Petition for Writ of Certiorari — WKRG-TV, Inc. v. Wiley

Supreme Court, US.

FILED

oS é | )

86 -9 45

DEC 9 1986

re JOSEPH F. SPANIOL, JR.

SE ON SS IT Bench

| —————__ an

IN THE \

Supreme Court of the GAnited States

OCTOBER TERM, 1986

WKRG-TV, INc.,

Petitioner,

v.

DAN WILEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

Bruce W. SANFORD

Counsel of Record

ADRIENNE S. WIEAND

BAKER & HOSTETLER

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 861-1500

Counsel for Petitioner

OF COUNSEL:

VINCENT F. KILBorn, III

KILBORN & GIBNEY

1206 Dauphin Street

Mobile, Alabama 36633

(205) 433-1681

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PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

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QUESTION PRESENTED FOR REVIEW

Whether the Constitution confers a privilege to pub-

lish a fair and accurate report of a false and defam-

atory statement made publicly about a public official

when the report relates to a public controversy and

does not concur in or espouse the defamation.*

* WKRG-TV, Inc. is a corporation doing business in Alabama,

wholly owned by a private individual.

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........:cccceeeseeeees

CN RD, si auahdbannsisavannonanasnnnabens

Nh ios cctbdeasinndaneadinneanenks

CONSTITUTIONAL PROVISIONS INVOLVED ..........02s00+

STATEMENT OF THE CASE .......cccccsesseseeeees pret

A.

B.

C.

eeberee OE FOB x.ccancecesssecsessansssccsesae

Pm TEMG siinensiccosecensnicccsscscarscnse

How The Federal Question Was Pre-

EE =, | s isuccdisbentneonensatunsnanpeieassnnadts

REASONS FoR GRANTING THE WRIT ..........csccsceseees

A.

To Protect Free Discussion Of Public Af-

fairs, A Core First Amendment Value,

The Constitution Confers A Privilege To

Accurately And Fairly Report About

False And Defamatory Statements Con-

cerning A Public Official Made At A Pub-

lic Meeting In The Context Of A Public

COMRIIUIEE vcr i cnstnsstssistarsiavasesinasvedsenesssrs

. In Refusing To Recognize A Constitu-

tional Privilege For Neutral Reportage,

The Decision Of The Alabama Supreme

Court Conflicts With Decisions By Other

State And Federal Courts .............:000

A en oe aa i lesud kavetannaadantes

CT RTE ETERS SET LOIS ERENT NEE FOTO

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19

22

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TABLE OF AUTHORITIES

CASES: Page

Bair v. Palm Beach Newspapers, Inc., 387 So. 2d

Re Cems Br GR. A TOD) ocsvesccccccccccceess 20

Barry v. Time, Inc., 584 F. Supp. 1110 (N.D. Cal.

hark ais linda a onaalnindadblbddnsdiuhcnedescsoneneconce passim

Burns v. Times Argus Ass’n, 139 Vt. 381, 480 A.2d

RIE 5.5000 kat iis csndascanienncabecdbascussbenessecesacie 20

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

I NN Gilad de din cudad ide ba byantnkthns vakaaacsoeness 11,12,13

Curtis Publishing Co. v. Butts, 388 U.S. 130

seis icon chasdnrsdbaaicuyedeuasénnnesosedes 17

Dickey v. CBS, Inc., 583 F.2d 1221 (3d Cir.

ME --<ata aniehciecs iousyan i ncstuiblnknliastylis spctuhapbbboenabnenenee 20

Edwards v. National Audubon Society, 556 F.2d

113 (2d Cir.), cert. denied, 434 U.S. 1002

SI irda pasha chad ennsadibeiintsisdbconanbevenseane passim

Fadell v. Minneapolis Star & Tribune Co., 557 F.2d

107 (7th Cir.), cert. denied, 434 U.S. 966

IS Seidl. Seti ailidintsi schelcnisdaadisaadbepasincnecoonies 19

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

RU ro iss is sce ccidvneeeebemnenmbeeen 15

Gillespie v. United States Steel Corp., 379 U.S. 148

a a a salad apiaeuneuniabenne 12

Globe Newspaper Co. v. Superior Court, 457 U.S.

a SENS nae ar Sete Ca 12

Greenbelt Cooperative Publishing Ass’n v. Bresler,

Ee CUE irs, cuacnshindavcceccascenensctecsdovnace 16

Hogan v. Herald Co., 446 N.Y.S.2d 836, aff'd, 57

DE I IE sbccsciiassindccseninissdesedatmencined 19,21

Huszar v. Gross, 468 So. 2d 572 (Fla. Dist. Ct.

I i 20

Janklow v. Viking Press, 378 N.W.2d 875 (S.D.

NI iain Soca hart al taac Sted a casio cb Sedalia idan 21

iv

Table of Authorities Continued

Page

J. V. Peters & Co. v. Knight Ridder Co., 10

Med.L.Rep.(BNA) 1576 (Ohio Ct. App.

SEE. accisatiticcnenscntesccnneisitiacnesssttineesapesssnntessenceses 21

Krauss v. Champaign News Gazette, Inc., 59 Ill.

App. 3d 745, 375 N.E.2d 1362 (1978) _ ......... 21

Lasky v. ABC, Inc., 631 F. Supp. 962 (S.D.N.Y.

RENEE sccscdcbsnnsuasihbichihiecceinssipaneneniindiieunbmaniiniansiee 20

Makis v. Area Publications Corp., 77 Ill. App. 3d

452, 306 N.E.2d 1186 (1979) .......cccccccssocseeee. 21

Martin v. Wilson Publishing Co., 497 A.2d 322 (R.I.

SUID cicnsushctceceesidacseiauiabsidduhidabeaoessnenacdnshabenesss 20

McCall v. Courier-Journal and Louisville Times Co.,

623 S.W. 2d 882 (Ky. 1981), cert. denied sub

nom. Courier-Journal v. McCall, 456 U.S. 975

CRD sascsesnantdaddsinsiusacsaisasdidcsmieaitabsnbiiniacene 21

McCracken v. Gainesville Tribune, Inc., 146 Ga.

App. 274, 246 S.E.2d 360 (1978) _ ..............0. 21

Medico v. Time, Inc., 648 F.2d 134 (3d Cir.), cert.

denied, 454 U.S. 836 (1981) — ........ccccccccccrccees 13,20

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

BEE CREED widscnesnlesecccninsnssvsctiincinssnsanasacsuncinest 11

Mills v. Alabama, 384 U.S. 214 (1966) _.. ............ 12

Newell v. Field Enterprises, 91 Ill. App. 3d 735,

GRE FETE Ge CN etic tinchnctbacbencceneareceen 19,21

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

CONE - “vinclneissistisiidindcnescaenicypichiniiioninlshinansenuivenmainn 10,14,17

Novel v. Garrison, 338 F. Supp. 977 (N.D. IIl.

