and plaintiffs neither pled nor
proved special damages. Assuming that plaintiffs did not
plead and prove special damages, we must determine
whether Mississippi law would bar recovery. Appellant
vigorously asserts that the article in question is at best
libel per quod; appellee responds by arguing at length that
it is libel per se. Appellant cites Holliday v. Maryland
Casualty Co., 115 Miss. 56, 76 So. 764 (1917), and Barton ».
Barnett, 226 F.Supp. 375 (N.D.Miss.1964), for the proposi-
tion that Mississippi law distinguishes between these two
types of libel. Barton relies on Holliday as the sole source
of Mississippi law for such a proposition. Holliday may
bear such an interpretation, but three years after it ruled in
10. In Interstate v. Garnett, 154 Miss. 325, 122 So. 373
(1929), the court held that orally calling a woman a “bitch”
constituted slander per se; in the circumstances of the case, the
statement imputed unchastity.
Al6
Holliday, the Mississippi Supreme Court clearly stated that
all libel is actionable per se:
It may be stated generally that any written or
printed language which tends to injure one’s reputa-
tion, and thereby expose him to public hatred, con-
tempt, or ridicule, degrade him in society, lessen him in
public esteem, or lower him in the confidence of the
community, is actionable per se... .
Wrought Iron Range Co. v. Boltz, 123 Miss. 550, 86 So. 354
(1920). Subsequent cases have reaffirmed the view stated
in Boltz. Heralds of Liberty v. Rankin, 130 Miss. 698, 94
So. 849 (1922); Hodges v. Cunningham, 160 Miss. 576, 135
So. 215 (1931); Conroy v. Breland, 185 Miss. 787, 189 So. 814
(1939) (also citing but not quoting Restatement (Second)
of Torts § 569, which states:
Liability Without Proof of Special Harm-Libel
One who falsely publishes matter defamatory of an-
other in such a manner as to make the publication a
libel is subject to liability to the other although no spe-
cial harm results from the publication;
Morehead v. United States Fidelity & Guaranty Co., 187
Miss. 55, 192 So. 300 (1939); Natchez Times Pub. Co. v.
Danigan, 221 Miss. 320, 72 So.2d 681 (1954); Cameron Bros.
v. Posey, 237 Miss. 432, 115 So.2d 138 (1959) (slander case).
(Defamatory statements, to be actionable, do not
have to be charged in a direct, positive and open man-
ner. Indirect imputations and insinuations may suf-
fice.... A distinction seems to be made between oral
and written imputations.... It is frequently stated
broadly that defamatory words, when spoken, are ordi-
narily not actionable per se unless they impute a
crime, but that written or printed words are action-
Al7
able when they subject the person to disgrace, ridicule,
odium or contempt in the estimation of his friends and
acquaintances or the public,
quoting 33 Am.Jur., Libel and Slander § 9); Henry v. Col-
lins, 253 Miss. 34, 158 So.2d 28 (1963), rev’d on other
grounds, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965).
Although in some cases the Court uses the phrase “libel
per se,” it does not do so to distinguish that from libel per
quod but, instead, as a way of stating that libel is action-
able per se, that damages are presumed and the plaintiff
need not plead and prove special damages with particular-
ity if in fact the statements constitute a libel. The ques-
tion of whether an article is libel per se is identical to the
question we addressed above, whether the article is defam-
atory.
[6] As this court noted in the earlier appeal of this
case, Brewer v. Memphis Publishing Co., 538 F.2d 699, 702-
03 (5th Cir. 1976), in Gertz v. Robert Welch, Inc., 418 U.S.
323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme
Court held that states may not permit recovery of pre-
sumed damages unless the plaintiff shows defendant’s
knowledge of falsity or reckless disregard for the truth.
(We find, infra, that plaintiffs have not made such a show-
ing.) The Court in Gertz elaborated the constitutional
overlay on the state law of damages in defamation actions:
It is necessary to restrict defamation plaintiffs who
do not prove knowledge of falsity or reckless disregard
for the truth to compensation for actual injury. We
need not define “actual injury,” as trial courts have
wide experience in framing appropriate jury instruc-
tions in tort actions. Suffice it to say that actual
injury is not limited to out-of-pocket loss. Indeed,
the more customary types of actuai harm inflicted by
defamatory falsehood include impairment of reputa-
Al18
tion and standing in the community, personal humil-
iation, and mental anguish and suffering. Of course,
juries must be limited by appropriate instructions,
and all awards must be supported by competent evi-
dence concerning the injury, although there need be no
evidence which assigns an actual dollar value to the
injury.
In its instructions the trial court in this case followed the
mandates of Gertz and the prior opinion of this court. We
find that competent evidence concerning injury to reputa-
tion and personal humiliation, mental anguish, and suffer-
ing supported an award for damages in this case.”
[7] Defendant asserts that before Gertz Mississippi
law would permit recovery for defamation only if the
defendant acted with malice, though malice was presumed
in libel cases. Defendant argues that Mississippi, respond-
ing to the ruling in Gertz that presumed fault is unconsti-
tutional, would choose to retain the malice standard and
require that the plaintiff prove malice; the state would not
change its fault standard to negligence. Here the jury
was instructed on a negligence standard which, according
to defendant, was contrary to state law.
Mississippi courts appear to have followed the general
common law of defamation, stating that malice is the gist
of an action for libel or slander, see, e.g., Tipps Tool Co. v.
Holifield, 218 Miss. 670, 67 So.2d 609 (1953), but that malice
is presumed where the words are actionable per se, see, e.g.,
Travis v. Hunt, 224 Miss. 193, 79 So.2d 734 (1955). As
the prior panel of this court held, Gertz prohibits the states
from allowing liability without fault, from “presuming”
11. See the description, supra note 6, of the testimony of
plaintiffs and other witnesses. We have expressly declined, how-
ever, to decide whether the evidence supported the awards in
this case, supra note 5.
A19 ‘
fault. Brewer, supra at 702. The overwhelming majority
of state courts responding to this mandate of Gertz have
adopted negligence as the rule of liability. See Memphis
Pub. Co. v. Nichols, 569 S.W.2d 412 (Tenn.1978), and cases
cited therein and Note, State Court Reactions to Gertz v.
Robert Welch, Inc., 29 Vand.L.Rev. 1431 (1976), and cases
cited therein. We reject appellant’s contention that fol-
lowing Gertz Mississippi would require a plaintiff in a
libel action to prove malice; we agree with appellee that
Mississippi would adopt a negligence standard.’”
Constitutional Law
The trial judge submitted to the jury the issues of
whether either plaintiff, or both, was a public figure at
the time the article appeared and, if so, whether the evi-
dence showed with convincing clarity either that the de-
12. We also reject appellant’s argument that under Missis-
sippi law this article is qualifiedly privileged (in which case
proof of malice would be required) as a news report about a
a public or quasi-public figure or a matter of legitimate public
interest. This conditional privilege for “fair comment” is limited
to criticism in the form of an opinion. Edmonds v. Delta Demo-
crat Publishing Co., 230 Miss. 583, 93 So.2d 171 (1957). This
article clearly made statements that purported to be facts, not
opinions,
Appellant also argues that the trial court permitted plaintiffs
to recover mental distress damages for negligence absent proof
of any physical injury and thus contrary to Mississippi tort law
which allows mental damages absent physical injury only for
malicious or intentional torts. If we were to agree with appel-
lant, essentially holding that while substituting negligence for
presumed malice after Gertz the Mississippi courts would then
import this tort law rule into libel for mental pain only, we would
be required to remand for yet a fourth trial on damages because
the jury did not indicate in its answers to the special interroga-
tories how much, if any, of this award was for mental pain. Such
a remand would enable us to avoid ruling on the constitutional
issues in the case only in the event that another jury were to
find no reputation injury. Noting that several witnesses, see
note 6 supra, testified about damage to plaintiffs’ reputations
and the consequent unlikelihood that this jury’s verdict was,
or a future jury’s verdict would be, based solely on emotional
damages, and given our resolution of the constitutional issues,
we decline to rule on this issue of Mississippi law.
