Petition — Miskovsky v. Tulsa Tribune Co.

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- Supreme Court, U.S.

FILED

83 +889 ie a

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

GEORGE MISKOVSKY,

Petitioner,

TULSA TRIBUNE COMPANY, and

NEWSPAPER PRINTING CORPORATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OKLAHOMA

EVERETT J. SWEENEY

Counsel of Record

E. JOE LANKFORD

303 South Peters

Norman, Oklahoma 73069

(405) 360-2254

Attorneys for Petitioner

WILSON - Erzs Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

1. Does the United States Constitution supplant state

defamation law on the issues of defamatory meaning,

opinion, and burden of proof as to truth?

2. Does the United States Constitution require a bal-

ancing between the rights of media defendants and the

rights of candidates for public office to freedom of speech

and protection of reputation?

({)

TABLE OF CONTENTS

C. Factual Basis of the Libel Claim .........00000000000....

a ee ON tc ececnee

I. THE UNITED STATES CONSTITUTION

DOES NOT SUPPLANT STATE DEFAMA-

TION LAW ON THE ISSUES OF DEFAMA-

TORY MEANING, OPINION AND BURDEN

SIGE ESS EMSS St

. THE FIRST AND FOURTEENTH AMEND-

MENTS PROHIBIT A RULE OF LAW

WHICH GRANTS VIRTUAL ABSOLUTE IM-

MUNITY TO A MEDIA DEFENDANT FROM

LIBEL SUITS BROUGHT BY A PUBLIC

FIGURE BECAUSE SUCH A RULE WOULD

CHILL THE FIRST AMENDMENT RIGHTS

OF PETITIONER AND OTHER CANDI-

DATES FOR PUBLIC OFFICE .......00.............

ERE TS HE Sa

ao fF © @S NY NWN

TABLE OF CONTENTS—Continued

APPENDIX

A—Opinion of the Supreme Court of the State of

Oklahoma Affirming Sustention of Defendant

Tribune’s Demurrer and Determination that

Defects Not Amendable entered on June 21,

SORE SAI We SURE ALE eae SIE: PW is A Ae

B—Order of the Supreme Court of the State of

Oklahoma Denying Petitioner’s Motion for

Rehearing entered on September 2%, 1988 .......

C—Plaintiff’s First Amended Petition including

Exhibits, filed May 16, 1980 0.0000...

D—“FOE SAYS BOREN ‘OVERREACTED’—

Miskovsky questions sexual cinduct”; The

Tulsa Tribune, August 11, 1978 ..0000

E—“BACKLASH TO HELP BOREN?—Candi-

dates wait for reactions from personal attack” ;

The Tulsa Tribune August 11, 1978 ................

F—“THE UNQUALIFIED CANDIDATE”—The

Tulsa Tribune, August 11, 1978 0.000.000.0000.

G—Editorial Cartoon—The Tulsa Tribune, pub-

a AD |. ROR Noumea oa aa vow

H—Editorial Cartoon—The Tulsa Tribune, pub-

fg >} See

I—“SOMETIMES THE PRESS A SHADE HYP-

OCRITICAL”—The Tulsa Tribune, August

Be sed neteibidashinnitaanls\n eakitdiaeeteiatace Fae ee ee

J—“BOREN REVERSES TACTICS—Governor

swears he disapproves of homosexuality”; The

Tulsa Tribune, August 24, 1978 W000...

K—Editorial Cartoon & Editorial “Boren’s Over-

kill”; The Tulsa Tribune, August 25, 1978 ......

L—Oklahoma Statutes Tit. 12 § 1441 20000...

Page

16a

TABLE OF AUTHORITIES

Cases: Page

Associated Press v. United States, 326 U.S. 1

TRE RE hE i I OEE RO RAL Pi 11

Buckley v. Valeo, 424 U.S. 1, 14 (1976) .......00........ 10, 11

Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976),

cert. denied, 429 U.S. 1062 (1977) .............000..... 8

Ciani v. New York Times, 6 Med. L. Rptr. 1625

| eek SRI SSS Sa Rae ae SAIS aS ea cy See 9

Corabi v. Curtis Publishing Co., 441 Pa. 482, 273

5 >.) IO neti ons Vooriicc! 5 See 9

Curtis Publishing Co. \. Butts, 388 U.S. 1380, 151

a a a ee 9

First National Bank of Boston v. Bellotti, 435 U.S.

Ua a ll

Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct.

2997, 41 L.Ed.2d 789 (1974) .......2.......0.0....00....-20 6, 7, 10

Hetherington v. Griffin Television, Inc., 4380

F.Supp. 4938 (W.D. Okla. 1977) 0.0.0.0... eee 9

Illinois State Board of Elections v. Socialist Work-

ers Party, 440 U.S. 178 (1979) ............................ 12

Miskovsky v. Oklahoma Publishing Co., 654 P.2d

587 (Okla. 1982), cert. denied, —— U.S. ——,

cg FRAC es RSENS Ree te eae 7,9

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)... 10

Nebraska Press Association v. Stuart, 427 U.S.

RTT i en na er ee 10, 12, 18

New York Times v. Sullivan, 376 U.S. 254, 84

S.Ct. 710, 11 L.Ed.2d 686 (1964) 00000. 5, 7,9

Pell v. Procunier, 417 U.S. 817 (1974) 2000.00. 11

Pennexamp v. Florida, 328 U.S. 331, 364 (1946).. 11

Rand v. New York Times, 4 Med.L.Rptr. 1557

ORES SEERA LAE ea Rae Be eS | 5 a aa 9

St. Amant v. Thompson, 390 U.S. 7217 (1968)....... 9

Thornhill v. Alabama, 310 U.S. 88 (1940) 0.000000... 11

Williams v. Rhodes, 393 U.S. 80 (1968) 0.00. 12

Wimmer v. Oklahoma Publishing Co., 1 P.2d 671

Rt SERA area arate ad AI 6

Zacchini v. Scripps-Howard Broadcasting Co.,

4383 U.S. 562 (1977) .................... x

TABLE OF AUTHORITIES—Continued

Treatises and Law Review Articles: Page

Eaton, “The American Law of Defamation through

Gertz v. Robert Welch, Inc., and Beyond: An

Analytical Primer’, 61 Va. L. Rev. 1849 (1975).. 9

Eldredge, L.H., The Law of Defamation § 49 at

SRI, TR secviinssinnionscctninaitinjncitdigbesaaidaaeiaseasieamal cama 18

Franklin, “Winners and Losers and Why: A Study

of Defamation Litigation”, Am.Bar Association

Research J. 498, 498 (Summer 1980) ................ 12

Hill, “Defamation and Privacy Under the First

Amendment”, 76 Columbia L. Rev. 1205 (1976).. 8

Restatement (Second) of Torts, § 566 (1977) ....... 9

Constitutional Provisions:

U.S. Constitution, Amendments I, XIV ............0....... passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No.

GEORGE MISKOVSKY,

Petitioner,

Vv.

TULSA TRIBUNE COMPANY, and

NEWSPAPER PRINTING CORPORATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OKLAHOMA

Petitioner, George Miskovsky, respectfully petitions for

a writ of certiorari to review the decision of the Supreme

Court of the State of Oklahoma, entered on June 21, 1983,

affirming the trial court’s sustention of a demurrer to

Miskovsky’s libel petition, and determining that said pe-

tition was not amendable.

OPINION AND ORDER BELOW

The opinion of the Oklahoma Supreme Court, which

appears in the Appendix at la, has been officially re-

ported at Vol. 54 Oklahoma Bar Journal 1751. The

order of the Oklahoma Supreme Court denying peti-

tioner’s motion for rehearing appears at Appendix B,

page 16a.

JURISDICTION

The opinion of the Oklahoma Supreme Court in this

case was issued on June 21, 1983. The order denying

petitioner’s motion for rehearing was issued on Septem-

ber 20, 1983. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

1. United States Constitution, Amendment I: Con-

gress shall make no law... . abridging the freedom of

speech, or of the press. . .

2. United States Constitution, Amendment XIV § 1:

[Nlor shall any state deprive any person of life, liberty,

or property, without due process of law...

STATEMENT OF THE CASE

A. Procedural Background

Petitioner, George Miskovsky, [hereinafter “petitioner”

or ‘‘Miskovsky”], a candidate in 1978 for the United

States Senate, instituted this action for libel in the Dis-

trict Court of Creek County, Oklahoma. The libel arises

out of four newspaper stories, two editorials, and three

editorial cartoons, all appearing in The Tulsa Tribune,

a newspaper published by the respondents Tulsa Tribune

Company and Newspaper Printing Corporation [herein-

after “The Tribune’’].

The District Court of Creek County, Oklahoma, sus-

tained a demurrer to Miskovsky’s petition and deter-

mined that the petition was not amendable. The Su-

preme Court of the State of Oklahoma affirmed the trial

court’s ruling on June 21, 1983.

B. Identification of Parties

1. Petitioner George Miskovsky, son of immigrant

parents, was born and raised in Oklahoma. He graduated

from the University of Oklahoma Law School with high

honors, including induction into Order of the Coif. Upon

graduation from law school, Miskovsky was admitted to

the Oklahoma Bar. He has practiced law in Oklahoma

City for more than forty years. During his career, Mis-

kovsky has served as Public Defender, County Attorney,

State Representative, and State Senator. In 1958, he was

a candidate for Governor. Twenty years later, at the age

of sixty-eight, Miskovsky became a candidate for the

office of United States Senator.

2. Respondents are privately held media corporations

controlled by the Jones family. The newspapers involved

in this case and its companion case are The Tulsa Tri-

bune and The Tulsa World. These papers have a com-

bined circulation of approximately 205,000 daily copies

and 220,000 Sunday copies and are distributed through-

out the states of Oklahoma, Kansas, Arkansas and

Missouri.

C. Factual Basis of the Libel Claim

The factual basis of the libel claim is summarized be-

low from Miskovsky’s First Amended ?etition filed May

16, 1980, and upon which the trial court sustained a

demurrer and the Supreme Court of Oklahoma affirmed.

1. The Press Conference

On August 9, 1978, during the course of the United

States Senate primary race, Miskovsky attended a can-

didate’s forum in E] Reno, Oklahoma, sponsored by the

Women’s Democratic Club of Canadian County. The

forum was open to all candidates, including Governor

Boren, State Senator Gene Stipe, former Congressman

Ed Edmondson, Dean Bridges, Rosella Saker, and An-

thony Points. In addition to Miskovsky, only candidates

Bridges and Points chose to attend.

While addressing the group, candidate Points read

from a political flyer, copies of which he had distributed

to the audience. In part the flyer stated:

“IT am against homosexuals or bisexuals in office

or government. They are threats to our national

security. They are subject. to be blackmailed and

will give out a favor or leak information from the

government in return for having their homosexual

identity kept secret.

“There is a side of David Boren that is a known

fact in legal and political circles. And that’s the

fact that David Boren frequents with homosexuals

and I’m putting it lightly.

I don’t think that.is what you want for a U.S.

Senator.”

In addition to reading these remarks, candidate Points

categorically stated that “Governor David Buren is a

homosexual”.

Prior to this public charge by candidate Points. Mis-

kovsky, as well as The Tribune, had heard homosexual

rumors that had been in circulation for four years or

more concerning candidate Boren. These rumors were

/erified by the Governor’s own staff.

The following day, August 10, Miskovsky delivered a

leter to Governor Boren’s office. The letter quoted the

charges made by Points and requested the Governor to

answer the charges under oath. The letter made clear

that Miskovsky himself was making no allegations about

Governor Boren. The letter also made clear that the

purpose of the inquiry was for national security reasons

since “A U.S. Senator has access to highly sensitive

information vital to the defense of this country and our

NATO allies.” Appendix 29a.