SPEED: ~ dtisacincisinsacsetsnstidinieuinintsesiatamebbiineseeisenanan 19

Philadelphia Newspapers, Inc. v. Hepps, _— U.S. —,

BE SEE NEE UID | sncnscensstocncnessceatensenscocane 10

Postill v. Booth Newspapers, Inc., 118 Mich. App.

608, 325 N.W.2d 511 (1982) . ..............ccccccseees 21

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

CRIPUIIEE - Sodanicintuihanuadicasigaiaiidanbveneimeseunineunienensbe 12

Table of Authorities Continued

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

Ge III chacinticcdiid iatndishdeccaneibabdiidabibitintedimesdssonse

Schermerhorn v. Rosenberg, 73 A.D.2d 276, 426

aE AE IED» dincenta dilidetinteincnintsedabnnientne

Time, Inc. v. Pape, 401 U.S. 279 (1971) .............

Wade v. Stocks, 7 Med.L.Rep.(BNA) 2200 (Fla. Cir.

| ORAS REN RD os Set Ls

Whitaker v. Denver Post, 4 Med.L.Rep.(BNA) 1351

CER: WE Ge Tin, TIPU -wettindementhtdenescenecinnncs

Wilson v. Birmingham Post Co., 482 So. 2d 1209

CORN. TOD - ‘sintcnsadendesicesbiiiciliiaiiasiinieaibnshaiscnsess

Woods v. Evansville Press Co., 11 Med.L.Rep.(BNA)

2201 (S.D. Ind. April 17, 1985), aff'd on other

grounds, 791 F.2d 480 (7th Cir. 1986) _........

OTHER AUTHORITIES:

Oe ns sahineilan

ib ee a a

Re FE ee emer a tc: RR, pie

Oh Te

Se Cee I ha

M. Franklin, “A New Constitutional Privilege?”

Cases and Materials on Mass Media Law, 178-

189 (2d ed. 1982) and 39 (2d ed. Supp.

ROOTED sisistatesmnteiaa anda dike sipi atc cnecaen

Note, “The Developing Privilege of Neutral Repor-

tage,”’ 69 Va. L. Rev. 853 (1983) ................

Restatement (Second) of Torts $ 611 (1977) _........

Sowle, ‘““‘Defamation and the First Amendment: The

Case for a Constitutional Privilege of Fair Re-

port,” 54 N.Y.U. L. Rev. 469 (1970) ...........

Page

13

20

13

21

20

14

20

21

21

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1986

No, __

WKRG-TY, INnc..,

Petitioner.

v.

Dan WILEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

Petitioner, WKRG-TV, Inc., respectfully prays that

a writ of certiorari issue to review the judgment and

interlocutory order of the Supreme Court of Alabama

entered in this defamation action on September 12,

1986.

OPINIONS BELOW

The order of the Circuit Court of Mobile County,

Alabama, and the order of the Supreme Court of

Alabama are unpublished and are included in the Ap-

pendix hereto.

JURISDICTION

The judgment of the Supreme Court of Alabama,

affirming the trial court’s denial of summary judg-

2

ment for petitioner, was entered on September 12,

1986. This petition for certiorari is filed within 90

days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1257(3) (1982).

CONSTITUTIONAL PROVISIONS INVOLVED

1. First Amendment, United States Consti-

tution:

Congress shall make no law ...

the freedom of speech, or of the press ....

2. Fourteenth Amendment, Section 1, United

States Constitution:

[Njor shall any state deprive any person

of life, liberty, or property, without due

process of law ....

STATEMENT OF THE CASE

A. Statement of Facts

On Friday evening, March 25, 1983, a crowd of

more than one hundred concerned citizens' assembled

in the fellowship hall of the Orchard Baptist Church

in the Orchard Community area of Mobile County,

Alabama to participate in a public meeting organized

by a local environmental activist group called the So-

ciety Against Dangerous Dumping. (R. 688) The cit-

izens gathered to discuss a controversial proposal to

place a “sanitary landfill’ in their neighborhood for

'‘ Deposition testimony indicates that there may have actually

been 200 or more attendees at the meeting. (R. 690) The es-

timate of “more than one hundred” was a minimum estimate

included in the news report at issue.

the disposal of toxic waste. In Mobile County, as else-

where, landfill construction had already become an

inflammatory issue, and the citizens who met on

March 25, 1983 fiercely opposed the location proposed

for the new sanitary landfill because they feared de-

valuation of their property and contamination of their

drinking water. (R. 16)

Approximately two weeks prior to the public meet-

ing, citizens living in the neighborhood had received

an anonymous “rumor sheet’’ in their mailboxes al-

leging that present and past members of the Mobile

County Commission had a pecuniary interest in the

corporation proposing the new sanitary landfill. (R.

14, 18) Specifically, the “rumor sheet’’ stated that

Respondent Dan Wiley (‘Commissioner Wiley’’), then

president of the Mobile County Commission, and for-

mer County Commissioner Bay Haas were part-own-

ers of the A.J.B. Corporation, the corporation that

had applied for a permit to operate a new landfill in

the Orchard Community area. (R. 18)

As the rumor sheet circulated, igniting criticism of

the landfill, the Society Against Dangerous Dumping

held a meeting at the home of a concerned citizen to

galvanize opposition to the proposal. Petitioner

WKRG-TV, Inc. (‘the Station’’), owner of a local tel-

*In fact, a later landfill controversy eventually mushroomed

into a full scale scandal. Two local public officials were indicted

and one later convicted for accepting bribes in return for landfill

permits. Gurney Owens, chairman of the Mobile County Solid

Waste Advisory Board was indicted on February 14, 1986 and

convicted on May 28, 1986 of accepting bribes in exchange for

landfill permits. Douglas Wicks, Commissioner Wiley’s successor,

also was indicted on October 10, 1986 for accepting bribes, and

the case is still pending.

evision station, assigned one of its reporters, Barbara

Shaw, (“‘Shaw’’) to cover the meeting. (R. 12-13) Shaw

learned of the rumor sheet, met Mrs. Cecil Crow and

Linda Young who seemed to be in charge of the

meeting, and ascertained that the group was organ-

izing a drive to circulate petitions protesting the land-

fill and planning a public meeting to discuss the issue.

(R. 16)

After the meeting, Shaw prepared a story on the

growing opposition to the controversial landfill. In an

effort to investigate the accusations made in the ru-

mor sheet, she spoke with James R. Payne, an owner

of the A.J.B. Corporation. Payne told her that Com-

missioner Wiley owned no interest in the A.J.B. Cor-

poration. (R. 578) Payne’s attorney then called Shaw

and told her that broadcasting the rumor might pro-

voke a lawsuit. (R. 583) Shaw discussed the rumor

sheet with the Station’s news director (R. 583) who

decided that since the rumor sheet was anonymously

written and an identifiable source had denied the ru-

mor, the Station would not report the rumor in Shaw’s

March 14, 19838 broadcast about the citizens’ oppo-

sition to the proposed landfill. (R. 578, 580-81, 583)

The following week, the Society Against Dangerous

Dumping informed the Station that a public meeting

concerning the proposed landfill would be held on

March 25, and the Station assigned Mark King, an

award-winning,’ five-year veteran in broadcast jour-

3 In 1984, King won four awards for broadcast journalism: the

Georgia Bar Association’s Silver Gavel Award for a documentary

he had produced about ‘‘death row’’ prisoners; the Mobile Press

Club’s 1988 Award for Outstanding Journalistic Achievement;

the Alabama Associated Press Broadcasters Association’s award

nalism, to cover the public meeting. (R. 653, 688)

Reporters from the Mobile Press Register and another

Mobile television station, WALA-TV, also covered the

meeting.