A20
fendant acted with reckless disregard of whether the ar-
ticle was false or not or that the defendant had a high
degree of awareness of its probable falsity. Responding
to special interrogatories the jury found that neither plain-
tiff was a public figure on that date and that clear and
convincing proof showed that the defendant published
the article either knowing it to be false or with knowledge
of its probable falsity.
[8] It was for the trial judge, not the jury, to de-
termine whether the evidence showed that either plain-
tiff was a public figure.* After a review of the law and
the record, we find for the reasons discussed below, that
undisputed portions of the evidence required the trial judge
13. Defendant objected to submitting this issue to the jury.
The district judge, however, stated that he interpreted the state-
ment in the panel’s opinion in the first appeal of this case that
Defendant is entitled to have a jury, not the judge, resolve
the liability and damage issues under proper instructions
as to the law,
Brewer, supra at 703, as requiring him to submit this question
for jury determination.
In an earlier case, a panel of this court declined to decide
whether in all cases it was the duty of the trial judge to determine
whether the plaintiff is a public figure; the panel did recognize,
however, that the majority of courts have treated this question
as one for the court and not the jury. Rosanova v. Playboy Enter-
prises, Inc., 580 F.2d 859, 861-62 (5th Cir. 1978), and cases cited
therein. In Rosenblatt v. Baer, 383 U.S. 75, 76, 88, 86 S.Ct. 669,
671, 677, 15 L.Ed.2d 597 (1966), the Supreme Court remarked
as is the case with questions of privilege generally it is for
the trial judge in the first instance to determine whether
the proofs show respondent to be a ‘public official’!5
19Harper & James, Torts § 5.29 p. 823 (3d ed. 1964), Re-
statement Torts, § 619. Such a course will both lessen the pos-
sibility that a jury will use the cloak of a general verdict to
punish unpopular ideas or speakers, and assure an appellate
court the record and findings required for review of constitutional
decisions. Cf. Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332,
wry L.Ed.2d 1460; New York Times, 376 U.S. at 285, 84 S.Ct.
at 3
Clearly the same considerations apply to determinations of public
figure and public official status.
A21
to find both Anita and John Brewer public figures for
the purposes of this suit'* and that defendant’s knowledge
of falsity or reckless disregard for the truth is not supported
by clear and convincing evidence.
Exhibits and testimony showed that Anita Brewer was,
at various and sometimes overlapping times, a well known
entertainer locally (in the Jackson and Memphis areas),
regionally (in the mid-South), and nationally. She also
attained national fame through her relationship with Elvis
Presley.
In the early to mid 1950’s Anita won talent and beauty
contests and worked as a disc jockey on the “Antics of
Anita” show with a radio station in Jackson, Tennessee and
the “Anita Wood Show” in Memphis. In 1957 she won a
“Hollywood Star Hunt” contest and was awarded a motion
picture contract. The studio provided her with a talent
agent. She never appeared in a motion picture. She did,
however, perform and make promotional appearances in
New Orleans and Chicago plus cities in Texas, Ohio, and
Mississippi. As a vocalist she made several recordings
on various labels. In addition, she appeared in plays and
television commercials in Memphis. In the mid 1950’s she
appeared on television first in Jackson and then in Mem-
phis where she was co-hostess of a program for approxi-
mately one year. From 1962 to 1964 she sang weekly on
another Memphis television show. Her nationwide tele-
vision exposure consisted of two appearances on the “Jack
Paar Tonight Show,” an appearance on Bert Parks’ “Coun-
14. The Court in Rosenblatt, supra note 12, remanded the
case noting that the trial was held before New York Times v. Sul-
livan, 376 U.S. 245, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), therefore
plaintiff did not shape his presentation to bring his claim outside
the New York Times rule and the record left open the possibility
that he could have adduced proofs to do so or to present a jury
question of “malice,” 383 U.S. at 87, 86 S.Ct. at 676.
A22
try Fair,” four or five appearances on the “Andy Williams
Show,” sometimes as a singer.
Anita testified that she dated Elvis Presley and that
their relationship lasted for five or six years, until ap-
proximately 1960 or 1961. This relationship generated
very extensive nationwide publicity, including articles in
Time and Life magazines. Several articles quoted Presley
as saying that she was his “number one girlfriend.”
In 1964 Anita Wood married John Brewer and, with
the exception of possibly one television and one newspaper
interview shortly thereafter, did not seek media attention
or continue as a professional entertainer from that time
to the filing of this suit.
We note that her relationship with Presley occurred
during her active entertainment career and that publica-
tions after her marriage referred to her past relationship
with him. There is some conflict in the evidence as to
whether she ever arranged to be photographed with
Presley, Record, Vol. I, at 190; Vol. IV, at 1054. Anita tes-
tified, “I don’t think anyone ever had to call anybody.
They [photographers] automatically turned up.” One re-
porter testified that while Anita never asked him to write
anything, “she was co-operative and she wasn’t unreluctant
for me to write stories. She was ambitious,” Record, Vol.
III, at 775, and that most of his stories about her were
in connection with her relationship with Presley “but also
often included matters about her talent as an individual
herself,” id. at 770. The exhibits in this case clearly dem-
onstrate that press coverage of her career was tied to
coverage of her relationship with Presley. In fact, accord-
ing to the articles, her success was due in large part to
the relationship.
A23
John Brewer was a member of the Ole Miss football
team the year it was ranked number one in the nation.
He was named to an All-SEC and at the time of trial still
held an Ole Miss record. He played professional football
with the Cleveland Browns from approximately 1960 to
1967 and was with the New Orleans Saints from 1968 until
near the end of the 1970 season. In a published interview
he was quoted as saying that his football career had made
his name well-known enough to open business opportunities
for him for the rest of his life; at trial he agreed he had
made the statement. After retiring from professional foot-
ball he: ran an advertisement in a New Orleans paper for
a week or two saying that he was selling real estate in
Mississippi and inviting his New Orleans “friends” to view
their properties; made repeated references to his success-
ful sports career in his campaign literature when he ran
for a seat in the Mississippi House of Representatives (he
placed fourth of four candidates); opened a restaurant
prominently displaying a large sign bearing the words
“Johnny Brewer [sic] Catfish House” and containing
pictures and memorabilia of his sports career (he also
sought copies of his wife’s records for the restaurant's
jukebox); spoke at high school banquets where the press
covered his appearances; and organized a school sports
program and coached a team.
Appellant argues that plaintiffs in this suit were public
figures who failed to prove that the article was published
with “malice” as defined in New York Times. Appellees
argue in the alternative that (1) according to the standards
of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997,
41 L.Ed.2d 789 (1974), Anita and John were not public
figures for “all purposes,” even at the height of their ca-
reers; that they were not public figures for purposes of an
article that dealt with their private lives not “public ques-
A24
tions”; (2) even if plaintiffs once were public figures they
had both retreated from the public spotlight and were no
longer public figures, at least for purposes of an article
that described supposed events that occurred during retire-
ment and that bore on their private lives; and (3) clear and
convincing evidence supports the jury finding of New York
Times. malice.
[9] We must decide (1) whether Anita, as an enter-
tainer and/or as Elvis Presley’s “number one girlfriend,”
or John, as a football player and/or as Anita’s husband,
was ever a public figure for purposes of this article; (2)
if so, whether either plaintiff could and did cease to be a
public figure for purposes of the article, and (3) if the
plaintiffs were required to show malice by clear and con-
vincing evidence, whether they did.
