Petition for Writ of Certiorari — Foley v. WCCO TV, Inc.
Supreme Court brief1990
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69-18 8206.
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MAY 1) 0
In the —
Supreme Court of the United States
October Term, 1989
TOM FOLEY,
Petitioner,
vs.
WCCO T.V., Inc., a corporation,
Steven Eckert, John Lindsay,
Respondents.
Petition for Writ of Certiorari
to the Supreme Court
of Minnesota
PATRICK J. FOLEY
Counsel of Record
565 Northstar East
608 Second Avenue South
Minneapolis, Minnesota 55402
(612) 339-4511
Attorney for Petitioner
1990 — Bachman Legal Printing, 835 Second Ave. So., Mpls., MN 55402 — (612) 339-9518 6
FAX 612-337-8053
72a
QUESTIONS PRESENTED
I
Whether the Minnesota Courts failed properly to apply
First Amendment principles when those courts erred in
finding an absence of a jury issued on actual malice in this
public figure’s claim for defamation damages against news
m
II
Whether the Minnesota Courts failed properly to apply First
Amendment principles when those courts struck broadcast
remarks charging plaintiff with bribery, conflict of interest,
and obstruction of justice.
7
THE PARTIES
Petitioner: Tom Foley, represented by Patrick J. Foley, 608
Second Avenue South, Minneapolis, MN 55402.
Respondents: WCCO T. V., Steve Eckert, and John Lindsay,
represented by Paula Osborn, 45 S. 7th Street, Minneapolis,
MN 55402 and Paul Hannah, 1122 Pioneer Building, St.
Paul, MN 55101.
ii
TABLE OF CONTENTS
Page
| , iv
JURISDICTIONAL STATEMENTr. 1
Jurisdictional of this Court 2
Constitutional Provisions Involved...................... 3
eee 4
A. The decision of the trial courrtrt 5
B. Facts unreported and not broadcast
by Respondents ...... I: ss sexecnsxac 7
C. The Decisions of the Court of Appeals 8
D. The Facts Ignored by the Minnesota Courts........ 9
REASONS FOR GRANTING THE WRT. 11
Minnesota Courts failed to make the independent
appellate review required by this Court in
New York Times v. Sullivan cases................. 11
1. This Petition presents a proper vehicle for this
Court to instruct all appellate courts as to
the requisites for conducting an independent
,, ines cecdecise....... 11
2. This Court’s benchmark decision in New
York Times Company v. Sullivan, 376 U.S. 254
(1964) was improperly applied by the Minnesota
courts which held that the statements that were
defamatory had not been made actual malice. ..... 12
3. The First Amendment authorities warrant
, ] ]ð 44. 13
4. This Court has the authority to reverse the state
r . 14
5. Appellate courts consistently reverse
erroneous findings on actual malice. ................ 14
The Minnesota Courts erred in applying
First Amendment principles in striking
certain broadcast statements. Question No. 2 16
iii
j„ü„ß9„ͤ7 .
TABLE OF AUTHORITIES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 |
%%% ARV ⁵ / ðVß 12, 13, 14, 15
Berkus v. NBC, 161 Ill. App. 3d 47, 515 N. E.
RIFLES, SR > NT Fs ⅛ V 17
Blackburn v. State of Alabama, 361 U.S. 218 (1960)..... 13
Bose Corp. v. Consumer Union of U.S., Inc. 466 U.S.
485 1984, reh. den. 467 U.S. 126ùù21ꝓ“h7/ 12, 15
Curtis Pub. Co. v. Butts, 388 US. 130 (1967) .............. 18
Edwards v. South Carolina, 372 U.S. 229 (1963) ......... 13
Fiske v. State of Kansas, 274 U.S. 30. 14
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) 18
Harte-Hanks Communications, Inc., v. Connaughton,
US. ,109S.Ct. 2678 (1989)............... 8 15, 17
Jacob Ellis v. State of Ohio, 378 U.S. 184, 190 (1964) 13
New York Times v. Sullivan, 376 U.S.
SRE ¾ / 2, 6, 7, 16, 17
Pape v. Time, Inc., 318 F. 2d 652 (7th Cir. 1963) 14
Pape v. Time, Inc., 354 F.2d 558 (7th Cir. 1965) .......... 14
Pape v. Time, Inc., 419 F.2d 980 (7th Cir. 196899 14
Rebozo v. Washington Post Co., 637 F. 2d 375
(5th Cir. 1981) cert. den. 454 U.S. 944 18
Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). ...13
Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069
, ̃ —— uuncuas’ 17
iv
——— OO hg RN Lae
In the
Supreme Court of the United States
October Term, 1989
TOM FOLEY,
Petitioner,
v.
WCCO T. V., STEVE ECKERT and
JOHN LINDSAY,
Respondents.
JURISDICTIONAL STATEMENT
OPINIONS BELOW
The Minnesota Supreme Court entered an Order on
February 9, 1990 denying Petitioner’s Petition for Review
of the decision of the Minnesota Court of Appeals. (Apx.
1.)
The Petition for Review of the decision of the Court of
Appeals posited the issues of whether the Court of
Appeals erred in interpreting the United States
Constitution, First Amendment, when it held that
statements charging Petitioner with unethical and
criminal conduct were non-defamatory and that there
was an inadequate record demonstrating a jury issue on
actual malice by the Respondents. (Apx. 2).
The Minnesota Court of Appeals on December 26, 1989
entered an Order holding that certain statements were
true and not defamatory and that there was not evidence
of actual malic. (Apx. 3).
The trial court’s order is Apx. 4. The order for
judgment was entered on April 5, 1989. (Apx. 5).
1
JURISDICTION OF THIS COURT
This Court has jurisdiction to review the orders
described herein by certiorari pursuant to 28 U.S.C.
Section 1257(a) because petitioner has been deprived of
a jury trial by the unwarranted interpretations and has
been deprived of a jury trial by the unwarranted
interpretations of this Court’s decisions requiring
independent judicial review of evidence of actual malice
as required by New York Times v. Sullivan and thereby
involved an important interpretation of the United States
Constitution, First Amendment.
This Court has never defined what is required by the
appellate courts in giving independent appellate review
of the evidence on actual malice. This is an appropriate
vehicle for the Court to articulate precisely what must
be considered in determining whether a public figure
such as Petitioner must establish as proof of actual
malice in a defamation claim against news media.
Jurisdiction is lent by this Court’s rule providing for
review by certiorari when a State court has decided an
important question of federal law which has not been,
but should be, settled by this Court; and here the State
Court has decided a federal question in a way in conflict
with applicable decisions of this Court. Rule 17.1(c),
Supreme Court Rules.
This Court has jurisdiction to review the Order of the
Minnesota Supreme Court denying review of the
Minnesota Court of Appeals decision; and this Court
has jurisdiction therefor to review the Minnesota Court
of Appeals decision. The state court decisions were
beyond the constitutional authority of the Minnesota
Courts, were entered without deference to this Court’s
rulings and interpretations on important First
Amendment — defamation issues; and those decisions
fail to comply with the opinions of this Court on
defamation issues of public figures.
CONSTITUTIONAL PROVISIONS
INVOLVED
The United States Constitution, Amendment 1,
provides as follows:
Congress shall make no law respecting an
establishment or religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or of the right of the
people peaceably to assemble, and to petition the
Government for a redress of grievances.
STATEMENT OF THE CASE
Plaintiff Tom Foley has been elected county attorney of
Ramsey County, State of Minnesota, since 1978. He did not
participate in any of the investigation of the death of
Kathleen Greening, who died on July 21, 1982. That death
was attributed to undetermined causes by the Ramsey
County Medical Officer in 1982 and 1983. The Medical
Examiner, Dr. Michael McGee, informed Petitioner’s office
in October, 1985 that he would review the case.
Respondents inititated an investigation into Petitioner’s
proposed conduct relating to the investigation and the
change of designation of the cause of death by Dr. McGee.
The Roseville Police Department in February 1986,
informed one of the Petitioner’s assistants that there may
be a request for a search warrant in connection with the
investigation and the bank records of the decedent’s
husband, a lawyer in a prominent St. Paul firm. The
assistant st.ted that there was no probable cause for the
issuance of such a warrant. Petitioner was not informed of
the search warrant or his assistant’s decision.
Respondents interviewed Dr. McGee and recorded the
interview by videotape. Petitioner held a news conference
on the following day, February 27, 1986; and in the presence
of the Respondents Petitioner specifically denied any
involvement in the investigation or any suggestion to the
Ramsey County Medical Examiner, Dr. McGee, that there
should be a delay in the death certificate change.
The clear evidence of malice by Respondents is
demonstrated by its business records showing that three
days before the broadcasts, Respondents’ records warn that
the investigation may be a miscalculation or that “a local
prosecutor has blocked a murder investigation in which one
of his own campaign contributors is a prime suspect.” Yet,
none of the Minnesota Courts discussed this critical evidence
that would undoubtedly eliminate the defense of the First
Amendment freedoms and create a jury issue.
we — — — 2 8 Eee na
Respondents’ broadcasts reported that the Medical
Examiner’s Office stated that they were told not to change
the death certificate from accident to murder by Petitioner;
that the investigation indicated that a suspect may be one
of Petitioner’s campaign contributors; that Dr. McGee said
that the change had been delayed at the request of
Petitioner’s office, while showing a photograph of Petitioner;
and in the context of referring to Petitioner, Dr. McGee was
quoted as having stated “and so we have tried to cooperate
with them in that regard and have done essentially what
they have asked us.” The reference to the “them” and
“they” in the last quotation in context referred to Petitioner
although Dr. McGee’s statement in context was not meant
by him to include Petitioner.
dents broadcast on February 27, 1986 and repeated
this for ten months.
A. The decision of the trial court.
The trial court on March 16, 1988, (Apx. 4,) held with
regard to the various broadcasts as follows:
1. Respondents broadcast repeatedly along the lines that
“the (Petitioner) knew Greening was a potential suspect, yet
took money from him at least two times thereafter. There is
something there.” Also, broadcasts implied that Petitioner
had telephoned the Minnesota Attorney General’s Office
and thereafter a state investigator was “taken off the case.”
This was followed by, “*** if investigators knew of the
possible conflict of interest in 1982, whey it took three years
for Foley (Petitioner) to remove himself from the case.
The trial court held that charging Petitioner with a
conflict of interest was not a viable claim because:
Implicit in this is the inference that plaintiff was
personally aware of the letter, or that there was a
potential conflict of interest. In point of fact, there is
is no showing that the plaintiff was personally
aware of either the letter or the potential conflict of
interest. On the other hand, the statements made are
factually correst. *** The investigating policy agency
did identify a prime suspect in the murder. This
5
suspect was monetary contributor to the re-election
campaign of the plaintiff. Although it was not
designated as such, it is clear that there was a
conflict of interest. (Apx. 4, p. 13.)
The trial court regarding the conflict of interest issue
exonerated the Respondents because of the “fair comment
doctrine.” (Apx. 4, p. 14.) The doctrine was described by the
trial court as the qualified privilege on behalf of the media,
obviously a First Amendment issue. (Apx. 4, p. 8.)
2. The trial court ruled that the broadcasts that Petitioner
blocked the issuance of a search warrant to review the bank
records of the prime suspect “appears to be derogatory” to
Petitioner. (Apx. 4, p. 14.) The trial court said that “the
meaning conveyed is that (Petitioner) was seeking to
obstruct justice. If this were the meaning sought to be
conveyed, or if indeed it was the meaning conveyed, then
clearly it is capable of defamatory meaning.” (Apx. 4, p. 14.)
The court, however, struck this as non-defamatory because
of its “context.” It was based upon a subsequent report
explaining that this meant Ramsey County authorities
rather than Petitioner.
3. The trial court held that in context the broadcasts
about Petitioner communicating with the medical examiner,
Dr. McGee, about not changing the death certificate were
capable of defamatory meaning. (Apx. 4, p. 18).
4. The trial court, (Apx. 5,) on January 20, 1989 granted
summary judgment for the Respondents on the basis that
Petitioner had not established a triable issue on actual
malice as required by New York Times v. Sullivan, 376 U.S.
254 (1964). The trial court did not reiterate Petitioner’s proof
of actual malice. (Apx. 5, p. 10). The court held that the
Respondents reported that Petitioner had acted to keep Dr.
McGee from changing the death certificate but questioned
whether the jury could conclude that the defendents from
clear and convincing evidence knew that the reports were
false or entertained serious doubts.
Without summarizing Petitioner’s evidence, the trial
court erroneously held that there was no actual malice as
6
required by New York Times v. Sullivan, supra; and held
that there was an absence of evidence to demonstrate a
failure to ask the proper questions. (Apx. 5, p. 10).