When King arrived at the meeting, he observed

that every seat in the hall was occupied and that

people were standing in the aisles and spilling out

into the corridor behind the hall. (R. 690-91) Several

local residents, including Linda Young and Mrs. Cecil

Crow, were seated at a table in front of the group

leading the meeting. (R. 690) The issues discussed at

the meeting were summarized by King on the Sta-

tion’s ten o’clock news report that evening. The re-

port began:

(Studio introduction—live)

“Mark King was at a citizen meeting! Let’s

learn about it from him! Mark!

(Mark King—videotape)

“These people are upset because the A.J.B.

Corporation has asked for permits to operate

for the best documentary in Alabama; and the United Press

International Broadcasters Association’s award for the best doc-

umentary in Alabama and the southeastern United States. King

also received an award from the University of Georgia for public

service to broadcasting.

* The full studio introduction ‘“‘pyramided’”’ the news story by

headlining the most controversial aspect of the public meeting—

namely a charge of corruption among county officials. In total,

the introduction read: ‘“‘Good evening ... do you want a landfill

in your neighborhood? Well ... neither do some homemakers in

West Mobile! And they make a serious charge! According to

this group ... the county commission ‘fixed’ plans for the land-

fills because commission president Dan Wiley would profit! Mark

King was at a citizens meeting! Let’s learn about it from him!

Mark!” (R. 184)

private sanitary landfills on two locations in

Howells Mill Road-Schillingers Road area.

They say the two sites would not be suitable

for landfills . .. because they’re a part of the

water shed for Hamilton Creek which leads

into the City of Mobile’s water supply.

‘Nonetheless, they believe the county has

plans to grant permits for the private land-

fills and then contract with the A.J.B. Cor-

poration to use the landfills for the counties

[sic] trash.

The news report went on to summarize the extem-

poraneous statements of many speakers, including

charges made by Mr. Cecil Crow (‘‘Crow’’), a former

Republican member of the Mobile County Commission

who had campaigned against Commissioner Wiley, a

Democrat, in a hotly contested election three years

earlier. During the meeting, Crow, who was seated

in the audience, stood up, gained the floor, and re-

peated publicly the rumor sheet’s accusation that Dan

Wiley and Bay Haas were part-owners of the A.J.B.

Corporation. Crow said that according to county en-

gineers, the County Commission had ‘‘fixed’’ plans

for two landfills because Commissioner Wiley would

profit. (R. 685) Crow encouraged the crowd to attend

the County Commission meeting on the following

Monday to find out whether the rumor was true and

to voice its opposition to the landfill. (R. 662) The

crowd cheered and applauded Crow. (R. 671)

Later in the meeting, Crow addressed the group a

second time and made the following remarks that

were used in the broadcast:®

> Because the meeting was often chaotic, with many people

“The rumor says that Dan Wiley and Bay

Haas are part owners of this corporation ...

And I think when we go down there Monday,

that we’re entitled to know, if there’s any-

body down there that’s working both sides

of the street.

‘‘... I mean, is he part owner of a corpo-

ration that’s trying to do business with the

county ... if he is, we need to know it...

if he isn’t, we need to know it.

In addition to describing the sentiments of the citizens

attending the public meeting, the Station’s broadcast

reported Commissioners Wiley and Haas’ denials of

the accusations:

‘“... I contacted both commissioner Wiley

and Mr. Haas at their homes tonight ...

Wiley says the rumors are ridiculous and he

says he doesn’t know what the A.J.B. Cor-

poration is. Haas says the charges are totally

untrue.

(R. 659, 710) The following Monday, March 28, 1983,

the Station covered a County Commission meeting

talking and shouting at once, the Station’s cameraman could not

tape the remarks of each speaker. (R. 663) When Crow initially

stood up and spoke, the cameraman did not get Crow’s remarks

on tape, although Mark King made notes of those remarks.

Therefore, King approached Crow after he had spoken and asked

him to repeat his comments if Crow decided to speak before

the crowd again, in addition to any further comments he might

make later. Crow did speak before the crowd again, and at that

time the cameraman taped Crow’s slightly amended reiteration

of his initial statements as well as his additional comments. (R.

691-92, 694)

over which Commissioner Wiley presided and again

reported Commissioner Wiley’s denial of Crow’s ac-

cusations.

B. Procedural History

On May 24, 1983, Commissioner Wiley filed this

defamation action against the Station in the Circuit

Court for Mobile County, Alabama, alleging that the

Station’s March 25, 1983 news broadcast of state-

ments made by Cecil Crow was libelous.* The Station

asserted in its Answer, inter alia, that the broadcast

fairly, accurately, and disinterestedly reported the al-

legedly false and defamatory statements made at the

meeting.

The trial court denied the Station’s Motion for Sum-

mary Judgment on May 9, 1985, and ruled “‘that this

interlocutory order [denying summary judgment] in-

volves controlling questions of law as to which there

is substantial ground for difference of opinion, and

that an immediate appeal from this order would ma-

terially advance the ultimate termination of the liti-

gation, and that the appeal would avoid protracted

and expensive litigation.’’ Appendix to Petition for

Certiorari at la (hereinafter cited as ‘‘App.’’).

The Station petitioned the Supreme Court of Ala-

bama for permission to appeal the controlling question

of whether the First Amendment to the United States

Constitution confers a privilege to accurately and neu-

trally report defamatory statements made publicly

about a public official that relate to a public contro-

versy. If such a privilege is constitutionally required,

‘ Opting for the messenger rather than the speaker, Commis-

sioner Wiley did not sue Cecil Crow.

sll

then the Station has a complete defense to the instant

defamation action. The Alabama court granted per-

mission for the appeal on June 21, 1985, and issued

a per curiam Opinion on September 18, 1986 affirm-

ing the trial court’s interlocutory Order denying the

Motion for Summary Judgment. App. at 3a. The Al-

abama court declined to adopt the version of the neu-

tral reportage privilege articulated in the Restatement

(Second) of Torts, § 611 (1977). In fact, the Supreme

Court of Alabama refused to recognize the privilege

on either constitutional or common law grounds even

though the court cited one of its own opinions, handed

down only nine months earlier, approving the very

same privilege. App. at 5a.