Miskovsky attended a press conference that same day

and distributed copies of the letter to members of the

news media.

2. The Tribune’s Reaction

From August 11-25, The Tribune published four news

stories, two editorial, and three editorial cartoons falsely

charging or implying that Miskovsky had accused Gov-

ernor Boren of homosexuality and Miskovsky was there-

fore unqualified to be elected U.S. Senator. One of the

scurrilous effigies published by The Tribune depicts Mis-

kovsky, with a lustful and satisfied look on his face,

sucking upon a sewer pipe that has the appearance of

a male penis; a clear implication of the commission of

the crime of sodomy. Appendix D, page 34a et seq.

D. Federal Questions Properly Raised

The federal questions raised in this petition were

properly raised before the Oklahoma Supreme Court. Pe-

titioner contended (1) that the United States Constitu-

tion does not supplant state defamation law on the issues

of defamatory meaning, opinion, and burden of proof;

(2) that defamatory statements of opinion are not pro-

tected under the First Amendment to the Constiution of

the United States; and (3) that the First and Four-

teenth Amendments prohibit a rule of law which grants

virtual absolute immunity to a media defendant from

libel suits brought by a public figure. Appellant’s Brief

in Support of Petition for Rehearing at 2-7.

REASONS FOR GRANTING PETITION

When this Court ruled in New York Times v. Sullivan,

376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), that

the First Amendment requires a public figure to prove

actual malice in order to prevail in a libel case, the

Court did not intend to abolish the common law of libel.

The Oklahoma Supreme Court, however, erroneously con- |

cluded that under New York Times and its progeny the

Oklahoma law of libel had been supplanted by federal

constitutional law.

It is apparent from the opinion of the Oklahoma Su-

preme Court that the Court incorrectly believed that

state law on the issues of defamatory meaning, opinion,

and burden of proof have been both superseded and con-

trolled by the requirements of the Constitution.

Thus, this Court should grant review because the de-

cision of the Oklahoma Supreme Court raises important

federal questions not decided by this Court concerning

the extent of federal constitutionalization of state def-

amation law.

I. THE UNITED STATES CONSTITUTION DOES

NOT SUPPLANT STATE DEFAMATION LAW ON

THE ISSUES OF DEFAMATORY MEANING, OPIN-

ION AND BURDEN OF PROOF

Independent state law on the subject of defamatory

meaning is found in Wimmer v. The Oklahoma Publish-

ing Company, 1 P.2d 671, 673 (Okl. 1931):

“The publication cannot be measured by its effect

when subjected to the critical analysis of a legal

mind; it must be measured by its natural and prob-

able effect upon the mind of the average lay reader.”

It is clear from the Supreme Court of Oklahoma’s opin-

ion that each publication was in fact subjected to the

critical analysis of legal minds under the mistaken con-

clusion that the Constitution requires such construction.

Further, in deciding that the publications are not

defamatory, the Supreme Court of Oklahoma ruled that

the publications are not actionable because they are

merely expressions of opinion, privileged under the First

Amendment. In making this determination, the Court

relies on dicta contained in Gertz v. Robert Welch, Inc.,

418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974):

“Under the First Amendment there is no such thing

as a false idea. However pernicious an opinion may

seem, we depend for its correction not on the con-

science of judges and juries but on the competition

of other ideas.”

In Miskovsky v. Oklahoma Publishing Company, 654

P.2d 587 (Okl. 1982) cert. denied, —— U.S. ——, 103

S.Ct. 235 (1982) Justice Rehnquist, with whom Justice

White joined, dissenting, stated:

“Whether or not these particular statements in re-

spondent’s newspapers were actionable under state

and federal constitutional law is not clear to me.

What is clear is that the Supreme Court of Okla-

homa, apparently feeling itself bound by the De-

cisions of this Court in cases such as New York

Times v. Sullivan, supra, and Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974) said categorically that

several of respondent’s statements were simply state-

ments of opinion, and that “[a]s opinions they are

not statements of fact, and therefore cannot be

false.” Pet. 12a (emphasis supplied).

“The Supreme Court of Oklahoma also said:

‘Like the U.S. Supreme Court, we also, in

proper cases, must review the evidence to make

certain that constitutional principles have been

correctly applied. The case before us is such an

instance.’ ——— P.2d —— (Okla. 1981).

“From this and similar statements in its decision,

it is quite possible to conclude that the Supreme

Court of Oklahoma thought that the entire law of

defamation, hitherto the province of the states, had

been preempted by federal constitutional standards.

Th , of course, is not the case, as we have made

clear in Gertz v. Robert Welch, Inc., 418 U.S. 323

(1974), and succeeding cases. If statements in the

decision of the Supreme Court of Oklahoma such as

that quoted above with respect to “opinion” not

forming the basis of a libel action were applications

of Oklahoma law, they would of course present no

federal question. But it seems probable to me that

the Supreme Court of Oklahoma in discussing the

subject was relying on the following dicta in Gertz

v. Robert Welch, Inc., supra:

‘Under the First Amendment there is no such

thing as a false idea. However pernicious an

opinion may seem, we depend for its correction

not on the conscience of judges and juries but

on the competition of other ideas.’ 418 U.S., at

840.

“A respected commentator on the subject has stated

with respect to this quotation that ‘[t]he problem

of defamatory opinion was not remotely an issue in

Gertz, and there is no evidence that the Court was

speaking with an awareness of the rich and complex

history of the struggle of the common law to deal

with this problem.’ Hill, Defamation and Privacy

Under the First Amendment, 76 Colum. L. Rev.

1205 (1976).

“Examples of the ‘rich and complex history’ of the

common law’s effort to deal with the question of opin-

ion are found in an entire chapter headed “Opinion”

in R. D. Sack, Libel, Slander, and Related Problems

(1980). I am confident this Court did not intend to

wipe out this ‘rich and complex history’ with the

two sentences of dicta in Gertz quoted above. The

Supreme Court of Oklahoma’s statement that opin-

ion was not actionable may fairly be read to sug-

gest that the court felt this result to be compelled

by the United States Constitution, rather than

merely being a statement of Oklahoma law. Under

these circumstances, we have jurisdiction to review

the judgment of the Supreme Court of Oklahoma,

Zacchini v. Seripps-Howard Broadcasting Co., 433

U.S. 562 (1977), and I would exercise that juris-

diction by granting the petition for certiorari in this

case.”

Courts and commentators have concluded that the press

F.2d 882 (2d Cir. 1976), cert. denied, 429 U.S. 1062

(1977) ; Restatement (Second) of Torts, Sec. 566 (1977) ;

Rand v. New York Times, 4 Med. L. Rptr. 1557 (1978) ;

Ciani v. New York Times, 6 Med. L. Rptr. 1625 (1980).

Additionally, the Supreme Court of Oklahoma has

shifted the burden of proof under the belief that the

Constitution requires a public figure plaintiff to prove

falsity. Citing Miskovsky v. Oklahoma Publishing Com-

pany, supra.

Under independent state law, truth has been an af-

firmative defense to a libel action. Hetherington v. Grif-

fin Television, Inc., 430 F.Supp. 493 (W.D. Okl. 1977).

New York Times v. Sullivan, supra, did not shift the

burden to plaintiff to prove the falsity of a defamatory

communication. Eaton, The American Law of Defama-

tion Through—Gertz v. Robert Welch, Inc., and Beyond:

an analytical Primer, 61 Va. L. Rev. 1349, 1381-1382

(1975).

Subsequent decisions of this Court have continued to

refer to truth as a defense. St. Amant v. Thompson,

390 U.S. 727, 731-732 (1968). Consider also the words

of Justice Harlan in Curtis Publishing Co. v. Butts, 388

130, 151 (1967), that truth is “an absolute defense in

almost all cases.”

The inequity of requiring a public figure libel plain-

tiff to prove falsity was pointed out by the Pennsylvania

Supreme Court:

“Common decency would seem to require that the

defaming defendant have the burden of substan-

tiating the accusations, especially when, in many

instances, a defamed but innocent plaintiff may not

be able to adduce more evidence than a denial that

he or she committed the offense ” Corabi

v. Curtis Publishing Co., 441 Pa. 468, 273

A.2d 899, 917 (1971).

Freedom of the press under the First Amendment does

not include the absolute license to destroy lives and

careers. Gertz v. Robert Welch, Inc., supra, 418 U.S.

at 339-41. The extraordinary protections afforded to the

press by the First Amendment carry with them a type of

fiduciary duty to exercise the protected rights respon-

sibly. Nebraska Press Association v. Stuart, 427 U.S.

539, 560 (1976). When the press violates this fiduciary

duty, then the injured party should be entitled to re-

cover for damages to his reputation.

In sum, this Court should review the Oklahoma Su-

preme Court decision and decide the extent to which

federal constitutional law has supplanted state law in

libel actions.

II. THE FIRST AND FOURTEENTH AMENDMENTS

PROHIBIT A RULE OF LAW WHICH GRANTS

VIRTUAL ABSOLUTE IMMUNITY TO A MEDIA

DEFENDANT FROM LIBEL SUITS BROUGHT BY

A PUBLIC FIGURE BECAUSE SUCH A RULE

WOULD CHILL THE FIRST AMENDMENT

RIGHTS OF PETITIONER AND OTHER CANDI-

DATES FOR PUBLIC OFFICE

The first amendment fulfills an important function in

our society in preserving the integrity of the electoral

process. As this Court has observed, “[dJiscussion of

public issues and debate on the qualifications of candi-

dates are integral to the operation of the system of gov-

ernment established by our Constitution.” Buckley v.

Valeo, 424 U.S. 1, 14 (1976). The constitutional guar-

antee of freedom of speech “has its fullest and most

urgent application precisely to the conduct of campaigns

for public office.” Monitor Patriot Co. v. Roy, 401 U.S.

265, 272 (1971). “The candidate, no less than any

. other person, has a First Amendment right to engage

in the discussion of public issues and vigorously and

tirelessly to advocate his own election.” Buckley v.

Valeo, supra, 424 U.S. at 52. “Democracy depends on a

well informed electorate, not a citizenry . . . limited in

its ability to discuss and debate candidates and issues.”

Id. at 49, n.55. Further, “the press does not have a

monopoly on either the First Amendment or the ability

to enlighten.” First National Bank of Boston v. Bellotti,

485 U.S. 776, 782 (1978); Cf. Pell v. Procunier, 417

U.S. 817 (1974). “[T] he purpose of the Constitution was

not to erect the press into a privileged institution but to

protect all persons in their right to print what they will

as well as to utter it.” /d., at 802 (Burger, C.J., concur-

ring), citing Pennekamp v. Florida, 328 U.S. 331, 364

(1946) (Frankfurter, J., concurring). “And self-govern-

ment suffers when those in power suppress competing

views on public issues ‘from diverse and antagonistic

sources.’” Associated Press v. United States, 326 U.S.

1, 20 (1945), cited in Bellotti, supra, 4385 U.S. at 777,

n.12. The Oklahoma Supreme Court’s decision sustain-

ing a demurrer to Miskovsky’s petition without leave to

amend infringes upon Miskovsky’s First and Fourteenth

Amendment rights and encourages the press to limit pub-

lic debate in future elections.

The Constitution serves significant societal interests

and often protects interests broader than those of the

party seeking their vindication. As this court emphasized

in Bellotti, supra, 435 U.S. at 776:

“Freedom of discussion, if it would fulfill its his-

toric function in this nation, must embrace all is-

sues about which information is needed or appropri-

ate to enable the members of society to cope with

the exigencies of their period. Thornhill v, Alabama,

310 U.S. 88, 101-102 (1940).

“(T]he concept that government may restrict the

speech of some elements of our society in order to en-

hance the relative voice of others is wholly foreign to the

First Amendment.” Buckley v. Valeo, supra, 424 U.S.

at 48-49.