Plaintiffs argue that even at the height of their careers
they were neither public figures “for all purposes” nor for
any “limited range of issues,” the two types of public fig-
ures described in Gertz, supra at 351, 94 S.Ct. at 3012. Ac-
cording to plaintiffs, both types of public figures must have
“asume[d] special prominence in the resolution of public
questions,” id. According to them, neither had ever done
so and, further, the article in question did not concern a
matter of public interest or a public question, but rather,
concerned their private lives. Defendant, focusing on dif-
ferent statements in Gertz, argues that both plaintiffs are
public figures because they vigorously and successfully
sought public attention. Defendant cites several cases
where courts have found that entertainers and sports fig-
ures were public figures. We have reviewed several fed-
eral appellate court opinions and one state court opinion
dealing with defamation of entertainers or sports figures
and find that, for various reasons, none is especially helpful
in determining whether Anita or John Brewer should be
_—
A25
treated as a public figure.’® Our analysis of this issue, will,
therefore, concentrate on relevant Supreme Court opinions.
15. Three such cases were decided after the Supreme Court’s
ruling in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct.
1975, 18 L.Ed.2d 1094 (1967), but before the Court’s decision in
Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d
789 (1974). Cepeda v. Cowles Magazines, 392 F.2d 417, cert. de-
nied, 393 U.S. 840, 89 S.Ct. 117, 21 L.Ed.2d 110 (9th Cir. 1968),
held that a top major league baseball player was a public figure.
According to the court, the Butts public figure definition (persons
“involved in issues in which the public has a justified and im-
portant interest’) would “of course .. . include artists, athletes,
business people, dilettantes, anyone who is famous or infamous
because of who he is or what he has done,” id. at 419. We are
not as confident that the Butts definition would “of course” in-
clude all members of the listed groups. The opinion does not
include any discussion of how the court reached its conclusion
and therefore does not aid our resolution of somewhat analogous
issues raised by the Gertz definition. (See our identification and
discussion of such issues in text at 24-29). In Vandenburg v.
Newsweek, 441 F.2d 378 (5th Cir. 1971), this court stated that
“there is no dispute that’’ plaintiff, a track coach at the University
of Texas, was a public figure but similarly did not discuss the
point. The published article in that case referred to relations
between the coach and black athletes; it is possible that this
would qualify as an important public issue to which Butts re-
ferred. In Time, Inc. v. Johnston, 448 F.2d 378, 380 (4th Cir.
1971), the court, citing Cepeda, supra, stated that there “can be
no dispute that” plaintiff was a public figure when he was a
member of the Philadelphia Warriors basketball team. By offer-
ing his services to the public as a paid performer he had, according
to the court, assumed the risk of good or bad publicity “so far
as it concerned his public performance.” The assumption of risk
rationale does not appear to be linked to the Butts definition.
We have also reviewed four entertainer or sports figure cases
decided after Gertz. In Vandenburg v. Newsweek, 507 F.2d 1024,
1025 n.1 (5th Cir. 1975), the court simply noted that in its earlier
opinion Vandenburg, supra, where it remanded the case for a
trial, it had decided that plaintiff was a public figure. The court
stated that trial testimony supported the decision that he was a
public figure, “at least for a ‘limited range of issues,’ ” citing
Gertz, supra, at 351, 94 S.Ct. at 3012. The panel did not specify
how it limited that range of issues; the range might have been
limited to issues relating to track coaching or limited to include
only race relations in the track program. The court does not
address the statements in Gertz that may require the existence
of a public controversy for limited issue public figures; on the
facts of Vandenburg, however, such a controversy probably ex-
isted. In Carson v. Allied News Co., 529 F.2d 206, 209-10 (7th
Cir. 1976), the court stated that Johnny Carson and his wife
(Continued on following page)
A26
The newspaper emphasizes the connection between this
article and one cause of Anita’s fame, her relationship with
Footnote continued—
Joanna Holland had admitted that they were public figures. The
opinion goes on to label Carson an “all-purpose” public figure.
Earlier the court had stated that according to Gertz, “[s]ome
persons occupy positions of such pervasive power and influence
that they are deemed public figures for all purposes and in all
contexts,” id. at 209. In discussing Carson, the court referred to
plaintiffs’ brief, which described Carson as an entertainer with an
international reputation and “one of the more popular and out-
standing practitioners of his profession,” and to their reply brief
where they directly. stated that both were public figures. [The
opinion’s statement that the wife of such a public figure “more
or less automatically becomes at least a part-time public figure
herself,” id. at 210, quite possibly would not survive the ruling in
Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154
(1976).] The court never directly states that Carson’s “power
and influence” was “pervasive,” but possibly the opinion implies
this. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265,
1280 (2d Cir. en banc 1979), involved an article that discussed
a professional football player’s physical condition, contractual
dispute, and retirement. After noting that Gertz described two
types of public figures, all-context and limited-issue, the opinion
appears to use what it identifies as the basis for the former
(“pervasive fame or notoriety”) to determine that plaintiff was
a limited issue public figure, a “public figure, at least with respect
to his ability to play football.” We find this analysis somewhat
confused. Further, Chuy does not hold that professional football
players as such are public figures for purposes of all articles
but, instead, limits its holding to articles concerning playing abil-
ity and goes on to note the publicity surrounding the plaintiff's
contractual dispute. In James v. Gannett, 40 N.Y.2d 415, 386
N.Y.S.2d 871, 353 N.E.2d 834 (1976), the court identified the es-
sential element of public figure status as taking “an affirmative
step to attract public attention.” id. 386 N.Y.S.2d at 876, 353
N.E.2d at 840. After quoting portions of the Gertz public figure
definition, and citing Cepeda, supra, for the proposition that
the category includes “without doubt” professional athletes,
singers, and actors, id., 386 N.Y.S.2d at 875, 353 N.E.2d at 839,
the court concludes that a professional belly dancer who per-
formed in cabarets was a public figure with respect to accounts
of her stage performances, id., 386 N.Y.S.2d at 876, 353 N.E.2d at
840. The opinion does not precisely state how this performer
fits into either of the two Gertz categories.
In sum, the post-Gertz cases do not address what we view as
certain problems of fitting entertainer and sports figures into the
Gertz definition of public figures. Also, the published articles in
Vandenburg, Chuy, and James commented on the public per-
(Continued on following page)
A27
Presley, and argues that the article therefore did not con-
cern a purely private matter. Finally, defendant cites in-
stances where the Supreme Court stated that courts should
not undertake to distinguish between expressions of timely
important ideas and other sorts of printed articles. Indeed
each side finds some support for its position in opinions
dealing with public figures. Bearing in mind the facts
of the present case, we shall briefly trace the evolution of
immunity for those who without “malice” print articles
that defame public figures, to determine whether this de-
fendant is entitled to that constitutional protection.
The Supreme Court in New York Times v. Sullivan,
376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), empha-
sized this nation’s profound historical commitment to robust
debate on political issues, especially press criticism of the
stewardship of public officials, and found that the con-
stitution required a public official plaintiff to prove “mal-
ice” in a libel action in order to allow sufficient breathing
space for such criticism.'®
Footnote continued—
formances (or ability to perform) of the entertainer or sports
figure. The defamatory portions of the article in the present case
do not. The article in Carson concerned his personal life but (1)
he admitted that he was a public figure and ( 2) the court may
have found his international reputation indicated that his power
and influence were sufficiently pervasive to qualify him as an
all-purpose public figure. The Brewers’ power and influence
never were as pervasive. The pre-Gertz cases could have, but
did not, address aspects of the Butts definition that are similar
to the problematic aspects of the Gertz definition.
16. In his opinion concurring in the result, Justice Goldberg,
joined by Justice Douglas, stated that the constitution would not
protect defamatory statements about the private conduct of a pub-
lice official as such defamation would have “little to do with the
political ends of a self-governing society,” id. at 301-02, 84 S.Ct.
at 731. But see Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-45,
94 S.Ct. 2997, 3009, 41 L.Ed.2d 789, commenting on society’s in-
terest in officials’ personal attributes that touch on fitness for
office.
A28
In 1967 the Court extended the malice standard in an
action under a state right of privacy statute where the
plaintiff was not a public official and where the article
reported on a matter of public interest, Time, Inc. v. Hill,
385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967),’* and to
public figures in libel actions, Curtis Publishing Co. v.
Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).*®
Hill did not involve defamation’ but it does contain broad
statements that the first amendment protects more than
reports on political and other important public issues; it
protects
the vast range of published matter which exposes per-
sons to public view, both private citizens and public
officials. Exposure of the self to others in varying
17. It is not clear whether the “matters of public interest’
rationale survived Gertz v. Robert Welch, Inc., 418 U.S. 323, 94
S.Ct. 2997, 41 L.Ed.2d 789 (1974), which rejected the “‘public issue”
test of Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29
L.Ed.2d 296 (1971).
18. In Butts, Justice Harlan’s plurality opinion articulated a
standard different from the New York Times “malice” standard;
the plurality required public figures to show
highly unreasonable conduct constituting an extreme de-
parture from the standard of investigation and reporting or-
dinarily adhered to by responsible publishers.
388 U.S. at 155, 87 S.Ct. at 1991. Chief Justice Warren’s con-
currence urged the adoption of the New York Times standard. Id.
at 163-64, 87 S.Ct. at 1995-96.
The Court has since stated, however, that Butts extended the
New York Times “malice” standard to public figures. Wolston
v. Reader’s Digest Assn., Inc., 443 U.S. 157, 163-64, 99 S.Ct. 2701,
2705-06, 61 L.Ed.2d 450 (1979). In Gertz v. Robert Welch, Inc.,
418 U.S. 323, 336 & n.7, 94 S.Ct. 2997, 3005 & n.7, 41 L.Ed.2d 789
(1973), the Court stated that in Butts a majority of the Court
agreed that the New York Times test should apply to criticism of
public figures as well as public officials.
19. The opinion makes specific reference to this, id. at 390-91,
87 S.Ct. at 543 and the Court in later opinions has stated that the
opinion in Hill was limited to the consideration of nondefamatory
matter. Curtis Publishing Co. v. Butts, 388 U.S. 130, 148 n.11, 87
S.Ct. 1975, 1988 n.11, 18 L.Ed.2d 1094 (1967); Gertz v. Robert
Welch, Inc., 418 U.S. 323, 334 n. 6, 94 S.Ct. 2997, 3004 n.6, 4
L.Ed.2d 789 (1974).
A29
degrees is a concomitant of life in a civilized commu-
nity. The risk of this exposure is an essential incident
of life in a society which places a primary value on
freedom of speech and of press. 385 U.S. at 388,
87 S.Ct. at 542,7°
The article in Hill reported on the opening of a new play
that was linked to an incident involving the plaintiff. The
Court had “no doubt that” the subject of the article was
a matter of public interest, quoting Winters v. People of
State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92
L.Ed. 840 (1948): “the line between the informing and
the entertaining is too elusive for the protection of .. .
[freedom of the press].”
Butts is the only Supreme Court opinion dealing with
sports and public figure status. The defendant published
an article accusing Butts, then-Athletic Director at the
University of Georgia, of fixing a football game. He was
not a public official (the court noted that he was not em-
ployed by the state but by a private athletic association)
but he was a public figure “involved in issues in which
the public has a jusified and important interest,” id. 388
20. In this connection it may be that not only is such ex-
posure a necessary incident of life in civilized society but that
such reports make a valuable contribution to society and its
members. Professor Richard Posner, in The Right of Privacy,
12 Ga.L.Rev. 393, 395-96 (1978), argues that gossip columns de-
tailing the personal lives of successful or notorious people do not
merely satisfy readers’ “idle curiosity” but, instead, are genuinely
informational:
Gossip columns recount the personal lives of wealthy and
successful people whose tastes and habits offer models—that
is, yield information—to the ordinary person making con-
sumption, career, and other decisions. The models are not
always positive. The story of Howard Hughes, for example
is usually told as a morality play, warning of the pitfalls of
success. Tales of the notorious and the criminal—of Profu-
mo and of Leopold—have a similar function. Gossip columns
open people’s eyes to opportunities and dangers; they are gen-
uinely informational.
A30
U.S. at 134, 87 S.Ct. at 1980. The plaintiff in a companion
case had attained public figure status by thrusting his per-
sonality into the vortex of an important public controversy.
While “Butts may have achieved that status by position
alone; both [plaintiffs] commanded continuing public in-
terest and access to the media for counterargument.” Id. at
154-55, 87 S.Ct. at 1991. It is not clear, then, whether Butts’
connection with collegiate sports alone accounted for his
public figure status.”*
In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91
S.Ct. 1811, 29 L.Ed.2d 296 (1971), the plurality opinion
extended New York Times protection to all publications
involving matters “of public or general interest,” even
those that defame a private individual who did not volun-
tarily choose to become involved with the matter reported.
Three years later in Gertz v. Robert Welch, Inc., 418 U.S.
323, 345-46, 94 S.Ct. 2997, 3009-10, 41 L.Ed.2d 789 (1974),
the Court expressly rejected the Rosenbloom extension.
The Court’s reasons for this shift are important for our
purposes. The Court determined that the Rosenbloom
“public or general interest” test “inadequately served both
of the competing values at stake” the legitimate state in-
21. In his concurring opinion, Chief Justice Warren stated
that citizens are often as concerned with public figures’ “views
and actions with respect to public issues and events” as with those
of public officials, id. at 162, 87 S.Ct. at 1995. In his view, persons
outside government were increasingly
intimately involved in the resolution of important public
questions or, by reasons of their fame, shape events in areas
of concern to society at large. . [the Court in Gertz, supra
[418 U.S.] at 337 [94 S.Ct. at 3006], quoted this]. And smveay
as a class these “public figures” have as ready access as public
officials” to mass media of communication, both to influence
policy and to counter criticism of their views and activities.
Our citizenry has a legitimate and substantial interest in the
conduct of such persons, and freedom of the press to engage
in uninhibited debate about their involvement in public issues
and events is as crucial as it is in the case of “public officials.”
Id. at 164, 87 S.Ct. at 1996.
A31
terest in compensating individuals injured by defamation
(and the private individual’s interest) and the interests of
the press protected by the first amendment, specifically
the interest of
a publisher or broadcaster of a defamatory error which
a court deems unrelated to an issue of public or gen-
eral interest,
id. at 346, 94 S.Ct. at 3010. Further, such a test
would occasion the additional difficulty of forcing state
and federal judges to decide on an ad hoc basis which
publications address issues of “general or public inter-
est” and which do not—to determine, in the words of
Mr. Justice Marshall, ‘what information is relevant to
self-government.’ Rosenbloom v. Metromedia, Inc.,
403 U.S. at 79, 91 S.Ct. at 1837. We doubt the wisdom
of corrmitting this task to the conscience of judges.
Id. We must, therefore, construe the Court’s definition of
public figures in Gertz in light of the Court’s warning in
the same opinion that the press is not adequately protected
by a rule that allows a court to determine whether a pub-
lished article is relevant to an issue of public or general
interest, and that judges ought not make such ad hoc de-
terminations.
Gertz held that the New York Times standard applies
to public officials and
[t]hose who by reason of the notoriety of their
achievements or the vigor and success with which they
seek the public’s attention, are properly classed as
public figures,
Id, at 342, 94 S.Ct. at 3008. Both groups must prove “ma-
lice” because (1) they “usually enjoy greater access to
channels of effective communication and hence have a
A32
more realistic opportunity to counteract false statements
than private individuals normally enjoy;” because they
are less vulnerable to injury, the state’s interest in pro-
tecting them is less; and (2) the more important normative
consideration: those who seek public office must accept
certain necessary consequences of involvement in public
affairs, specifically the risk of closer public scrutiny in-
cluding public interest in his or her personal attributes
that ought touch on fitness for office. Similarly public
figures, for the most part, act voluntarily.
Those classed as public figures stand in a similar
position. Hypothetically, it may be possible for some-
one to become a public figure through no purposeful
action of his own, but the instances of truly involun-
tary public figures must be exceedingly rare. For the
most part, those who attain this status have assumed
roles of especial prominence in the affairs of society.
Some occupy positions of such persuasive power and
influence that they are deemed public figures for all
purposes. More commonly, those classed as public
figures have thrust themselves to the forefront of par-
ticular public controversies in order to influence the
resolution of the issues involved. In either event,
they invite attention and comment. Id. at 345, 94 S.Ct.
at 3009.