Rather than directly addressing the central question

presented by the interlocutory appeal, the Alabama

court denied in a sentence the existence of a consti-

tutional privilege and embarked on a lengthy expla-

nation of why the common law privilege for fair and

accurate reports of records of criminal proceedings

was not applicable.’ The court did not differentiate

between the two somewhat related privileges although

the privileges differ substantially both in terms of

‘In its Opinion, the Supreme Court of Alabama seems either

determined to sidestep the issue certified for appeal or simply

misdirected altogether. The extensive discussion of the Station’s

conduct in preparing the news report in question is illustrative

of the court’s misdirection. The Alabama court analyzes facts

tending to show that the Station may have had the “actual

malice’ required to defeat a qualified privilege like the fair

report privilege. The trial court, however, specified in its inter-

locutory Order that the controlling question of law was whether

the press enjoyed an unqualified privilege for neutral reportage,

obviating the need to analyze the facts for evidence of actual

malice.

10

their application and their justification. As the Ala-

bama Court noted, the fair report privilege is a com-

mon law privilege for the republication of official

documents available for public inspection. The fair

report privilege arises out of the originator’s duty to

publish the records in question, e.g., records of judicial

proceedings.

In contrast, the constitutional privilege of neutral

reportage asserted by the Station arises not out of

the originator’s duty to publish but rather out of the

press’ responsibility as surrogate for the public to

report what has already been published. This consti-

tutional privilege protects the republication of defam-

atory statements because the public has a First

Amendment interest in learning that certain defam-

atory statements were made, regardless of whether

those statements are true. Therefore, the neutral re-

portage privilege gives the press an absolute defense

to a defamation action even where it has knowledge

that defamatory statements it republishes are false,

so long as it reports the statements fairly, accurately,

and neutrally.®

C. How The Federal Question Was Presented

The Station asserted a federal constitutional priv-

ilege to publish a neutral, fair, and accurate report

of a defamatory accusation made publicly about a pub-

lic official and relating to a public controversy both

* A public official whose reputation is damaged as a result of

false and defamatory statements still has a cause of action

against the originator of the statements from whom the official

may recover damages if he proves that false statements of fact

were made with ‘actual malice.” See New York Times Co. v.

Sullivan, 376 U.S. 254 (1964); Philadelphia Newspapers, Inc. v.

Hepps, U.S. , 106 S.Ct. 1558 (1986).

11

in its Answer to Commissioner Wiley’s Complaint and

in its Motion for Summary Judgment. In urging re-

versal of the trial court’s denial of the Motion for

Summary Judgment, the Station advanced this federal

constitutional privilege in its appeal to the Supreme

Court of Alabama.

The interlocutory ruling by the Supreme Court of

Alabama, refusing to recognize the constitutional priv-

ilege of neutral reportage, is a final judgment under

Supreme Court Rule 17.1(c). The federal issue has

been finally decided, and reversal of the state court

on this federal issue would preclude any further lit-

igation of the instant action.

If this Court does not grant this petition, the pro-

ceedings pending in the trial court will be decided on

nonfederal grounds. If the Station prevails, it will

incur unnecessary expenses of resources and time. If

Commissioner Wiley prevails, the Station will be de-

prived of its constitutional rights and arguably left

no opportunity for review of the Alabama court’s rul-

ing on the constitutional question now presented, since

the issue will have been litigated already on an earlier

interlocutory appeal.

As this Court stated in a similar case, “‘[djelaying

final decision of the First Amendment claim until after

trial will ‘leave unanswered .. . an important question

of freedom of the press under the First Amendment,’

‘an uneasy and unsettled constitutional posture [that]

could only further harm the operation of a free

press.’ ’’? Reaching the merits would be consistent

° Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 485-6 (1975)

(citing Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241,

247 n.6 (1974)).

12

with the pragmatic approach this Court nas followed

in the past in determining finality.'°

REASONS FOR GRANTING THE WRIT

A. To Protect Free Discussion of Public Affairs, A Core

First Amendment Value, The Constitution Confers A

Privilege To Accurately And Fairly Report About

False And Defamatory Statements Concerning A

Public Official Made At A Public Meeting In The

Context Of A Public Controversy.

It is well-established by this Court that a ‘“‘major

purpose”’ of the First Amendment is “‘to protect the

free discussion of public affairs.”” Mills v. Alabama,

384 U.S. 214, 218 (1966). “By offering such protec-

tion, the First Amendment serves to ensure that the

individual citizen can effectively participate in and

contribute to our republican system of self-govern-

ment.’ Globe Newspaper Co. v. Superior Court, 457

U.S. 596, 604 (1982). This Court also has recognized

the critical role of the news media to the preservation

of free discussion of public affairs:

{I]n a society in which each individual has

but limited time and resources with which to

observe at first hand the operations of his

government, he relies necessarily upon the

press to bring him in convenient form the

facts of those operations. Great responsibility

is accordingly placed upon the news media

to report fully and accurately the proceedings

of government .... Without the information

' See Cox Broadcasting v. Cohn, 420 U.S. 469 (1975); Gillesme

v. United States Steel Corp., 379 U.S. 148 (1964); Radio Station

WOW, Ine. v. Johnson, 326 U.S. 120, 124 (1945); and Mills v.

Alabama, 384 U.S. 214, 221-222 (1966).

13

provided by the press most of us and many

of our representatives would be unable to

vote intelligently or to register opinions on

the administration of government generally.

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-

92 (1975). The press often has been characterized as

an agent for the public; when reporting about public

events, the press acts as a “‘surrogate’’ for the pubic

and informs citizens of what they would have seen

and heard had they attended. Richmond Newspapers,

Inc. v. Virginia, 448 U.S. 555, 573 (1980) (Burger,

C.J., announcing judgment); Medico v. Time, Inc., 643

F.2d 134 (3d Cir.), cert. dented, 454 U.S. 836 (1981).

Thus, the press provides citizens with the necessary

information about public issues to enable them to par-

ticipate in a democracy.

Press reports about current public controversies

would be bland, dry, and virtually meaningless indeed

if they did not include statements made by and about

public officials. In a political world dominated by per-

sonalities, issues and controversies of public concern

typically unfold through statements and comments

made by and about the public officials or public fig-

ures involved. Hence ‘‘a vast amount of what is pub-

lished in the daily and periodical press purports to be

descriptive of what somebody said rather than what

somebody did.”’ Time, Inc. v. Pape, 401 U.S. 279, 285

(1971) (emphasis by the Court). Often reports of false

and defamatory statements provide the public with

important information simply because they tell the

public more about the speaker than the target of the

statements.

Since the constitutionalization of libel law in 1964,

a growing accretion of case law has demonstrated the

14

value to the public of uninhibited reporting on defam-

atory statements made about public figures. Illustra-

tive is Barry v. Time, Inc., 584 F. Supp. 1110 (N.D.

Cal. 1984), where a university basketball coach was

accused of improperly accepting payments in violation

of the rules of the National Collegiate Athletic As-

sociation. The accusations themselves, though false,

gave rise to a controversy about illegal recruiting

methods, eventually leading to the implementation of

disciplinary measures in the school’s basketball pro-

gram. Sports Illustrated could not have reported about

the public controversy without republishing defama-

tory statements at the very heart of the controversy.