B. Facts unreported and not broadcast by Respondents.
Respondent Eckert admitted that he never learned of any
indication that Petitioner objected to the change in the
death certificate. Respondent Eckert’s notes demonstrate
that he had planned to ask Dr. McGee about whether
Petitioner had caused any delay in the change in the death
certificate. His notes indicate that he desired to learn when
the M.E. office met with the County Attorney about the
cause of death and was that three times up to and in
December, 1985. And why they did not change the status to
murder after having talked with Petitioner. Respondents
Eckert and Lindsay never learned any indication that
Petitioner had communicated with Dr. McGee about
changing or not changing the death certificate. No records
of Respondent WCCO T. V. established that Petitioner ever
discussed the Greening death with Dr. McGee at any time.
Respondent Eckert stated that he had no explanation for
why he did not broadcast that he did not ask the Medical
Examiner, Dr. McGee, whether the Petitioner had any role
in delaying the reclassification. He had no explanation for
whey he did not follow up on his earlier records which he
described as his “battle plan” to learn whether Petitioner
had involved himself “by telling medical examiners he did
not want the case to come back as murder ***.” That same
Respondent did not broadcast that if asked, Dr. McGee
would have stated that Petitioner never was involved in the
changing of the death certificate or the delay of that
change. The Respondent did not broadcast that the corporate
records of January 12, 1985 included a list of questions to
ask Dr. McGee and one was “Why didn’t they change the
status of case to murder after talking to Foley?”
The evidence clearly demonstrated at the trial court and
appellate level that Petitioner never discussed the matter
with Dr. McGee and never participated in any attempt to
delay the change of the death certificate or any of the earlier
facets of the investigation. Dr. McGee testified that if asked
7
by Respondent Eckert, he would have stated that Petitioner
never discouraged the initial investigation, that no one
from Petitioner’s office discouraged the original
undetermined classification of death; that no one from
Petitioner’s office used any influence to discourage the
revision. There is absolutely no evidence that Petitioner
took any action that was a conflict of interest, and the
Respondents admitted that in depositions presented to the
trial court and the Court of Appeals.
C. The Decisions of the Court of Appeals.
The Minnesota Court of Appeals on December 26, 1989
affirmed the summary judgment for the Respondents on
the issue of absence of evidence to make a triable issue on
actual malice. The court cited Harte-Hanks Communications,
Inc. v. Connaughton, US. , 109 S.Ct. 2678 (1989)
and New York Times v. Sullivan, 376 U.S. 254 (1964). The
Court of Appeals stated that the trial court had considerable
information before it and then gave a general listing of
documents rather than the contents thereof or any of the
deposition testimony. (Apx. 3, p. 11-12). The court
acknowledged that Petitioner was not personally involved
in the death certificate discussions but attributed a
subordinate’s actions to Petitioner. (Apx. 3, p. 12.) The Court
purported to give an “independent review of the record” and
affirmed the judgment. (Apx. 3, p. 13.)
The Minnesota Court of Appeals opinion involved a
dissent by Judge Randal, (Apx. 3, p. D-1 FF) and he states
that the matter is not appropriate for disposition for
judgment on the pleadings or summary judgment. He
states that
*** the record discloses disputed fact issues
concerning who, if anyone, from appellant’s office
put pressure on Dr. McGee not to change a death
certificate from undetermined to homicide. Did
appellant do it? Did appellant authorize someone
else to do it? (Apx. 3, D-1.)
Judge Randai states that,
1
Nee ee eee
SM AOR EL TNE eee.
E Y LD dna! Lita
Appellant makes out a reasonable case that at every
juncture, the broadcasts put him in as bad a light as
possible. (Apx. 3, p. D-2.)
Judge Randal stated that,
I donot find the broad shield of the First Amendment
impervious to appellant’s attack at this pre-trial
stage.
***T cannot escape the feeling that the trial court, in
effect, conducted a mini- trialꝰ on the issues, weighed
evidence and credibility and came to the conclusion
that (Petitioner) probably would not prevail at trial.
(Apx. 3, p. D-7.)
The Minnesota Court of Appeals majority stated that,
The affidavits reveal that Foley never personally
asked McGee to change the death certificate;
however, the affidavits and press release show that
Foley asked Assistant County Attorney Balck to
review the case file and that Balck advised McGee
against changing the death certificate because it
would not change the fact that there was insufficient
evidence to charge any suspect. (Apx. 3, p. 12.)
D. The Facts Ingnored by the Minnesota Courts.
Athough the Court of Appeals stated that it had given an
“independent review of the record,” (Apx. 3, p. 13), the
majority did not incorporate into its opinion the objective
evidence that petitioner presented by affidavit and
deposition to establish that the Respondents had planned to
determine the facts by interviewing Dr. McGee, interviewed
Dr. McGee, and withheld asking any of the pertinent
questions which would have resolved all of the issues.
Furthermore, the Respondents were present at the news
conference during which Petitioner specifically denied
causing any delay in the change of the death certificate.
This Court should articulate a statement requiring
appellate courts giving independent review to summarize
the specific facts adduced in support of actual malice before
the Court can conscientiously state that the evidence is
9
inadequate.
Petitioner through the entire litigation from the filing of
the Complaint predicated his claim for defamation damages
upon his being a public figure with the requirement of
demonstrating not only the falsity, which here is not really
contested, and actual malice in broadcasting the falsity.
Judge Randal in his dissent stated that as to the proof of
actual malice, “I suggest at this stage enough of a case
exists to present to a jury.” (Apx. 3, p. D-6). He added, “I do
not find the broad shield of the First Amendment impervious
to appellant’s attack at this pre-trial stage.” He concluded
that resolution of the factual disputes would authorize a
jury to find actual malice. (Apx. 3, D-7.)
Although the broadcasts repeatedly reported that
appellant had a conflict of interest and tied in that broadcast
with the receipt of a letter from the Roseville Police
Department from October, 1982 and suggesting that conflict
of interest, it is clear from the evidence that Petitioner never
knew of the letter and had no involvement in the
investigation before November, 1985. Yet, the courts despite
the broadcasts that “authorities” were aware of the possible
conflict of interest three years earlier, refused to hold that
these were capable of a defamatory meaning although the
broadcast included “Foley should have pulled out from the
beginning. He knew Greening was a potential suspect, yet
took money from him at least two times after that. There is
something there.” That was demonstrably false in the
evidence presented to the trial and appellate courts.
The Minnesota courts stated that subsequent broadcasts
explained the process and therefore eliminated the
defamatory content, a novel concept without legal
precendent.
The evidence shows that on the Dr. McGee transaction,
the Respondents acted with actual malice with reckless
disregard of the truth and falsity. Respondent Eckert
admitted that he never asked Dr. McGee about Petitioner in
any role during his extensive videotaped interview before
the broadcast. He admitted that the term “they” referred
not to Petitioner but to the Roseville Police Department and
10
somebody in the Ramsey County Attorney’s office.
Respondent had no explanation for why he did not broadcast
that Dr. McGee told him that no one said no to his changing
the death certificate. Respondent Eckert admitted that he
had planned to ask Dr. McGee specifically whether
Petitioner’s office has encouraged an initial undetermined
cause of death and that he was to learn when the RCME
office met with the County Attorney about the cause of
death and whether that was up to three times, and why in
December, 1985 the RCME did not change the status to
murder after talking with the Petitioner. He did not
broadcast that the RCME, Dr. McGee, had stated that he
would not change the death certificate because of family
wishes.
Respondent Lindsay testified that so far as he knew,
Petitioner never did anything to help or hinder the
investigation.
f Petitioner sought review of this matter with the Minnesota
Supreme Court and presented the legal issues as to whether
the Court of Appeals erred in interpreting the United States
Constitution First Amendment principles as non-defama-
tory in broadcasting false statements implying that plaintiff
was guilty of unethical and criminal conduct and whether
the Court of Appeals erred on the same principles in holding
that there was an inadequate record demonstrating actual
malice by the Respondents. (Apx. 2.) The Minnesota
Supreme Court denied review on February 9, 1990. (Apx. 1).
pre Er ny Se eee *
REASONS FOR GRANTING THE WRIT
Minnesota Courts failed to make the independent
appellate review required by this Court in New York
Times v. Sullivan cases. Question No. 1.
1. This Petition presents a proper vehicle for this Court to
instruct all appellate courts as to the requisites for conducting
an independent appellate review.
This Court has never stated precisely what is required in
a judicial opinion when there is a public figure suing for
| | 1
Er
eee
* —
damages from defamation broadcast by media defendents.
This Court should hold on the basis of the evidence in this
case that the Minnesota trial court and Court of Appeals
failed to demonstrate in its opinion that there was adequate
appellate independent review of the evidence. The Court
should hold further that the evidence in this case makes a
triable issue of actual malice.
2. This Courts benchmzr* dzcision in New York Times
Company v. Sullivan, 376 U.S. 254 (1964) was improperly
applied by the Minnesota Courts which held that the
statements that were defamatory had not been made with
actual malice.
This Court in New York Times made a detailed analysis
of the evidence to determine whether the record could
constitutionally support a judgment. Ibid at 284-285. The
Minnesota courts ignored Petitioner’s evidence.
The principal decision establishing the need for
independent review is Bose Corp. v. Consumer Union of
U.S., Inc. 466 U.S. 485 (1984), reg. den. 467 U.S. 1267, where
this court reviewed the record to determine whether the
evidence was of a “convincing clarity required to strip the
utterance of First Amendment protection ***.” 466 U.S. at
511. This court imposed the responsibility that
*** Judges, expositors of the Constitution, must
independently decide whether the evidence of the
record is sufficient to cross the constitutional
threshold that bars the entry of any judgment that is
not supported by clear and convincing proof of
‘actual malice.‘ Ibid at 511.
This matter was clarified by Justice White;s decision for
the court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986), in the holding that the evidence must be presented
“*** through the prism of the substantive evidentiary
burden.” Ibid. at 254. That opinion requires that “the
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.“ Ibid at
255.
12
.
This Court should grant this Petition and clarify precisely
what the appellate and trial court opinions must include to
establish that the court made the independent review of the
record as a basis for the conclusion that there was or was
not adequate evidence to make a jury issue on actual malice
with the substantive evidentiary standard of proof required
by Anderson v. Liberty Lobby, Inc., supra.
3. The First Amendment authorities warrant a trial in
this case.
This Court in Rosenbloom v. Metromedia, Inc., 403 U.S.
29 (1971) considered a defamation claim and held that “the
simple fact is that First Amendment questions of
‘constitional fact compels this Court’s de novo review.“ 403
US. at 54. The court cited two cases that were not defamation
claims, vis. Edwards v. South Carolina, 372 U.S. 229 (1963)
involving a breach of the peace conviction reversed because
of the constitutional rights of speech, assembly, and petition
for redress of grievances, and the court held that it is a duty
to make an “independent examination of the whole record;”
and Blackburn v. State of Alabama, 361 U.S. 218 (1960),
involving a criminal conviction and a reversal of the
conviction because of an unconstitutional, involuntary
confession. 361 U.S. at 205. In a review of a conviction for
possession in exhibiting an obscene film, this court held in
Jacob Ellis v. State of Ohio, 378 U.S. 184, 190 (1964) that,
Hence we reaffirm the principle that, in ‘obscenity’
cases as in all other involving rights derived from
the First Amendment guarantees of free expression,
this Court cannot avoid making an independent
constitutional judgment on the facts of the case as to
whether the material involved in constitutionally
protected.
This Court has consistently mandated that constitutional
issues and the facts revolving around them be independently
reviewed by the judiciary. Neither the trial court nor the
State Court of Appeals in this case did so with any deference
to or mention of the rich record supporting triable issue of
actual malice against the Respondents.
13
4. This Court has the authority to reverse the state court
decision.
It is clear under Fiske v. State of Kansas, 274 U.S. 380,
385-386 that this court may review the findings of fact by a
state court where a federal right has been msapplied as a
result of a finding shown by the record to be without
evidence to support is or where the conclusion of law on a
federal right and a finding of fact are so intermingled as to
make it necessary to analyze the facts to pass on the federal
question.
The record in the present case demonstrates that the
Minnesota Trial and appellate courts erred in applying this
Court’s constitutional principles by ignoring this Petitioner’s
record of facts.
5. Appellate courts consistently reverse erroneous findings
on actual malice.
In the libel action that eventually was resolved in this
Court’s opinion in Time, Inc. v. Pape, 401 U.S. 279 (1971),
the Seventh Circuit was deeply involved in reviewing the
record. In Pape vu. Time, Inc., 318 F.2d 652 (7th Cir. 1963), the
court reversed a dismissal of the Complaint alleging libel
for mischaracterization of an official report on the ground
that the jury could understand and read the article
differently from what the court did. The second reversal, in
Pape, v. Time, Inc., 354 F.2d 558 (7th Cir. 1965) was rendered
after this Court’s decision in New York Times Co. v.
Sullivan; and the Seventh Circuit determined that the trial
court erred in granting a motion for summary judgment for
the media. Ibid. at 560. In the third appeal, Pape v. Time,
Inc., 419 F.2d 980 (7th Cir. 1969), the trial court directed a
verdict for the news media defendent; and this was reversed
by the Court of Appeal opinion which held.