To allow the Oklahoma Supreme Court’s decision to

stand would effectively grant the press immunity and

permission to knowingly defame and villify any candi-

date not to its liking under the cloak of the First Amend-

ment.' Further, to allow the decision to stand will dis-

courage many good men and women from entering the

political arena for fear of becoming subject to the same

type of attack by irresponsible members of the press.

“The authors of the Bill of Rights did not undertake

to assign priorities” to constitutional rights. Nebraska

Press Association v. Stuart, 427 U.S. 589 at 561. Nor

did the authors of the Bill of Rights intend that freedom

of the press vested in a multi-media conglomerate be

abused with impunity and with immunity in such a

fashion as to stifle petitioner’s First Amendment rights.’

The policies and political principles underlying the Bill

of Rights require a balancing between petitioner’s right

to protect his reputation and to speak freely during a

campaign for public office and the press’s right of fair

' According to a recent survey, plaintiffs suing media defendants

fare badly and win judgments in only 5% of the media appeals.

The survey included only reported cases, most of which were

appellate cases. Therefore, the survey seems to overstate the likeli-

hood of a successful suit for libel by a public figure because defend-

ants are much less likely to accept adverse judgments at the trial

level than are plaintiffs. Franklin, Winners and Losers and Why:

A Study of Defamation Litigation, Am. Bar Foundation Research

J., 498, 498 (Summer 1980).

2In its attack on Miskovsky, the press is also restricting the

access of Oklahomans to the ballot, effectively burdening two sepa-

rate rights—‘“the rights of individuals to associate for the advance-

ment of political beliefs and the right of qualified voters, regard-

less of their political persuasion, to cast their votes effectively.”

Williams v. Rhodes, 398 U.S. 30 (1968), cited in JUinois State

Board of Elections v. Socialist Workers Party, 440 U.S. 178, 184

(1979). By infringing on petitioner’s rights, the press “impairs

the voters’ ability to express their political preferences.” Jd. In

his action for defamation petitioner thus seeks to vindicate these

rights as well.

comment. The grant of virtual absolute immunity to the

press would require a candidate who runs for public

office without the press’s endorsement to sacrifice his

right of free speech and his right to his good name as

a condition of candidacy, contrary to Nebraska Press

Association.? For where law ends, tyranny begins.

CONCLUSION

The petition for a writ of certiorari should be granted

and the decision of the Supreme Court of Oklahoma re-

versed with directions that Miskovsky be allowed his day

in court before a jury of his peers.

Respectfully submitted,

EVERETT J. SWEENEY

Counsel of Record

E. Jo—E LANKFORD

803 South Peters

Norman, Oklahoma 73069

(405) 360-2254

Attorneys for Petitioner

* State constitutions approved contemporaneously with the pas-

sage of the Bill of Rights do not reveal any settled belief that civil

awards of damages for defamation were inconsistent with the

right of free speech and free press; in fact, some state constitu-

tional provisions adopted in the late eighteenth and early nine-

teenth centuries expressly stated that the rights of free speech

and free press could be abused by defamation. L. H. Eldredge,

The Law of Defamation, Sec. 49 at 248. Neither did the states

intend to modify their own laws concerning defamation when

they ratified the Fourteenth Amendment, /d., at 251.

APPENDICES —

- . «

APPENDIX A

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

No. 55,430

GEORGE MISKOVSKY,

Appellant,

TULSA TRIBUNE COMPANY, a corporation, and

NEWSPAPER PUBLISHING CORPORATION, a corporation,

Appellees.

[Filed Jun. 21, 1983]

APPEAL FROM THE DISTRICT COURT OF

CREEK COUNTY, OKLAHOMA

Honorable Charles S. Woodson, Trial Judge

Appeal from an order of the trial court sustaining a

demurrer to the original petition and to the amended

petition in a libel case, and determining that the peti-

tion’s defects are not amendable.

AFFIRMED

Carroll E. Gregg, Miskovsky, Sullivan, Miskovsky,

Cooke & Gregg, Oklahoma City, Oklahoma, for Appellant.

James M. Sturdivant, John Henry Rule, Gable, Got-

wals, Rubin, Fox, Johnson & Baker, Tulsa, Oklahoma,

for Appellees.

LAVENDER, J.:

For the purposes of this appeal, we need only consider

the sufficiency of the allegations set forth in the amended

petition to withstand a demurrer, the amended petition

being identical to the original petition, except that the

amended petition contains general allegations of special

damages.

The amended petition alleges that defendants below

are engaged in printing, publishing, and circulation of a

newspaper known as The Tulsa Tribune of general cir-

culation in Creek County, State of Oklahoma. Plaintiff

below is a resident of Oklahoma City, a graduate of

the University of Oklahoma, and a widely known prac-

ticing attorney since admitted to the Bar in 1936. He

has a reputation of being a successful and responsible

attorney and member of his profession. He has also been

a successful businessman, active in civic and social af-

fairs in the community and state, and at all times herein

referred to, he was a duly qualified and filed candidate

for the office of United States Senator.

The amended petition alleges the publication by de-

fendant of nine separate items in the newspaper, alleged

to be libelous, six of which are writings, and three car-

toons, all relating generally to the then political cam-

paign for the office of United States Senator. We will

first consider the allegations pertaining to the writings.

1. The first is an editorial appearing in the news-

paper on August 11, 1978, headlined, “The Unqualified

Candidate.” A fair and objective reading of the pub-

lication discloses that it states that plaintiff, who re-

ceived less than two percent of the vote in his last

statewide campaign, desperately needed a political issue

to put life into his hopeless campaign, asked Governor

Boren, the acknowledged frontrunner in the senate race

whether Boren is a homosexual or bisexual, and char-

acterizing the query as a cruel variation of the prover-

bial lawyer’s question, “Have you stopped beating your

wife?”, and an irresponsible smear. The article further

states that the query was made without evidence of the

other candidate’s sexual abnormality, but was premised

upon a campaign statement by a third candidate who,

without any supporting evidence, stated that Boren is

a homosexual. The editorial concludes by stating that

the voters should not be swayed by plaintiff’s descent to

sewer politics, and strongly suggests that plaintiff is un-

qualified to be senator.

2. On the 17th day of August, 1978, an article pur-

portedly written by one E. N. Earley entitled, “Some-

times the press a shade hypocritical,” appeared in the

newspaper. The article states:

“Sometimes we members of Oklahoma’s fourth es-

tate are a bit too pious.

“Such is the case with the George Miskovsky-Gov.

Boren dispute.

“When trailing Senate candidate Miskovsky asked

Boren to answer questions about his sexual habits,

editorial writers were enraged.

“They called Miskovsky ‘A Voice From the Sewer.’

“Miskovsky’s remarks were a cheap publicity stunt.

But the editorial writers’ surprise and shock reeks

of hypocrisy.”

The article further states Boren’s sexual preferences

were a subject of gossip among the members of the

press, that Boren was aware of the gossip, but was

advised that a public denial would only give credence

to the rumors.

“But when Miskovsky brought up the subject, the

press was flabbergasted.

“There is little doubt that Miskovsky’s voice came

from a sewer, but it is a sewer that was constructed

—in part—by the press.”

3. On the 24th day of August, 1978, an article pur-

portedly written by one Will Sentell entitled, “Boren

revevses tactics * * * Governor swears he disapproves

of hornosexuality,” appeared in the newspaper. A fair

import of the article is a speculation upon the outcome

of the forthcoming election engendered by Governor

Boren’s public denial under oath that he has ever been

a homosexual or bisexual and that he approves or con-

dones such activities.

The article further states: “‘Boren got the message

from the voters,’ Miskovsky said. ‘His delayed answer

under oath to the questions I asked puts the issue to

rest as far as I’m concerned.’ ”

4. On the 25th day of August, 1978, an editorial

appeared in the newspaper headed “Boren’s overkill.”

It states:

“The spectacle of Oklahoma’s Governor David

Boren calling a press conference to swear on the

Bible that he was not a homosexual not only marked

some kind of a first in American political history,

but it was utterly unnecessary.

“The sensational innuendo advanced by George

Miskovsky in a desparate effort to gain attention

for his senate campaign had already exploded in

Miskovsky’s face. His miniscule vote was proof

enough.

“The governor pleaded not guilty in the face of

no evidence to the contrary. Surely, he has a soft,

baby face. But so did Audie Murphy, the most dec-

orated U.S. hero of World War II. The governor

opened himself to an immediate lampoon by his

runoff opponent, Ed Edmondson, who publicly swore

he was not and never intended to be a Republican.

“Instead of swearing, the Governor should have

simply shrugged.”

5. On the 11th day of August, 1978, an article pur-

portedly written by one Richard Tapscott appeared en-

titled, “Foe says Boren ‘overreacted’ Miskovsky ques-

tions sexual conduct.” The article quoted plaintiff as say-

ing Governor Boren and the editorial writers “overre-

acted” to his bringing to the public the charges made

by the third candidate regarding Boren’s alleged sexual

preferences and conduct. “They acted emotionally as if I

had made the charge. I heard the rumor, as have many

others, for months. When it came to a head in a public

forum, I felt I should report it to the media and give

the governor an opportunity to respond.” It related that

plaintiff said he had received many calls, but none that

says he should not have called it to the attention of the

media. A spokesman for the Doren campaign was quoted

as saying, “People seem vo be outraged by it.” Plaintiff

was further quoted as saying, “I have seen these rotten,

dirty, scurrilous, below-the-belt editorials before.” The

article speculated upon the effect of the “issue” upon

the political campaign, then quoted from an anonymous

“political analyst” that, “The Anthony Points thing was

nothing. Miskovsky made a tremendous blunder.”

6. On the 12th day of August, 1978, there appeared

in the newspaper a news analysis purportedly written

by one Will Sentell. In the article, the statement is

made:

“When longshot contenders Anthony Points and

George Miskovsky quizzed Boren on his sexual life,

specifically whether he is a homosexual or bisexual,

without offering any evidence, a muddy race got a

lot muddier.

“Besides the fact Boren categorically denied the

allegation, which was roundly trounced on by the

state press, supporters are trying to gage what, if

any, impact to expect.

“Most of the early indicators are pointing toward

more good than harm going to the governor.

“A charge like the one lodged, the theory goes,

will wind up bringing down fence sitters who might

have otherwise stayed out of the race, or at least

out of Boren and his Broom Brigade camp.”

The balance of the article, insofar as pertinent, specu-

lates upon the effect of the “issue” thus raised will have

upon the elction results.

7. On August 11, 1978, defendant published a car-

toon, a reproduction of which is as follows:

Beit fh

8. On August 15, 1978, the defendants published a

cartoon, a reproduction of which is as follows:

ov AN

R. Ml

H. WOULD

9. On August 25, 1978, defendants published a car-

toon depicting in cariacture an effigy of President Car-

ter saying, “Ah’ve lusted after women in muh heart—”

and an effigy of Governor Boren saying, “Me too! Me

too!” with no reference to the plaintiff being contained

within the cartoon.

In the case of Miskorsky v. Oklahoma Pub. Co., Okl.,

654 P.2d 587 (1982), this Court considered in detail

the burden plaintiff must meet as a public figure in

order to maintain an action in libel generally. The plain-

tiff must show:

(1) The publication of a defamatory statement;

(2) That the defamatory statement was false;

(3) That the defamatory falsehood was made with

“actual malice’—made with knowledge that it

was false, or with reckless disregard of whether

it was false or not;

(4) The “actual malice’ must be shown with “con-

vincing clarity” ;

(5) The state of mind required for actual malice

would have to be brought home to the person in

the publishing organization having responsibility

for the publication of the alleged libelous publi-

cation;

(6) To be made with “reckless disregard,” there must

be a showing that the publisher in fact enter-

tained serious doubt as to the truth of the pub-

lication.

