Petition — Miskovsky v. World Publishing Co.
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93 88 3 NOV 29 1983
No. wna” SI |
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
GEORGE MISKOVSKY,
Petitioner,
Vv.
WORLD PUBLISHING 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 - Epes PRintiING 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?
(i)
<td
ee. |
TABLE OF CONTENTS
Page
OPINION AND ORDER BELOW ........000 ee... 1
RR Re ae aN Bk Rie tc am 2
CONSTITUTIONAL PROVISIONS INVOLVED ......... 2
«ge eT eens. Sateen eee 2
A. Procedural Background ....00.0000.00000000000 cece 2
B. Identification of Parties 0.000000... 3
C. Factual Basis of the Libel Claim ............... 3
ee 8
ce See ON 5
D. Federal Questions Properly Raised ................. 5
REASONS FOR GRANTING PETITION ............ 5
I. THE UNITED STATES CONSTITUTION
DOES NOT SUPPLANT STATE DEFAMA-
TION LAW ON THE ISSUES OF DEFAMA-
TORY MEANING, OPINION AND BURDEN
IEE Slitidahvebinites - coneeiinyomnsinrenpbiebipenasinedaegs 6
Il. THE FIRST AND FOURTEENTH AMEND-
MENTS PROHIBIT A RULE OF LAW
WHICH GRANTS VIRTUAL ABSOLUTE IM-
MUNITY TO A MEDIA DEPENDANT FROM
LIBEL SUITS BROUGHT BY A PUBLIC FIG-
URE BECAUSE SUCH A RULE WOULD
CHILL THE FIRST AMENDMENT RIGHTS
OF PETITIONER AND OTHER CANDI-
DATES FOR PUBLIC OFFICE .._................... 10
- CONCLUSION - 18
(iii)
iv
TABLE OF CONTENTS—Continued
APPENDIX Page
A—Opinion of the Supreme Court of the State of
Oklahoma Affirming Sustention of Defendant
World’s Demurrer and Determination that
Defects Not Amendable; A:!option of Miskov-
sky v. Tulsa Tribune as controlling, entered
ee. ee ane ee EE la
B—Opinion of The Supreme Court of the State
of Oklahoma Affirming Sustention of De-
fendant Tribune’s Demurrer and Determina-
tion That Defects Not Amendable .................. 8a
©—Order of the Supreme Court of the State of
Oklahoma Denying Petitioner’s Motion for
Rehearing entered on October 12, 1983 ............ 18a
J—Plaintiff’s First Amended Petition including
Exhibits, filed May 16, 1980 —......00000000.220...2... 20a
E—“BOREN ISSUES DENIAL ON QUES-
TIONS ABOUT ABNORMAL SEXUALITY”;
The Tulsa World, August 11, 1978 ................ 83a
F—“MEDIA BLAST CIRCULAR MALIGNING
GOVERNOR”; The Tulsa World, August 11,
DIE a inicihssushenibnccaisitickaties icp eee 87a
G—Editorial—“VOICE FROM THE SEWER”;
The Tulsa World, August 11, 1978 .................. 89a
H—“MISKOVSKY SAYS AIR HAD TO BE
CLEARED”; The Tulsa World, August 12,
TN aca en 4la
I—“DEMOCRATIC RACE TAKES BIZARRE
TWISTS—SYMPATHETIC BACKLASH
MIGHT AID”; The Tulsa World, August 18,
FUP cetniclecedataccscereeeniceie % 48a
J—“RETRACTIONS DEMANDED BY MIS-
KOVSKY”; The Tulsa World, August 11,
TIPU wibsertraicconsicsernbtclipton 46a
K—Oklahoma Statutes Tit. 12 § 1441 200... «=a
Vv
TABLE OF AUTHORITIES
Cases: Page
Associated Press v. United States, 326 U.S. 1
a 11
Buckley v. Valeo, 424 U.S. 1, 14 (1976) —................ 10
Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976),
cert. denied, 429 U.S. 1062 (1977) .................... 8
Ciani v. New York Times, 6 Med. L. Rptr. 1625
ON kaa ane nists ia ansanionitkabetboinbnctabenkaioansiueitcidonas 9
Corabi v. Curtis Publishing Co., 441 Pa. 482, 273
7 3 Be. 5) eee ren eon see 9
Curtis Publishing Co. v. Butts, 388 U.S. 180, 151
tL SAREE SS a LER careers car RN 9
First National Bank of Boston v. Bellotti, 435 U.S.
,. | ERE eT AAT A Deane 11
Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct.
2907, 41 L..Bd.2d 789 (1974) ........0......0-00cccccccccsoee. 6, 7,10
Hetherington v. Griffin Television, Inc., 430 F.
Supp. 498, (W.D. Okla. 1977) ...00......ecececceeeneeeeee 9
Illinois State Board of Elections v. Socialist Work-
ers Party, 440 U.S. 178 (1979) 2.020000... eceeeeeee 12
Miskovsky v. Oklahoma Publishing Co., 654 P.2d
587, (Okla. 1982), cert. denied, —— U.S. ——,
108 S.Ct. 235 (1982) ... has A
Monitor Patriot Co. v. Roy, 401 U. S. 265° (1971)... 10
Nebraska Press Association v. Stuart, 427 US.
| EISEN RY Saar eR eer Par 7 10, 12, 13 /
New York Times v. Sullivan, 376 U.S. 254 84 S.Ct.
ThG Te deen Cee CISG6) 2 cia. 5, 7,9
Pell v. Procunier, 417 U.S. 817 (1974) 000000... 11
Pennekamp v. Florida, 328 U.S. 331, 364 (1946).. 11
Rand v. New York Times, 4 Med.L.Rptr. 1557
| RS OEE. SOLD SIMS APRS IER ARP 9
St. Amant v. Thompson, 390 U.S. 727 (1968) ........ 9
Thornhill v. Alabama, 310 U.S. 88 (1940)... 11
Williams v. Rhodes, 393 U.S. 30 (1968) —.....0000.000.... 12
Wimmer v. Oklahoma Publishing Co., 1 P.2d 671
Ns EB ni so aden ar co ansccoenene penta eed toebers 6
Zacchini v. an ne Co., 433
U.S. 562 (1977) ... Sands 8
r
at
-
a i
ree a4 » ) Aeews : :
i eg tea 2 a> an, ——
vi
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. 1349 (1975)... 9
Eldredge, L.H., The Law of Defamation § 49 at
Or eee bis OT REN 18
Franklin, “Winners and Losers and Why: A Study
of Defamation Litigation”, Am. Bar Associa-
tion 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 .................... passim
% i ny > a
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
No.