Surely, a deliberate act of omission can show malice
as well as an act of commission. Time omitted
mention of the fact that when the article was
written, the Pape-Monroe incident was reported in
‘justice’ as allegations in a complaint, not as proven
fact. Ibid. at 982.
14
The searching independent judicial review is manifested
by this Court’s opinion in Time, Inc. v. Pape, 401 U.S. 279
(1971), which reversed the Seventh Circuit in the case just
quoted, 419 F2d 980. This Court stated that the Court had
frequently reviewed the evidence to determine whether the
record would constitutionally support a judgment for a
plaintiff. 401 U.S. at 284. this Court held that the record did
not indicate a reckless disregard of the truth by the news
medium. 401 U.S. at 293.
This searching of the record in Pape history demon-
strates that the courts must give detailed analysis to the
factual record. This would be consistent with the basic
principle that on considering the motion for summary
judgment, the Court must resolve all inferences in favor of
the non-moving party and must perform the judicial role of
determining not the facts of the case but whether a fact
issue exists. The Minnesota courts in this case have given
no consideration in their opions to the evidence that
actually supports a jury finding, as suggested by Judge
Randal in his dissent in the Court of Appeals opinion.
The courts must independently decide whether the
evidence demonstrates malice by clear and convincing
proof. Bose Corp. v. Consumers U. of U.S, Inc., 466 U.S. 485,
512. The ruling on actual malice by summary judgment is
not designed to denigrate the role of the jury. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In Harte-Hanks Comm. Inc. v. Connaughton, USS.
, 109 S.Ct. at 2678 (1989), this Court exemplified the
role of the courts in giving independent judicial review of
the evidence on actual malice. However, this Court not only
gave independent examination but also stated the relevant
evidence that wouid have been considered favorable by the
jury in rendering a verdict for or against the plaintiff. The
Minnesota courts here, however, fail to state the Petitioner’s
abundant evidence on actual malice.
This Court should grant review and establish the basic
rules for how the courts demonstrate that they have indeed
made an independent review of the evidence on actual
malice. A consideration of Petitioner’s evidence would
15
warrant a reversal of the Minnesota courts decisions.
The Minnesota Courts erred in applying First
Amendment principles in striking certain broadcast
statements. Question No. 2.
The Minnesota Courts struck the Petitioner’s allegations
that charged among other things defamation by the
Respondents in broadcasting that Petitioner knew that
Greening “*** was potential suspect, yet took money from
him at least two times after. There is something there.”
Also, “Foley [Petitioner] blocked the search warrant.” Also
that “*** if investigators knew of possible conflict of
interest in 1982, why it took three years for [Petitioner]
Foley to remove himself from the case.”
The trial court held that statements of opinion by news
media are absolutely privileged under the First Amendment.
(Apx. 4, p. 5). That court held that public officials may be
subjected to the criticisms by the “qualified privilege of fair
comment” under the First Amendment. (Apx. 4, p.g 8). The
trial court held that on the charge of the conflict of interest,
although the evidence did not disclose the Petitioner was
aware of the conflict of interest, the statements were not
false. The court totally ignored the content of the allegations,
for the court did not quote the statements and ignored the
role of the jury in this First Amendment case.
The trial court continued in its errors by exonerating the
Respondents in the false broadcast that Petitioner “blocked
the search warrant.” Although conceding the apparent
derogatory nature, the trial court exonerated the
Respondents because in a subsequent report, the
Respondents explained what they meant. (Apx. 4, p 14).
The Minnesota Court of Appeals glossed over the
constitutional principles on the ground that expression of
opinion is a question of law for the trial court and is a
constitutional protection involving criticism of official
conduct under New York Times Co. v. Sullivan. (Apx. 3, p.
5.) The same rationale under the same general catagory of
First Amendment protection was granted, without any
detailed consideration of the actual broadcast statements,
with regard to the broadcast that Petitioner blocked a
16
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eee ae te oe Eig re ee e
—
—s . —
3
search warrant and the broadcast about Petitioner’s conflict
of interest. (Apx. 3, p. 6, 7.) The Court of Appeals concluded
that the broadcast of the conflict of interest was based on
fact and coupled with opinion and legitimate criticism of
the public official. (Apx. 3, p. 7.)
The Court of Appeals decision was denied review by the
Minnesota Supreme Court. (Apx. 1.)
The Minnesota courts totally ignored the prevailing
principles that broadcast by videotape placing petitioner in
a false light and in improper context involves right to a trial
by jury and not an exoneration under the First Amendment.
Berkus v. NBC, 161 IIl. app. 3d 476, 515 N.E.2d 668 (1987).
The Minnesota courts erred in saying that there were no
unreported facts. (Apx. 3, p. 9.) The fact of the matter is the
falsity by itself inherently implies omitted, unreported
facts. Furthermore, the record was replete with evidence
that the Petitioner never talked with Dr. McGee, something
not reported; that Petitioner never participated in anything
involving the Greening investigation until November, 1985,
and not broadcast; that Petitioner did not know about the
purported conflict of interest letter of 1982 until three years
later; that Petitioner took no action on the Roseville Police
Department inquiry on the search warrant, not reported in
context; and that the medical examiner if asked would have
stated that no none told him not to change the death
certificate, not reported by the Respondents. This must
constitute evidence of reckless disregard within the meaning
of New York Times v. Sullivan. See Harte-Hanks
Communications, Inc. v. Connaughton, US. ;
109 S.Ct. at 2686. “A report that intentionally excludes
information that is as obviously exculpatory as the
information *** elected to delete simply cannot, under any
definition, be deemed either fair or accurate.” Schiavone
Const. Co. v. Time, Inc., 847 F.2d 1069, 1089 (3rd Cir. 1988).
This Court stated in Harte-Hanks that the reviewing
court must consider the factual record in full. U.S.
, 109 S.Ct. at 2696. The lower courts here obviously
never did so. It is significant that Justice Blackmun’s
concurring opinion pointed out so that the Supreme Court
17
we rf
has not strayed from the principle that the form and
content of the story are relevant not only to the falsity and
neutral reportage questions, but also to the question of
actual malice.” US. , 109 S.Ct. at 2699-2700.
Justice Blackmun pointed out that the method of
presentation of the news is relevant to determining whether
the publisher acted in reckless disregard of the truth. He
added that the Court’s opinion could not “ *** be read to hold
that the content of the article is irrelevant to the actual
malice inquiry.”
That is consistent with this Court’s opinion in Curtis Pub.
Co. v. Butts 388 U.S. 130 (1967), where the Court held that
the preparation may cast serious doubt on the adequacy of
the investigation, obviously a factor relevant to determining
actual malice. 388 U.S. at 138. Resolving issues that were
uncertain in a way to cast Petitioner in the worst possible
light may be considered evidence of the report as reckless
disregard for the truth or falsity. Rebozo v. Washington
Post Co., 637 F. 2d 375, 382 (5th Cir. 1981) cert. den. 454 U.S
964.
This Court should grant review of this matter because of
the errors of application of New York Times v. Sullivan by
the Minnesota courts. See Gertz v. Robert Welch, Inc., 418
U.S. 323, 330 (1974). The Court should then reverse the
Minnesota courts and remand.
Respectfully submitted,
PATRICK J. FOLEY
565 Northstar East
608 Second Avenue South
Minneapolis, MN 55402
(612) 339-4500
By:
Patrick Foley
18
9
mo
*
APPENDIX
TABLE OF CONTENTS
Minnesota Supreme Court Order denying review of
the Court of Appeals decision. February 9, 1990.
Petitioner’s Petition to Minnesota Supreme Court for
Review of Decision of Court of Appeals.
Minnesota Court of Appeals decision, December 26,
1989.
District Court Decision, March 16, 1988.
Memorandum to District Court decision of March 16,
1988.
Order for Judgment, April 5, 1989 and
Memorandum to Order for Judgment, April 5, 1989.
> = wis 2 0 are a Ses 7 4a
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1
APPENDIX A
STATE OF MINNESOTA
IN SUPREME COURT
No. C0-89-1225
TOM FOLEY,
Appellant,
| ve.
| WCCO TELEVISION, INC., et al.
| Respondents.
| ORDER
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED that the petition of Tom
Foley for further review be, and the same is, denied.
Dated:
February 9, 1990 BY THE COURT:
. Chief Justice
A-
—————
APPENDIX B
STATE OF MINNESOTA
TOM FOLEY, PETITION FOR REVIEW
Petiticner, OF DECISION OF
vs. COURT OF APPEALS
WCCO T. V., Inc., a corporation, pella g
STEVE ECKERT, and 2 „
6—— Date of Filing of Court of
Respondents. Appeals Decision:
December 26, 1989.
Paula Osborn DePARCQ, HUNEGS,
45 S. 7th Street STONE, KOENIG &
Minneapolis, MN 55402 REID, P.A.
(612) 344-9300 Patrick J. Foley, (#30685)
565 Northstar East
Paul Hannah 608 Second Avenue South
1122 Pioneer Building Minneapolis, MN 55402
St. Paul, MN 55101 (612) 339-4511
(612) 223-5525
ATTORNEYS FOR
ATTORNEYS FOR PETITIONER
RESPONDENTS
B-1
TABLE OF CONTENTS
Page
PS j A 1
I. CRITERIA FOR REVIEW UNDER RULE 117
W 1
III. STATEMENT OF THE CASE ................... 2
Bs Sed oda cc anke cccdWenseucceses 3
APPENDIX
A. Court of Appeals Decision, December 26, 1989
. District Court Order for Judgment, April 5, 1989
Order and Memorandum of District Court,
March 16, 1988
Order of District Court, January 20, 1989 -
Order and Memorandum of District Court,
November 5, 1987
Affidavit on Evidence of Actual Malice,
filed in District Court
CONCLUSION 5
smo OD
B-2
STATE OF MINNESOTA
IN SUPREME COURT
TOM FOLEY, PETITION FOR REVIEW
Petitioner, OF DECISION OF COURT
vs. OF APPEALS
WCCO T. V., Inc., a corporation, 1
* RT and Appellate Court Case No:
JOHN LINDSAY, Date of Filing of Court of
Respondents. Appeals Decision:
December 26, 1989.
TO: The Supreme Court of the State of Minnesota:
I.
LEGAL ISSUES
A. Whether the court of appeals erred in interpreting the
United States Constitution First Amendment principles
when it held as non-defamatory false statements implying
that plaintiff was guilty of unethical and criminal conduct.
B. Whether the Court of Appeals erred in holding, under
First Amendment principles, that there was an inadequate
record demonstrating a jury issue on actual malice by the
respondents.
II.
CRITERIA FOR REVIEW UNDER RULE 117, SUBD. 2
This Court should grant discretionary review of the Court
of Appeals decision because the legal issues presented are
important and those upon which this Court should rule; the
lower courts have departed from the accepted and usual
course of justice as to call for an exercise of this Court’s
supervisory powers; and a decision by this Court will help to
B-3
clarify and harmonize the law on the legal issues involved
because of their possible statewide impact. Rule 117,
R.Civ.App.P.
III.
STATEMENT OF THE CASE
Petitioner filed suit in Ramsey County District Court for
damages from defamation as uttered by the respondents,
news media within the meaning of the First Amendment of
the United States Constitution and New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). Petitioner proved the falsity of
the published statements, including, “The Ramsey County
Medical Examiner’s office officials say they were told not to
change the death certificate from accident to murder by
Foley.” “I-Team member Steve Eckert suggest that Foley’s
receipt [of political contributions] caused Foley’s inter-
vention“ *.” Z-1, Apx. 433. “He [Foley] knew Greening was
a potential suspect, yet took money from him at least two
times after. There is something there. Z-6, Apx. 434. The
trial court held that “Foley blocked the search warrant”
appeared to be derogatory. Other broadcasts implied that
petitioner had telephoned the Attorney General’s office and
thereafter a state investigator was taken off the case.
** if investigators knew of the possible conflict of interest in
1982, why it took three years for Foley to remove himself
from the case.”
The trial court held that all of the broadcasts other than
references to the Ramsey County Medical Examiner's
scenario were as a matter of law not defamatory and the
latter be dismissed for absence of adequate evidence of
actual malice.
The Court of Appeals affirmed the District Court deci-
sion. Apx. A.
IV.
ARGUMENT
The Court of Appeals ruling is inconsistent with Diesen v.
Hessburg, 437 N.W.2d 705 (Minn. Ct. App. 1989), Pet. Grtd.
B-4
442 N.W.2d 7891 (1989), now pending before this Court, and
Harte-Hanks Comm., Inc. v. Connaughton, US.
109 S.Ct. 2678 (1989). The court of Appeals was
told specifically in oral argument despite its statement,
Apx. A, p. 8, Par. 5, that the broadcasts could have been
rendered non-defamatory if the truth were told and the facts
were itemized for that Court that petitioner did not talk with
the medical examiner; took no action involving the
Greening investigation; was not involved in a conflict of
interest; took no action on the search warrant; never asked
the AG’s office to remove the investigator.