In Fite v. Oklahoma Pub. Co., 146 Okl. 150, 293 P.

1073 (1930), we held that words charged to be defama-

tory and therefore libelous fall into three classes:

(1) Those not of defamatory meaning;

(2) Those reasonably susceptible of both a defamatory

and an innocent meaning (commonly referred to

as libel per quod) ; and

(3) Those clearly defamatory on their face (commonly

referred to as libel per se). (In accord, see Akins

v. Altus Newspapers, Inc., OkL, 609 P.2d 1263

(1977), cert. den., 101 S.Ct. 564.)

And, in Winters v. Morgan, Okl., 576 P.2d 1152

(1978), we held that in testing the sufficiency of the

petition to withstand a demurrer, the entire writing

must be examined by the Court to determine as a matter

of law whether or not the article is libelous per se, ob-

serving: “Language out of context may have a different

meaning than the same language within the four corners

of the (publication) .”

In Fite ». Oklahoma Pub. Co., supra, we said: “The

true rule is that, where the publication alleged to be

defamatory charges the plaintiff with nothing he might

not have legally and properly done, the same cannot be

held to be libelous per se.” Fite further held that a ju-

dicial review of whether the publication is libelous per

se turns on whether the statements made in the publica-

tion, when construed by the most natural and obvious

meaning and in the sense that they would be understood

by those to whom they were addressed, charged the plain-

tiff with anything that the plaintiff might not have

legally and properly done. -

Tested by the foregoing principles, a careful review

of the publications both separately and together clearly

shows that none of them, nor do all of them collectively,

state a cause of action for libel per se. None of the

publications charge the plaintiff with a commission of a

crime or with anything that the plaintiff might not

have legally and properly done. The factual data therein

set forth as facts are true as is alleged in the allegations

in plaintiff’s petition. When viewed even in their most

derogatory sense as related to the plaintiff, while pos-

sibly unflattering or even reprehensively false in their

conclusions, they are expressions of opinion, privileged

under the First Amendment to the United States Con-

stitution. Nor do the publications expose the plaintiff

to public hatred, contempt, ridicule or obloquy, or tend

to deprive him of public confidence, or injure him in his

occupation within the meaning of 12 O.S. 1981, § 1441.

Thompson v. Newspaper Printing Corporation, Okl., 325

P.2d 945 (1958). In Gertz v. Robert Welch, Inc., 418

U.S. 328, 94 S.Ct. 2997, 41 L.Ed. 2d 789 (1947), the

United States Supreme Court said:

“Under the First Amendment there is no such

thing as a false idea. However pernicious an opin-

ion may seem, we depend for its correction not on

the conscience of judges and juries but on the com-

petition of other ideas.”

We next turn to the question of whether the publica-

tions are or may be libelous per quod. In Akins v. Altus

10a

Newspapers, Inc., supra, this Court held (1276): “It

is a matter of law for the court to determine if the

publication was libelous per se, as opposed to a fact de-

termination for the jury as to the publication being .

libelous per quod.” We approach this issue from two

aspects: (1) The requirements for a petition for libel

per quod to withstand a demurrer with reference to

special damages, and (2) the requirements for a petition

for libel per quod to withstand a demurrer with refer-

ence to innuendo, that is, the explanation of words that

are of doubtful or ambiguous meaning, and to attach

to them their proper meaning.

As to the first aspect, in Fite v. Oklahoma Pub. Co.,

supra, this Court quoted with approval the holding in

McKenny v. Carpenter, 42 Okl. 410, 414 P. 779 (780)

(1914) wherein it is stated: “. . . where the article it-

self is not libelous per se, there must be an allegation

of special damages, before a recovery can be had... .

It is insufficient to allege generally that the plaintiff

‘was and is greatly and permanently injured and dam-

aged in his good name and reputation and was and is

exposed to public contempt, hatred, and ridicule and has

been caused to resign his position with the said city of

Ardmore and has been damaged in his business and

reputation in the amount of $10,000’ without showing

by proper averment how the special damages were oc-

casioned.” (Citations omitted. )

Plaintiff contends that the amended petition conforms

to the requirements set forth in 12 O.S. 1980, § 1444,

and having done so, that is all he is required to do.

However, we find no conflict between the requirements

enunciated in Fite, supra, and § 1444.1 While the

112 O.S. 1971, § 1444 provided: “In all civil actions to recover

damages for libel or slander, it shall be sufficient to state gen-

erally what the defamatory matter was, and that it was published

lla

amended petition does make general allegations of special

damages alleged to have been sustained by the plaintiff,

it is demurrably deficient in its failure to aver how the

special damages were occasioned. Haynes v. Alverno

Heights Hospital, Okl., 515 P.2d 568 (1973).

We next consider the requirements for a petition for

libel per quod to withstand a demurrer with reference

to innuendo.

The leading case in Oklahoma is Kee v. Armstrong,

Byrd & Co., 75 Okl. 84, 182 P. 494 (1919). In addressing

the subject of libel per quod, the Court said (498) :

“If the publication is libelous, it must come within

that class of cases as being reasonably susceptible of

a defamatory as well as an innocent meaning, and

those publications that are termed and designated

as not libelous per se. In order for the petition to

state a cause of action, it is necessary for the plain-

tiff to plead by way of inducement or averment, col-

loquium and innuendo, certain extrinsic facts which

connect the plaintiff with the libelous publication

and to plead the meaning the words have and that

or spoken of the plaintiff, and to allege any general or special

damage caused thereby, and the plaintiff to recover shall only be

held to prove that the matter was published or spoken by the de-

fendant concerning the plaintiff. As a defense thereto the de-

fendant may deny and offer evidence to disprove the charges made,

or he may prove that the matter charged as defamatory was true,

and in addition thereto, that it was published or spoken under

such circumstances as to render it a privileged communication.”

(Emphasis added.)

The emphasized portion of the statute was declared unconsti-

tutional in Martin v. Griffin Television, Inc., Okl., 549 P.2d 85

(1976) pursuant to a determination that legislative creation of

presumed malice by the State of Oklahoma is unconstitutional. The

The Legislature repealed 12 O.S. 1971, § 1444 by Laws 1080, c. 68

§ 1, emerg. eff. April 10, 1980, and reinacted the section as § 1444.1,

deleting only that portion declared unconstitutional, by Laws 1981,

c. 21, § 2, operative April 7, 1981.

12a

they would be understood to have in connection with

the libelous article as published.”

The Court further quoted with approval from the case

of Penry v. Dozier, 161 Ala. 292, 49 South. 909 in part

as follows:

“An ‘innuendo’ is only explanatory of the subject-

matter ... and is and can be explanatory only of

such matter. It cannot extend the sense of the words

beyond their own meaning unless something is put

upon the record for it to explain (citations omitted).

An innuendo cannot make a thing certain which is,

in fact, uncertain. An innuendo cannot enlarge or

restrict the natural meaning of words, nor can it

introduce new matter. An innuendo cannot be proved,

and it is for the court to decide whether given words

or given publications are capable of the meaning as-

cribed to them by the innuendo, and for the jury to

decide whether such meaning is truly ascribed to

them. (Citations omitted.) Where words claimed to

be defamatory are capable of conveying an innocent

meaning, then there must be an averment and an

innuendo showing not only that the words are in-

tended by plaintiff in a defamatory sense, but that

the hearers may have understood the language as

conveying the alleged defamatory meaning. (Cita-

tion omitted. )”

And again (at p. 500) citing many authorities in sup-

port:

. an innuendo cannot be used to enlarge the

meaning of words, nor attribute to them a meaning

which they would not bear.”

In Oklahoma Pub. Co. v. Kendall, 96 Okl. 194, 221

P. 762 (1923) it is held that the mere allegation in the

petition that a publication alleged to be libel per quod

that the publication was intended to charge plaintiff

18a

with a specific crime is not sufficient, and being mere

gratuitous conclusion of the pleader, cannot give the

words a meaning which they do not otherwise have.

In accord, see Phoenix Printing Co. v. Robertson, 80

Okl. 191, 195 P. 487 (1921).

In view of the foregoing authorities, we hold that the

amended petition in the case before us is fatally de-

ficient in allegations of innuendo sufficient to withstand

a demurrer to the petition.

But there remains for our consideration the question

of whether the petition may by amendment state a cause

of action for libel per quod. The trial court held and

determined that the petition could not be amended to

state a cause of action, thus dismissing said cause with

prejudice in the trial court’s ruling sustaining the de-

murrer to the petition. Plaintiff challenges the ruling

of the trial court.

Title 12 O.S. 1981, § 318 provides: “If the demurrer

be sustained, the adverse party may amend, if the defect

can be remedied by way of amendment, with or without

costs, as the court, in its discretion, shall direct.”

In Tipton v. Standard Installment Finance Company,

Okl., 418 P.2d 309 (1966), this Court, in construing said

statute said:

“As will be noted from a reading of said statute, the

allowance of such amendments is therein placed

within the discretion of the court, and is not thereby

made a matter of right.”

In the case before us, no issue is raised as to the time-

liness of a request to amend the amended petition as

was present in Tipton, swpra. Here, the trial court sus-

tained defendants’ demurrer to the petition and simul-

taneously determined that the deficiencies in the petition

could not be cured by amendment. If .»e ruling of the

trial court was reversible error in that the deficiencies

l4a

might reasonably have been cured by amendment, then

this Court should upon reversal accord the plaintiff an

opportunity to amend within a reasonable time.

When tested by the foregoing authorities pertaining

to the necessary allegations of a petition to state a cause

of action for libel per quod, we hold that all of the pub-

lications before us, including the cartoon which appeared

in the newspaper on August 11, 1978, are clear and

unequivocal in their meaning and import and therefore

immutable to innuendo.

II.

The cartoon published on August 11, 1978, plaintiff

urges, may become actionable as libel per quod by amend-

ment to the petition. While the amended petition con-

tains no allegations of innuendo pertaining to that pub-

lication, plaintiff argues in his brief: “The scurrilous

effigy clearly shows a character that looks like the Ap-

pellant sucking upon a sewer pipe; and, coincidentally

the end of that sewer pipe that he is sucking on just hap-

pens to have the appearance of a male penis.” Thus,

plaintiff reasons, in effect, the publication by innuendo is

capable of charging him with the crime of sodomy.

The rules by which a pictorial cartoon’s amenability

to innuendo to explain its meaning and import are the

same as in the case of writings. While, as we have

heretofore pointed out, innuendo may be explanatory of

the meaning of the publication alleged to be libelous,

whether pictorial or writings, and of the understand-

ing imparted to the ordinary viewer of the publication,

innuendo cannot be used to enlarge that meaning or to

attribute to it a meaning which it will not bear. An

objective examination of the cartoon published August

11, 1978, neither by its unembellished presentation nor

by the addition of any possible innuendo imparts to the

plaintiff the commission of the crime of sodomy, and

when viewed in its most derogatory sense, does no more

l5a

than express the writer’s opinion of the political tactics

of plaintiff’s political campaign.

The ruling of the trial court sustaining demurrers to

the original and amended petition and determining that

the petition’s defects are not amendable is affirmed.

BARNES, C.J., IRWIN, HODGES, and HARGRAVE,

JJ., concur.

SIMMS, V.C.J., concurs in result.

WILSON, J., concurs in part and dissents in part.

, DOOLIN, J., dissents.