Thus, the Barry court recognized that ‘‘the public’s

‘right to know’ that serious charges have been made

against a public figure is an important application of

the Supreme Court’s concern that ‘debate on public

issues be uninhibited, robust and wide-open.’ ”’ Jd. at

1125 (quoting New York Times Co. v. Sullivan, 376

U.S. 254, 270 (1964)). The court declined to hold

Sports Illustrated liable for republishing the defa-

mation, ruling that the Constitution confers an ab-

solute privilege to neutrally republish defamatory

statements leveled by one participant in a public con-

troversy against another participant in that contro-

versy. Jd. at 1113.

The constitutional privilege of “neutral reportage’”’

applied by the Barry court was, of course, first rec-

ognized by the United States Court of Appeals for

the Second Circuit in Edwards v. National Audubon

Society, 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S.

1002 (1977), and since has been recognized and

adopted by numerous other courts.'! In Edwards, the

‘1 Tn the instant case (unlike Wilson v. Birmingham Post Co..,

os —

15

Second Circuit recognized that the press had a con-

stitutional privilege to republish libelous statements

made against several prominent scientists involved in

a public controversy over the insecticide DDT. This

privilege applies even if the press has serious doubts

about the truth of the statements, so long as “the

journalist believes, reasonably and in good faith, that

his report accurately conveys the charges made” and

does not espouse or concur in the charges made. /d.

at 120. The Constitution confers this privilege, ac-

cording to the Edwards court, because ‘‘[t]he public

interest in being fully informed about controversies

that often rage around sensitive issues demands that

482 So. 2d 1209 (Ala. 1986)), the Supreme Court of Alabama,

declined to adopt the privilege because the court deemed it to

be tantamount to a “newsworthiness” test for determining

whether a defamatory publication is protected by the First

Amendment. App. at 6a. This Court rejected a newsworthiness

test in Gertz v. Robert Welch, Inc., 418 U.S. 323, 346 (1974),

because such a test would “[florce state and federal judges to

decide on an ad hoc basis which publications address issues of

‘general or public interest’ and which do not.’’ The Court held

instead that the “actual maiice’’ test of Sullivon, 376 U.S. at

279-80, applies to defamatory falsehoods leveled against individ-

uals who have attained puvlic figures status by “thrustfing]

themselves to the forefront of particular public controversies in

order to influence the resolution of the issues involved." Gertz,

418 U.S. at. 344.

The Alabama court incorrectly construed the neutral repor-

tage privilege. The privilege merely requires courts to determine

whether the person allegedly defamed is a public figure or of.-

ficial, whether the alleged defamation was made publicly and in

relation to a public controversy, and whether the alleged defa-

mation was reported neutrally and accurately. Under Sullivan

and Gertz, the courts already are required to make these de-

terminations. No “ad hoc” determinations of newsworthiness

need be made by the courts in applying the neutral reportage

privilege.

16

the press be afforded the freedom to report such

charges without assuming responsibility for them.”

Id.

The Station’s news broadcast, like the Barry and

Edwards news reports, revealed a raging controversy

concerning the issuance of landfill permits in a Mobile

County community. This controversy was quintessen-

tially a matter of local government affairs and thus

one of particular First Amendment concern. See

Greenbelt Cooperative Publishing Ass'n v. Bresler, 398

U.S. 6, 11 (1970). The accusations leveled by Cecil

Crow against Commissioner Wiley before a large au-

dience of local citizens, as well as the cheers and

applause of the audience in response to those accu-

sations, were empirical manifestations of the contro-

versy. The Station could not have provided meaningful

information concerning the controversy to the local

citizenry without reporting about the accusations, nor

could it have explained the accusations without re-

peating them. By reporting about the public meeting

accurately and fairly without espousing the views ex-

pressed by the participants, the Station informed

members of the public of what they would have seen

and heard had they attended the meeting.”

In fact, the circumstances of the Station’s news broadcast

are virtually identical to the facts of Greenbelt, supra, in which

a weekly newspaper republished a defamatory falsehood uttered

by a citizen at a public hearing concerning a local controversy.

In Greenbelt, this Court stated:

It is not disputed that the articles published in the

petitioners’ newspaper were accurate and truthful re-

ports of what had been said at the public hearings

before the city council. In this sense, therefore, it

cannot even be claimed that the petitioners were guilty

17

Even if the Station or its reporters had entertained

serious doubts about the truth of Crow’s allegations,

the controversy still would have existed, and the pub-

lic’s First Amendment interest in learning about it,

and consequently the Station’s duty to report about

it, would have been equally compelling. The public

interest in learning of the accusations is that the

statements were made, regardless of whether they

were true or false. Edwards v. National Audubon

Society, 556 F.2d at 120. By reporting the statements

accurately and neutrally the Station ensured that ‘‘the

public, not the press, [was] the ultimate arbiter of

the truth of accusations made during the course of a

public controversy.” Barry v. Time, Inc., 584 F. Supp.

at 1127."

The ruling of the Supreme Court of Alabama sub-

stantially undercuts the public’s ability to ascertain

the truth in a “free marketplace of ideas’’ by forcing

the press to be the “ultimate arbiter’ of truth and

of any “departure from the standards of investigation

and reporting ordinarily adhered to by responsible

publishers,” Curtis Publishing Co. v. Butts, [388 U.S.

130, 155 (1967)] (opinion of Harlan, J.), much less the

knowing use of falsehood or a reckless disregard of

whether the statements made were true or false. New

York Times Co. v. Sullivan, [376 U.S. 254, 280 (1964).|

Id. at 12-13.

‘* While the Station included the responses of Commissioners

Wiley and Haas to Crow’s accusations in its story, it was not

required to do so under the neutral reportage privilege. As ex-

plained by the Edwards court, a “neutral’’ report does not “es-

pouse,’’ “concur in,”’ or “deliberately distort”’ the charges. 556

F.2d at 120. Consequently, even if the Station had not reported

the denials of Commissioners Wiley and Haas, its broadcast

would have been privileged nonetheless as a “neutral” report.

18

falsity rather than a disinterested reporter of facts

to the public. The Alabama court’s rejection of a neu-

tral reportage privilege no doubt will inevitably com-

pel the press to suppress information about public

controversies. As the court noted in Barry v. Time,

Ine.:

If a repubiisher may be held liable for passing

on newsworthy but defamatory information

to the public, it is likely that he will decline

to publish this information for fear that his

doubts will later be characterized as “‘seri-

ous” and therefore actionable. Even if he

does not fear ultimate liability, the mere

threat of costly and time-consuming inquiry

into his state of mind may cast a chilling

effect on publication. [citation omitted.] In

this way, the public will be deprived of the

opportunity to make informed judgments with

respect to public controversies.