Any broadcasts of false facts showing a lack of character
or disregard of professional ethics of an attorney are
defamatory. Wachs v. Winter, 569 F.Supp. 1438 (D. C. N. V.
1983), even expressions of opinion. Cianci v. New York
Times Pub. Co., 639 F.2d 54, 64 2d Cir. (1980); King v. Globe
Newspaper Co., 400 Mass. 705, 512 N.E.2d 241 (1987); Harte-
Hanks Comm., Inc. u. Connaughton, supra, 109 S.Ct. at
2683 FN 3.
The Court of Appeals failed to make an independent
review as required by Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255-56 (1986), to determine the issue of petitioner’s
evidence demonstrating actual malice. The Court acknowl-
edges that petitioner never asked McGee to change the
death certificate, but exonerated respondents by stating
petitioner’s assistant discussed the matter with Dr. McGee
and held that those acts “may be attributable to him
[petitioner] for this purpose.” Apx. A, p. 12. Evidence of
actual malice is the respondent’s plan to interview the M.E.
to tie in petitioner with the delay in a death certificate
change. Apx. F. Respondent interviewed the M.E. and did
not question him about this petitioner. This is actual malice.
In Harte-Hanks Comm., Inc. v. Connaughton, supra, the
reporters interviewed Connaughton, had specific denials
from Connaughton, knew of a sharp conflict on the various
versions; knew that there was a critical witness, whom they
never interviewed. The Supreme Court found actual malice
on the reporters’ refusal to interview the critical witness. 109
S.Ct. at 2697. Blackmun, J. emphasized that the form
B-5
and content of the story are relevant not only to the falsity
in neutral reporter’s questions, but also to the question of
actual malice.” 109 S.Ct. at 2699-2700.
The Court of Appeals is at odds with Diesen and incon-
sistent with Connaughton. Defamation of a public official
may be by implication. Connaughton end Diesen settle
that. The court of appeals failed to hold that proof of actual
malice may be by circumstantial evidence.
The Court of Appeals held subsequent descriptions or
explanations to exonerate respondents. Apx. A, p. 6, Section
B. The court erred in holding that there was a conflict of
interest even if petitioner did not know of the letter or
participate in the investigation. Apx. A, p. 7.
Actual malice is clearly demonstrated by the thoughtful
dissent of Judge Randall that petitioner made out a reason-
able case “at every juncture,” Apx. A, p. D-2, and that
defamation is concocted out of truth taken out of context,
omitted facts, unbalanced reporting, and slants designed to
do injury.” Apx. A, p. D-6.
CONCLUSION
The broadcasts were not about the processes but were
fake reports about this petitioner’s part in the investigation,
the blocking of the search warrant, and the delaying of the
change of the death certificate. The Court of Appeals
argument, that “Foley was not personally involved in the
death certificate discussion.” Apx. A, p. 12, but a conflict of
interest even if petitioner had not participated in the
investigation.
This Court should grant this review because the Court of
Appeals decision is clearly inconsistent with its own
opinion in Diesen and clearly inconsistent with and contra-
dicted by the U.S. Supreme Court decision in Connaughton.
Respectfully submitted,
DePARCQ, HUNEGS, STONE,
KOENIG & REID, P.A.
By: _/8/ Patrick J. Foley
Patrick J. Foley, #30685
565 Northster East
608 Second Avenue South
Minneapolis, MN 55402
(612) 339-4511
ATTORNEYS FOR PETITIONER
B-7
U
ey
1
APPENDIX C
STATE OF MINNESOTA
IN COURT OF APPEALS
NO. 00-88-1225
WCCO TELEVISION, INC.,
et all.,
Respondents.
608 Second Avenue South
Minneapolis, MN 55402
St. Paul, MN 55102
Paula D. Osborn
Oppenheimer, Wolff & Donnelly
Suite 3400, Plaza VII
45 South Seventh Street
Minneapolis, MN 55402
Filed: December 26, 1989
Office of Appellate Courts
SYLLABUS
1. Statements consisting of truths, opinions, and criti-
cisms of official conduct are not defamatory as a matter of
law.
2. A public figure must produce clear and convincing
evidence upon which a jury could find actual malice to
defeat a summary judgment motion brought in a defama-
tion action.
Affirmed.
Heard, considered, and decided by Gardebring, Presiding
Judge, Forsberg, Judge, and Randall, Judge.
OPINION
GARDEBRING, Judge
Appellant Tom Foley commenced this defamation action
against respondent WCCO-TV and its I-Team reporters
contending that WCCO-TV aired broadcasts of a defama-
tory nature against Foley. The broadcasts concerned
Foley’s position as Ramsey County Attorney and the
alleged failure of his office to properly investigate and
resolve the manner of death of a Launderdale, Minnesota
woman.
Foley appeals the trial court’s dismissal of numerous
allegations for failure to state a claim upon which relief may
be granted and entry of summary judgment against him on
the remaining allegations. We affirm both the trial court’s
order dismissing the nonactionable allegations and the
order granting summary judgment on the remaining
allegations.
FACTS
On July 21, 1982, a woman’s naked body was found under
water in the bathtub of her Lauderdale, Minnesota home.
There was no evidence that she intended to take a bath nor
that she intended to commit suicide. Furnishings in the
woman’s bedroom indicated possible signs of a struggle.
Initially the Roseville police department investigated the
woman’s death. The case was presented to the Ramsey
County Attorney’s Office but no charges were ever brought.
At that time, Dr. Michael McGee, the medical examiner,
listed the manner of death as “undetermined.” However, by
the fall of 1985, Dr. McGee was considering changing the
manner of death designation on the death certificate to
“homicide.”
In early 1986, at the urging of a friend of the deceased,
C-2
WCCO.-TV began a review of the death, and its handling by
the criminal justice system. The I-Team investigated the
matter by reviewing police reports, interviewing officials
involved in the case and close friends of the deceased. On
February 27, 1986, the station aired the first of several
broadcasts discussing the death and the law enforcement
activities surrounding it. WCCO-TV admits the general
tone of the broadcasts was critical of all public officials and
agencies involved in the investigation, including Tom
Foley and the Ramsey County Attorney’s Office.
Foley commenced this action against WCCO-TV alleging
that the I-Team initiated an investigation into Foley for the
purpose of defaming him, and has acted deliberately and
repeatedly with actual malice to him and with reckless
disregard to the falsity of the matters asserted with respect
to the investigation of this woman’s death.
Foley alleged numerous statements having possible de-
famatory meaning. Upon the trial court’s order, Foley filed
a more definite pleading consisting of 197 statements
alleged to be defamatory. The trial court separated Foley’s
allegations into four factual scenarios and analyzed them
for defamatory content. The scenarios are: (1) that Foley
requested the Attorney General’s office to remove a state
investigator from the case; (2) that Foley blocked the
issuance of a search warrant to search the financial records
of the deceased’s husband, one of his campaign contributors
and a suspect in the murder investigation; (3) that Foley
was aware of an inherent conflict of interest involving
himself and the deceased’s husband; and (4) that Foley
asked Medical Examiner Dr. Michael McGee not to change
the designation on the death certificate from
“undetermined” to “homicide.”
The trial court dismissed the first three factual scenarios
for failure to state a claim upon which relief may be granted
and subsequently entered summary judgment against
Foley on the fourth scenario.
C-3
ISSUE
1. Did the trial court err in dismissing allegations for
failure to state a claim upon which relief may be granted?
2. Did the trial court err in granting summary judgment?
ANALYSIS
I.
Allegations Dismissed for Failure to State a Claim
Upon Which Relief Can be Granted
A plaintiff suing in defamation is required to plead and
prove that the defendant published a statement of fact, that
was false, that concerns the plaintiff, and that tends to
harm the plaintiff's reputation and to lower him or her in
the estimation of the community. Lewis v. Equitable Life
Assurance Society, 389 N.W.2d 876, 886 (Minn. 1986).
In reviewing cases dismissed for failure to state a claim
on which relief can be granted, the appellate court de-
termines whether the complaint sets forth a legally suf-
ficient claim for relief. Elzie u. Commissioner of Public
Safety, 298 N.W.2d 29, 32 (Minn. 1980).
Truth is a complete defense, and true statements, how-
ever disparaging, are not actionable. Stuempges v. Parke,
Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). Opinions are
also absolutely protected by the first amendment. Price v.
Viking Penguin, Inc., 881 F.2d 1426, 1431 (8th Cir. 1989).
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
In thie case, the court determined that Foley failed to adquately
specify the claimed defamatory language in the original complaint,
and ordered Foley to submit a more detailed recitation of the alleged
defamatory statements. Our review of the legal sufficiency of the
claims is therefore based upon the statement entitled “Plaintiffs
Allegations of Specific Words Establishing Defamation,” as well as
the complaint itself.
C-4
other ideas. But there is no constitutional value in
false statements of fact.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974)
(footnote omitted).
Whether a statement is one of opinion, hence absolutely
protected by the first amendment, or one of fact, is a
questions of law for the trial court. See Janklow v. News-
week, Inc., 788 F.2d 1300, 1305 n.7 (8th Cir. 1986) (en banc),
cert. denied, 479 U.S. 883 (1986).
Furthermore, Foley’s allegations must be considered against
the background of a profound national commitment to the
principle that debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials.
* * *
Criticism of their official conduct does not lose its
constitutional protection merely because it is effective
criticism and hence diminishes their official reputations.
New York Times Co. v. Sullivan, 376 U.S. 254, 270, 273
(1964).
The trial court considered the alleged defamatory state-
ments contained in each factual scenario in light of what is
legally required to state an actionable claim for efamation
of a public official.
A. Scenario 1: Removal of Investigator
WCCO-TV reported that an investigator from the Min-
nesota Attorney General’s Office began to assist the Rose-
ville police in the investigation; that when Foley learned of
the investigator’s involvement, he called a deputy attorney
general, who subsequently removed the investigator from
the case because he did not want it to appear that Ramsey
County was conducting the investigation inadequately;
and that Foley denied requesting the removal of the
investigator from the case.
C-5
The trial court determined that this was a factual account
of the events as they occurred. Furthermore, the court stated
that the questions raised by WCCO-TV concerning this
scenario were editorial opinions and legitimate criticisms of
public officials. We agree.
B. Scenario 2: Search Warrant
WCCO TV reported that Foley's office blocked a search
warrant to search the financial records of the deceased’s
husband. A subsequent report clarified that this meant
Foley’s office believed the police lacked probable cause to
justify issuance; however, a warrant could have been
obtained by appearing before a judge.
The trial court determined that the warrant was, in fact,
denied and, viewing the statement in context, the sub-
sequent explanation was sufficient to obliterate any pos-
sible inference that Foley sought to obstruct justice by
opposing the search warrant. We concur.
C. Scenario 3: Conflict of Interest
In its I-Team broadcasts, WCCO-TV reported that the
deceased’s husband was a suspect in the case, and that he
and 25 of his co-workers were contributors to Foley's re-
election campaign and that some of the co-workers were
members of Foley’s campaign committee. This, WCCO-TV
reported, created a conflict of interest. In October 1982, a
letter was sent from the Roseville police department to the
Ramsey County Attorney’s Office suggesting the presence
of a conflict of interest; however, it was not until three years
later that the case was transferred to Anoka County to
avoid the conflict. WCCO-TV questioned and criticized the
delay in transferring the case to Anoka County.
The trial court determined that a conflict of interest
clearly existed and that WCCO-TV’s reporting of the matter
was factually based and coupled with opinion and legiti-
mate criticism of a public official and his office.
Even if Foley did not personally know of the letter or did
not actively participate in the investigation until November
1985, the Ramsey County Attorney’s Office did have knowil -
edge of the potential conflict of interest and was in charge of
the investigation. A conflict of interest arises when a
C4
lawyer’s representation may be materially limited by the
lawyer’s own interests. Minn. Rules of Professional Con-
duct 1.7. Conflicts of interest may be imputed to all lawyers
associated with that firm. Minnesota Rules of Professional
Conduct 1.10(a). From the facts, it appears that WCCO-TV
had a reasonable basis upon which to conclude that a
conflict of interest existed and to question the delay in
transferring the case to Anoka County; therefore, we agree
with the trial court’s conclusion.
D. Defamation by Innuendo
Appellant also argued before the trial court that many of
the statements, even if true on their face, are defamatory by
innuendo.
The trial court, relying on Valento v. Ulrich, 402 N.W.2d
809 (Minn. Ct. App. 1987), and Hirman v. Rogers, 257
N.W.2d 563 (Minn. 1987), held that there can be no defama-
tion of a public official by innuendo.
On appeal, appellant renews this argument, citing Diesen
v. Hesaburg, 437 N. W. ad 705 (Minn. Ct. App. 1989), pet. for
rev. granted, 442 N.W.2d 781 (Minn. May 12, 1989), a case
handed down by this court since the trial court ruling.
However, the Diesen rationale is inapplicable on these
facts. The Diesen holding turned, first, on the existence of
known facts which, if reported, could have changed the
defamatory implication of the article, and secondly, on the
plaintiff's proof of actual malice by clear and convincing
evidence.