OPALA, J., certified his disqualif . ation.

l6a

APPENDIX B

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

Tuesday, September 20, 1983

[ Filed. Sep. 20, 1983]

THE CLERK IS DIRECTED TO ISSUE THE FOL-

LOWING ORDERS:

55,430

56,949

57,714

57,854

George Miskovsky v. Tulsa Tribune Company, a

corp. and Newspaper Printing Corporation, a

corp.

Rehearing denied.

CONCUR: Barnes, C.J., Simms, V.C.J., Irwin,

Hodges, Lavender, Hargrave, Wilson,

JJ.

DISSENT: Doolin, J.

DISQUALIFICATION: Opala, J.

Doris Heddleston and Daniel Heddleston v. Don

L. Summers d/b/a American Pawn Shop and

Western Surety Co.

Certiorari denied.

CONCUR: Simms, V.C.J., Irwin, Lavender, Doo-

lin, Wilson, JJ.

DISSENT: Barnes, C.J. Hodges, Hargrave,

Opala, JJ.

Southeast Plaza Bank, Plaintiff v. Bert K. Bloom-

field and Thelma Bloomfield v. J. D. McKean and

Jerry Botchlet.

Certiorari denied.

R. Robert Reid, III and Dondra K. Reid, Hus-

band and Wife v. Ray Bowman.

Certiorari denied.

CONCUR: Simms, V.C.J., Irwin, Lavender, Doo-

lin, Hargrave, Opala, Wilson, JJ.

DISSENT: Barnes, C.J., Hodges, J.

57,877

57,901

57,988

58,006

58,018

17a

Betty Louise Cleere v. Harry Davidson d/b/a

Davidson Trucking; Bennett Lovejoy; United

Parcel Service, Inc. ete. et al.

Certiorari denied.

CONCUR: Barnes, C.J., Irwin, Hodges, Laven-

der, Doolin, Hargrave, Opala, Wilson,

JJ.

DISSENT: Simms, V.C.J.

Billy Jack Hendrix v. Marva J. Hendrix.

Certiorari denied.

CONCUR: Simms, V.C.J., Irwin, Hodges, Lav-

ender, Doolin, Opala, Wilson, JJ.

DISSENT: Barnes, C.J., Hargrave, J.

Orville Hulsey and Francie Hulsey v. Town of

Kiefer etc. and Oklahoma Natural Gas Company

ete.

Certiorari denied.

CONCUR: Barnes, C.J., Sims, V.C.J., Irwin,

Hodges, Hargrave, Opala, JJ.

DISSENT: Lavender, Doolin, Wilson, JJ.

Jerome D. McCoy, An Individual v. University

of Tulsa ete.

Certiorari denied.

CONCUR: Simms, V.C.J., Irwin, Hodges, Har-

grave, Wilson, JJ.

DISSENT: Barnes, C.J., Lavender, J.

DISQUALIFIED: Opala, J.

Audre’ Henry v. Independent School District No.

93 of Pottawatomie County Oklahoma and Dr.

Jeffrey Black et al. ete.

Certiorari denied.

CONCUR: Barnes, C.J., Simms, V.C.J., Irwin,

Hodges, Lavender, Hargrave, Opala,

Wilson, JJ.

DISSENT: Doolin, J.

‘s/ Don Barnes

Chief Justice

18a

APPENDIX C

IN THE DISTRICT COURT

IN AND FOR CREEK COUNTY

(Drumright Division )

STATE OF OKLAHOMA

No, C-79-7

GEORGE MISKOVSKY,

Plaintiff,

vs.

TULSA TRIBUNE COMPANY, a corporation and

NEWSPAPER PRINTING CORPORATION, a corporation,

Defendants.

[Filed May 16, 1980]

FIRST AMENDED PETITION

Defendant, TULSA TRIBUNE COMPANY, is an

Oklahoma corporation licensed to do business in the State

of Oklahoma, with its principal place of business in

Tulsa, Oklahoma. Defendant, NEWSPAPER PRINTING

COMPANY, is an Oklahoma corporation licensed to do

business in the State of Oklahoma, with its principal

place of business in Tulsa, Oklahoma.

Il,

Defendants are engaged in printing, publishing, and

circulation of a newspaper known as The Tulsa Tribune,

a newspaper published in Tulsa, Oklahoma, and of gen-

19a

eral circulation in Creek County and the State of

Oklahoma.

III.

The Plaintiff, GEORGE MISKOVSKY, is a resident

of Oklahoma City, a graduate of the University of Okla-

homa, and a wifely known practicing attorney there

since he was admitted to the Bar in 1936. He has a

reputation of being a successful and responsible attor-

ney and member of his profession. He is married, has

four children and ten grandchildren. He has also been

a successful businessman, active in civic and cocial af-

fairs in the community and State, and at all times

herein referred to, Plaintiff was a duly qualified and

filed candidate for the office of United States Senator.

IV,

On the llth day of August, 1978, the defendants, by

and through their agents, servants, and employees, ma-

liciously composed and published concerning the Plaintiff,

an editorial on the editorial page of The Tulsa Tribune

entitled, “The Unqualified Candidate”, which contained

false and defamatory matter designed to injure the Plain-

tiff GEORGE MISKOVSKY’s character and reputation,

professional standing in the State, and to destroy his

chances to be elected United States Senator. The ma-

liciously false and defamatory matter accuses Plaintiff,

inter alia, of irresponsibly making an effort to smear

Governor David Boren with an implication of homo-

sexuality, of a descent to sewer politics, and engaging

in a cruel variation of the proverbial lawyer’s question,

Have you stopped beating your wife? A true and cor-

rect copy of said editorial as above stated is attached

hereto marked Plaintiff's “Exhibit 5” and made a part

20a

liciously composed and published concerning the Plain-

tiff, in the Tulsa Tribune, a cartoon drawing. Said car-

toon drawing depicted Plaintiff speaking into a sewer

pipe. Said cartoon drawing is false and defamatory

matter designed to injure Plaintiff, GEORGE MISKOV-

SKY’S character and reputation, professional standing

in the community, and chances to be elected United

States Senator. A true and correct copy of said cartoon

drawing is attached hereto marked Plaintiff's “Exhibit

6” and made a part hereof by this reference.

VI.

That on the 15th day of August, 1978, the Defendants,

by and through their agenis, servants, and employees,

maliciously composed and published concerning the Plain-

tiff in the Tulsa Tribune a cartoon drawing. Said car-

toon drawing depicted an individual from the press ad-

dressing Plaintiff who was depicted being down in a

sewer manhole with the following question, “Uh, would

you answer a few questions, Mr. Miskovsky?” Said car-

toon drawing is false and defamatory matter designed

to injure Plaintiff, GEORGE MISKOVSKY’s character

and reputation, professional standing in the community,

and chances to be elected United States Senator. A true

and correct copy of said cartoon drawing is attached

hereto marked Plaintiff’s “Exhibit 7” and made a part

hereof by this reference.

VII.

On the 17th day of August, 1975, the Defendants by

and through their agents, servants and employees, ma-

liciously composed and published concerning the Plaintiff

in the Tulsa Tribune an editorial column. Said column

was entitled, “Sometimes the press a shade hypocritical”.

Said column by Tribune Washington correspondent E.N.

Earley says, in part, “Sometimes we members of Okla-

homa's fourth state are a bit too pious. Such is the case

with George Miskovsky-Governor David Boren dispute.

2la

When trailing Senate candidate Miskovsky asked Boren

to answer questions about his sexual habits, editorial

writers were enraged. They called Miskovsky ‘A Voice

From the Sewer’. Miskovsky’s remarks were a cheap

publicity stunt. But the editorial writers’ surprise and

shock reeks of hypocrisy. For nearly two years, reporters

have been gossiping about Boren’s private life. The

stories grew each time the bartender brought another

round or the reporters found a new audience. No one

knows where the rumors started, but soon they were so

widespread they were being whispered in Boise City and

Idabel. Boren was aware of the gossip. He quietly

sought advice from several political advisers, including

some in Washington. From every friend he apparently

got the same advice: do nothing. You can’t call a press

conference to deny slanderous gossip. Such a move would

only give creditability to the rumors. Before Miskovsky

babbled, not one member of the press asked Boren pub-

licly what was being bandied about so easily in the press

rooms. But when Miskovsky brought up the subject,

the press was flabbergasted. There is little doubt that

Miskovsky’s voice came from the sewer, but it is a sewer

that was constructed—in part—by the press.” Said

column is false and defamatory matter, designed to in-

jure Plaintiff, GEORGE MISKOVSKY’S character and

reputation, professional standing in the community and

his chances to be elected United States Senator. A true

and correct copy of the said editorial column is attached

hereto and marked Plaintiff’s “Exhibit 8”.

VIl.

On the 24th day of August, 1978, the Defendant, by

and through their agents, servants and employees, ma-

liciously composed and published concerning the Plaintiff

an editorial in the Tulsa Tribune. Said editorial was

entitled, “Governor Swears He Disapproves of Homosex-

uality”, which contains false and defamatory matter de-

22a

signed to injure the Plaintiff George Miskovsky’s char-

acter and reputation, professional standing in the State.

The maliciously false and defamatory matter accuses

Plaintiff of charging Governor David L. Boren with

homosexuality. A true and correct copy of said editorial

is attached hereto and made a part hereof, marked

“Plaintiff's Exhibit 9”.

IX.

On the 25th day of August, 1978, the Defendants,

by and through their agents, servants and employees,

maliciously composed and published concerning the Plain-

tiff in the Tulsa Tribune, an editorial on the editorial

page. Said editorial was entitled, “Boren’s Overkill”.

Said editorial says, in part, “The spectacle of Governor

David Boren calling a press conference to swear on the

Bible that he was not a homosexual not only marked

some kind of a first in American political history, but it

was utterly unnecessary. The sensational innuendo ad-

vanced by George Miskovsky in a desparate effort to gain

attention for his senate campaign had already exploded

in Miskovsky’s face. His miniscule vote was proof

enough.” Said editorial is false and defamatory matter,

designed to injure Plaintiff, GEORGE MISKOVSKY’S

character and reputation, and professional standing in

the community. A true and correct copy of said editorial

is attached hereto and marked Plaintiff’s “Exhibit 10”.

The Defendants are possessed of vast holdings, are rea-

sonably worth many millions of dollars, and are capable

of responding to compensatory and exemplary damages

complained of and prayed for herein.

The Plaintiff, GEORGE MISKOVSKY, alleges and

states the libel herein complained of was a visciously and

maliciously done with utter disregard of the truth and

directed at and toward the Plaintiff.

23a

The Defendant’s intent and purpose was to influence

the public opinion and hold the Plaintiff up to scorn,

obliquy, disrespect and ridicule.

The Defendant published the villifying, libelous and

slanderous writings which were calculated and designed

to set off widespread villification, libel and slander of

the Defendant.

Defendant did, with utter disregard for the truth and

intentionally or with reckless disregard for the truth and

facts, maliciously accuse the Plaintiff of crimes which

are violation under the penal laws of the State of Okla-

homa. The Defendants did intend to infer by their

writing and characterizations that he Plaintiff charged

David L. Boren with homosexuality which constitues

the crime of criminal libel and slander. Those writings

and charactrizations did create in the minds of multi-

tudes of people all over Oklahoma that concept, thought

and belief.

The Defendant’s malicious libel and slander of Plain-

tiff was continued over a period of several days as will

be seen by the writings and characterizations complained

of herein.

XI.

The Plaintiff alleges that at all times the things herein

complained of were written by Defendants against the

Plaintiff, the Defendants were openly and actively sup-

porting David L. Boren as their candidate for United

States Senate and did so with various writings, edi-

torials and feature stories that otherwise were not af-

forded to any other candidates in the United States

Senate race.