Having already determined that a case-by-case ap-
proach would lead to unpredictable results and uncertain
expectations, and that it must devise broad rules of gen-
eral application, id. at 343, 94 S.Ct. at 3008, the Court
stated,
Even if the foregoing generalities do not obtain
in every instance, the communications media are en-
titled to act on the assumption that public officials
A33
and public figures have voluntarily exposed them-
selves to increased risk of injury from defamatory
falsehood concerning them...
whereas a private individual “has relinquished no part of
his interest in the protection of his own good name,” id.
In deciding that the plaintiff was not a public figure, the
Court restated the definition:
That designation may rest on either of two al-
ternative bases. In some instances an individual may
achieve such persuasive fame or notoriety, that he be-
comes a public figure for all purposes and in all con-
texts. More commonly, an individual voluntarily in-
jects himself or is drawn into a particular public con-
troversy and thereby becomes a public figure for a
limited range of issues. In either case such persons
assume special prominence in the resolution of public
questions. Id. at 351, 94 S.Ct. at 3012.
Some of the descriptions or definitions of the public
figure category in Gertz clearly indicate that the plaintiffs
in this case at least at the height of their fame, were in that
category; other formulations, especially those referring
to power, influence, the “affairs of society,” and public con-
troversies, raise questions about whether entertainers, “girl-
friends” of entertainers, or sports figures are properly so
classified.
The evidence in this case shows that both plaintiffs at
one time or another vigorously and successfully sought the
public’s attention or gained notoriety for their own achieve-
ments. Both achieved “pervasive fame or notoriety,” at
least regionally; whether it was “such pervasive fame or no-
toriety that he becomes a public figure for all purposes and
in all contexts” (emphasis added) is a more difficult ques-
tion. The Supreme Court in Gertz delineated two possible
A34
public figure categories, all-purpose”? and limited; the
second, however, the Court described in terms of involve-
ment in public controversies. A sports or entertainment
career clearly does not necessarily involve any public
controversy, nor would we so categorize a romantic rela-
tionship with a famous entertainer. In our view, however,
the Court in Gertz did not define all subcategories of the
public figure classification. Rather, after determining that
the plaintiff in that case was not an all-purpose public
figure, the Court set forth the more limited basis that might
arguably have applied to that plaintiff, an attorney who
had become involved in a local controversy over rela-
tions between police and minorities. We note that in
describing two subcategories that Court used words like
“some,” “more commonly,” “for the most part.” In de-
scribing the whole class of public figures the court in-
cluded those who seek public attention or whose achieve-
ments gain notoriety, and commented that all public figures
“invite attention and comment” and, later, that they “as-
sume special prominence in the resolution of public ques-
tions.” To determine plaintiffs’ status based on the latter
formulation, however, would require us to decide what is
and is not a public question, a task the Court has stated is
inappropriate for judges, and to make an ad hoc determina-
22. The Court of Appeals for the District of Columbia re-
cently described this category as including celebrities, those whose
names are “household word[s]” if not nationwide, at least where
they are defamed. Waldbaum v. Fairchild Publications, Inc., 627
F.2d 1287, at 1292, 1294, 1295 & n.22 (D.C.Cir. 1980). According
to the court, the renouncement of anonymity or tolerance of
publicity unavoidably carries with it the risk of media investigation
of talent, character, and motives, id. at 1294. The court noted that
well-known entertainers and athletes frequently endorse products
and candidates, thereby indicating the breadth of their influence
and the appropriateness of broad press scrutiny, id. at 1294 & n.15.
. The Court went on, however, to say that the test for all purpose
public figures is strict, and found that the plaintiff there was a
public figure because he had thrust himself into the public con-
troversies concerning certain business issues, id. at 1299, 1300.
A35
tion when, according to the Court, such determinations pro-
vide too little protection for freedom of the press. We
therefore focus instead on plaintiffs’ actions in seeking
publicity or voluntarily engaging in activities that neces-
sarily involve the risk of increased exposure and injury to
reputation. Both entered professions that by their nature
require public appearances and invite press attention.
Anita’s relationship with Presley was not, and probably
could not have been, kept out of the press. This relation-
ship coincided with a portion of her career as an entertainer
and it appears that during this time she invited press cov-
erage, at least of her career. Further, as discussed above,
her xelationship with Presley advanced her career and
it is clear from the exhibits that much press coverage
focused both on the relationship and on her career, some
items detailing a purported connection between these two
aspects of her life.
The dual rationale for special treatment of public
figures articulated in Gertz, access to the media for re-
buttal and voluntary assumption of risk, was first set forth
in Butts, supra, where Justice Harlan turned for guidance
in setting a standard for public figures in libel actions
to the considerations involved in devising the common law
of torts in general and libel in particular, noting that in
determining the degree of fault that will subject a defen-
dant to liability, the common law looks to the importance
of the defendant’s activities as well as to the plaintiff’s
prior activities and his means for avoiding harm or mitigat-
ing damages:
In the cases we decide today none of the particular
considerations involved in New York Times is present.
These actions cannot be analogized to prosecutions for
seditious libel. Neither plaintiff has any position in
government which would permit a recovery by him
*%
A36
to be viewed as a vindication of governmental policy.
Neither was entitled to a special privilege protecting
his utterances against accountability in libel. We are
prompted, therefore, to seek guidance from the rules
of liability which prevail in our society with respect
to compensation of persons injured by the improper
performance of a legitimate activity by another. Under
these rules, a departure from the kind of care society
may expect from a reasonable man performing such
activity leaves the actor open to a judicial shifting
of loss. In defining these rules, and especially in
formulating the standards for determining the degree
of care to be expected in the circumstances, courts have
consistently given much attention to the importance of
defendants’ activities. Prosser, The Law of Torts § 31;
at 151. The courts have also, especially in libel cases,
investigated the plaintiff's position to determine
whether he has a legitimate call upon the court for
protection in light of his prior activities and means of
self-defense. See Brewer v. Hearst Publishing Co.,
. 7 Cir., 185 F.2d 846; Flanagan v. Nicholson Publishing
Co., 137 La. 588, 68 So. 964, L.R.A.1917E, 510. We note
that the public interest in the circulation of the ma-
terials here involved, and the publisher’s interest in
circulating them, is not less than that involved in New
York Times. And both Butts and Walker commanded
a substantial amount of independent public interest at
the time of the publications; both, in our opinion, would
have been labeled “public figures” under ordinary tort
rules.
Butts, supra at 154. In our view, the plaintiffs in this case
were, at least at some time and for purposes of some ar-
ticles, public figures who, as such, must prove defendant’s
“malice,” not because they are to be punished for having
A37
sought press attention but, rather, because the first amend-
ment requires that the press be afforded the protection of
the “malice” standard vis-a-vis those who have sought its
coverage, either through direct invitation or by participat-
ing in activities whose success depends in large part on
publicity. In performing its role the press covers not only
political events and public controversies, but also sports
and entertainment. Entertainers (and sports figures as
entertainers) typically put more of themselves in the
public view than their particular performances; both plain-
tiffs in this case certainly did. Anita was in the spotlight
not only because of her entertaining but also as the enter-
tainer who was Presley's “girlfriend.” John was portrayed
in his campaign literature as one who had worked hard
to become successful in football and would work hard if
elected. As the Court of Appeals for the District of Co-
lumbia recently stated, public figures must prove malice
in defamation actions in order to give the media “breathing
space ... in fulfilling its role of reporting, analyzing, and
commenting on well-known persons” who have “invit[ed]
attention and comment.” Walbaum v. Fairchild Publica-
tions, Inc., 627 F.2d 1287, at 1291-1292 (D.C.Cir. 1980).
Gertz, then, indicates that these plaintiffs could be
classified as public figures at least at the height of their
fame and at least for purposes of some articles. We must
still determine whether any later Supreme Court opinion
modifies this determination, and whether the defendant in
this case is entitled to New York Times, “malice” protec-
tion for this article published when Anita was no longer
a professional entertainer or romantically involved with
Presley and when John was no longer playing professional
football.
In Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958,
47 L.Ed.2d 154 (1976), the Court held that plaintiff, the
A38
former wife of “the scion of one of America’s wealthier
industrial families,” id. at 450, 96 S.Ct. at 963, was not a
public figure. She had not “assume[d] any role of special
prominence in the affairs of society, other than perhaps
Palm Beach society” and had not “thrust herself to the
forefront of any particular public controversy to influence
the resolution of the issues involved in it,” id. at 453, 96
S.Ct. at 964, (her celebrated divorce proceeding did not
constitute the sort of “public controversy” to which Gertz
referred, id., at 454, 96 S.Ct. at 965). As we have discussed,
the public figure status of plaintiffs in the present case does
not rest on the public controversy prong of Gertz but, in-
stead, on their fame. The Court in Firestone did not fur-
ther discuss the fame of the plaintiff before the divorce
proceedings that were the subject of the article.”* Evi-
dence in the present case of plaintiffs’ extensive public ex-
posure and media coverage distinguish this from a case
where a plaintiff's fame may be limited to prominence
in a local community.
In Wolston v. Reader’s Digest Assoc., 443 U.S. 157, 99
S.Ct. 2701, 61 L.Ed.2d 450 (1979), the Court held that the
plaintiff had not voluntarily thrust himself into the con-
troversy over the espionage activities of the Soviet Union
in the 1950’s by failing to respond to a grand jury subpoena
and pleading guilty to a contempt charge. Neither the
district court nor the appellate court for the District of
Columbia, nor the defendant, had relied on any claim that
the plaintiff was a public figure for all purposes. The
Court noted that he had led a “thoroughly private ex-
istence” before the grand jury inquiry and “returned to a
position of relevant obscurity” after his sentencing, and
that he
23. Justice Marshall in dissent did, and would find her a
public figure, in part because she chose to become a member of
a group “whose lives receive constant media attention,” id. at
486, 96 S.Ct. at 980.
A39
achieved no general fame or notoriety and assumed
no role of special prominence in the affairs of society
as a result of his contempt citation or because of his
involvement in the investigation of Soviet espionage
in 1958.
As detailed above, plaintiffs in this case were certainly
not “thoroughly private” or “relatively obscure” people.
Wolston, then, basically restated the Gertz position that
overruled the Rosenbloom rationale and the facts in
Wolston did not present an opportunity for much further
comment on public figures who have not thrust them-
selves into public controversies to influence their reso-
lution.
Both the district and appellate courts in Wolston had
held that plaintiff was a public figure and had rejected
his argument that, even if he once was, the passage of time
had restored him to the status of private person for first
amendment purposes. He abandoned this argument in the
Supreme Court. For that reason and because the Court
found he was never a public figure, it specifically did not
decide “whether or when an individual who was once a
public figure may lose that status by the passage of time,”
id. at 166 n.7, 99 S.Ct. at 2707 n.7.%* Six Justices joined in
24. In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d
597 (1966), where the Court remanded the case for further pro-
ceedings to determine whether | a ee was a public official, the
Court noted that the plaintiff had not, and could not have,
seriously contended that the fact that he had been discharged
from his position as a commissioner six months before the article
was published was significant; public interest in the prior ad-
ministration’s management of a particular project continued strong
and the article, if it referred to the plaintiff at all, referred to
his performance as a commissioner. The Court stated in dicta:
To be sure, there may be cases where a person is so far re-
moved from a former position of authority that comment on
the manner in which he performed his responsibilities no
longer has the interest necessary to justify the New York
Times rule, id. at 87 n.14, 86 S.Ct. at 677 n.14,
but that this was not such a case.
%
A40
the opinion of the Court; Justice Brennan dissented; and
Justice Blackmun wrote an opinion concurring in the re-
sult, in which Justice Marshall joined, stating that assum-
ing arguendo that plaintiff was a public figure in 1958
when he became involved in the espionage controversy,
he had clearly lost that distinction by the time the article
was published in 1974. According to Justice Blackmun,
the passage of time will often be relevant to determining
a plaintiff's access to the means of counter argument and
the risk of public scrutiny he may fairly be said to have
assumed, the bases for public figure treatment articulated
in Gertz. Justice Blackmun focused on the plaintiff’s con-
scious efforts to regain anonymity during the ensuing six-
teen year period; these efforts “negated” any inference
that he had invited press commentary by ignoring a sub-
poena in 1958. Id. at 170-71, 99 S.Ct. at 2709. Finally,
Justice Blackmun stated that first amendment values would
not be violated if historians, who have greater opportu-
nities to investigate and time to reflect, are held to a
higher standard of care than those reporting on contem-
woraneous events. Id. at 171, 99 S.Ct. 2709. Even if we
were to follow Justice Blackmun’s analysis, it would not
necessarily apply to the present case where: plaintiffs’
public figure status is not tied to a particular public con-
troversy; Anita Brewer may have sought anonymity
eight years before the publication but her name continued
to appear in articles and books about Presley; and the
article was not an historical reflection but a newspaper
article that purported to relate a contemporaneous event.”
25. The district court’s analysis of this issue in Wolston v.
Reader’s Digest Ass’n, Inc., 429 F.Supp. 167 (1977), focused on
the need to apply the malice standard to authors and publishers
of books as well as newspaper reporters. The Court of Appeals
in Wolston v. Reader’s Digest Ass’n, Inc., 578 F.2d 427 (D.C.Cir.
1978), focused on the fact that the subject matter of the article,
Soviet espionage in 1958, continued to be a legitimate topic of
debate when the article appeared particularly because the matter
concerned national security. Neither discussion then, aids our
analysis of the issues in this case.
A4l1
The Fourth Circuit in Time, Inc. v. Johnston, 448
F.2d 378 (4th Cir. 1971), held that the plaintiff remained
a public figure for purposes of an article that described
events that had occurred twelve years earlier during
his career as a professional basketball player. He had
retired from professional ball nine years before the publi-
cation but had remained in organized ball until two years
before the article appeared. At the time of publication
he was a college coach. The article described the spectac-
ular debut of Bill Russell, whose career was still phenom-
enal at the time of publication, and stated that Russell
had psychologically destroyed the plaintiff’s playing. The
court stated that the vast majority of courts had rejected
arguments by plaintiffs in invasion of privacy cases that
withdrawal or the passage of time insulated them from
the New York Times rule for public figures.
The article in the present case similarly related to
one whose career was still phenomenal, Presley. While
it did not describe an event during plaintiffs’ active period,
its subject did relate to one cause of Anita’s fame, her
relationship with Presley. Plaintiffs urge this court to
hold that this defendant is not protected by the New York
Times standard for publishing an article about the private
affairs of people who had effectively retreated from public
figure status and which purported to describe an event
that occurred after their retreat, not while they were in
the public spotlight. We have determined, however, that
the first amendment requires that this defendant be pro-
tected by the New Yurk Times standard for publishing
this article whose content relates to Anita’s fame as Pres-
ley’s “number one girlfriend.” It might be that during
the “active” public figure period a wider range of articles,
including those only peripherally related to the basis of
the public figure’s fame, are protected by the malice stan-
dard and that the passage of time or intentional retreat
A42.
narrows the range of articles so protected to those directly
related to the basis for fame. Even under such a rule,
and even viewing Anita as one who had retreated several
years before this article, she would be required to prove
malice in her suit based on this article. The article does
not relate to John’s fame as a football player. To hold
that he might therefore recover on a showing of negligence
would, however, strip the required protection from the
press to write such a story about Anita. To summarize,
we find that Anita Wood Brewer who had gained media
exposure and fame through her career and her romantic
relationship with Presley, an extremely well-known enter-
tainer, and whose name continued to appear in stories
about Presley after her retirement, was required to prove
malice in this suit based on an article that dealt primarily
with that romantic relationship and incidentally with her
marital status. Since, in our view, the first amendment
requires “malice” protection for the press, which has re-
peatedly covered both these aspects of her life thereby
advancing her career, in publishing this story, the same
standard must be applied to John Brewer’s suit. Even
where the defamatory portions of an article do not relate
to the basis for one public figure’s fame, he may not, by
marrying another public figure, reduce the constitutional
protection afforded the press to publish stories about his
spouse.