GEORGE MISKOVSKY,
Petitioner,
Vv.
WORLD PUBLISHING 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 Su-
preme Court of the State of Oklahoma, entered on June
21, 1983, affirming the trial court’s sustention of a de-
murrer to Miskovsky’s libel petition, and determining
that said petition was not amendable.
OPINION AND ORDER BELOW
The opinion of the Oklahoma Supreme Court, which
appears in the Appendix at la, has not been officially
reported. The Oklahoma Supreme Court determined that
the case of Miskovsky v. Tulsa Tribune Company and
Newspaper Printing Corporation, decided on the same
date, presented identical issues and adopted what was
2
said in Tulsa Tribune as being the law of the case. This
opinion has been officially reported at Vol. 54 Oklahoma
Bar Journal 1751 and appears at Appendix B 3a et seq.
The order of the Oklahoma Supreme Court denying peti-
tioner’s motion for rehearing appears at Appendix C,
page 18a.
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 October
12, 1983. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1257(3).
CONSTITUTIONAL PROVISIONS INVOLVED
1. United States Constitution, Amendment I: Congress
shall make no law . . . abridging the freedom of speech,
or of the press...
2. United States Constitution, Amendment XIV $1:
[NJjor 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 five newspaper stories, and one editorial, all ap-
pearing in The Tulsa World, a newspaper published by
the respondents World Publishing Company and News-
paper Printing Corporation [hereinafter “The World’’].
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.
3
B. Identification of Parties
1. Petitioner George Miskovsky, son of immigrant
parents, was born and raised in Oklahoma. He grad-
uated from the University of Oklahoma Law School with
high honors, including induction into Order of the Coif.
Upon graduation from law school, Miskovsky was ad-
mitted to the Oklahoma Bar. He has practiced law in
Oklahoma City for more than forty years. During his
career, Miskovsky 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 can-
didate 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
below from Miskovsky’s First Amended petition 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 candi-
date’s forum in El] Reno, Oklahoma, sponsored by the
Women’s Democratic Club of Canadian’ County. The
forum was open to all candidates, inciuding Governor
David Boren, State Senator Gene Stipe, former Con-
gressman Ed Edmondson, Dean Bridges, Rosella Saker,
and Anthony Points. In addition to Miskovsky, only
candidates Bridges and Points chose to attend.
4
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:
“I 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.
“T 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 Boren is a
homosexual”’.
Prior to this public charge by candidate Points, Mis-
kovsky, as well as The World, had heard homosexual
rumors that had been in circulation for four years or
more concerning candidate Boren. These rumors were
verified by the Governor’s own staff.
The following day, August 10, Miskovsky delivered 4
letter 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 ou’
NATO allies.” Appendix 29a.
Miskovsky attended a press conference that same day
and distributed copies of the letter to members of the
news media.
5
2. The World’s Reaction
From August 11-14, The World published five news
stories and one editorial, falsely charging or implying
that Miskovsky had accused Governor Boren of homo-
sexuality; that Miskovsky has taken the prize for the
filthiest stunt that has ever been pulled by a serious
candidate for major public office in the state; and that
Miskovsky should save his gutter theatrics for the next
time he is defending some scoundrel in criminal court.
Appendix 33a et seq:
D. Federal Questions Properly Raised
The federal questions raised in this petition were prop-
erly raised before the Oklahoma Supreme Court. Peti-
tioner 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 Constitution
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. Sulli-
van, 876 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, errone-
ously concluded 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
6
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 deci-
sion of the Oklahoma Supreme Court raises important
federal questions not decided by this Court concerning
the extent of federal constitutionalization of state
defamation law.
I. THE UNITED STATES CONSTITUTION DOES
NOT SUPPLANT STATE DEFAMATION LAW ON
THE ISSUES OF DEFAMATION 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. 1981):
“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
opinion 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. 328, 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 Deci-
sions 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 statements
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 pro-
per cases, must review the evidence to make
certain that constitutional principles have been
correctly applied. The candids 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.
This, 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 340.
“A respected commenator 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
opinion 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 state-
ment that opinion was not actionable may fairly be
read to suggest that the court felt this result to be
compelled by the Untied 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 Okla-
homa, Zacchini v. Scripps-Howard Broadcasting Co.,
433 U.S. 562 (1977), and I would exercise that
jurisdiction by granting the petition for certiorari
in this case.”
Courts and commentators have concluded that the
press is not immunized by a constitutional exception for
defamatory statements of opinion. A statement labelled
“opinion” mixed with fact or which imply the existence
of undisclosed defamatory facts do not enjoy the protec-
tion of the First Amendment. Buckley v. Littell, 589
9
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 Con-
stitution 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., 480 F.Supp. 4938 (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,
890 U.S. 727, 731-732 (1968). Consider also the words
of Justice Harlan in Curtis Publishing Co. v. Butts, 888
U.S. 180, 151 (1967), that truth is “an absolute defense
in almost all cases.”’
The inequity of requiring a public figure libel plaintiff
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 substantiat-
ing the accusations, especially when, in many in-
stances, a defamed but innocent plaintiff may not be
able to adduce more evidence than a denial that he
or she committed the offense charged.” Corabi v.
Curtis Publishing Co., 441 Pa. 482, 468, 278 A.2d
899, 917 (1971).
10
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
responsibly. 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 recover for damage to his reputation.
In sum, this Court should review the Oklahoma Su-
preme Court decision and decide the extent to which fed-
eral constitutional law has supplanted state law in libel
actions.
Il. 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, “[dliscussion 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 ur-
gent 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
|
:
~~"
ila
11
in its ability to discuss and debate candidates and is-
sues.” Jd. 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, 435 U.S. 776, 782 (1978); Cf. Pell v. Procunier,
417 U.S. 817 (1974). “(T]he purpose of the Constitu-
tion was not to erect the press into a privileged institu-
tion but to protect all persons in their right to print
what they will as well as to utter it.” ZJd., at 802 (Bur-
ger, C.J., concurring), citing Pennekamp v. Florida, 328
U.S. 331, 364 (1946) (Frankfurter, J., concurring). “And
self-government suffers when those in power suppress
competing views on public issues ‘from diverse and an-
tagonistic sources.’” Associated Press v. United States,
326 U.S. 1, 20 (1945), cited in Bellotti, supra, 435 U.S.
at 777, n.12. The Oklahoma Supreme Court’s decision sus-
taining a demurrer to Miskovsky’s petition without leave
to amend infringes upon Miskovsky’s First and Four-
teenth Amendment rights and encourages the press to
limit public 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 historic
function in this nation, must embrace all issues
about which information is needed or appropriate
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
12
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
comment, The grant of virtual absolute immunity to
the press would require a candidate who runs for public
1 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
likelihood of a successful suit for libel by a public figure because
defendants are much less likely to accept adverse judgments at
the tria] level than are plaintiffs. Franklin, Winners and Losers
and Why: A Study of Defamation Litigation, Am. Bar Founda-
tion Research J., 493, 498 (Summer 1980).