The vicious and malicious libel and villification that:

is herein complained of was done to falsely accuse the

Plaintiff of a crime or crimes and misdeeds to destroy

the Plaintiff politically, personally and professionally, and

24a

as a basis for further editorializing affirmatively for their

candidate and on a false premise, to-wit: That the Plain-

tiff had charged and accused their candidate of being a

homosexual and of frequenting with homosexuals.

This premise is completely false and that fact was

known to the Defendant but the Defendant persisted with

its accusations and implications.

In this regard, the Plaintiff says that on the 9th day

of August, 1978, at the Ponderosa Restaurant in Cana-

dian County, for the first time in a public forum Plain-

tiff heard David Boren categorically charged by another

candidate, Anthony Points, of “frequenting with homo-

sexuals”, and of being a “homosexual”.

Prior to this public attack and charge by Points, the

Plaintiff had heard rumors of such behavior and of Boren

being associated with persons of such purported behavior,

and the Defendant likewise knew of such rumors and

that same had been in circulation for four years or

more. These rumors were verified by the governor’s

own staff, which fact the Defendant was aware of and

knew.

The Ponderosa public meeting was sponsored by the

Women’s Democratic Club of Canadian County and was

attended by three candidates for the United States Senate,

George Miskovsky, Anthony Points and Dean Bridges.

This was also known to the Defendant.

Other candidates were invited to the meeting, but only

these three attended and spoke.

XI.

After candidate Points made the charges about Boren

at the Ponderosa, i.e., that David Boren frequented with

and was a homosexual, Plaintiff believed then and be-

lieves now that it was not only appropriate for him to

ask the Governor to answer the charge but it was his

25a

duty to call this to the attention of the Governor and

the voters, and give the Governor an opporounity to

answer straight forward questions concerning the charge.

To make certain there was no question about the

rhetoric, the Plaintiff communicated his questions in a

typewritten letter to the Governor and released copies

of the letter to the press.

As a result of asking the questions of Boren, Plaintiff

became the target of a vicious, malicious, and libelous

villification lauched by the Defendant and thereafter

other members of the news media. This was one of the

intended purposes of the Defendant’s defamatory and

libelous commentary and characterizations of Plaintiff.

The Defendants made the following comments in the

news columns which illustrate its efforts to maliciously

and viciously, libel and villify the Plaintiff.

The Plaintiff alleges and states that this is and was

one of the most vicious, and villifying efforts made by the

Defendants against any public servant, past or present.

As a result and proximate result of the Defendants

malicious compaign of libel and villification, against

Plaintiff, he suffered and experienced extreme mental,

emotional and physical anquish, and his reputation as a

lawyer was damaged and injured; his social standing

destroyed and his name was besmirched.

All of which has caused the Plaintiff irreparable phys-

ical, mental, emotional and financial damage and injury.

XIII.

A copy of Plaintiff’s letter to David L. Boren above

mentioned is attached hereto as Plaintiff's “Exhibit 1”

and made a part hereof by reference.

A copy of the flyer wherein Anthony Points charged

David L. Boren with frequenting with homosexuals is

26a

attached hereto as Plaintiff’s “Exhibit 2” and made a

part hereof by this reference.

On August 11, 1978, the Defendant in a front page

story, “Foe says Boren ‘Overreached’’’, maliciously and

intentionally libeled and villified Plaintiff, a copy of

which is attached hereto as Plaintiff’s “Exhibit 3” and

made a part hereof by this reference.

On Saturday, August 12, 1978, Defendant published

a news analysis entitled “Backlash to help Boren?” which

article is attached hereto as Plaintiff’s “Exhibit 4” and

made a part hereof by this reference.

XIV.

The defamatory matter complained of herein was pub-

lished within three weeks of the date of the primary

election for the United States Senate.

XV.

The above stated articles, editorials and cartoons, when

considered as whole, engendered in the mind of the

reader a conclusion, impression, or opinion of the Plain-

tiff, GEORGE MISKOVSKY, to public hatred, contempt

and obliquy, and is libelous per se; that the said articles,

editorials and cartoons were composed and published by

the Defendants well knowing the same to be false or

unwilling to ascertain the true facts; and was done

with reckless and wanton disregard of the truth.

XVI.

— The statements complained of in the aforesaid publica-

tions were wholly false, unprivileged, vicious, and ma-

licious and the Defendant by means of said publications

intended to damage and injure the Plaintiff, GEORGE

MISKOVSKY, and Plaintiff has been injured in his

character and reputation, professional standing in the

community, and his chances of becoming United States

27a

Senator were completely destroyed, all to his actual dam-

age in the sum of Five Million Dollars ($5,000,000.00).

Further, that Plaintiff has suffered loss of business in

his law firm. That Plaintiff has suffered mental anguish

and humiliation and his chances of becoming United

States Senator were completely destroyed all as a re-

sult of the malicious acts of the Defendant, and all to

Plaintiff’s special damages in the sum of Five Million

Dollars ($5,000,000.00).

XVII.

The publications complained of above were willful and

malicious and by reason thereof the Plaintiff, GEORGE

MISKOVSKY, is entitled to punitive damages in the sum

of Fifteen Million Dollars ($15,000,000.00).

WHEREFORE, Plaintiff prays judgment against the De-

fendants in the sum of Five Million Dollars ($5,000,000.00)

actual damages, Five Million Dollars ($5,000,000.00) spe-

cial damages, and Fifteen Million Dollars ($15,000,000.00)

by way of punitive damages, the total of which is

Twenty-Five Million Dollars, ($25,000,000.00), for which

Plaintiff prays and for costs and all other just and proper

relief to which Plaintiff in law is entitled.

EVERETT J. SWEENEY

Suite 100 Commerce Building

Norman, Oklahoma 73069

ED MORRISON

505 Center Office Building

Tulsa, Oklahoma 74127

Attorneys for the Plaintiff

ED MORRISON

28a

CERTIFICATE OF MAILING:

I, Ed Morrison, do hereby certify that I mailed a true

and correct copy of the above and foregoing Amended

Petition to Gable, Gotwals, Rubin, Fox, Johnson & Baker,

Attn: John Henry Rule, 20th Floor Fourth National

Bank Building, Tulsa, Oklahoma 74119 of this — day

of May, 1980, with proper postage affixed thereto.

Ep MORRISON

29a

EXHIBIT 1

GEORGE MISKOVSKY, SR.

U.S. SENATE

830 Hightower Building

Oklahoma City, Oklahoma 73102

Telephone

(405) 235-1375

August 10, 1978

The Honorable David Boren

Governor

State of Oklahoma

State Capitol

Oklahoma City, Okla.

Dear Gov. Boren:

Yesterday I attended a noon meeting of the Canadian

County Democratic Women’s Club at the Ponderosa

Restaurant in E] Reno. About three dozen members of

the club were present as well as club vice president, Mrs.

Donald J. (Floretta) Gholston of El Reno, and two

other Democratic candidates for the U.S. Senate, Dean

Bridges and Anthony Points.

I was called upon to address the group about issues and

I did, as did Mr. Bridges.

Mr. Points addressed the group and distributed a cam-

paign flyer (a copy of which is enclosed herewith) con-

taining the following verbatim transcript:

“IT am against homosexuals in the school systems. They

are a throat to our children. They are like vultures

‘preying’ on our young.

“I am against homosexuals or bisexuals in office or gov-

ernment. They are a threat to our national security.

80a

They are subject to being blackmailed and will give out

a favor or leak information from the government in re-

turn for having their homosexual identity kept secret.

“There is a side to David Boren that is a known fact in

legal and political circles. And that’s the fact that David

Boren frequents with homosexuals and I’m putting it

lightly.

“T don’t think that is what you want for a U.S. Senator.”

In addition to distributing the above written bulletin,

Mr. Points added, among other things, the oral cate-

gorical statement, “David Boren is a homosexual.”

After the meeting one of the ladies said she had not

heard of this before, and others said they had heard

rumors about the charge.

It is the first time I have heard this direct, categorical

statement made in public by a candidate for the U.S.

Senate.

For this reason I am asking you to respond to the fol-

lowing questions:

Do you know what a homosexual or bisexual is?

Are you a homosexual or bisexual?

Have you ever been a homosexual or bisexual?

Have you ever engaged in homosexual or bisexual ac-

tivity?

I believe it is the right of every citizen, if it can be as-

certained, to know if a candidate for U.S. Senator is

afflicted with this kind of abnormal behavior.

A U.S. Senator has access to highly sensitive information

vital to the defense of this country and our NATO

allies.

I believe it is the right of every citizen to know if a

candidate is afflicted with any physical, mental or philo-

8la

sophical weakness that might be dangerous to our na-

tional security or which might jeopardize the best in-

terests of the majority of the people.

If a candidate is a homosexual, a person who is men-

tally deranged or a person of bizarre philosophical de-

meanor, then, the people have a right to know it.

And, the candidate should disclose it in order to protect

his effectiveness as the representative of the majority and

free himself from any politically motivated intrigue,

blackmail, extortion or compromise to prevent disclosure

of his true identity.

The people are entitled to an immediate response. Such

response should be subscribed by you under oath.

Sincerely,

/s/ George Miskovsky

GEORGE MISKOVSKY

82a

EXHIBIT 2

ANTHONY POINTS

Democrat For U.S. Senate

“The People’s Voice”

I am in favor of our senior citizen social security’s fixed

income increasing in accordance to inflation.

I am in favor of the armed forces adopting a six month

active duty enlistment of new recruits, giving them full

veterans benefits and in this program they could keep

a respective amount of hair. This program would beef

up our military forces to a ready level.

I am in favor of the farmers receiving 100% parity.

They are the backbone of our country.

I am in favor of cutting the price of gas and electric

bills in half.

I am against the sale of military arms, plans or nuclear

devices to Arabs. The Israelis and the Jewish people are

our allies, not the Arabs.

I am against Arabs entering the United States in ex-

change for the reduction of the price of oil.

Our last three presidential administrations have had

communistic overtones from the Panama Canal treaty

through the selling of arms to the Arabs.

Coincidentally!! When Nixon let the Arabs into the

United States in 1970, a lot of plutonium started dis-

appearing. Arabs are buying buildings across the United

States and are always demanding plutonium for their

country. What is to stop them from making nuclear ex-

plosives in these buildings and then going back to their

own country? I am in favor of conducting a full in-

vestigation on the massive amount of plutonium that

has been disappearing since 1970.

I am against abortions.

I am against the human baby being cloned.

33a

I am against sex changes.

I am against busing. No student should be forced to

attend a different public school other than the one nearest

to his residence.

I am against homosexuals in the school systems. They

are a threat to our children. They are like vultures

“preying” on our young.

I am against homosexuals or bisexuals in office or gov-

ernment. They are a threat to our national security.

They are subject to being blackmailed and will give out

a favor or leak information from the government in

return for having their homosexual identity kept secret.

There is a side to David Boren that is a known fact

in legal and political circles and that’s the fact that

David Boren frequents with homosexuals and I’m putting

it lightly. I don’t think that is what you want for a

U.S. Senator.

It is this type of activity, homosexuals or bisexuals in

office along with U.S. Senators being blackmailed that

is sending America down the tubes. If we don’t have

all of our bases covered, we will leave ourselves wide

open to destruction in which we shall see a great nation

crumble and fall.

Three of my opponents have held office before and not

once have they stood on these major issues. They are

good at playing verbal volleyball with issues and getting

nothing accomplished. All they ever like to do is fool

the public, get elected and go party in Washington.

If elected, I will put these issues before the people of

Oklahoma for a vote and if passed, “By God” that’s the

way it’s gonna be. Then I’ll carry these issues on a na-

tional level.