584 F. Supp. at 1125.

Defamatory accusations made at a public meeting

against a local official during the course of a public

controversy precipitate public discussion the protec-

tion of which is at the heart of the First Amendment.

The First Amendment, therefore, confers a privilege

to accurately and neutrally report about such state-

ments. Absent such a privilege the press will be com-

peiled to reduce sharply its coverage of controversial

issues of public concern, severely burdening the ability

of citizens to participate meaningfully in government

affairs.

19

B. In Refusing To Recognize A Constitutional Privilege

For Neutral Reportage, The Decision Of The Ala-

bama Supreme Court Conflicts With Decisions By

Other State And Federa! Courts.

In the decade since this Court declined to review

the Second Circuit’s decision in Edwards v. National

Audubon Society, 556 F.2d 113 (2d Cir.), cert. denied

sub. nom Edwards v. New York Times Co., 434 U.S.

1002 (1977), considerable uncertainty and conflict has

developed throughout the states, and between state

and federal courts, on the issue of whether the First

Amendment confers a privilege for ‘‘neutral repor-

tage.” Because this uncertainty is escalating, it is

imperative that this Court now resolve the issue.

The constitutional privilege for neutral reportage

has received conflicting treatment by the state courts

and the federal courts in New York™ and Illinois,

so: application of the privilege in these states depends

upon the forum in which a defamation claim is

brought.

Furthermore, there is some conflict among federal

circuit courts that have ruled on whether the Con-

stitution confers a privilege for neutra! reportage. The

Seventh Circuit adopted the neutral reportage privi-

lege in Fadell v. Minneapolis Star & Tribune Co.,

557 F.2d 107, 110 (7th Cir.), cert. denied, 434 U.S.

966 (1977), while the Third Circuit expressly rejected

the privilege in Dickey v. CBS, Inc., 588 F.2d 1221

‘4 Compare Edwards, supra, with Hogan v. Herald Co., 446

N.Y.S.2d 836, aff'd, 57 N.Y.2d 630 (1982).

‘85 Compare Novel v. Garrison, 338 F. Supp. 977 (N.D. Ill.

1971), with Newell v. Field Enterprises, 91 Ill. App. 3d 735, 415

N.E.2d 434 (1980).

20

(3d Cir. 1978). More recently, however, the Third Cir-

cuit departed from its analysis in Dickey and cited

the privilege with approval in Medico v. Time, Inc.,

643 F.2d 134 (3d Cir.), cert. denied, 454 U.S. 836

(1981). In Medico, the Third Circuit declared that its

earlier rejection of Edwards was merely dicta. Jd. at

145.

By contrast, there is general unanimity among fed-

eral district courts that the Constitution confers a

privilege for neutral reportage. Three cases have di-

rectly applied the privilege, Woods v. Evansville Press

Co., 11 Med.L.Rep.(BNA) 2201 (S.D. Ind. April 17,

1985), aff'd on other grounds, 791 F.2d 480 (7th Cir.

1986); Whitaker v. Denver Post, 4 Med.L.Rep.(BNA)

1351 (D. Wyo. July 20, 1978); and Barry v. Time,

Inc., 584 F. Supp. 1110 (N.D. Cal. 1984); and at least

one other federal district court has recognized the

constitutional privilege for neutral reportage, Lasky

v. ABC, Inc., 631 F. Supp. 962, 970-71 (S.D.N.Y.

1986) (defining the limits of the privilege).

Many state courts also have cited the neutral re-

portage privilege with approval. Among them, aston-

ishingly, is the Alabama Supreme Court which cited

the privilege with approval in a case decided just this

year. Wilson v. Birmingham Post Co., 482 So. 2d

1209 (Ala. 1986).'° See also Huszar v. Gross, 468 So.

2d 572 (Fla. Dist. Ct. App. 1985); Mariin v. Wilson

Publishing Co., 497 A.2d 322 (R.I. 1985); Bair v. Palm

Beach Newspapers, Inc., 387 So. 2d 517 (Fla. Dist.

Ct. App. 1980); Burns v. Times Argus Ass’n. 139 Vt.

381, 430 A.2d 773 (1981); Schermerhorn v. Rosenberg,

73 A.D.2d 276, 426 N.Y.S.2d 274 (1980); Krauss v.

‘6 See also App. at 5a.

21

Champaign News Gazette, Inc., 59 Ill. App. 3d 745,

375 N.E.2d 1362 (1978); McCracken v. Gainesville

Tribune, Inc., 146 Ga. App. 274, 246 S.E.2d 360

(1978); J.V. Peters & Co. v. Knight Ridder Co., 10

Med. L. Rep.(BNA) 1576 (Ohio Ct. App. 1984); and

Wade v. Stocks, 7 Med. L. Rep.(BNA) 2200 (Fla. Cir.

Ct. 1981). Yet other state courts have rejected the

privilege. Janklow v. Viking Press, 378 N.W.2d 875

(S.D. 1985); Hogan v. Herald Co., 58 N.Y.2d 630, 458

N.Y.S.2d 588, 444 N.E.2d 1002 (1982) (with strong

dissenting opinions);!? Postill v. Booth Newspapers,

Inc., 118 Mich App. 608, 325 N.W.2d 511 (1982);

McCall v. Courier-Journal and Louisville Times Co.,

623 S.W.2d 882 (Ky. 1981), cert. denied sub nom

Courier-Journal v. McCall, 456 U.S. 975 (1982); New-

ell v. Field Enterprises, Inc., 91 Ill. App. 3d 735, 415

N.E.2d 434 (1980); and Makis v. Area Publications

Corp., 77 Ill. App. 3d 452, 395 N.E.2d 1185 (1979).'°

Numerous lower courts and commentators’ have

grappled with the issue of whether the First Amend-

‘7 This New York case is in direct conflict with Edwards v.

National Audubon Society, supra, a Second Circuit case.

‘8 These Illinois state cases are in conflict with another Illinois

State case, Krauss v. Champaign News Gazette, supra, and with

an Illinois federal district court case, Novel v. Garrison, supra

note 15.

‘8 See, e.g., M. Franklin, ‘““A New Constitutional Privilege?’

Cases and Materials on Mass Media Law, 178-189 (2d ed. 1982)

and 39 (2d ed. Supp. 1985); Note, ‘““The Developing Privilege of

Neutral Reportage,’’ 69 Va. L. Rev. 853 (1983); and Sowle,

“Defamation and the First Amendment: The Case for a Con-

stitutional Privilege of Fair Report,’’ 54 N.Y.U. L. Rev. 469

(1970).

22

ment confers a privilege for neutral reportage, yet

no consensus of opinion has emerged. Therefore, the

ambit of the First Amendment varies among judicial

fora. To ensure that the courts guard the public’s

First Amendment rights uniformly, it is incumbent

upon this Court to declare that the First Amendment

confers a privilege for neutral reportage.