We hold that both plaintiffs were required to present
evidence that showed with convincing clarity a high degree
of awareness by the defendant of the article’s falsity or
probable falsity.** This court must make an independent
26. In New York Times Co. v. Sullivan, 376 U.S. 254, 280-81,
84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964), the Court held that a
public official basing a libel action on falsehood relating to his
official conduct must prove such 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.
(Continued on following page)
A43
examination of the whole record to determine whether
plaintiffs made such a showing.”
[10] The record shows that this article was prepared
through the combined efforts of a reporter, James King-
Footnote continued—
The Court stated that the constitutional standard required that
proof show actual malice with “convincing clarity,” id. at 285-86,
84 S.Ct. at 728-29, and found that the proof adduced failed to show
an awareness of falsity or recklessness in that regard, Id. at 286,
84 S.Ct. at 729. Failure to discover misstatements might show
negligence hut did not show actual malice; even failure to check
its own fi. did not show that the state of mind required for
actual malice was “brought home to” those responsible for pub-
lishing the advertisement. Id. at 287-88, 84 S.Ct. 710, 729-30.
In St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323,
1325, 20 L.Ed.2d 262 (1968), the Court held that New York Times
malice must be shown by
sufficient evidence to permit the conclusion that the defendant
in fact entertained serious doubts as to the truth of his pub-
lication.
Evidence showing that the defendant had no personal knowledge
of plaintiff’s activities, the record’s silence as to the source’s repu-
tation for veracity, defendant’s failure to verify the information
with those who might have known the facts, and his failure to
consider whether the statement defamed plaintiff did not es-
tablish malice. Id. at 730, 88 S.Ct. at 1325. No evidence showed
that the defendant was aware of the statement’s probable falsity
and failure to investigate does not in itself establish malice. Id.
at 732-33, 88 S.Ct. at 1326.
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 332, 94 S.Ct.
2997, 3003, 41 L.Ed.2d 789 (1974), the Court, quoting St. Amant,
emphasized that the defendant must act with a “high degree of
awareness of . . . probable falsity,” and repeated that proof of
failure to investigate, without more, cannot establish New York
Times recklessness.
In Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d
115 (1979), the Court stated that a defamation plaintiff must prove
defendant’s “knowing or reckless falsehood,” id. at 159, 99 S.Ct.
at 1640, and that to be liable a defendar.i “must know or have rea-
son to suspect that his publication is false,” id. at 1€0, 99 S.Ct. at
1641. The Court, however, did not announce any change in stan-
dard but, instead, cited the Gertz standard, so we do not interpret
the latter statement as marking a departure from St. Amant or
Gertz.
27. See e. g., Vandenburg v. Newsweek, Inc., 507 F.2d 1024,
1027 & n.3 (5th Cir. 1975), and cases cited therein.
**%
A44
sley, and the “People” column writer, Hope Pectol.”* On
September 7, 1972, Mr. Kingsley telephoned his sister Ann
Otis who lived in Las Vegas to inquire about a family
matter. During this conversation, Otis told her brother that
during the previous weekend she had been in the dress shop
of the Hilton International Hotel where a salesclerk told
_ her that “a girl” had been in the shop, saying she was
Anita Wood from the Memphis area and that she was there
to see the Elvis Presley show. Otis testified that the
clerk was her friend and that she had no reason to doubt
the truth of the information this person presented. Otis
had provided reliable information to her brother and to a
reporter for another publication which had been the basis
of published articles; she had done so without solicitation
or compensation.
Kingsley had been with the Commercial Appeal in its
Memphis office since 1960. He was a childhood acquaint-
ance of Elvis Presley and had specialized in entertain-
ment coverage, especially of Presley and including cover-
age of Anita Wood. Hope Pectol had recently been en-
couraged to expand coverage of local and regional figures
in the “People” column and to rely less on wire service
information; she had relayed this interest to Kingsley.
Kingsley told her that he had a story that she might want
for her column. She asked him to bring her his notes.
When he did, she located the paper’s files on Anita Wood
and Presley which contained articles about the entertain-
28. The evidence included detailed testimony about the
editorial processes at the paper, testimony from both the reporter
and writer that up to the time of printing they believed the
article to be true, testimony by Kingsley’s and Pectol’s superiors
that both were reliable, and testimony from Kingsley and a re-
porter from another publication that Otis was a reliable source.
Kingsley, Pectol, their superiors, and Otis testified and were sub-
jected to cross examination. The requirements recently de-
scribed in Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d
115 (1979) have been met.
mee en
A45
ment careers of each and about their relationship. She
noted that Kingsley had reported on Presley’s marital dif-
ficulties, asked him about this, and he confirmed that
Presley had recently filed for a divorce. Based on the
clippings she composed the “Flickering Flame” caption.
She wrote the “reunion” portion based on Kingsley’s notes.
Pectol then asked Kingsley if he knew whether Anita had
ever been married. He told her that Anita had married
John Brewer but that as far as he knew they were divorced
and that he would check further on this and report back.
She also asked him to call his sister to verify the original
information.
Kingsley called his sister; while he waited, she tele-
phoned the clerk on another phone and then confirmed
the statement to him. Kingsley asked two people in his
office about the Brewers’ marital status. One, who had
written a book on John Brewer’s coach at Jle Miss, told
him he did not know. Another, a photographer for the
paper who had taken several pictures of Anita, told Kings-
ley that he had heard that the Brewers were separated. At
trial Kingsley testified that he had thought that the Brew-
ers were divorced. Although he could not identify the
source of this information, one of his regular business and
social acquaintances testified that she had spoken with
John Brewer when he was separated from his wife and
John had told her that he was separated from his wife and
that they were getting divorced. Editors at the paper who
reviewed the piece before publication, testified that they
did not then suspect that it was false. They relied on
Kingsley’s and Pectol’s past reliability, one adding that he
had seen Pectol checking files and asking questions during
preparation.
It does not appear, then, that Kingsley, Pectol, or
those who reviewed the story after them entertained a
A46
serious doubt, or reasonably should have, about the story’s
accuracy. Kingsley’s belief that the Brewers were divorced
was not totally unfounded, though he could not later recall
the. specific communication upon which this belief was
based. In fact, Anita Brewer had twice brought actions
for separate maintenance from her husband in Louisiana
and had once been granted a decree of separation there
on the ground of abandonment. Kingsley did not testify
that he had direct knowledge of this legal action but it
is certainly likely that he obtained information on which
to base his belief through covering Anita, working with
a superior who had written two books about John Brewer’s
college football team, or having recurring contacts with
a person who was John Brewer’s friend. Further, the
fact that Kingsley questioned two people in the office,
one connected with John, one with Anita, about his belief,
and that neither disabused him of this notion (and one
confirmed that the couple had separated), does not indi-
cate that he did not originally believe that the Brewers
were divorced. Instead, it shows that he made an honest
effort to test his belief.
Otis had proven to be a reliable source in the past.
It is true that the salesclerk, not Otis, was the original
information source for the piece and that she had not
earlier provided the paper with information. Otis, Mow-
ever, knew and believed her and the record indicates
no reason for disbelief; she did not, for example, contact
the paper directly to provide the information and appar-
ently had no “axe to grind” on the matter. We certainly
ought not require of the press the degree of reliability
that we must require of the police when several informer
links provide them with information on which they seek
a search warrant.
The record as a whole therefore fails to show at all,
let alone with “convincing clarity,” that Kingsley, Pectol,
A47
or those who reviewed the piece after it was written,
knew it was false or recklessly disregarded whether it
was false.
Because plaintiffs in this case were required and failed
to show that the defendant acted with “malice” in printing
this article, the verdict and judgments must be set aside
and judgment entered here for the defendant.