If you believe as I do and are willing to donate one hour

of your time in my campaign or a contribution for

what you believe in, call me at 947-1698 or 495-1637. I

need your support.

34a

APPENDIX D

EXHIBIT 3

Tulsa, Oklahoma, Friday, August 11, 1978

FOE SAYS BOREN ‘OVERREACTED’

Miskovsky questions sexual conduct

By RICHARD TAPSCOTT

Tribune Capital Bureau

OKLAHOMA CITY—Senate candidate George Mis-

kovsky said today he thinks Gov. Boren and editorial

writers “overreacted” to Miskovsky questioning the gov-

ernor’s sexual preferences.

Miskovsky of Oklahoma City, quoting literature and

statements of another senatorial candidate, Thursday

asked Boren to say under oath whether he is a homo-

sexual, a bisexual or ever had engaged in abnormal sex-

ual activity.

Boren, flanked by his wife Molly at an airport news

conference here, categorically denied the allegation, call-

ing it a “vicious lie.”

Miskovsky told reporters Thursday he was bringing

to the public’s attention statements made Wednesday in

El Reno by senate candidate Anthony Points of Okla-

homa City.

Miskovsky said today he was surprised by the out-

raged editorials denouncing him.

“I THOUGHT both the governor and the editorial

writers overreacted,”’ Miskovsky said. “They acted emo-

tionally as if I had made the charge.

“I, had heard the rumor, as have many others, for

months. When it came to a head in a public forum, I

35a

felt I should report it to the media and give the gov-

ernor an opportunity to respond.”

Boren has been the target of a whispering campaign

for several years, but the gossip had not been made

public until Miskovsky’s press conference Thursday.

Miskovsky said he has had many calls since he sought

Boren’s response to the charges.

“T never had one that says I shouldn’t have called it

to the attention of the media,” he added.

Rob Pyron, a spokesman for the Boren campaign, said

the state headquarters received telephone calls until late

Thursday evening.

“PEOPLE SEEM to be outraged by it,” he said of the

allegations.

Asked about the impact on Boren’s campaign, Pyron

added, “It would be kind of hard to say. I hope it pre-

sents to the people the differences in the kinds of cam-

paigns being presented.”

Points, a 31-year-old remodeling contractor, could not

be found to comment on the furor his statements have

created. He was not returning telephone calls and could

not be found Thursday or today at his office or apart-

ment.

Points repeated his statement on an Oklahoma City

radio station this morning, but was not available to

Tribune reporters.

Points has been circulating literature saying, “There

is a side to David Boren that is a known fact in legal

and political circles and that is the fact that David Boren

frequents with homosexuals, and I’m putting it lightly,”

he said.

“I DON’T THINK that is what you want for a U.S.

senator.”

36a

Miskovsky said that Points went further during a

Wednesday forum sponsored by the Canadian County

Democratic Women’s Club.

At that meeting, Miskovsky said Points stated, ‘David

Boren is a homosexual.”

Points, considered a longshot candidate in the seven-

man Democratic field, also has said he thinks half the

public school teachers in Oklahoma are homosexuals.

Boren cut short 4 campaign swing through western

Oklahoma Thursday to return to the capital to deny the

charges.

Speaking to about 100 broom-waving supporters at the

airport, Boren said he does not know Points.

“BUT IF HE repeated such a vicious lie, I would not

care to know him.

“T will not dignify it with any further response. It’s

a shame a person has to be subjected to this kind of

personal attack in order to serve the public.

“T particularly resent the statement because it reflects

on the reputation of my wife, children and family, as

well as myself.”

Neither Miskovsky nor Points has provided any evi-

dence to back up the allegations against Boren.

Miskovsky campaigned Thursday night in Ada and

Allen.

He said he received positive responses there.

“T APPRECIATE the fact I have had a lot of calls

about me having the courage to call this to the media’s

attention,” he added.

Regarding editorial responses that have condemned

Miskovsky’s action, the two-time unsuccessful guberna-

torial candidate said, “I have seen these rotten, dirty,

scurillous, below-the-belt editorials before.”

87a

Boren told reporters the allegations will not cause him

to change his campaign, which has been marked by the

governor styling himself as being the target of the “Old

Guard.”

“People aren’t interested in this kind of trash,” he

said. ‘“They’re more interested in the issues.

“IT don’t think anyone in Oklahoma will be foolish

enough to believe this.”

OKLAHOMA political observers said they see the al-

legation backfiring, if not helping Boren’s campaign for

the nomination.

“Depending on what his lead was before, which I think

was good, this could well lock it up for him without a

runoff,” said one analyst.

“T see very little negative fallout for Boren.”

Boren aides said the allegations also cuild help spur

Boren supporters to work harder as the Aug. 22 primary

approaches.

Another Boren campaign aide said he believes the al-

legation damages Miskovsky’s chances, which were not

considered good before Thursday.

“TI think it will help us, (State Sen. Gene) Stipe and

(former Congressman Ed) Edmondson,” he added.

ANOTHER observer said the allegation at least places

the spotlight on Boren and could help him pick up

strength among undecided voters.

“Although Oklahoma has that kind of reputation, I

don’t think there are that many Anthony Points out there

who are eager to join a ‘Stop-Boren’ movement with this,”

he added.

Another political analyst said the allegation could cre-

ate a “sympathy vote” favoring Boren.

88a

“The Anthony Points thing was nothing,” he said.

“Miskovsky made a tremendous blunder.”

Miskovsky appeared somewhat taken aback by the re-

actions to his news conference.

“I’m not Hitler’s brother,” he said.

89a

APPENDIX E

EXHIBIT 4

OKLAHOMA PRESS

CLIPPING BUREAU

Oklahoma City, Oklahoma

Tulsa Tribune

Tulsa, Okla.

Circe. 79,456

BACKLASH TO HELP BOREN?

Candidates wait for reactions from personal attack

a news analysis

By WILL SENTELL

Tribune Capital Bureau

OKLAHOMA CITY—Backers of Gov. David Boren are

trying to gauge effects of an unprecedented charge as

contenders head into the final week of primary vote chas-

ing for the U.S. Senate Democratic nomination.

Meanwhile, Muskogee rival] Ed Edmondson is trying to

hang a Republican tag around Boren in his drive for the

nomination.

And McAlester Democrat Gene Stipe is apparently try-

ing to trigger a backlash from publicity surrounding re-

ports of a federal probe, with the self-styled populist the

target.

Yet a race already riddled with question marks got

another big one this week.

40a

BESIDES THE FACT Boren categorically denied the

allegation, which was roundly trounced on by the state

press, supporters are trying to gauge what, if any, im-

pact to expect.

Most of the early indicators are pointing toward more

good than harm going to the governor.

A charge like the one lodged, the theory goes, will wind

up bringing down fence sitters who might have otherwise

stayed out of the race, or at least out of Boren and his

Broom Brigade camp.

While Boren backers got little pleasure from the ac-

cusation, the charge could trigger a backlash of sympathy.

Maybe even enough to top the governor over to a first

primary victory, something Boren backers were holding

little hope for originally.

GUBERNATORIAL backers claim the charge has got-

ten the troops moving, helping lift any apathy aides have

complained of repentedly.

Yet part of the problem with trying to gauge effect is

that the nature of the charge is so original, so unheard

of in public campaigns, that it’s tough to tell how voters

will respond.

Boren was saying earlier this week that it would be an

“upset” if he could grab the nomination without a runoff,

an uphill battle in a seven-man field.

Grabbing 50 percent plus one vote was something that

supposedly went out the window when political heavy-

weights Ed Edmondson and Gene Stipe joined the fight.

The 50-50 shot Boren mentioned to one reporter may

have increased slightly when the smoke finally clears.

BOREN GIVES the impression he’s far more concerned

with long-time arch nemesis Stipe than the bid of Ed-

mondson, twice defeated senatorial contender.

4la

Boren claims the Edmondson campaign is “almost non-

existent” in counties he and wife Molly have visited.

Talks about Stipe are couched in language like the

“Stipe machinery” and what he claims is the veteran law-

makers’ virtually unlimited money supply. 4

Meanwhile, Edmondson backers_claim to be delighted

at the lack of verbal_attenti n from both Boren and

Stipe.

SUPPORTERS OF the former Muskogee congressman

are hoping his two chief rivals cut each other up, per-

mitting Edmondson to cash in on a familiar name and

use of a “wolf in sheep’s clothing’ theme aimed at the

Boren camp.

“T’ll be glad to go to the back door, I’ll be glad to go

in the cellar door if I have to,” Edmondson says with a

smile.

The Democrat has gone from ripping Boren’s endorse-

ment of the Republican-based Roth-Kemp tax cut pro-

posal to hitting at Boren concerns for Republican issues

in general.

“He is lining himself up with the few, the powerful

and influential few,” Edmondson says.

Edmondson television spots are picturing Boren as

friend of the fat cat, friend of the $80,000 home dwellers.

There are more questioning surrounding the campaign

of Stipe, whose untested state appeal posed a question

mark when he entered.

NEWS ACCOUNTS detailing Stipe’s disputes over

FBI and grand jury probes of him have put the candi-

date on the defensive at times.

Stories detailing Stipe’s role in the McAlester Frozen

Foods Co. dominated news reports for several days.

42a

The 25 percent income tax ceiling Stipe hoped to ped-

dle into a popular issue almost got lost in the publicity

shuffle, at least for a while.

But the legislator is trying to turn the issue into an

advantage.

He brings up the FBI-grand jury issue himself on the

campaign trail.

Stipe jokes about it, denounces it and claims it’s a po-

litical conspiracy, with Boren at the conspiracy controls.

The aim seems simple: Create a backlash of support

for a “persecuted” contender.

Another picture of the campaign comes from the finan-

cial reports filed Friday.

In the one month he has been running, Stipe has raised

$267,566 in campaign funds, but he had to borrow most

of it from himself.

Stipe showed his financing already is catching up with

Boren and Edmondson but $188,000 of Stipe’s total rep-

resents loans he made to his campaign committee.

Stipe, a wealthy attorney who recently sold a large

ranch south a month ago, has said he plans to spend much

of his own money in the campaign.

BOREN REPORTED raising $362,161, an increase of

$48,039 since he filed his last report on July 10.

Edmondson, who entered the race only two days before

Stipe, reported he received $51,353 in campaign contribu-

tions, including $32,550 from labor groups and $1,000

from Boren’s former father-in-law, Reuel Little of Madill.

Edmondson listed $5,000 contributions from six organ-

ized labor political action groups.

Stipe reported he already has spent $237,962, leaving

$29,604 in his campaign fund. Boren, in his much longer

43a

campaign, reported expenditures of $319,162 and cash on

hand of $42,999.

Stipe listed 44 contributors who gave $1,000 each, in-

cluding Odie A. Nance of Edmond, who is state campaign

manager for Attorney General Larry Derryberry’s race

for governor, and Gene McGill of Alva, a former state

Democratic Party chairman.

EDMONDSON’S report showed he had spent $44,192

and had a campaign fund balance of $7,160.

Edmondson’s son, Drew, said the labor donations rep-

resent individual contributions, not union dues.

“We stated at the outset we would state our positions

and accept funds from those who believe as we do,” young

Edmondson said.

Meanwhile, Miskovsky and Points have formed a unique

footnote to Oklahoma political history because of their

charges at Boren.

Yet like Claremore educator E. Dean Bridges and

Rosella Pete Saker all four continue to be plagued by

predictions they are doomed to hover in the sub-5 percent

region come vote day.

44a

APPENDIX F

OKLAHOMA PRESS

CLIPPING BUREAU

Oklahoma City, Oklahoma

Tulsa Tribune

Tulsa, Okla.