2In its attack on Miskovsky, the press is also restricting the
access of Oklahomans to the ballot, effectively burdening two sepa-
rete rights—‘“the right 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, 393 U.S. 30 (1968), cited in Illinois State
Board of Elections v. Socialist Workers Party, 440 U.S. 173, 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.
13
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
reversed 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. JOE LANKFORD
303 South Peters
Norman, Oklahoma 73069
(405) 360-2254
Attorneys for Petitioner
3 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 nineteenth
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, id., at 251.
la
APPENDIX A
IN THE SUPREME COURT
OF THE STATE OF OKLAHOMA
No. 55,431
GEORGE MISKOVSKY,
Appellant,
V.
WORLD PUBLISHING COMPANY, a corporation; and
NEWSPAPER PRINTING 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 petition in a libel case, and determin-
ing that the petition’s defects are not amendable.
AFFIRMED
Carroll E. Gregg, Miskovsky, Sullivan, Miskovsky,
Cooke & Gregg, Oklahoma City, Oklahoma, for Appel-
lant.
Edwin S. Hurst, J. Schaad Titus, Boone, Smith, Davis
& Minter, Tulsa, Oklahoma, for Appellees.
LAVENDER, J.:
The petition alleges that defendants below are engaged
in printing, publishing and circulation of a newspaper
2a
known as The Tulsa World of general circulation 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 practicing attorney
since admitted to the Bar in 1936. He has a reputation
of being a successful and responsible attorney and mem-
ber of his profession. He has also been a successful
businessman, active in civic and social affairs 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 petition alleges the publication by defendant of
six separate items in the newspaper, alleged to be libel-
ous, all of which are writings and all relating generally
to the then political campaign for the office of United
States Senator.
A careful reading thereof reveals that the tenor and
import of the alleged libelous publications are the same
as those in the case of George Miskovsky v. Tulsa Tri-
bune Company, a corporation, and Newspaper Printing
Corporation, a corporation, decided on this date, and the
issues presented on appeal are identical to those pre-
sented in Tulsa Tribune Company. We therefore adopt
what we said in Tulsa Tribune Company as being the
law in the case at bar.
The ruling of the trial court sustaining a demurrer
to plaintiff’s petition, and determining that the petition’s
defects are not amendable is hereby affirmed.
BARNES, C.J., IRWIN, HODGES, HARGRAVE, and
WILSON, JJ., concur.
SIMMS, V.C.J., concurs in result.
DOOLIN, J., dissents.
OPALA, J., certified his disqualification.
8a
APPENDIX B
IN THE SUPREME COURT
OF THE STATE OF OKLAHOMA
No. 55,430
GEORGE MISKOVSKY,
Appellant,
Vv.
TULSA TRIBUNE COMPANY, a corporation, and
NEWSPAPER PRINTING 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 Appel-
lants.
James M. Sturdivant, John Henry Rule, Gable, Got-
wals, Rubin, Fox, Johnson & Baker, Tulsa, Oklahoma,
for Appellees.
4a
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 practicing
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 suc-
cessful businessman, active in civic and social affairs in
the community and state, and at all times herein re-
ferred 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
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 state-
wide 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-
5a
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
unqualified 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
estate 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 ad-
vised 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.”
6a
8. On the 24th day of August, 1978, an article pur-
portedly written by one Will Sentell entitled, “Boren
reverses tactics * * * Governor swears he disapproves
of homosexuality,” 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 ap-
peared 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 desperate effort to gain attention for
his senate campaign had already exploded in Mis-
kovsky’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 run-
off 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.”
Ta
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 questions
sexual conduct.” The article quoted plaintiff as saying
Governor Boren and the editorial writers “overreacted”’
to his bringing to the public the charges made by the
third candidate regarding Boren’s alleged sexual prefer-
ences and conduct. “They acted emotionally as if I had
made the charge. I heard the rumor, as have mary
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 Boren campaign was
quoted as saying, “People seem to 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 tremen-
dous 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.
8a
“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 wil! have
upon the election results.
7. On August 11, 1978, defendant published a cartoon,
a reproduction of which is as follows:
eevee ee Rea egel SS ate me
malt ! pedch isis iy
Lf iis Lah Senin aceite
Rare
ny ay “faite:
Ad alg |:
8. On August 15, 1978, the defendants published a
cartoon, a reproduction of which is as follows:
9a
9. On August 25, 1978, defendants published a car-
toon depicting in cariacture an effigy of President Carter
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 Miskovsky 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 plaintiff
must show:
(1) The publication of a defamatory statement;
(2) That the defamatory statement was false;
(8) 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;
10a
(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 publica-
tion;
(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 publica-
tion.
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 fal] 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 libe! per quod) ; and
(8) Those clearly defamatory on their face (com-
monly referred to as libel per se). (In accord, see Akins
v. Altus Newspapers, Inc., Okl., 609 F.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 mat-
ter of law whether or not the article is libelous per se,
observing: “Language out of context may have a dif-
ferent meaning than the same language within the four
corners of the (publication) .”
In Fite v. Oklahoma Pub. Co., supra, we said: “The
true rule is that, whcre the publication alleged to be
defamatory charges the plaintiff with nothing he might
not have legally and properly done, the same cannot be
lla
held to be libelous per se.” Fite further held that a
judicial review of whether the publication is libelous
per se turns on whether the statements made in the
publication, 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 plaintiff 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 there
in set forth as facts are true as is alleged in the allega-
tions in plaintiff’s petition. When viewed even in their
most derogatory sense as related to the plaintiff, while
possibly 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. 323, 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 te the question of whether the publica-
tions are or may be libelous per quod. In Akins v. Altus
Newspapers, Inc., supra, this Court held (1267): “It is
12a
a matter of law for the court to determine if the publica-
tion was libelous per se, as opposed to a fact determina-
tion 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 reference to in-
nuendo, that is, the explanation of words that are of
doubtful or ambiguous meaning, and to attach to them
their proper meaning.