23

CONCLUSION

In view of the Supreme Court of Alabama’s failure

to recognize the constitutional privilege to publish a

fair and accurate report of a false and defamatory

statement made publicly about a public official when

the report relates to a public controversy and does

not concur in or espouse the defamation, the Station

respectfully requests that its petition be granted and

the decision below be reversed in accordance with

Supreme Court Rule 23.2.

Respectfully submitted,

BRUCE W. SANFORD

Counsel of Record

ADRIENNE S. WIEAND

BAKER & HOSTETLER

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 861-1500

Counsel for Petitioner

Of Counsel:

VINCENT F. KILBorRN, III

KILBORN & GIBNEY

1206 Dauphin Street

Mobile, Alabama 36633

(205) 433-1681

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APPENDIX

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APPENDIX A

IN THE CIRCUIT COURT OF MOBILE COUNTY,

ALABAMA

DAN WILEY,

Plainttff,

vs.

WKRG-T.V., INC.,

Defendant.

ORDER

This matter having come on for hearing on the

defendant’s motion for summary judgment, and the Court

having considered said motion, the pleadings and deposi-

tions on file, and arguments of counsel, it is

ORDERED that the defendant’s motion for summary

judgement [sic] be and the same hereby is DENIED. The

Court finds that this interlocutory order involves controi-

ling questions of law as to which there is substantial ground

for difference of opinion, and that an immediate appeal

from this order would materially advance the ultimate ter-

mination of the litigation, and that the appeal would avoid

protracted and expensive litigation.

DONE at Mobile, Alabama, this 9th day of May, 1985.

/sSBRAXTON L. KITTRELL, JR.

Circuit Judge

2a

APPENDIX B

THE STATE OF ALABAMA -------- JUDICIAL

DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

JUNE 19, 1985

WKRG-TV, INC.,

Plaintiff,

v.

DAN WILEY,

Defendant.

ORDER

The petition for permission to appeal from an interlo-

cutory order entered in the above cause having been filed

and duly submitted to the Court, it is considered that the

petition is due to be granted.

IT IS, THEREFORE, ORDERED, pursuant to the pro-

visions of Rule 5, Alabama Rules of Appellate Procedure,

that permission is hereby granted to the petitioner to

appeal to this Court from the interlocutory order entered

on May 9, 1985, in the case of WKRG-TV, Inc., v. Dan

Wiley, Civil Action No. CV-83-001337.

Torbert, C.J., and Maddox, Jones, Almon, Shores, Embry,

Beatty, and Adams, JJ., concur.

Faulkner, J., not sitting.

3a

APPENDIX C

THE STATE OF ALABAMA -------- JUDICIAL

DEPARTMENT

THE SUPREME COURT OF ALABAMA

SPECIAL TERM, 1986

WKRG-TV, Inc.,

Appellant,

v.

Dan Wiley,

Appellee.

Appeal from Mobile Circuit Court

PER CURIAM.

This is a libel suit brought by Dan Wiley against WKRG-

TV, Inc. Wiley’s complaint charges that WKRG libeled him

in a televised news report about a public meeting held at

the Orchard Baptist Church concerning a proposed landfill

site. At the time of the alleged libel Wiley was a member

of the Mobile County Commission, and the report stated

that persons at the meeting charged that Wiley would

profit from the proposed landfill.

WKRG made a motion for summary judgment, con-

tending that under the pleadings and depositions on file

it was entitled to judgment because its broadcast of the

allegedly libelous material was privileged, being an accu-

rate and complete report, or a fair abridgement, of an

occurrence at a public meeting pertaining to a matter of

public concern. The trial court denied the motion but found,

in accordance with A. R. App. P. 5(a), that

“this interlocutory order involves controlling

questions of law as to which there is substantial

ground for difference of opinion, and that an im-

mediate appeal from this order would materially

advance the ultimate termination of the litigation,

da

and that the appeal would avoid protracted and

expensive litigation.”

This Court granted permission to appeal. Rule 5, A. R.

App. P.

WKRG argues that the privilege set forth in Restatement

of Torts (Second), § 611 (1977), should be adopted as the

law of this State and that, under this privilege, WKRG

cannot be held liable for its broadcast in this instance. The

Restatement section reads:

“Report of Official Proceeding of Public Meeting

“The publication of defamatory matter con-

cerning another in a report of an official action

or proceeding or of a meeting open to the public

that deals with a matter of public concern is priv-

ileged if the report is accurate and complete or

a fair abridgment of the occurrence reported.”’

It appears that any such privilege heretofore recognized

in this State is much more limited, and would correspond

at most to the “official action or proceeding” portion of

the rule. Code 1975, § 13A-11-161, provides:

“The publication of a fair and impartial report

of the return of any indictment, the issuance of

any warrant, the arrest of any person for any

cause or the filing of any affidavit, pleading or

other document in any criminal or civil proceed-

ing in any court, or of a fair and impartial report

of the contents thereof, or of any charge of crime

made to any judicial officer or body, or of any

report of any grand jury, or of any investigation

made by any legislative committee, or other pub-

lic body or officer, shall be privileged, unless it

be proved that the same was published with ac-

tual malice, or that the defendant has refused or

neglected to publish in the same manner in which

the publication complained of appeared, a rea-

5a

sonable explanation or contradiction thereof by

the plaintiff, or that the publisher has refused

upon the written request of the plaintiff to pub-

lish the subsequent determination of such suit,

action or investigation.”

See Wilson v. Birmingham Post Co., 482 So. 2d 1209 (Ala.

1986); Fulton v. Advertiser Co., 388 So. 2d 533 (Ala. 1980);

Browning v. Birmingham News, 348 So. 2d 455 (Ala. 1977).

This Court in Browning, supra, reiterated the test for

the existence of a qualified privilege as it had been set

forth in Willis v. Demopolis Nursing Home, Inc., 336 So.

2d 1117, 1120 (Ala. 1976), and Berry v. City of New York

Ins. Co., 210 Ala. 369, 98 So. 290 (1923):

“Where a party makes a communication, and

such communication is prompted by duty owed

either to the public or to a third party, or the

communication is one in which the party has an

interest, and it is made to another having a cor-

responding interest, the communication is privi-

leged, if made in good faith and without actual

malice. ... The duty under which the party is

privileged to make the communication need not

be one having the force of legal obligation, but

it is sufficient if it is social or moral in its nature

and defendant in good faith believes he is acting

in pursuance thereof, although in fact he is mis-

taken.”

348 So. 2d at 458 (emphasis in Browning).

We certainly do not think that a reporter has a duty

to repeat a defamatory falsehood, but the Restatement rule

would have the publication privileged even if the publisher

knows that the statement was false, so long as the report

is a fair and accurate rendition of what transpires at the

public meeting. The premises of this rule are that (1) the

publisher is making a “true’”’ statement of the events of

6a

the meeting, regardless of the truth or falsity of the state-

ments made in the meeting, and (2) the publisher is en-

titled to a privilege in the publication of such public

meetings on matters of public concern because they are

newsworthy, that is, the general public has a legitimate

interest in hearing about the meeting.