Cire. 79,456

THE UNQUALIFIED CANDIDATE

As a candidate who received less than 2 percent of the

vote in his last statewide race, 16 years ago, George

Miskovsky desperately needed an issue to put some life

into his hopeless campaign for the U.S. Senate. He

thought he had found one. Thursday he asked Gov. David

Boren, the acknowledged frontrunner in the Senate race,

whether Boren is a homosexual or bisexual.

This, of course, is a cruel variation of the proverbial

lawyer’s question, Have you stopped beating your wife?

Nothing Boren—or anyone else so questioned—could say

would repair the damage caused by Miskovsky’s irrespon-

sible smear.

If Miskovsky had offered any evidence to support the

suggestion of sexual abnormality there might have been

a valid campaign issue. For the character of a candidate

is important. A homosexual or a wife beater or a nar-

cotics addict could be subject to blackmail or to other in-

fluences not in the public interest. But all Miskovsky ap-

parently has to offer is a leaflet and a campaign state-

ment by a third senatorial candidate—otherwise unknown.

This third man asserted—again, without supply evidence

—that Boren is a homosexual.

Democratic voters who had already decided to vote for

or against David Boren should not be swayed by Miskov-

sky’s descent to sewer politics. Boren should be judged

45a

on his record of eight years in the Oklahoma House of

Representatives and four years as governor and his qual-

ifications should be weighed against those of his two

serious primary opponents—former U.S. Rep. Ed Ed-

mondson and state Sen. Gene Stipe.

Only one well-known senatorial candidate has been

proven totally unqualified for the job. George Miskovsky

should not get even 2 percent of the vote this time.

46a

APPENDIX G

EXHIBIT 6

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47a

APPENDIX H

EXHIBIT 7

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48a

APPENDIX I

EXHIBIT 8

THE TULSA TRIBUNE—Thursday, August 17, 1978

Sometimes the press a shade hypocriticial

E.N. Earley

Washington

ete.

SOMETIMES we members of Oklahoma’s fourth estate

are bit too pious.

Such is the case with the George Miskovsky—Gov.

David Boren dispute.

When trailing Senate candidate Miskovsky asked Boren

to answer questions about his sexual habits, editorial

writers were enraged.

They called Miskovsky “A Voice From the Sewer.”

Miskovsky’s remarks were a cheap publicity stunt.

But the editorial writers’ surprise and shock reeks of

hypocrisy.

For nearly two years, reporters have been gossiping

about Boren’s private life. The stories grew each time

the vartender brought another round or the reporters

found a new audience.

No one knows where the rumors started, but soon they

were so widespread they were being whispered in Boise

City and Idabel.

Boren was aware of the gossip. He quietly sought ad-

vice from several political advisers, including some in

Washington.

From every friend he apparently got the same advice:

do nothing. You can’t call a press conference to deny

49a

slanderous gossip. Such a move would only give credita-

bility to the rumors.

Before Miskovsky babbled, not one member of the press

asked Boren publicly what was being bandied about so

easily in the press rooms.

But when Miskovsky brought up the subject, the press

was flabbergasted.

There is little doubt that Miskovsky’s voice came from

a sewer, but it is a sewer that was constructed—in part

—by the press.

WHILE on the subject of the press:

Second District congressional voters should be wary of

a tabloid being circulated by Mike Synar.

The last page of the attention-grabbing sheet contains

an editorial (not The Tribune’s), entitled: “Missing

Congressman.”

“Has anyone notified the Washington, D.C., Missing

Persons Bureau about Rep. Ted Risenhoover?” the edi-

torial begins. It says Risenhoover, who is Synar’s Demo-

crat primary opponent, skipped 48 out of 52 roll call votes

in the House from Jan. 18 to May 10.

That is false and Synar knows it.

He has added an asterisk to the editorial explaining

that Risenhoover actually missed the votes in the House

Interior Committee, not on the House floor.

That explanation, however, is printed in the smallest

type on the page.

The writer who authored this May 19 editorial was

telephoned personally by a furious Risenhoover a few

weeks after the editorial was published. He wanted the

writer to tell the difference between committee meetings

and votes on the House floor where Risenhoover has voted

80.3 percent of the time.

50a

Risenhoover was so angry, his staff says he demanded

a retraction.

But no retraction was printed. Now the editorial has

come back to haunt Risenhoover and this time his com-

plaints about the big-city press ring true.

5la

APPENDIX J

EXHIBIT 9

Boren reverses tactics

Governor swears he disapproves of homosexuality

a news analysis

By WILL SENTELL

Tribune Capital Bureau

OKLAHOMA CITY—Gov. David Boren’s decision to

swear publicly that he never engaged in homosexual ac-

tivity suggests he thinks the charge hurt his U.S. Senate

primary bid.

And it’s a sharp contrast to what candidate Boren was

saying a week ago, when he repeatedly claimed there was

nothing he could do beyond the previous, heated denials.

Boren, 37, accompanied by about 20 aides, put his hand

on a white bible used in his marriage ceremony and

swore Wednesday he is not now, nor ever has been, a

homosexual.

GEORGE MISKOVSKY, the Senate candidate who

questioned Boren’s sexual orientation responded by say-

ing the issue is dead.

“Boren got the message from the voters,” Miskovsky

said. “His delayed answer under oath to the questions I

asked puts the issue to rest as far as I’m concerned.”

At a Capitol news conference Wednesday afternoon,

Boren stated:

“I, David Lyle Boren, being of lawful age and upon

my oath do swear and state that I know what homo-

sexuals and bisexuals are.

“I further swear that I am not a homosexual or bi-

sexual.

52a

“T further swear that I have never been a homosexual

or bisexual.

“And I further swear that I have never engaged in

any homosexual or bisexual activities nor do I approve

or condone them,” Boren said.

BUT WHY WOULD Boren forces, who earlier had

been the ones saying the issue should be put to rest not-

ing if anything the charge would backlash in Boren’s

favor, be the ones resurrecting it?

Part of the reason may stem from the primary results,

something of a disappointment for Boren’s troops.

A campaign entourage that bordered on being cocky

about prospects for capturing the Senate nomination out-

right was surprised to see Boren come out with only 45

percent of the vote, almost 20 percentage points ahead of

the second place finisher.

And in the campaign aftermath, the search for reasons,

at least some people close to Boren concluded that charges

Boren is a homosexual, mud that it is, hurt the governor’s

chances.

AS ONE SAID, “Whenever you throw mud, it sticks

some.”

And another political observer: “I think they thought

it hurt them more than helped them,” with hopes a Boren

slick media performance could wipe out any damage.

Yet the bizarre sight of 2 governor saying he is not a

homosexual came as a surprise to those who had heard

Boren discuss the subject earlier.

“The effect has all been positive,” Boren told a reporter

last week in the aftermath of the charges which came,

unsubstantiated, from two longshot contenders running

for the Senate.

Boren pointed to the spontaneous financial contribu-

tions, the fact most Oklahomans are decent, that many

53a

have been through divorce and could sympathize with his

position.

WHAT COULD HE DO to combat the charges?

“There’s nothing you can do,”’ Boren replied repeatedly.

The charge and denial was made, Boren said, and sug-

gested then that it should be set aside for good.

The accusation was mudslinging, the governor said, a

last minute bid that would backfire.

And he said he thought the contrast in campaign tacts

would stand out, prove beneficial come election day.

Apparently the differences didn’t stand out sharply

enough.

The candidate wh reportedly predicted outright vic-

tory Tuesday, the curdidate surrounded by aides saying

52, 54 percent, may have been stung by the results forc-

ing him into a runoff with Ed Edmondson.

ASKED THE QUESTION point blank Boren only said

it was “hard to say” whether the charge affected the pri-

mary, a statement he was making before vote day.

“As long as the primary campaign was in progress I

did not think it would be appropriate to allow myself to

be diverted from my campaign by the vile and malicious

charges made by some candidates against me,” he said.

“Now that those candidates are no longer in the race

I think it is time once and for all to put to rest the

vicious lies which have been hurled against me.”

Boren press secretary Rob Pyron disagreed with sug-

gestions the primary vote triggered the governor’s public

oath.

He pointed to the meager vote totals going to the two

contenders who raised the issue, Anthony Points and

George Miskovsky, to support his argument.

54a

Instead, Pyron said, the decision was nearly spontane-

ous, one that came after “little discussion.

“SOMETIMES POLITICIANS are just like the rest of

us, sometimes they just want to get something off their

chest,” Pyron said.

In a related development, Boren launched his bid for a

Democratic runoff victory by challenging Edmondson to

a debate on the issues.

Boren, who during the primary campaign declined to

debate or appear on the same forum with his six oppo-

nents, decided to take the offensive.

He asked for the League of Women Voters to sponsor

the debate, but today Edmondson said he would prefer a

Democratic organization such as the state party organi-

zation arrange the debate instead.

EDMONDSON SAID he learned through the media of

Boren’s request for the debate and “welcomes the pros-

pect.”

Edmondson also said he preferred that any debate with

Boren be free of restrictions as far as what subjects can

be covered.

“T think the fact that Gov. Boren wanted a non-

partisian organization to coordinate the debate shows

once again that he does not represent Democratic beliefs,”

Edmondson said.

He said Tulsa television station KTUL-TV and radio

station KRMG had offered one hour of time for the de-

bate.

In another announcement, Edmondson said he had

visited with state Sen. Gene Stipe, the man who finished

third in Tuesday’s balloting, and said “Sen. Stipe and

two of his top campaign leaders have firmly assured me

of their support and help in the upcoming election.

55a

“THERE IS AN agreement between us that we (Ed-

mondson and Stipe) had been speaking for the majority

of Democrats in Oklahoma.”

Edmondson, 59, went on to say he hopes the age dif-

ferential between him and Boren, who is 37, will become

an issue in the campaign because he said Oklahoma voters

“like to have someone with mature judgment” represent-

ing them in the U.S. Senate.

He said he also anticipates sources of campaign fund-

ing to become an issue in both camps. Edmondson is ex-

pected to come under fire for accepting political dona-

tions from sources outside Oklahoma—especially labor

oriented groups.

“We expect to prove that 95 percent of our funds come

from within Oklahoma and that of those that do, they

have very close interests and represent several people

within this state.”

56a

APPENDIX K

THE TULSA TRIBUNE—Friday, August 25, 1978

AH’VE LUSTED

fee WOMEN

MUH HEART...

BOREN’S OVERKILL

The spectacle of Oklahoma’s Governor David Boren

calling a press conference to swear on the Bible that he

was not a homosexual not only marked some kind of a

first in American political history, but it was utterly

unnecessary.

The sensational innuendo advanced by George Miskov-

sky in a desperate effort to gain attention for his senate

campaign had already exploded in Miskovsky’s face. His

minuscule vote was proof enough.

The governor pleaded not guilty in the face of no evi-

dence to the contrary. Surely, he has a soft, baby face.

But so did Audie Murphy, the most decorated U.S. hero

of World War II. The governor opened himself to an im-

mediate lampoon by his runoff opponent, Ed Edmondson,

who publicly swore he was not and never intended to be

a Republican.

Instead of swearing, the governor should have simply

shrugged.

57a

APPENDIX L

Oklahoma Statutes Tit. 12 § 1441

Libel is a false or malicious unprivileged publication

by writing, printing, picture, or effigy or other fixed

representation to the eye, which exposes any person

to public hatred, contempt, ridicule or obloquy, or

which tends to deprive him of public confidence, or

to injure him in his occupation, or any malicious

publication as aforesaid, designed to blacken or vilify

the memory of one who is dead, and tending to

seandalize his surviving relatives or friends.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.