I
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, 141 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 damaged 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 reputatioA in the
amount of $10,000’ without showing by proper aver-
ment how the specal damages were occasioned.” (Cita-
tions 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 generally
what the defamatory matter was, and that it was published 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
13a
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 (1978).
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 address-
ing 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 plaintiff to
plead by way of inducement or averment, colloquium
and innuendo, certain extrinsic facts which connect
the plaintiff with the libelous publication and to
plead the meaning the words have and that they
would be understood to have in connection with the
libelous article as published.”
prove that the matter was published or spoken by the defendant
concerning the plaintiff. As a defense thereto the defendant may
deny and offer evidence to disprove the charges made, or he may
prove that the matter charged as defamatory was true, and in addi-
tion thereto, that it was published or spoken under such circum-
stances as to render it a privileged communication.” (Emphasis
addde.)
The emphasized portion of the statute was declared unconstitu-
tional 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 Legisla-
ture 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).
l4a
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 can-
not be proved, and it is for the court to decide
whether given words or given publications are cap-
able of the meaning ascribed to them by the in-
nuendo, 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 show-
ing not only that the words are intended by plaintiff
in a defamatory sense, but that the hearers may
have understood the language as conveying the al-
leged defamatory meaning. (Citation omitted.)”
And again (at p. 500) citing many authorities in
support:
“.. 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
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
_ 3
15a
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 defi-
cient 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 de-
termined that the petition could not be amended to state
a cause of action, thus dismissing said cause with prej-
udice in the trial court’s ruling sustaining the demurrer
to the petition. Plaintiff challenges the ruling of the
trial court.
Title 12 0.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, supra. Here, the trial court sustained
defendants’ demurrer to the petition and simultaneously
determined that the deficiencies in the petition could not
be cured by amendment. If the ruling of the trial court
was reversible error in that the deficiencies might rea-
sonably have been cured by amendment, then this Court
should upon reversal accord the plaintiff an opportunity
to amend within a reasonable time.
l6a
When tested by the foregoing authorities pertaining to
the necessary allegations of a petition to state a cause of
action for lible per quod, we hold that all of the publi-
cations before us, including the cartoon which appeared
in the newspaper on August 11, 1978, are clear and un-
equivocal 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 Appel-
lant sucking upon a sewer pipe; and, conincidentally the
end of that sewer pipe that he is sucking on just happens
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 amendability
to innuendo to explain its meaning and import are the
same as in the case of writings. While, as we have here-
tofore pointed out, innuendo may be explanatory of the
meaning of the publication alleged to be libelous, whether
pictorial or writings, and of the understanding imparted
to the ordinary viewer of the publication, innuendo can-
not be used to enlarge that meaning or to attribute to it
a meaning which it will not bear. An objective exami-
nation of the cartoon published on August 11, 1978,
neither by its unembellished presentation nor by the ad-
dition 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 than express
the writer’s opinion of the political tactics of plaintiff’s
political campaign.
17a
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 disqualification.
4
1
Mix
na
s ie
184
APPENDIX C
IN THE SUPREME COURT
OF THE STATE OF OKLAHOMA
[Filed Oct. 12, 1983]
Wednesday, October 12, 1983
THE CLERK IS DIRECATED TO ISSUE THE FOL-
LOWING ORDERS:
55,431
55,932
56,433
56,456
George Miskovsky v. World Publishing Company,
a corp. and Newspaper Printing Corporation, a
corp.
Rehearing denied.
CONCUR: Barnes, C.J., Simms, V.C.J., Irwin,
Hodges, Lavender, Hargrave, JJ.
DISSENT: Doolin, J.
DISQUALIFIELD: Opala, J.
Brooks H. Bearde’. v. Group Hospital Service
d/b/a Blue Cross & Blue Shield of Oklahoma.
Certiorari denied.
CONCUR: Barnes, C.J., Simms, V.C.J., Irwin,
Hodges, Doolin, Hargrave, Opala, JJ.
DISSENT: Lavender, J.
In the Matter of the Estate of James C. Gilliam,
Deceased.
Certiorari denied. >
CONCUR: Simms, V.C.J., Irwin, Hodges, Laven-
der, Doolin, JJ.
DISSENT: Barnes, C.J., Hargrave, Opala, JJ.
Sam Nayfa d/b/a Sammy’s Charcoal Hambur-
gers v. Joseph Farris.
Certiorari denied.
CONCUR: Barnes, C.J., Simms, V.C.J., Irwin,
Hodges, Lavender, Doolin, Hargrave, JJ.
DISSENT: Opala, J.
57,645
58,668
59,013
59,837
59,839
19a
Security Bank ete. v. Leslie Ben Winter and
Jeanette K. Winter, husband and wife.
Certiorari denied.
CONCUR: Barnes, C.J., Simms, V.C.J., Irwin,
Lavender, Doolin, Hargrave, Opala, JJ.
DISSENT: Hodges, J.
Michael Dale Plunkett v. Tammy Lee Plunkett.
Rehearing denied.
CONCUR: Barnes, C.J., Sims, V.C.J., Irwin,
Lavender, Doolin, Hargrave, JJ.
DISSENT: Hodges, Opala, JJ.
In re Claim of: David Henderson v. Leeway Mo-
tor Freight, Inc. and the Workers’ Compensation
Court
Certiorari denied.
CONCUR: Barnes, C.J., Simms, V.C.J., Irwin,
Hodges, Lavender, Opala, JJ.
DISSENT: Doolin, Hargrave, JJ.
Danny L. Barbee v. Wachob Industries, Inc.,
Home Insurance Company and Workers’ Com-
pensation Court.
Certiorari denied.
CONCUR: Barnes, C.J., Simms, V.C.J., Irwin,
Lavender, Doolin, Hargrave, Opala, JJ.
DISSENT: Hodges, J.
Lee Way Motor Freight, Inc. v. Frank W. Ste-
phenson, Own Risk and the Workers’ Compensa-
tion Court of Oklahoma.
Certiorari denied.
CONCUR: Barnes, C.J., Sims, V.C.J., Irwin,
Hodges, Lavender, Doolin, Hargrave, Opala, JJ.