In this case, Foley has not pleaded, nor does the record
reveal, any additional material facts that the I-Team
knowingly omitted which would have removed the al-
legedly defamatory tone of their broadcasts.
Further, the law is clear that in a defamation action
brought by a public official, the constitutional guarantees of
the first amendment preclude recovery absent a showing
that the statement was made with “actual malice.” New
York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
Actual malice has been defined as “knowledge that [the
statement] was false of reckless disregard of whether it was
false or not.” Id. at 280. Actual malice must be proven with
convincing clarity. Id. at 11
Because the actual malice standard is the cornerstone of
protection for free exchange of ideas about public officials, it
may never be presume or inferred by innuendo. Hirman,
257 N.W.2d at 566.
In the absence of either unreported facts which could
have changed the implication of the broadcasts or clean
and convincing evidence of actual malice, Diesen does not
apply.
We have reviewed the dismissed statements in light of the
above considerations and we agree with the trial court that
the numerous allegations contained in these three factual
scenarios consisted of truths, opinions, and criticisms of
official conduct, and that further the theory of defamation
by innuendo is not available on these facts; therefore, the
trial court’s dismissal of these allegations for failure to state
a claim upon which relief may be granted is no erroneous as
a matter of law.
II.
SUMMARY JUDGMENT ON THE BASIS OF THE
ABSENCE OF ACTUAL MALICE
The trial court determined that one fact scenario appeared
to be capable of defamatory meaning, and therefore
actionable. This set of statements became the subject of the
later summary judgment motion. The factual setting of
those alleged defamatory statements concern Medical
Examiner Dr. Michael McGee and the cause of death
designation on the deceased’s death certificate.
Dr. Michael McGee performed the autopsy on the woman
and marked on the death certificate that the manner of
death was “undetermined.” In 1985, three years after the
autopsy, McGee decided he wanted to change the
“undetermined” classification to “homicide.” He contacted
Roseville police officer Lunzer and assistant Ramsey County
attorney Charles Balck, who had been assigned by Foley to
review this case.
On November 5, 1985, a meeting to review the matter was
attended by Balck, McGee, Lunzer, and James Essling, an
C-8
investigator for the medical examiner’s office. Balck and
Lunzer concluded that even if the manner of death was
changed, there was insufficient evidence to obtain criminal
charges. All four men agreed not to change the death
certificate.
On February 27, 1986, Dr. McGee changed the death
certificate to “homicide.” That same day, Foley called a
press conference and denied mishandling the case and
informed the media that the case was being transferred to
the Anoka County Attorney’s Office to avoid any potential
conflicts of interest. The case subsequently went to a grand
jury. No indictment was issued.
WCCO.-TV’s report of the above incident included a quote
from Dr. McGee:
[A}hd so we've tried to cooperate with them in that
regard and have essentially done what they’ve
asked us. *** They’ve asked us at this time to hold
the death certificate in the position it is now until
they can explore any further examination they have
to do.
The trial court did not strike the McGee allegations from
Foley’s complaint; however, it did grant summary judgment
in favor of WCCO-TV upon finding no evidence indicating
actual malice.
On appeal from a summary judgment the reviewing court
determines whether there are any genuine issues of material
fact and whether the trial court erred in its application of
the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310
(Minn. 1989).
Because Foley holds the elected position of Ramsey
County Attorney and performs governmental duties directly
related to the public interest, he is a public official and,
therefore, must prove actual malice before any defamation
ran be found. Harte-Hanks Communications, Inc. v.
Connaughton, US. a , 109 S.Ct. 2678,
2685 (1989); Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn.
1977). Actual malice requires proof that the statement was
made with knowledge that it was false or with reckless
C-9
disregard of whether it was false or not. New York Times
Co., 376 U.S. at 279-80.
[Rjeckless conduct is not measured by whether a
reasonable prudent man would have published or
would have investigated before publishing. There
must be sufficient evidence to permit the conclusion
that the defendant in fact entertained serious doubts
as to the truth of his publication. Publishing with
such doubts shows reckless disregard for truth or
falsity and demonstrates actual malice.
St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
On appeal from summary judgment in public figure
defamation cases, the test is whether the evidence in the
record could support a reasonable jury finding that the
plaintiff has shown actual malice by clear and convincing
evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255-56 (1986).
In considering WCCO-TV’s motion for summary
judgment, the court had considerable information before it.
This information included the pleadings, discovery
documents, motions and accompanying memoranda, scripts
of the I—Team broadcasts, and tapes of a telephone
conversation between the deceased’s close friend and
Investigator Essling indicating that Foley’s office made the
request. The record also included the press release issued by
Foley on February 27, 1986, and affidavits of Foley, McGee,
Balck, Essling and I-Team reporters Steve Eckert and John
Lindsay.
Foley asserts that actual malice is demonstrated by
WCCO-TV’s repeated broadcasts that Foley’s office
requested McGee not to change the death certificate. Foley’s
picture accompanied this segment of the I-Team report. In
particulary, Foley contends that actual malice is shown by
the I-Team’s failure to ask McGee the ultimate question,
that is, whether Tom Foley personally asked McGee not to
change the death certificate classification from
“undetermined” to “homicide.”
The affidavits reveal that Foley never personally asked
C-10
— Z ů
McGee to change the death certificate; however, the
affidavits and press release show that Foley asked assistant
county attorney press release show that Foley asked
assistant county attorney Balck to review the case file and
that Balck advised McGee against changing the death
certificate because it would not change the fact that there
was insufficient evidence to charge any suspect.
Balck is an employee of Foley’s office and was acting
within the scope of his employment. Therefore, we believe
that although Foley was not personally involved in the
death certificate discussion, the acts of Balck may be
attributable to him for this purpose. In addition, WCCO-TV
specifically broadcasted McGee’s press statement that the
Ramsey County Attorney’s Office never instructed him not
to change the death certificate.
Upon independent review of the record, we find that
WCCO-TV investigated this matter by reviewing public
documents and interviewing the public officials and private
citizens involved in this case. The record is devoid of
evidence that WCCO-TV broadcasted its report knowing
that the information was false or that WCCO-TV
entertained serious doubts as to the truth of its publication;
therefore, we conclude that summary judgment is proper in
the absence of any issues of material facts relating to actual
malice.
While the dissent in this matter argues that summary
judgment is a “blunt instrument,” in public official
defamation cases summary judgment is the preferred
remedy because it prevents persons from being discouraged
in the full and free exercise of their first amendment rights
with respect to the conduct of their government. See
Washington Post Co. v Keogh, 365 F.2d 965, 967-68 (D.C.
Cir. 1966), cert. denied, 385 U.S. 1011 (1967). We believe its
use and application here is appropriate.
DECISION
Many of Foley’s claims were dismissed properly for
failure to state a claim upon which relief can be granted
because they were not defamatory. Further, Foley failed to
C-11
produce clean and convincing evidence that could support a
reasonable jury finding that WCCO-TV’s I-Team
broadcasted its reports with actual malice. We reviewed the
remainder of Foley’s claims on appeal and find them to be
without merit under the facts of this case.
Affirmed.
RANDALL, Judge, dissenting.
I respectfully dissent. I do not find this complicated case
at this time, on this record, appropriate for disposition by a
Rule 12 motion for judgment on the pleadings and/or
summary judgment.
The voluminous record contains numerous disputed fact
issues and allegations by appellant that key facts were
known, but omitted or slanted. Appellant argues vigorously
that a jury is entitled to see the entire picture, and that if
they resolve certain inferences in this favor actual malice
could be found. There are several key areas in dispute. What
did appellant actually know; what did appellant actually
do; and what did respondents really know about what
appellant did or did not do, as opposed to what they actually
published.
Relative to appellant’s allegations that were dismissed on
respondents’ motion for summary judgment, the record
discloses disputed facts issues concerning who, if anyone,
from appellant’s office put pressure on Dr. McGee not to
change a death certificate from undetermined to homicide.
Did appellant do it? Did appellant authorize someone else to
do it? Was it “pressure” or just a common sense decision not
to make a hurried change just because of publicity? Did
respondents know this but continue to intentionally imply
that the pressure or suggestion not to change the death
certificate came from appellant himself?
On the issues disposed of by granting respondents’
motion for judgment on the pleadings, I find it difficult to
hold, as a matter of law, that appellant could not produce
facte which, if proven, could lead a reasonable jury to find
defamation. On the issue of whether appellant contacted
the attorney general’s office to remove an investigator from
the case, there is a dispute over whether the investigator
C-12
was actually “removed” and a dispute as to whether
appellant deliberately requested a “removal,” if one occurred.
Relative to the search warrant, did appellant “block” it in
the perjorative sense or was the decision made based on
reasonable judgment by a prosecuting attorney that
probable cause for a search warrant could not be found. Did
respondents subsequent “clarification” remove all taint or
did the implication linger that appellant deliberately
hindered an ongoing investigation? On the issue of the
suspect’s political contributions, were the amounts so
insignificant and their timing such that respondents, with
years of experience covering local, state, and nationa!
elections, knew that the minimal amount in question could
not influence a homicide investigation. If they knew that,
did they intentionally broadcast a partial story to imply
otherwise? I am not in a position to weigh the merits of
appellant’s ultimate case to a jury. However, I can say with
reasonable conviction that if all factual disputes and all are
answered by a jury in appellant’s favor, the high threshold
a public official needs to meet to prove actual malice could
be satisfied.
Appellant makes out a reasonable case that at every
juncture, the broadcasts put him in as bad a light as
possible. Did respondents actually know the facts which
would have dramatically changed the slant they were
putting on the story? If they knew, then, did they intention-
ally withhold them with “reckless disregard for truth or
falsity?”
The majority correctly points out that a public official has
a heavy burden of proof in a defamation case.
Actual malice requires proof that the statement was
made with knowledge that it was false or with
reckless disregard of whether it was false or not.
New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84
S.Ct. at 7261 (1964).
Reckless conduct is not measured by whether
reasonable prudent person would have
published or would have investigated before
C-13
publishing; rather, there must be sufficient
evidence to conclude that the defendant in fact
entertained serious doubts as to the truth of its
publication. Publishing with such doubts shows
reckless disregard for truth or falsity and
demonstrates actual malice.
St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
However, I find that this burden of actual malice can be
met short of proof that there were out and out deliberate lies.
In a case presently before the Minnesota Supreme Court,
Diesen v. Hessburg, 437 N.W. 2d 705 (Minn. Ct. App. 1989),
this court, relying on a Tennessee Supreme Court case,
Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn.
1978), found that statements, even if true taken in their
literal context could amount to defamation. In Deisen we
said:
In Nichols, a private citizen was allegedly defamed
by the implication that she was having an adulterous
affair with a neighbor’s husband. If all the facts had
been printed by the paper, this defamatory and false
implication would not have been created. The court
in Nichols stated that the defendant’s reliance on
the truth of the facts was misplaced because the
question was “whether libel as published would
have a different effect on the mind of the reader from
that which the pleaded truth would have produced.”
Id. at 420 (quoting Fleckenstein v. Friedman, 266
N. V. 19, 23, 193 N. E. 537, 538 (1937)). The publication
of the complete facts could have conceivably led the
reader to conclude that there was no adulterous
relationship.
The published statement, therefore, so distorted
the truth as to make the entire article false and
defamatory. It is no defense whatever that
individual statements within the article were
literally true. Truth is available as an absolute
defense only when the defamatory meaning
conveyed by the words is true.
C-14
Id.
We agree with the holding in Nichols. There may be
defamation by implication, where known facts are
omitted, which could have changed the defamatory
implication of the article. It is clear that this is a
half-truth, which amounts to merely a lie.
Diesen, 437 N. W. ad at 709.
Respondents argue vigorously that in all respects truth is
a complete defense. However, I find that the defense of
“truth” is not confined to an examination of just the five
alphabetical components of the word.
Here, appellant may be able to prove a case of
defamation by implication discovered in Diese. The
thrust of respondents’ broadcasts was that appellant, a
prominant elected official, has intentionally stonewalled
and interfered with a homicide investigation because a
suspect was a political contributor. The content and slant
of the broadcasts permit no other inference. This inference
was intentionally and deliberately created by respondents.
The following story is likely apocryphal but serves to illustrate the
point. Supposedly years ago in a small southern town, the editor of the
local newspaper chose up sides against the mayor running for re-
election and threw his newspaper support behind the challenger. On
the evening before election day, the editor bannered the headline
“Mayoral Incumbent Caught Eating a Dead Female Thigh.” The
predictable happened. The next day the town had a new mayor and the
defeated incumbent, not being at all convinced of his participation in
such a dastardly deed, hired a law firm to investigate and bring suit.
