# Petition — Miskovsky v. World Publishing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0672%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1007 ## Text Vv. a TLED 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) 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0672%3A1. Public record. Not legal advice.