/s/ Don Barnes
Chief Justice
hal
20a
APPENDIX D
IN THE DISTRICT COURT IN AND FOR
CREEK COUNTY
(Drumright Division)
STATE OF OKLAHOMA
Case No. C-79-8
GEORGE MISKOVSKY,
Plaintiff,
vs.
WORLD PUBLISHING COMPANY, a Corporation; and
NEWSPAPER PRINTING CORPORATION, a Corporation,
Defendants.
[Filed May 16, 1980]
FIRST AMENDED PETITION
I.
Defendant, WORLD PUBLISHING COMPANY, is an
Oklahoma corporation licensed to do business in the State
of Oklahoma, with its principal piace of business in
Tulsa, Oklahoma. Defendant, NEWSPAPER PRINT-
ING COMPANY, is an Oklahoma corporation licensed to
do business in the State of Oklahoma, with its principal
place of business in Tulsa, Oklahoma.
II.
Defendants are engaged in printing, publishing, and
circulation of a newspaper known as The Tulsa World, a
2la
newspaper published in Tulsa, Oklahoma, and of general
circulation in Creek County and the State of Oklahoma.
III.
The Plaintiff, GEORGE MISKOVSKY, is a resident of
Oklahoma City, graduate of the University of Oklahoma,
and a widely known practicing attorney there since he
was admitted to the Bar in 1936. He has a reputation of
being a successful and responsible attorney and member
of his profession. He is married, has four children and
ten grandchildren. He has also been a successful busi-
nessman ; has been active in civic and social] affairs 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 11th day of August, 1978, the defendants, by
and through their agents, servants, and employees, mali-
ciously composed and published concerning the Plaintiff,
an editorial on the front page of The Tulsa World en-
titled, “Voice From the Sewer’, which contained false
and defamatory matter designed to injure Plaintiff
GEORGE MISKOVSKY’S character and reputation, pro-
fessional standing in the community, and chances to be
elected United States Senator. The maliciously false and
defamatory matter accuses Plaintiff, inter alia, of irre-
sponsibly making an effort to smear Governor David
Boren with an implication of homosexuality, of taking
the prize for the filthiest stunt that has ever been pulled
by a serious candidate for major public office in this
State, of stooping to the lowest depths of mudslinging
and obscene electioneering in the history of gutter poli-
tics, and of making a charge with a voice from the sewer.
A true and correct copy of said editorial as above stated
is attached hereto marked Plaintiff’s “Exhibit 3” and
made a part hereof by reference.
22a
¥
The Defendants are possessed of vast holdings, are
reasonably worth many millions of dollars, and are cap-
able of responding to compensatory and exemplary dam-
ages 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.
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 Oklahoma.
The Defendants did intend to infer by their writing and
characterizations that the Plaintiff charged David L.
Boren with homosexuality which constitutes the crime of
criminal libel and slander. Those writings and character-
izations did create in the minds of the multitude of peo-
ple 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
23a
and feature stories that otherwise were not afforded 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 politically, personally and professionally, and 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 catagorically 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 gover-
nor’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 Sen-
ate, 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.
24a
VI.
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
duty to call this to the attention of the Governor and the
voters, and give the Governor an opportunity 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 direct 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 de-
stroyed and his name was besmirched.
All of which has caused the Plaintiff irreparable phys-
ical, mental, emotional and financial damage and injury.
25a
VII.
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 at-
tached hereto as Plaintiff’s “Exhibit 2” and made a part
hereof by this reference.
On August 11, 1978, the Defendant in two front page
stories “Boren Issues Denial...” and “Media Blast
Circular Maligning Governor”, and a front-page edi-
torial “Voice from the Sewer’’, maliciously and intention-
ally libeled and villified Plaintiff, a copy of which is at-
tached hereto as Plaintiff’s “Exhibit 3” and made a part
hereof by this reference.
On Saturday, August 12, 1978, Defendant published
an (AP) story entitled “Miskovsky says air had to be
cleared” this article is attached hereto as Plaintiff’s “Ex-
hibit 4” and made a part hereof by this reference.
On August 13, 1978, the Defendant, as a part of its
plan and scheme to maliciously villify Plaintiff, published
a front page news analysis entitled “Sympathetic Back-
lash Might Aid Boren’s Senate Bid,” which is attached
hereto and made a part hereof as Plaintiff’s “Exhibit 5”.
On Monday, August 14, 1978, the Defendant in fur-
therance of its intentional plan and scheme to further
villify plaintiff, published another (AP) story entitled
“Retractions Demanded by Miskovsky”, which is attached
hereto and made a part hereof by reference, and marked
Plaintiff’s “Exhibit 6”.
VII.
The said defamatory matter was published within
three weeks of the date of the primary election for the
United States Senate.
26a
IX.
That the above stated articles and editorials when con-
sidered as a whole engenders in the minds of the reader
a conclusion, impression, or opinion of the Plaintiff that
is defamatory and, as such, tends to expose Plaintiff,
GEORGE MISKOVSKY, to public hatred, contempt and
abliquy, and is libelous per se; that the said articles and
editorials were composed and published by the defend-
ants, 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.
X.
That the statements complained of in the aforesaid
publications were wholly false, unprivileged, vicious, and
malicious and the Defendant by means of said publica-
tion 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 Senator were completely destroyed, all to his
actual damage in the sum of Five Million Dollars
($5,000,000.00).
XI.
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 result
of the malicious acts of the Defendant, and all to Plain-
tiff’s special damages in the sum of Five Million Dollars
($5,000,000.00).
XII.
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).
27a
WHEREFORE, Plaintiff prays judgment against the
defendants in the sum of Five Million Dollars ($5,000,-
000.00) actual damages, Five Million Dollars ($5,000,-
000.00) special 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 Plaintiff
BY
Ep MORRISON
CERTIFICATE OF MAILING:
I, Ed Morrison, do hereby certify that I mailed a true
and correct copy of the above and foregoing First
Amended Petition to Boone, Ellison & Smith, ATTN:
James O. Ellison, Edwin S. Hurst and J. Schaad Titus,
at 900 World Building, Tulsa, Oklahoma 74103, on this
—— day of May, 1980, with proper postage affixed
thereto.
ED MORRISON
28a
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 Res-
taurant in El] 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:
“I am against homosexuals in the school systems. They
are a threat to our children. They are like vultures ‘prey-
ing’ on our young.
“IT am against homosexuals or bisexuals in office or gov-
ernment. They are a threat to our national security.
29a
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.
“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 categorical
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 follow-
ing 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 activ-
ity?
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 af-
flicted with this kind of abnormal behavior.