Upon completion of the investigation, it came out that at a Sunday
Church social one month before the election the mayor, his wife, his
two children, and his grandparents were in attendance where the
main course was roast turkey with all the trimmings. The newspaper
editor, sitting at an adjoining table, observed the mayor holding a
napkin in front of his face (because his socially conscious mother
disapproved of adults eating in public with their fingers) while avidly
chomping on a hen turkey drumstick. At trial, when the fowl“ facts
came to light, over the editor’s protestations that every word in the
headline was defendable, the judge did find that a suit did lie.
did lie.
C-15
The allegations are extremely serious. They are in a
proper area, governmental activity, for the media to
scrutinize, but the media’s privileges are not unbounded.
The first amendment is a high and mighty wall, but does
not stretch to infinity.
When hearing motions for failure to state a claim upon
which relief can be granted or summary judgment, courts
are not asked to weigh evidence, determine credibility,
resolve factual disputes, and decide the merits of a
plaintiff's case. Instead, a court’s duty is simply to
determine if a claim could ever lie, and as to summary
judgment, our duty is simply to determine whether genuine
issues of material fact exist, not how such issues should
be resolved.” Vacura v. Haar’s Equipment, Inc., 364
N.W.2d 387, 391 (Minn. 1985) (emphasis added). To make
this determination, the evidence must be viewed in the
light most favorable to the non-moving party, and all
doubts and factual inferences must be resolved against
the moving party.” Nord v. Herreid, 305 N.W.2d 337, 339
(Minn. 1981). Summary judgment is not intended as a
substitute for trial ***.” Vacura, 364 N.W.2d at 391
(citation omitted). Because summary judgment is a blunt
instrument,” its use should be limited to cases in which it
is perfectly clear that not issue of fact is involved.“
Donnay V. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711,
716 (1966). This is not such a clear case; consequently,
disposition by summary judgment is inappropriate, as is
disposition by dismissal for failure to state a claim on
which relief could be granted.
Appellant’s status as a public figure? prevents him from
receiving any damages absent proof of actual malice, New
York Times, 376 U.S. at 279, but I suggest at this stage
enough of a case exists to present to a jury. Although the
New York Times standard of actual malice is high, we need
to avoid getting hung up on the term “actual malice.” In
2Generally, false allegations which attach a person's professional
conduct are defamatory per se. Becker v. Alloy Hardfacing &
Engineering Co., 401 N.W.2d 655, 661 (Minn. 1987); Lee v. Metropolitan
Airport Commission, 428 N.W.2d 815, 819, (Minn. Ct. App. 1988).
C-16
reality, media people (unless they are looking for another
job and want to draw unemployment compensation during
the search) do not come right out and start a story by
stating, “I have malice against you and intend to publish
deliberate falsehoods.” Rather, defamation is concocted out
of truth taken out of context, omitted facts, unbalanced
reporting, and slants designed to do injury. Generally, in all
civil cases the plaintiff's burden of proof is rarely made easy
by frank admissions by a defendant to all the essential
elements that a plaintiff needs to make a case. The purpose
for factfinders is often to sift through half truths and
distortions. Plaintiff is entitled to build a case, carefully laid
evidentiary block upon block, and strive to convince a jury
that the implications and inferences he wants drawn were
so intended by defendant.
I do not find the broad shield of the first amendment
impervious to appellant’s attack at the pretrial stage.
Ultimately at trial, respondents could prevail but sufficiency
of the evidence is not now the issue on appeal. Based on tis
record, I believe that is a jury resolved all inferences for
appellant and against respondents, it could find actual
malice.
The trial court did a conscientious job on setting up and
analyzing the issues. But I cannot escape the feeling that
the trial court, in effect, conducted a “mini trial” on the
issues, weighed evidence and credibility, and came to the
conclusion that appellant probably would not prevail at
trial. Summary judgment is not the prope: forum to resolve
disputed issues, but rather to see if genuine issues of
material fact exist. See Hinrichs v. Farmers Cooperative
Grain & Seed Association, 333 N.W.2d 639, 641 (Minn.
1983).
If this case proceeds to trial, the trial court still has three
stages at which it can exercise discretion to prevent an
unjust result. The trial court can direct a verdict for
defendant at the close of plaintiff's case or at the close of all
the evidence, but before the case goes to jury. Additionally,
the trial court can grant a judgment notwithstanding the
verdict if the case goes all the way to a jury verdict, but the
C-17
court feels a manifest injustice has been done. Each of these
dispositions, although as drastic as summary judgment,
display an inherent fairness to a plaintiff that summary
judgement and pretrial dismissals do not, as these three
alternatives at least allow the plaintiff to present a case. If,
upon the conclusion of plaintiff's presentation, the trial
court decides that the plaintiff cannot prevail, as a matter of
law, and dismisses, the plaintiff had a day in court.
Summary judgment and dismissal on the pleadings have a
legitimate place in the legal system, but should not be a
substitute for trial and were never meant to be a calendar
control device in jurisdictions with high case loads.
In conclusion, I would find that appellant has ai least
presented claims upon which relief could be granted. As to
the propriety of summary judgment, I find unresolved
material and substantial fact questions. I would order the
parties to complete pretrial discover, and proceed to trial on
the merits.
C-18
APPENDIX D
STATE OF MINNESOTA
COUNTY OF HENNEPIN
DISTRICT COURT
FOURTH JUDICIAL DISTRICT
No. 87-4560
TOM FOLEY,
Plaintiff,
vs.
WCCO T. V., Inc. a corporation,
STEVE ECKERT, and JOHN LINDSAY,
Defendanis.
ORDER
A motion for dismissal for failure to state a claim upon
which relief can be granted and/or failure to comply with
the Court’s order of November 2, 1987, can on for hearing
before the undersigned, one of the judges of the above-
named Court, on December 19, 1987.
Patrick Foley, Esq., appeared on behalf of the plaintiff.
Paul Hannah, Esq., and Paula Osborn, Esq., appeared on
behalf of the defendants.
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED:
That the following paragraphs of plaintiffs complaint
incorporating plaintiffs allegations of specific words
establishing defamation are dismissed for failing to state a
claim upon which relief can be granted:
All paragraphs A through Z-18 except C-1, D-7, D-8, D-9,
D-10, D-19, H-9, M-2, M-3, O-1, O-2, P-3, P-4, T-14, T-15, T-16,
T-17, U-3, V-3, Z-1(2), Z-1(7), ZI), (I), Z-8(8).
D-1
BY THE COURT:
Dated: Robert G. Schiefelbein
March 16, 1988
D-2
MEMORANDUM
Defendants move this Court for an order, pursuant to
Rule 12 of the Rules of Civil Procedure for the District
Courts, granting dismissal of the plaintiff's complaint. It is
defendants’ contention that plaintiff's complaint fails on
two separate grounds: 1) that plaintiff has failed to comply
with the Court’s order of October 2, 1987, where the court
ordered the plaintiff to provide a more definitive statement
of the claims, and 2) that the 44 “libelous statements” which
plaintiff lists in the More Definite Statement do not as a
matter of law state a claim for relief in defamation.
I
SPECIFICITY AND CONTEXT
A brief recitation of the procedural posture of this case is
necessary in order to adequately address the issues presently
pending before this Court. In response to the Court’s finding
that plaintiff has failed to adequately specify the claimed
defamatory language in the original complaint, plaintiff
filed a pleading entitled Plaintiff's More Definite Statement.
In this document, plaintiff amplified the number of separate
and distinct counts of allegedly libelous statements to 44.
These 44 statements, numbered A through Z-18, are a
curious miscengation of broadcast recitations in verbatim,
and print media reporting, from a wide variety of sources.
At oral argument on December 19, 1987, the Court advised
the parties that, in order for this litigation logjam to be
broken, the plaintiff should file a detailed recitation of the
specific words which form the basis for the plaintiff's
lawsuit for damages resulting from the alleged defamation.
Plaintiff, in response, has now supplied the Court and
defendants with the allegations of specifid words
establishing defamation. This document details, as noted
above, a series of broadcasts by the defendants, and a
number of printed media reports from various sources. The
E-1
alleged singular defamatory statements number 197 in
total.
It should be noted from the outset that plaintiff has
vehemently protested this procedure. It is plaintiff's
contention that, by forcing the plaintiff to reduce to
specificity the defamatory allegations, the Court has merely
bought into a clever ruse posited by the defendants. Plaintiff
has stated from the outset of this litigation that the
statements and the overall content of the broadcasts must
be considered as a whole. Plaintiff asserts that this exercise
in reduction of the statements to specificity is a tactic
employed by the defendants to ensure that the individual
claims will fall out of the lawsuit for failure to state a claim
upon which relief can be granted. It is plaintiffs sincere
contention that the Court must view the proverbial whole
forest, and not dwell in the minutiae of the simple trees. In
point of fact, plaintiff has stated, “cases uniformly hold that
statements must be considered in context with the entirety
of the articles or statements”. Plaintiffs Allegations of
Specific Words Establishing Defamation at 2. This Court is
in complete agreement with the plaintiff. The law is clear
that specific statements of defamatory import must be
considered as a whole; they must be read in the context of
the entire communications. See e.g., Sharon v. Time, Inc.,
575 F. Supp 1162 (1983); Marcone v. Penthouse Intern. Ltd.
533 F. Supp. 353 (1982).
It is the Court’s role, at this juncture, to consider the 44
allegations of defamation to determine if each is capable of
a defamatory meaning. The Court will consider these
statements in the context of the entirety of the broadcasts
and printed media reports. While the court concedes that the
statements are to be considered in context, that does not
relieve the plaintiff of the requirement to specify the
defamatory statements. As early as 1898, the Supreme
Court of Minnesota stated:
... itis well settled that the specific words which have
been published must be set out. It is not sufficient
merely to state the effect of the language or that the
E-2
7
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iy
4
s
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F
2
publication was of a certain defamatory tenor and
import. The plaintiff cannot content himself with
drawing his own inference from the words pub-
lished, and then allege such inference, without
apprising the defendant of the words of which he
complains. While in actions for libel it may not be
essential to set forth an entire article, it is absolutely
necessary to set forth in precise words such parts or
passages as are claimed to be actionable.
American Book Co. v. Kingdom Publishing Co., 71 Minn.
363, 73 N.W. 1089 (1898).
Further, in the landmark Herbert v. Lando litigation,
Judge Haight specifically stated:
A defamation plaintiff is obliged to specifically
ideritify those statements which he claims were
made with actual malice.
Herbert v. Lando, 596 F. Supp. 1178 at 1197 (S. D. N. v. 1984).
In the instant case, plaintiff has persisted in refusing to
between claimed defamatory statements and a
determination of whether the statements made are cap-
able of a defamatory meaning ...” Utecht v. Shopko Dept.
Store, 324 N.W.2d 652 (Minn. 1982). Accordingly, the Court
has analyzed the rather voluminous allegations to syn-
thesize what statements by the defendant appear to be
actionable.
II.
ELEMENTS OF PRIMA FACIE CASE
AND CONSTITUTIONAL IMPACT
A plaintiff suing for libel is required to plead and prove
that the defendant published: I) a statement of fact; 2) that
is false; 5)that concerns the plaintiff and; 4) that tends to
harm the plaintiff's reputation and to lower him or her in
the estimation of the community. See, Jadwin v. Minne-
apolis Star & Tribune Co., 390 N.W.2d 437 (Minn. Ct. App.
1986); Lewis v. Equitable Life Assurance Society, 389
N.W.2d 876 (Minn. 1986); Stuemges v. Parke, Davis & Co.,
E-3
297 N.W.2d 252 (Minn. 1980). In addition, as articulated in
NY Times v. Sullivan and its progeny, a public official must
also prove that a defendant published the defamatory
statement knowing it was false or with reckless disregard of
whether it was faise. NY Times v. Sullivan, 376 U.S. 254 at
270-80 (1964); see also, Hirman v. Rogers, 257 N.W.2d 563
(Minn. 1977). to be actionable, a defamatory statement of
fact about a public official must have been made with the
above noted “actual malice”; that is, the NY Times
standard. In the instant case, it is clear that the plaintiff,
Mr. Foley, is a public official. Mr. Foley is the Ramsey
County Attorney. As such, his cause of action in defama-
tion must satisfy the constitutional parameters of the law.
In order for Mr. Foley to prevail, he must demonstrate that
defendants knew that the statements they were publishing
were false, or that they published the statements with a
reckless disregard as to their truth or falsity.
It is true that this is a weighty burden for a public official
defamation plaintiff to surmount. However, as will be
demonstrated, there are strong historical policy reasons for
the implementation of these jurisprudential obstacles in the
path of a public official defamation plaintiff.
III.
OPINION
While the United States Supreme Court has constitu-
tionalized the common law of defamation as it regards a
public official, the prima facie elements discussed above are
stil paramount as the initial threshhold of a cause of action
in defamation. The issue of falsity of the alleged defamatory
statements is central to the disposition of a defamation
action; only false and defamatory statements of fact are
actionable.
Under the First Amendment there is no such thing
as a false idea. However pernicious an opinion may
seem, we depend not on the conscience of judges and
juries but on the competition of other ideas.
Gertz u. Robert Welch, Inc., 418 U.S: 323 (1974); see also,
E-4
Capen v. Daugherty, 402 N.W.2d 561 (Minn. Ct. App. 1987).