REVERSED.
GODBOLD, Circuit Judge, specially concurring:
I concur in the Constitutional Law section of the
opinion and in the result. I cannot join in the State Law
section. We usually address potentially dispositive ques-
tions of state and local law before reaching constitutional
issues because this may make constitutional decision un-
necessary. The avoidance of unnecessary decisions on
constitutional grounds is a policy, not an iron-bound rule
of decision that requires district and appellate courts to
jump through state law hoops for the sake of nicety.
Application of the principle in this case elevates form over
substance.
I would assume without deciding that under state law
the plaintiffs in this case would be entitled to recover,
and I then would directly address the constitutional issue
which, we all agree, bars plaintiffs from recovery. This
would be an orderly, sensible and direct solution, saving
of judicial time and effort and doing no injury to the law
of Mississippi. The majority eschew this direct route to
the jugular because they consider that they are immutably
bound to consider state law first to determine whether
constitutional decision is required. In pursuit of this aim,
and acknowledging their difficulties, the majority decide
at least the following questions of Mississippi law:
A48
1. A statement that a person is divorced or is a
cuckold is as a matter of law capable of a defamatory
meaning. The majority find no Mississippi cases on this
question.
2. A relative of a person to whom a libelous state-
ment refers may have a cause of action for libel although
the only cited case (from a federal district court) says
the Mississippi law is uncertain on this question, No other
Mississippi state cases can be found. See majority opin-
ion, n.7.
3. A dispute over whether the material in this case
was libel per se or libel per quod is resolved by a holding
that Mississippi does not recognize the distinction—plain-
tiffs were not required to plead and prove special damages
because under Mississippi law whether a statement is
libelous per se is the same question as whether it is
defamatory at all.’
4. After the decision in Gertz v. Robert Welch, Inc.,
418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) Missis-
sippi would permit recovery for a negligent libel, although
before Gertz Mississippi required malice (or presumed
malice). No case authority is given to support this con-
clusion.
This excursion through the Mississippi law is little
more than hypothetical. We do not know whether the
correct choice of law is that of Tennessee or of Mississippi.
This is discussed at length in footnote 6 to the majority
1. The cases discussed by the majority do not clearly decide
that libel per quod, in which special damages must be proved,
does not exist in Mississippi. See, e. g., Manasco v. Walley, 216
Miss. 614, 63 So.2d 91 (1953). I cannot with assurance find a
clear answer in the Mississippi cases. A logical way to resolve the
confusing case law would be to hold that language susceptible of
both innocent and defamatory meanings—as was the language in
this case—is actionable but not actionable per se. The majority
have not chosen this route.
A49
opinion. It is inconsistent with federalism to go through
a mere ritual of vindicating the principle of addressing
state law first, predicating the formal rite upon an assump-
tion that the law to be examined is that of a particular
state. The courts of that state have the primary right
to establish and construe its body of law. Moreover, pro-
nouncements unnecessarily made in this case may ad-
versely affect the rights of future litigants not parties to
this suit who find themselves bound by Mississippi law
and faced by citation of this decision as precedent. Iron-
ically, the majority recognize that if we had decided that
the action was not barred by the First Amendment, it
tnight then have been necessary to “explore further” to
find out if the assumed application of Mississippi law
had been justified. See majority opinion, n.6. This stands
on its head the principle of deciding issues of state law
first.
e%
A50
John L. BREWER, Plaintiff-Appellee
Cross-Appellant,
Vv.
MEMPHIS PUBLISHING COMPANY,
INC., Defendant-Appellant
Cross-Appellee.
Anita W. BREWER, Plaintiff-Appellee
Cross-Appellant,
V.
MEMPHIS PUBLISHING COMPANY,
INC., Defendant-Appellant
Cross-Appellee.
No. 75-1073.
United States Court of Appeals,
Fifth Circuit.
Sept. 13, 1976,
Action was brought by husband and wife to recover
for libel based on newspaper publication. The United
States District Court for the Southern District of Missis-
sippi, at Jackson, William Harold Cox, J., entered a judg-
ment awarding damages and the newspaper appealed.
The Court of Appeals, Roney, Circuit Judge, held that
trial court, which in the first trial did not address issue
of whether plaintiffs were public figures and gave jury
instruction based on Mississippi law allowing liability with-
out fault and damages without injury, erred in ordering
a new trial on issue of damages only and accepting jury’s
resolution of liability at first trial; new trial was required
on both liability and damages including determination of
whether plaintiffs were public figures.
Reversed and remanded.
A51
1. Constitutional Law (Key) 90.1(5)
First Amendment dictates minimum contours within
which state libel law must fit in cases involving the press.
U.S.C.A.Const. Amend, 1.
2. Libel and Slander (Key) 112(2)
Person who is a public official may recover in a libel
action only upon clear and convincing proof that the
defamatory falsehood was published with knowledge of
its falsity or with reckless disregard for its truth. U.S.C.A.
Const. Amend. 1.
2. Libel and Slander (Key) 51(5)
Same stringent standard applicable before a public
official may recover in libel applies to libel actions brought
by persons who are public figures even though they are
not public officials, U.S.C.A.Const. Amend. 1.
4. Libel and Slander (Key) 51(5)
State is free to adopt a more severe standard for
recovery in libel action by persons who are public figures
or public officials it is chooses to do so, but it cannot per-
mit recovery by public official or public figure on any
showing less than that a defamatory falsehood was pub-
lished with knowledge of its falsity or with reckless dis-
regard for its truth. U.S.C.A.Const. Amend. 1.
5. Libel and Slander (Key) 1
As to private individual, state may define any standard
of libel liability it chooses so long as it does not impose
liability withovt fault. U.S.C.A.Const. Amend, 1.
6. Libel and Slander (Key) 120(2)
Only compensatory damages may be awarded to suc-
cessful private defamation plaintiff who does not demon-
strate liability under the demanding standard of a publi-
A52
cation of defamatory falsehood with knowledge of its
falsity or with reckless disregard for its truth.
7. Libel and Slander (Key) 112(1)
All defamation awards for private plaintiff must be
supported by competent evidence concerning injury, al-
though there need be no evidence which assigns an actual
dollar value to the injury.
8, Libel and Slander (Key) 33, 120(2)
In libel action, state may not permit recovery of
presumed or punitive damages to ‘either a private or
public official unless there is a showing of defendant’s
knowledge of falsity or a publication with reckless dis-
regard for truth.
9. Federal Civil Procedure (Key) 2315
Where at first trial, before a United States Supreme
Court decision, Mississippi law allowing liability without
fault and damages without injury upon the publication of
a falsehood or libel per se formed the basis of jury instruc-
tion, trial court in awarding a new trial on issue of dam-
ages only erred in accepting as conclusive at the second trial
the first jury’s verdict against defendants as resolution of
liability, since court relied on a jury decision made on a
prosc:*bed state standard of liability without fault.
10. Libel and Slander (Key) 124(8)
In action for defamation governed by Mississippi law,
court erroneously instructed jury that law presumed plain-
tiffs suffered actual damages as naturally and ordinarily
flow from such publication, since United States Supreme
Court decision requires a showing of actual, not presumed,
damages.
A53
11. Libel and Slander (Key) 112(1)
On retrial of libel action necessitated by error of
court in not addressing liability question of whether plain-
tiffs were public or private figures, initial question was
whether plaintiffs, who were public figures at least in
the past, were public figures within context of United
States Supreme Court decisions requiring stricter stan-
dard of proof, and this would require determination as
to whether persons who had been public figures in past
could retreat to private status and obtain benefit of lesser
standard of proof required for damages for recovery in
libel actions.
Robert A. Weems, Frank E. Everett, Jr., Vicksburg,
Miss., Russell E. Leasure, Cleveland, Ohio, for Memphis
Pub. Co., Inc.
J. Mack Varner, R. Louis Field, John W. Prewitt,
Vicksburg, Miss., for plaintiffs-appellees.
Appeals from the United St
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