A U.S. Senater 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 can-
didate afflicted with any physical, mental or philosophi-
cal weakness that might be dangerous to our national
80a
security or which might jeopardize the best interests of
the majority of the people.
If a candidate is a homosexual, a person who is mentally
deranged or a person of bizarre philosophical demeanor,
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.
Sincerly,
/3/ George Miskovsky
GEORGE MISKOVSKY
8la
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, planes or nuclear
devices to Arabs. The Israelis and the Jewish people are
our allies, and 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 disap-
pearing. 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 investi-
gation on the massive amount of plutonium that has been
disappearing since 1970.
‘I am against abortions.
I am against the human baby being cloned.
82a
I am against sex changes.
I am against busing. No student should be forced to at-
tend 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.
ia
33a
APPENDIX E
EXHIBIT 3
BOREN ISSUES DENIAL ON QUESTIONS ABOUT
ABNORMAL SEXUALITY
By CHUCK ERVIN
World Capitol Bureau
OKLAHOMA CITY—Gov. David Boren cut short a
campaign trip to western Oklahoma Thursday and re
turned to Oklahoma City to deny allegations that he is a
homosexual.
Democratic U.S. Senate candidate George Miskovsky
had asked Boren earlier to state under oath whether he
is a homosexual or a bisexual and if he has ever engaged
in abnormal sexual activity.
Boren, who also is seeking the Democratic U.S. Senate
nomination, issued an immediate denial, calling the state-
ment “utterly ridiculous and categorically untrue... .
A vicious lie.”
The governor was greeted at Wiley Post Airport by
200 cheering supporters that included his wife, Molly,
his parents, Mr. and Mrs. Lyle Boren, campaign staffers
and state employees.
HE SMILED BROADLY AS THE crowd chanted,
“We want Boren.”
Asked if he plans legal action, Boren said he would
make no decision until after the election.
“We won’t be sidetracked by this,” he said. “Unfortu-
nately, you can say almost anything about a public offi-
cial and get by with it.”
He added that he doesn’t believe the allegation will
hurt his campaign.
84a
“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. This shows some of the other
candidates are not winning on the issues and are resort-
ing to character assassinations.
I’ve been under a great deal of scrutiny and the people
of Oklahoma know me.”
Mrs. Boren, who cut short her own campaign trip to
Hugo to be with Boren, said her reaction to the allega-
tion is “to work twice as hard for my husband’s election
and to reread the 27th Psalm.”
At a Capitol press conference earlier Thursday, Mis-
kovsky released the text of a letter he said he has sent to
the governor.
THE LETTER POSED FOUR questions to the gov-
ernor:
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
activity?”
Miskovsky said he was raising the questions because
a third Democratic Senate candidate, Anthony Points,
has accused the governor of being a homosexual.
Points, 31, is a home remodeling contractor in Okla-
homa City. He was a political unknown until several
months ago when he ran several newspaper ads announc-
ing his candidacy. He lists his address as a northwest
Oklahoma City apartment building.
Attempts to reach Points Thursday for comment were
unsuccessful.
85a
Miskovsky produced a leaflet he said was distributed
by Points at a Canadian County Democratic women’s
club meeting.
IT STATED:
“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.”
Miskovsky, who was present at the meeting, said
Points also verbally accused Boren of being a homo-
sexual.
Although Points could not immediately be reached for
comment, Mrs. Floretta Gholston, vice president of the
Canadian County Democratic Women’s Club, confirmed
that Points made the statement attributed to him by
Miskovsky and said he had not offered any evidence in
support of it.
Miskovsky also failed to offer any evidence, when he
was asked Thursday if he had any.
“T believe it is the right of every citizen, if it cun be
ascertained, to know if a candidate for U.S. senator is
afflicted with this kind of abnormal behavior,“ Miskovsky
said in his letter to Boren.
“A U.S. senator has access to highly sensitive infor-
mation 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 philosophical weakness that might be dangerous to our
national 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.
86a
“And the candidate should disclose it in order to pro-
tect his effectiveness as the representative of the ma-
jority and free himself from any politically motivated
intrigue, blackmail, extortion or compromise to prevent
disclosure of his true identity.”
Miskovsky asked Boren to respond under oath.
Boren’s response was to label the statement by Points
as “gutter politics.”
“The statement is utterly ridiculous and categorically
untrue,” Boren said.
“I don’t know Mr. 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 re-
flects on the reputation of my wife, children and family,
as well as myself.
“This kind of tactic just makes it even clearer to the
people the contrast between the other campaigns and the
clean, positive campaign that I intend to continue to
run.”
Nov. 78
37a
APPENDIX F
EXHIBIT #3-A
OKLAHOMA PRESS
CLIPPING BUREAU
Oklahoma City, Oklahoma
Daily World
Tulsa, Okla.
115, 695
Date—8-11-78
MEDIA BLAST CIRCULAR
MALIGNING GOVERNOR
By The Associated Press
At least three Oklahoma newspapers, including the
Tulsa World, and one radio station had immediate strong
editorial responses to George Miskovsky’s injection of
homosexual allegations into the Democratic campaign
for the U.S. Senate nomination.
In Oklahoma City, radio station KTOK said the names
of Miskovsky and Anthony Points, the candidate who
circulated the flyer containing the allegations, should be
stricken from the election ballot.
“Such loathesomeand degrading statements, which
have been made with no proof, speak eloquently of the
kind of statesmanship either Miskovsky or Points would
lend to the U.S. Senate if they were elected,” the edi-
torial read by KTOK’s news director; Bob Durgin, said.
“OKLAHOMA GOV. DAVID Boren, in his defense of
this gut-shot garbage-pail politics, has my unequivocal
support,” Durgin said in the editorial.
38a
The KTOK editorial branded the statements “dirt-bag
politics.”
A Daily Oklahoman editorial prepared for Friday edi-
tions said, “George Miskovsky has sunk to a new low in
Oklahoma political rhetoric—and for him that takes some
doing.”
The editorial said Miskovsky’s statements were an at-
tempt “to inject some sign of vitality into his moribund
campaign.”
“WERE IT NOT FOR THE FACT that American
law and tradition make it virtually impossible to libel
or slander a political figure, Miskovsky’s words would
be actionable,” the Oklahoman editorial said. “As it is,
they are merely despicable and stupid.”
The editorial notes that Boren is considered the lead-
ing candidate in the race.
“So what does an aging ex-politician, hungry for the
limelight again, do in a situation like this? More often,
than not, he goes to the old mudball,” the editorial said.