The first premise clearly cannot stand as a justification

without the second, because the repetition of a defamatory

statement generally constitutes a new publication and is

actionable. As to the second premise, we deem it instruc-

tive that the United States Supreme Court has rejected a

“newsworthiness” test for determining whether a defam-

atory publication is protected by the First Amendment.

Such a test was fmplied in the plurality opinion in Rosen-

bloom v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811,

29 L. Ed. 2d 296 (1971), but was disapproved in Gertz v.

Robert Welch, Inc., 418 U.S. 328, 94 S. Ct. 2997, 41 L.

Ed. 2d 789 (1974). Thus, we do not think that WKRG has

a constitutional right to repeat false statements simply

because they were made at a public meeting on a matter

of public concern.

Of course, Wiley was a public official at the time of the

meeting, and the statements at least implied that he was

misusing his public office; apparently the county commis-

sion, of which Wiley was president, had a role in the

approval of the landfill site. As a public official, Wiley

would have to prove that WKRG broadcast the allegations

with knowledge of their falsity or with reckless disregard

of their truth or falsity. New York Times v. Sullivan, 376

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

materials submitted in support of and in opposition to the

summary judgment motion raise a clear factual question

on this issue, as we shall now show with a further reci-

tation of the facts in the record.

A transcript prepared by WKRG of the news report

shows that Curt Fonger introduced the report from

Ta

WKRG’s studio and Mark King continued with a live re-

port from the location of the meeting:

“Good evening ... Do you want a landfill in

your neighborhood? Well ... neither do some

homeowners in west Mobile! And they make a

serious charge! According to this group ... the

county commission ‘fixed’ plans for two landfills

... because commission president Dan Wiley

would profit! Mark King was at a citizen’s meet-

ing tonight! Let’s learn about it from him! Mark!

“Curt ... about one-hundred citizens from west

Mobile turned out for the meeting at the Orchard

Baptist Church. They came to map strategy for

their fight.

“These people are upset because the A.J.B.

Corporation has asked for permits to operate pri-

vate sanitary landfills on two locations in Howells

Mill Road-Schillingers Road area. They say the

two sites would not be suitable for landfills ...

because they’re a part of the water shed for

Hamilton Creek which eventually leads into the

City of Mobile’s water supply.

‘*...None the less, they believe the county has

plans to grant permits for the private landfills

and then contract with the A.J.B. Corporation,

to use the landfills for the counties [sic] trash.

‘*...They claim a recent announcement that the

county landfill near Irvington would have to be

closed soon is part of this plan. ...And they say

public officials would profit from the deal.

“(Some items in the record would indicate that

the following two paragraphs are transcriptions

of statements made by Cecil Crowe, a citizen at

the meeting:]

8a

“The rumor says that Dan Wiley and Bay Haas

are part owners of this corporation ... And I

think when we go down there Monday, that we’re

entitled to know, if there’s anybody down there

that’s working both sides of the street.

‘*...1 mean, is he part owner of a corporation

that’s trying to do business with the county, ...

if he is, we need to know it ... if he isn’t, we

need to know it...

‘1 contacted both commissioner Wiley and

Mr. Haas at their homes tonight. ...Wiley says

the rumors are ridiculous and he says he doesn’t

know what the A.J.B. Corporation is. Haas says

the charges are totally untrue.

«Anyway, the citizens plan to turn out in

large numbers for the county commission meeting

on Monday morning. They’ve also hired a geol-

ogist to double check soil tests the state has run

on the two sites. Curt.”

Wiley argues that the report was not an accurate report

of what was said at the meeting, that it was a report of

what one person, not what the “homeowners” or the ‘‘peo-

ple,’”’ said, and that it presented only one side of the story.

These arguments are made primarily to show abuse of the

Restatement privilege. If Wiley can prove that WKRG thus

falsified the report, he would not only show the actual

malice required by Sullivan but also defeat the claimed

privilege.

Cecil Crowe, one of the participants at the meeting,

apparently made most of the allegedly libelous remarks

that WKRG repeated in its report. There is some indi-

cation that the following portion of the above-quoted tran-

script is from a videotape of Cecil Crowe actually making

the statements:

SS

9a

“The rumor says that Dan Wiley and Bay Haas

are part owners of this corporation ... and I think

that when we go down there [to the county com-

mission meeting] Monday, that we’re entitled to

know if there’s anybody down there working both

sides of the street.

‘1 mean, is he part owner of a corporation

that’s trying to do business with the county, ...

if he is, we need to know it ... if he isn’t, we

need to know it.”

Marginal notations on the transcript indicate that Crowe

was on camera, but do not clearly indicate that he made

these statements. King, in his deposition, said that he taped

Crowe making these statements. It appears, however, that

King did not tape Crowe when he first made the state-

ments but asked him after he finished to repeat them for

the camera if he spoke to the group again. One of the

depositions indicates that Crowe later denied having ac-

cused Wiley, claiming that he only said he wanted to find

out the truth. As presented in the record, this is hearsay,

and the record is ambiguous as to whether Crowe denied

making charges at the public meeting or at the later county

commission meeting. Furthermore, although the record

does not indicate that Crowe spoke for the group as a

whole or that any designated spokesman made these state-

ments, there is some indication that the group applauded

Crowe’s statements. Thus, there is some factual dispute

as to the accuracy of the report on the alleged accusation.

Even more significant is the fact that WKRG had sub-

stantial information that the accusation was not true, but

broadcast the report anyway and made no mention of this

information. The original source of the accusation was a

rumor sheet placed anonymously in the residents’ mail-

boxes about two weeks before the meeting. Barbara Shaw,

a reporter for WKRG, investigated the rumor at the time.

She talked to James R. Payne, the owner of A.J.B. Cor-

10a

poration, who denied that Wiley or Haas had any interest

in A.J.B. Payne’s attorney called Shaw and offered to

show her documents proving Wiley owned no stock in

A.J.B. Wiley was out of the country at the time of this

initial investigation, but an attorney for the county called

Shaw and told her not to publish the rumor because it

was false. On March 14, WKRG broadcast Shaw’s report

that the citizens were concerned about the proposed land-

fill but did not mention the rumors about Wiley at that

time.

King testified in his deposition that he was aware when

he made the March: 25 broadcast that Payne had denied

that Wiley owned any part of A.J.B. Corporation. Wiley

stated in his deposition that when King called him before

making the March 25 report, he not only denied knowing

anything about A.J.B. Corporation, but also told King that

Shaw had previously investigated the matter. Given the ,

record before us, we cannot say that Wiley would be un-

able to sustain a libel action, including proof of Sullivan

actual malice by clear and convincing evidence. See Pem-

berton v. Birmingham News Co., 482 So. 2d 257 (Ala.

1985). Therefore, the trial court did not err in denying

the motion for summary judgment. The interlocutory rul-

ing is affirmed.

AFFIRMED.

Torbert, C.J.; Jones, Almon, Shores, Adams, Houston

and Steagall, JJ. concur. Maddox, J., concurs in the result.