The First Amendment to the United States Constitution
holds statements of opinion as absolutely privileged.
Whether a statement is one of opinion, hence absolutely
protected by the First Amendment, or one of fact, is a
question of luw for the trial court. Janklow v. Newsweek,
Inc., 788 F.2d 1300 (8th Cir. 1986). In Janklow, the Eighth
Circuit Court of Appeals articulated a 4-part test consisting
of various factors to determine whether a statement is one of
fact or opinion.
The Janklow factros are:
a) The precision and specificity of the disputed statement
(the more imprecise, the more likely opinion);
b) The statement’s verifiability (the less verifiable, the
more likely opinion);
e) The literary and social context in which the statement
was made (including the entire communication’s tone, the
use of cautionary language, the category of publication, its
style of writing and intended audience); and
d) The statements public context (consideration of the
public or political arena in which the statement was made).
Capan v. Dougherty, 402 N.W.2d 561 (Minn. Ct. App. 1987)
citing Janklow, 788 F2d at 1302-03.
Further, while it is clear that distinguishing fact from
opinion is by no means a simple task, the definition of
opinion is given a broad spectrum. Opinion has been
equated with rhetoric, and figurative language, and is, in
any event, not actionable if, in context, the audience would
understand the statement is not a representation of fact.
Jadwin v. Minneapolis Star & Tribune Co., 390 N. W. ad at
441. If the statement is true in substance, inaccuracies of
expression or detail are immaterial. Id.
Perhaps most significantly, given that it is the Court's
task to construe the language of the alleged defamatory
statements, the Court must give words their obvious and
natural meaning unless they are alleged to have been used
and understood in a different sense.” Jadwin at 442.
E-5
IV.
TRUTH
At common law a defamatory statement was presumed to
be false. Truth was an absolute, affirmative defense. See,
Jadwin, 367 N.W.2d at 480. A defendant accused of making
defamatory statements had the burden of proving that the
statements were true. The burden has now been shifted by
the advent of the constituional parameters of the law of
defamation. The burden is now upon the plaintiff to prove
that the statements are false. In addition, truth is a defense
to defamation only when the underlying implicaiton of the
statement is true, not merely when the statement is verbally
accurate. Lewis, 389 N.W.2d at 889.
The Court concedes that the truth or falsity of a statement
is generally a question for the trier of fact. However, the
Court would hasten to add that it would only be a jury
question for statements that meet the threshold of being
capable of a defamatory meaning. As such, it is clear that at
this juncture, the simple truth of a statement would make it
not actionable as a matter of law.
V.
Fair Comment; Qualified PRIVILEGE
In considering the overall context of the pending liti-
gation, it should be noted that the parties involved are a
public official and a media organization. This media
organization, defendants, is actively engaged in the pro-
fession of news coverage, reporting, investigation, and
commentary. A simple fact of the matter is that organiza-
tions engaged in the activity that defendants are engaged
in have, since time immemorial, commented upon the
activities of public officials. This idea and its machination
go to the very heart of our present system of government.
The media has long been referred to as the Fourth Estate. In
addition to the checks and balances of the three prongs of
government articulated by our Constitution, the media,
both print and broadcast, serve a vital function as a
watchdog of the affairs of government. Both federal and
E-6
state courts have long recognized a qualified privilege on
behalf of the media to comment on the conduct of public
officials. See, e. g., Freidell u. Blakely Printing Co., 163
Minn. 226, 203 N. W. 974 (1925). This doctrine of privileged
communication rests upon the above-noted public policy
considerations. The law in Minnesota is:
A. Communication, to be privileged, must be made
upon a proper occasion, from a proper motive, and
must be based upon a reasonable or probable cause.
When so made in good faith, the law does not imply
malice from the communication itself, as in the
ordinary case of libel. Actual malice must be
proved, before there can be a recovery, and in the
absence of such proof, the plaintiff cannot recover.
Stuemges, 297 N. W. 21 256-57 (quoting Hebner v. Great
Northern Railway, 78 Minn. 289, 292, 80 N.W. 1128, 1129
(1899).
In the instant case, it is clear that defendants have a
historic qualified privilege to comment upon the affairs of a
public official. The qualified privilege of the ia de-
fendant in this case is clearly within the abo ted
language. As such, allegedly defamatory statements that
come within the penumbre of the qualified privilege of fair
comment are not actionable.
To establish the defense of fair comment, the defendant
has to show 1) that the published criticism was one of
legitimate public interest, 2) that the criticism was based
on facts either stated or otherwise known to the reader, 3)
that the criticism represented the actual opinion of the
critic, and 4) that the criticism was not made solely for the
purpose of causing harm to the person criticized. Ollman v.
Evens, 750 F.2d 970 at 974, note 5 (1984).
VI.
INNUENDO
Words are defamatory when they tend to injure the
plaintiffs reputation and expose the plaintiff to public
hatred, contempt, ridicule or degradation. Gadach v.
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Benton County Co-op Ass n., 236 Minn. 507, 53 N.W.2d 230
(1952). Words may be divided into those that cannot
possibly have a defamatory meaning, those that are rea-
sonably susceptible to a defamatory meaning as well as an
innocent one, and those that are clearly defamatory on their
face. Morey v. Barnes, 212 Minn. 153, 2 N.W.2d 829 (1942).
In addition, a statement may carry a defamatory meaning
only by reason of extrinsic circumstances. The question
whether a claimed defamatory innuendo is reasonably
conveyed by the language used is for the Court to determine.
Utecht v. Shopko Dept. Store, 324 N.W.2d 652 (Minn. 1982).
If the words are capable of a defamatory meaning, it is for
the jury to decide whether in fact they were so understood.
Utecht at 654.
In construing the language as set forth in the complaint,
the Court must give the statement its obvious and natural
meaning. Jones v. Monizo, 276 Minn. 371, 150 N.W.2d 213
(1967). See, e.g., Phipps v. Clark Oil & Refining Corp., 396
N.W.2d 588 (Minn. Ct. App. 1986). When statements
charged as defamatory are not so upon their face, it is for the
Court to determine whether the construction of the lan-
guage put forward by the innuendo is permissible. Marudas
v. Odegard, 215 Minn. 357, 10 N.W.2d 233 (1943).
Plaintiff, in addition to his adamant urging that all 197
statements be considered as a whole, has additionally
posited that many of the statements are defamatory only by
innuendo. In other words, plaintiff asserts that the in-
ference to be gleaned from a variety of the numerous
allegations is, indeed, defamatory. Plaintiff has alleged
that defendant colored the coverage of the events implicit to
this litigation in such a manner as to lead to only one
conclusion; Tom Foley used the power of his office, in
various situations, to thwart the investigation into the
murder of Kathy Greening. Plaintiff's primary assertion,
from the outset of this litigation, has been that the totality of
the broadcasts, laced with innuendo, is the sum of the
defamation. It is plaintiff's primary belief, as noted supra,
that to examine each statement as a singular premise will
defeat plaintiffs cause of action. This Court is not so
E-8
persuaded. The law states that a cause of action in defama-
tion shall set out with specificity the alleged defamatory
statements. Further, the law is that the alleged defamatory
statements shall be considered as a whole, in context with
one another.
While the Court has considered the allegations in context,
the issue of innuendo as relates to the instant case bears
further examination. The hard line according to the Minne-
sota Supreme Court is that there can be no defamation of a
public official by innuendo. See, Valento v. Ulrich, 402
N.W.2d 809 (Minn. Ct. App. 1987); Hirman v. Rogers, 257
N.W.2d 563 (Minn. 1977).
The Court in Hirman stated:
If a defamation action brought by a public official
falls within the constitutional constraints of the NY
Times rule, actual malice may never be presumed.
The burden of proving actual malice is upon the one
alleging defamatory statements and it must be
proven with convincing clarity.
Hirman v. Rogers, 257 N.W.2d at 566.
In Valento v. Ulrich, the appellants asserted that a letter
gave rise to a false innuendo that the plaintiff was involved
in dirty politics. The letter did not expressly state that either
the plaintiff or his election committee were responsible for
the alleged dirty politics. Under Minnesota law, the Court
determines whether an alleged defamatory innuendo is
reasonably conveyed by the language used. See, Price v.
Viking Press, Inc., 625 F. Supp. 641 (D. Minn. 1985). The
Court stated:
... even if the court were to conclude that the letter
falsely implies that appellants were responsible ...,
such conclusion does not address the issue of actual
malice. By arguing only that [the] letter contained a
false innuendo that appellants played a part [in the
dirty politics], appellants must rely on an inference
of actual malice arising from such innuendo. As we
have already noted, malice cannot be premused or
inferred.
E-9
Valento v. Ulrich, 402 N.W.2d at 813.
The law in Minnesota is clear; malice cannot be presumed
or inferred from statements. Malice must be proven with
convincing clarity. Malice is the applicable standard to be
utilized by the plaintiff in the instant case. As malice
cannot be presumed or inferred from statements bearing
innuendo, it is clear that there can be no defamation of a
public official by innuendo.
VII.
ANALYSIS OF THE CONTENTS OF THE 44
ALLEGATIONS OF DEFAMATION
As noted earlier, plaintiff has alleged 44 separate al-
legedly defamatory counts within the amended complaint.
Pursuant to this Court’s order, plaintiff has expanded these
44 counts to a total of 197 specific statements of allegedly
defamatory content. The Court has analyzed this material
and arrived at the following conclusions.
The Court has considered four factual scenarios that
have been analyzed for defamatory content. The four
scenarios are: 1) that the plaintiff asked the Medical
Examiner, Dr. McGee, not to change the designation on the
death certificate from undetermined to homicide; 2) that
plaintiff called Thomas Fabel of the Attorney General’s
office requesting the removal of Investigator Samuelson; 3)
that the plaintiff blocked the issuance of a search warrant;
and 4) that plaintiff was aware of an inherent conflict of
interest involving himself and one of the suspects in the
murder investigation shortly after the murder of Kathy
Greening.
A) Starting in reverse order, the Court looks first to the
questions of the alleged conflict of interest. Without delving
into a lengthy recitation of the facts surrounding this
alleged conflict of interest, let it suffice to be stated that
ther. was a letter written shortly after the death of Kathy
Greening alerting officials to the fact that one of the prime
suspects was a campaign contributor to plaintiffs re-
election campaign. Plaintiff asserts that this is capable of
the inference that the plaintiff knew of this conflict of
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interest, yet failed to act expeditiously and, indeed, failed to
transfer the investigation to Anoka County earlier than in
fact was done. Implicit in this is the inference that the
plaintiff was personally aware of the letter, or that there
was a potential conflict of interest. In point of fact, there is
no showing that the plaintiff was personally aware of either
the letter or the potential conflict of interest. On the other
hand, the statements made are factually correct. The
statements are not false. The investigating police agency
did identify a prime suspect in the murder. This suspect was
a monetary contributor to the reelection campaign of the
plaintiff. Although it was not designated as such, it is clear
that there was a conflict of interest. In point of fact, it was
this conflict of interest that later prompted the plaintiff to
transfer the investigation to the Anoka County Attorney.
Defendants have heatedly pursued the question of why it
took three-and-one-half years to transfer the case. This is a
legitimate concern of a news-organization and, moreover,
the public in general, whom plaintiff serves as the chief law
enforcement official of Ramsey County. Given the legiti-
macy of the question, and the concomitant legitimate
criticism of a public official as clearly phrased statements of
opiniyn, coupled with the underlying truth of the factual
scenario, the statements surrounding the conflict of interest
are not actionable as a matter of law. The statements
reported as facts are true, and the questioning commentary
articulated by defendants is merely opinion.
In addition, this questioning commentary is clearly
within the purview of the fair comment doctrine discussed
supra.
B) The second factual scenario to be addressed is that of
the reporting by the defendants that plaintiff blocked the
issuance of a search warrant that was to look into the bank
records of the prime suspect in the Greening murder case.
The statement, “Foley blocked the search warrant,” ap-
pears to be derogatory to the plaintiff. Piaintiff asserts that
it is capable of a defamatory meaning. The defamatory
meaning conveyed would be that, if not for plaintiffs
conduct in opposition to the search warrant, the warrant
E-11
would have been issued. The meaning conveyed is that
plaintiff was seeking to obstruct justice. If this were the
meaning sought to be conveyed, or if indeed it was the
meaning conveyed, then clearly it is capable of defamatory
meaning. However, as noted throughout this memoran-
dum, as well as throughout plaintiff's abundant pleadings
and oral argument, the statement must be viewed in
context.
Defendants did state,. . before Foley bowed out of the
case his office blocked a search warrant aimed at the bank
records of his campaign contributor.” However, at a
subsequent report, Defendant Eckert stated that the
blocking of a search warrant meant that the Ramsey
County authorities thought that their was insufficient
probable cause to justify issuance, and in any event, the
warrant could be obtained by going straight to the judge.