“Miskovsky should save his gutter theatrics for the
next time he is defending some scoundrel in criminal
court,” the Oklahoman editorial said.
Earlier, in its late edition Thursday afternoon, the
Oklahoma City Times said in a front page editorial, the
public will see the charges as a “repugnant and dirty
attempt to smear Oklahoma’s governor.”
ns i
39a
APPENDIX G
EXHIBIT 3-B
OKLAHOMA PRESS
CLIPPING BUREAU
Oklahoma City, Oklahoma
Daily World
Tulsa, Okla.
115, 695
Date—3-1-78
AN EDITORIAL
VOICE FROM THE SEWER
FORMER STATE Sen. George Miskovsky won him-
self an unenviable place in Oklahoma history Thursday.
He took the prize for the filthiest stunt that has ever
been pulled by a serious candidate for major public office
in this state.
Oklahoma has seen some mud-slinging and some ob-
scene electioneering in years past. But nothing in the
history of gutter politics reaches the depths of Miskov-
sky’s effort to smear Gov. David Boren with an im-
plication of homosexuality.
The smear would be bad enough if made openly and
directly, and if Miskovsky himself accepted responsibility
for it and was prepared to support the charge. But he
did not have the guts to make the charge openly. In-
stead, he used his own well known name to draw at-
tention to an obscene campaign flyer circulated by an
unknown candidate, a candidate to whom no one had
paid any attention previously.
Unfortunately, Miskovsky wasn’t the only major can-
didate to circulate the homosexuality smear. It had been
whispered around by others.
40a
Even before Miskovsky’s news conference, Gov. Boren
had been the victim of one of the worst smear campaigns
in memory.
The real victim here is not Gov. Boren, but Miskovsky
and the others who sacrifice their own reputations and
personal honor by circulating this kind of filth.
Miskovsky’s charge is truly a voice from the sewer.
4la
APPENDIX H
EXHIBIT 4
Tulsa World
Saturday, August 12, 1978
MISKOVSKY SAYS AIR
HAD TO BE CLEARED
OKLAHOMA CITY (AP)—A. U.S. Senate hopeful
who wrote Gov. David Boren asking the governor to
state under oath whether he is a homosexual said Fri-
day he stands behind his decision to air statements made
by a third senatorial hopeful.
George Miskovsky said Anthony Points had made the
allegations that the governer is gay while addressing
a Canadian County Democratic Women’s Club forum at
El] Reno. Club members later confirmed the statement.
Boren categorically denied the allegation, calling it a
“vicious lie.”
Miskovsky, Boren and Points are among the candidates
seeking the Democratic nomination for the Senate.
“T thought both the governor and the editorial writers
overreacted,” Miskovsky said. “They acted emotionally
as if I had made the charge.
“T had 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 gov-
ernor an opportunity to respond.”
Miskovsky wrote Boren on Thursday asking the gov-
ernor to answer Points’ allegation. He said his initial
purpose for writing the letter was to “clear the air
about a bombshell statement made at a public meeting.”
But, Miskovsky indicated, the move backfired.
42a
“I’m not a male Anita Bryant and don’t want to take
on the problems of the gays across the nation, but I still
believe that I made the request in a sincere and un-
varnished manner and acted in a public service,” Miskov-
sky said.
“My intention at the time was to clear the air and
I don’t know whether or not this overraction to my
letter has hurt my campaign. If I’m to be punished
for repeating what I heard in a public meeting, then so
be it.”
Miskovsky had asked Boren if he knew what a homo-
sexual or bisexual was; if he was a homosexual or bi-
sexual; if he had ever been a homosexual or bisexual
and whether he had ever engaged in homosexual or bi-
sexual activity.
Asked what his answers to the four questions would
be, Miskovsky said, “To No. 1, I would answer yes and
to the rest I would answer no.”
Miskovsky said he felt he was the victim of the back-
lash about the allegations, instead of Points, but added
he believes the public “has a right to know if a candidate
has any physical, mental or psychological weakness” that
might be dangerous to national secuirty.
He added he believed the letter and the airing of the
unsubstantiated charge was appropriate and is an is-
sue that needed to be raised.
“If it were turned around and people put out rumors
on me that I was gay or homosexual, then I would be
glad for someone to make the issue public so I could
put the rumors to sleep,” Miskovsky said. “I think this
whole thing has provided a forum for the governor.”
43a
APPENDIX I
EXHIBIT #5
OKLAHOMA PRESS
CLIPPING BUREAU
Oklahoma City, Oklahoma
Sunday World
Tulsa, Okla.
197, 727
Yemocratic Race Takes Bizarre Twists
SYMPATHETIC BACKLASH MIGHT AID
By CHUCK ERVIN
World Capitol Bureau
OKLAHOMA CITY—Oklahoma’s 1978 race for the
U.S. Senate has taken first one bizarre twist, then an-
other, culminating in the grotesque and unsubstantiated
charge that Gov. David Boren is a homosexual.
A News Analysis
The allegation, made by one Democratic candidate—
Anthony Points—and repeated by another—former state
senator George Miskovsky—was branded a “vicious lie”
by Boren, who also is seeking the nomination.
Most political observers believe the allegation will not
greatly harm the Boren campaign for several reasons.
The first is that there was no effort made by either
Miskovsky or Points to substantiate it.
Boren moved quickly to deny it, and his wife, family
and supporters rallied around him.
Finally, rumors about the governors’ sexual preference
have circulated for several years, usually spread with
great relish by his bitter political enemies.
44a
Although it is impossible to tell for sure, a majority
of Oklahomans had probably already heard some word-
of-mouth version of Points’ allegation.
The fact that it is now out in the open has given the
governor the opportunity to officially deny it.
Some observers believe there may even be a sympathy
backlash that could push Boren over the 50 percent mark
needed to win the Democratic nomination without a run-
off.
Most observers believed that was at least a possibility
even before Points and Miskovsky injected the homosex-
uality issue into the campaign.
State Sen. Gene Stipe’s surprise entry at the last min-
ute galvanized Boren’s complacent workers and kicked
off a flurry of activity. His staff says the homosexuali:y
charge has done the same thing.
Although Stipe has talked confidently about winning
the election, is a wily veteran of the political wars and
has sunk a tremendous amount of money into a media
advertising campaign, it is difficult to find his strength.
Local politicians in a number of counties believe he is
running third behind Boren and former U.S. Rep. Ed
Edmondson of Muskogee.
Some say Stipe’s entry created “a lot of talk” in their
areas but that the McAlester Democrat hasn’t been able
to translate the apparent interest into any substantial
number of votes.
Edmondson apparently has managed to maintain some
strength with organized labor and in his old second dis-
trict congressional base.
He must overcome the stigma of two earlier defeats
in Senate capaigns, however, and is running an under-
financed race.
45a
Another imponderable in the race is the effect of an
FBI probe and federal grand jury investigation of Stipe’s
involvement in the acquisition of a Small Business Ad-
ministration loan for McAlester Frozen Foods, Inc.
Oliver “Buck” Revell, chief agent for Oklahoma, stated
the FBI is checking into allegations of fraud against
both the state and federal government.
Stipe has been trying to turn the investigation to his
advantage, charging the FBI, U.S. Attorney Larry Pat-
ton and Boren with conspiring to smear him politically.
Stipe’s most telling point is that the FBI previously
investigated his connection with McAlester Frozen Foods
and dropped the probe severa! years ago.
Revell confirmed the earlier investigation, but said it
was curtailed because the FBI couldn’t get the informa-
tion it needed from the SBA.
Given the FBI’s and Justice Department’s investiga-
tory powers, that explanation seemed somewhat lame.
Unless Stipe can somehow turn an ongoing FBI probe
of his activities to his advantage, its potential for dam-
age is great.
Stipe’s rural, old guard image is not the kind that is
likely to win votes in the metropolitan areas either and
the time to turn it around is growing short.
Whatever the outcome of the Senate race, it has over-
shadowed the campaign for governor—usually the glamor
race in Oklahoma.
46a
APPENDIX J
EXHIBIT #6
OKLAHOMA PRESS
CLIPPING BUREAU
Oklahoma City, Oklahoma
Daily World
Tulsa, Okla.
115, 695
Date—3-11-78
RETRACTIONS DEMANDED BY MISKOVSKY
By The Associated Press
George Miskovsky has threatened to sue three news-
papers and two broadcasters unless they retract edito-
rials that criticized him for asking about Gov. David
Boren’s sexual orientation.
Miskovsky, 68, who is among those opposing Boren
for the Democratic U.S. Senate nomination, said Sunday
he will “prepare to file libel and slander actions” against
The Tulsa World, plus The Daily Oklahoman, The Okla-
homa City Times, television station KWTV and radio
station KTOK, all of Oklahoma City, unless the news-
papers and broadcasters retract their editorials against
him,
Byron Boone, publisher of The Tulsa World, said he
would not comment on what his newspaper will do before
Miskovsky takes some action, but added, “We wouldn’t
have run it (the anti-Miskovsky editorial) unless we
would’ve thought it was proper.
When told of the threat, officials of the Oklahoma City
newspapers and broadcast stations said they will not re-
tract their editorials.
47a
MISKOVSKY TOUCHED OFF sharp editorial cr'ti-
cism Thursday when he asked Boren to say under oath
whether he is or ever has been a homosexual or bisexual.
Boren called allegations that he is a homosexual “a
vicious lie,”’ but did not give a sworn statement as Mis-
kovsky asked.
The unsubstantiated homosexual allegations against
Boren were raised by Anthony Points, a minor Senate
candidate, but were not publicized until Miskovsky asked
Boren about the charges.
Though he will produce no evidence, Points also claims
he can prove that “40 percent of the people in govern-
ment, over 50 percent of the people in the school” and
most salesmen and people with highpaying jobs are homo-
sexuals.
“MY EDITORIAL WAS VERY simple and legal,”
said Bob Durgin, news director of KTOK. “I think he’ll
(Miskovsky) probably go ahead and file suit because he’s
got nothing to lose now.”
Durgin said Miskovsky’s lawsuit is “another good way
of keeping his name before the electorate.”
“KWTYV stands behind our editorial,” said Ed Turner,
KWTYV news director.
Joining KTOK and KWT' in refusing to accept Mis-
kovsky’s demand, Jim Standard, managing editor of the
Oklahoman and Times, said, “The only comment we have
is that we plan no retraction.”
THE EDITORIALS “Maliciously attack my name,
my personal character and my reputation as a lawyer,”
Miskovsky said. “My family, my friends and I deeply
resent the vicious attack which resulted from violent,
unthinking and emotional overreaction. ... These at-
tacks reached an all-time low in gutter and sewer jour-
nalism, if indeed it may be called journalism.”
ids -
48a
“IT do want a retraction of the slander, the villification
and the libel that was directed at me... without any
just cause,” Miskovsky said.
Miskovsky charged that the editorials were motivated
by support he believes news organizations are giving
Boren in news coverage as well as editorials.
“I am not expressing any opinion” on Boren’s alleged
homosexuality, Miskovsky said. “I thought it appropri-
ate that I submit the question to Boren.”
MISKOVSKY SAID HE WILL GO to the Oklahoma
County court clerk’s office at about 10 a.m. Monday to
give a sworn statement answering the same questions he
. asked Boren to answer under oath.
“T have never been, I am not and I heve no desire
to be homosexual or bisexual,”’ Miskovsky said.
The Oklahoma City lawyer said he will hold a press
conference at 2 p.m. Monday at the state Capitol to
distribute copies of his sworn statement denying homo-
sexuality and bisexuality.
Miskovsky said he believes his raising of the homo-
sexual issue will help him win votes among “the right-
thinking Christian people in Oklahoma” and members of
other religions “who abhor the threat of homosexuality
infecting the community.”
THOUGH MANY POLITICAL Observers rate Miskov-
sky’s chances in the Senate race as poor, Miskovsky said
Sunday he has “a good chance to make the runoff and
then win the general election.”
Miskovsky said he raised the homosexual issue only
because he is “deeply concerned about the right things
in relation to this country.”
“I have no rancor or hatred or bitterness or any de- |
sire to punish people who may be homosexuals,” Miskov- x,
sky said. “. .. we must tolerate them, (but) we should i.
49a
not condone them or their actions. They’re people who
need guidance, help, therapy, inspiration and direction
to adjust to the accepted folkways and mores of our
time.
“And I hope that our civilization never embraces the
practice of homosexuality or bisexuality because to me
and to my mind the thought of it is tremendously degrad-
ing,” Miskovsky added. “I think it would deprave a
nation and be ruinous to a people.”
50a
APPENDIX K
Oklahoma Statutes Tit. 12 § 1441
Libel is a false or malicious unprivileged publica-
tion 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
scandalize 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.