This is a correct statement of the process involved in the
issuance of a search warrant. Ergo, taken in context, it is
clear that this statement is not false and not defamatory. As
such, counts numbered J2, Ji (also is not of and concerning
plaintiff), KI, K3, K10, K11 and M5 (also opinion) are
dismissed for failure to state a claim upon which relief can
be granted.
C) The next factual scenario to be addressed is the
allegation that the plaintiff phoned Thomas Fabel of the
Attorney General’s office to have Investigator Samuelson
removed from the investigation. Again, plaintiff would
assert tha the inference to be drawn is that plaintiff was
seeking to obstruct the investigation into the murder of
Kathy Greening. The facts, as conceded by the parties, are
that plaintiff did call Fabel. Samuelson did stop
participating in the investigation. Officer Lunzer, of the
Roseville Police Department, stated that he welcomed the
assistance of Investigator Samuelson. In a Fabel interview
carried by defendants, Fabel stated that his motivation in
pulling Samuelson off of the investigation was that he did
not want it to appear that the Ramsey County investigators
were not doing an adequate job. Taken in context, it is clear
that this is not defamatory of the plaintiff. At best, there
E-12
was some confusion as to which police agency was
adequately pursuing the investigation. However, that would
not bring the statements involving this fact situation into
the arena of defamatory meaning. The series of events are
quite innocent, and not defamatory.
Further, it would appear that the questions raised by the
defendants about this series of events are editorial
judgments related to legitimate criticism of public officials,
and again, not actionable under Minnesota law. Therefore,
counts numbered Al-12 (also opinion or hyperbole), D11,
D12, D13 and D20 are dismissed for failure to state a claim
upon which relief can be granted.
Before delving into the statements which the Court views
as actionable in this litigation, it is important to address the
number of statements that are either true or clearly opinion,
and hence not actionable.
The Court will not burden the parties with a recitation of
the alleged dafamatory verbage. Rather, the Court will cite
the parties to the numbered counts with explanation as
deemed appropriate.
D) It is the opinion of this Court that the following
statements are true factual statements, and hence not
actionable as defamatory. For purposes of illustration, let
us examine one count. count C2 states en toto:
“A police investigation indicated a suspect might be
one of Foley’s campaign contributors.”
This is not opinion. This is not innuendo. This is simple
truth. There was a police investigation. This investigation
did turn up a suspect. This suspect was a contributor to Tom
Foley’s reelection campaign. It is not actionable as a matter
of law.
The following counts are true, and therefore dismissed for
failure to state a claim upon which relief can be granted:
B (also privileged fair comment), C@, D1, D2, (also fair
comment), D14, D15, D16, D17, D18, D21, El, Fl, F4, G1, G2,
G3, H1, H4, H5, H6, H7, K2, K7, KS, K9, LI, 03, Q2, Q4, Q5,
Rl through R11 (also opinion), T2, T3, T8, T9, T10, T11, T12,
T13.
E) The following counts are in the dominion of opinion.
E-13
As hereinbefore discussed, opinion is absolutely protected
un the First Amendment to the Constitution. In addition, as
discussed above, it is sometime difficult to discern whether
a statement is fact or opinion. In recognizing this difficulty,
the Eighth Circuit has supplied a 4-part test. Rather than
take the numerous allegations that this Court has deem to
be opinion and fit them into the aforementioned Janklow
factors ad infinitum, the Court shall take one example to
address the Jankiow factors. Looking to Count D5 in which
Defendant Eckert states:
“She believes the authorities missed key evidence
and failed to perform important tests which could
have proved murder.”
Mr. Eckert is clearly reporting the opinion of Ms. Caro!
Kellogg, a.friend of the decedent, Kathy Greening. Ms.
Kellogg did feel frustration at the seeming standstill cf the
murder investigation. However, her comments and feelings
as to the stat of the investigation are no more than opinion.
Ms. Kellogg’s statements throughout the series of reports
are predicated on this frustration. This frustration is
minimally ventilated through expression of her opinions as
to the investigation. They are fraught with imprecision and
emotion, thereby more likely opinion.
Ms. Kellogg’s statements rae not highly verifiable as fact,
and hence opinion. In addition, the social context in ch
the statements are made is that Ms. Kellogg was extremely
frustrated as to the state of the investigation into the death
of her close friend. Ms. Kellogg had dire concerns over the
lack of progrees and seeming incompetence, and has strong
opinions to express.
As to the statements’ public context, Ms. Kellogg has
gone to the authorities and to the media seeking any avenue
of resolution to, what was to her mind, an unsolved murder
case. The statements must be considered in this context.
Defendants were simply reporting Ms. Kellogg’s opinion.
In utilizing the above rationale, the Court concludes that
the following statements are opinion, thereby not actionable
defamation, and dismissed for failure to state a claim upon
which relief can be granted:
E-14
D3, D4, D5, D6, D22, D23, D24, F2, F3, H2, H3, H8, II, K4,
K5, K6, k12, M1, M4, M5 (see also, search warrant discussion
supra), Nl, 04, 05, ’ 07, Pl, P, P5, PG, Ql, Q3, . Q8,
, Q10, RI, R4, R5, RG, RS, R11 (also true), Sl, TI, T4, T5,
T6, T7, 718, 719, 720, Z4, 218.
In addition, although the following statements related to
the actionalbe defamatory statements, they are opinion,
and therefore excluded:
Q6, R2, R3, R7, NM, R10, T2, T18, T13.
F) While the Cowrvis of the opinion that the vast majority
of the statements alleged by the plaintiff to be defamatory
are, indeed, not defamatory, there are a number of
statements that appear to be capable of defamatory
meaning, and thereby remain for jury determination. See,
Utecht v. Shopko Dept. Store, 324 N.W.2d 652 (Minn. 1982).
The factual setting of the statements that are capable of
defamatory meaning involve the allegations that plaintiff
telephoned the Medical Examiner, Dr. McGee, requesting
that McGee not change the designation of cause of death
from undetermined to homicide.
Count C1 states:
“The Ramsey County Medical Examiner’s office
[Dr. McGee] officials say they were told not to
change the death certificate from accident ot murder
by Foley.”
Here, quite clearly, the language indentified plaintiff. It
may be false is the truth was that the officials asked that the
designation remain undetermined pending further
investigation. In addition, this Court is unaware of
information that plaintiff was perscnally aware of the
interaction with Dr. McGee. Although defendant observes
that the designation of undetermined or homicide is not
essential or of legal effect to a prosecution, nevertheless,
these statements are capable of a defamatory meaning. The
defamatory meaning is that plaintiff personally requested
Dr. McGee not to change the designation of cause of death
os that plaintiff would not have to prosecute a homicide
where the suspect was a monetary contributor to plaintiff's
reelection campaign. In effect, a listener could conclude that
E-15
8
the statement was — Foley was misusing the power of his
office to obstruct a murder investigation. This is clearly
capable of a defamatory meaning.
As it is this Court’s role at this juncture to merely
determine whether statements are capable of defamatory
meaning, it is the Court’s opinion that the following
statements are worthy of resolution by the trier of fact:
C1, D7, D8, D9, D10, D19, H9, M2, M3, Ol, O2, P3, PA, T14,
T15, T16, T17.
G) Lastly, plaintiff has alleged in Counts U-Z3 and Z5-
Z17 allegations of defamatory content as articulated by
various media in the Twin Cities area. Plaintiff alleges that
these publications are, in fact, republications of defamatory
content.
It is the opinion of this Court that, as defendants astutely
point out, for the most part these are not republications but
rather are commentary by local media on a controversy in
wich the plaintiff was clearly a participant. None of the
numerous sources cited by plaintiff as republication are
named as a defendant.
VIII.
CONCLUSION
The allegedly libelous statements in this litigation appear
in a series of broadcasts that comment on important
political events. It should be noted that the television
programs under consideration involve various kinds of
information and stimuli. It is not every commun‘cation,
verbal or nonverbal, audio or visual, that is subject to the
test or evaluation to determine if defamation occurred.
Rather, the law requires a statement of fact. Otherwise, the
Court would, in effect, impose on defendant an obligation to
be prepared to substantiate the truth and accuracy of each
and every opinion and comment; a task not only elusive but
impossible. The net result would not only have a chilling
effect on freedom of the press, but it would emasculate the
media’s effectiveness in its role to examine and comment on
the very fabric of life in America, especially with respect to
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the role of government and that of the so-called public
servant.
The plaintiff in this litigation is a public servant; he is a
public official. His views and acts must remain open to a
wide range of commentary and criticism, protected from
even the slightest degree of regulation. Sharon v. Time, Inc.,
575 F.Supp. 1162 at 1167 (1983). Given that plaintiff is a
public official, he must prove that the allegedly defamatory
statements were made with actual malice. Absent actual
malice, it is properly thought that battles over what was
true and not true could and should be waged in the media
rather than in the courts, and that the public rather than a
jury would render the final verdict. Schiavone Const. Co. v.
Time, Inc., 619 F.Supp. 684 (D.C.N.J. 1985).
As the Court in Schiavone notes:
This action may result in a verdict favorable to the
plaintiffs’ but is may also, along with other
defamation cases, result in a timorous and tentative
press content to preport on births, weddings, deaths,
and craft fairs. While it is essential to protect the
individuals from a powerful media which can destroy
reputations forever through abuse of that power, the
greater danger lies in the destruction of the
independence of the media itself.
Schiavone at 170.
This case cries out for an historical recitation of freedom
of the press. From the rallying cry of freedom in Tom
Paine’s invigorating Common Sense to the nauseating bile
of Larry Flynt’s Hustler, this country has long held as its
banner the nation of a free, unfettered and vital, open
media.
While there is an obvious inherent tension between the
press and those they seek to take to task, our country has a
long history of support for public airing of controversy and
criticism. It is, indeed, a cornerstone of our democracy.
As has been noted, this is a classic case of media criticism
or investigation of a public official. Although public officials
are not fair game for untruthful, malicious, derogatory
attacks, they are appropriately subject to evaluation,
E-17
investigation and criticism. Accordingly, none of us in
public office are removed or immune from media attention,
which may be unfair and may sometimes offend our
sensibilities. Although this type of broadcast is presented as
“hard news,” they have a custom of more colorful, even
irascible language, than do traditional news media. High
spirited presentation if increasingly the norm, especially in
areas of controversy involving public officials. It is the
crucible of public debate that will test the validity of this
type of presentation; it is not the Court’s province to intrude
into the manner of presentation chosen by the free media.
In a free society, that choice is appropriately, if not
essentially, left to open, bold debate.
While plaintiff has taken umbrage at the manner and
tone in which the broadcasts were presented, the law is such
that courts are averse to intruding on matters of editorial
judgment.
Not only are venial shortcomings such as pomposity and
boastfulness subject to analysis, but investigation and
evaluation of performance in office is warranted and a
protected right.
As per the foregoing discussion, the counts enumerated in
this memorandum are dismissed for failure to state a claim
upon hich relief can be granted. Conversely, those claims
articulated under the banner of the fact situation involving
the allegations of plaintiff requesting the Medical Examiner
not to change the cause of death designation, as enumerated
in this memorandum, are capable of defamatory meaning
and therefore actionable.
Per this memorandum and order, the Court orders the
parties to hold a rule 2.02 conference with respect to
discovery in the remaining disputes.
LET THIS MEMORANDUM BE MADE PART OF THE
FOREGOING ORDER.
RG. S.
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APPENDIX F
STATE OF MINNESOTA
COUNTY OF HENNEPIN
DISTRICT COURT
FOURTH JUDICIAL DISTRICT
TOM FOLEY,
Plaintiff,
vs.
WCCO T. V., Inc., a corporation,
STEVE ECKERT, and
JOHN LINDSAY,
Defendants.
ORDER FOR JUDGMENT
File No. 87-4560
Plaintiff's motion for reconsideration of the Court’s order
of January 20, 1989, was submitted to the Court upon
Patrick J. Foley, Esq., represented plaintiff. Paul Hannah,
Esq., represented defendants.
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED:
That plaintiffs motion for reconsideration is, in all
respects, denied.
ORDER FOR JUDGMENT
IT TT HEREBY ORDERED:
That defendants have judgment on plaintiff's complaint,
together with their costs and disbursements herein.
LET JUDGMENT BE ENTERED ACCORDINGLY.
F. I
BY THE COURT
Dated:
April 5, 1989 Robert G. Schiefelbein
MEMORANDUM
This Court has reconsidered its January 20, 1989, order
dismissing plaintiffs complaint and has reviewed the
submissions of the parties. Not surprisingly, the parties
have reiterated the same respective positions which they
have maintained essentially since this case commenced.
This case is the classic coufrontation between the
reputation of an individual, his most prized possession, and
freedom of the press, the free, frank and informed discussion
by the public of issues, ideas and criticism, a right in scope
peculiar to our nation.
Although this Court remains unconvinced of any
inappropriate behavior of Mr. Foley, the law does not stifle
criticism of public officials nor terminate investigative
reporting merely on the basis of an individual opinion or
denial of wrongdoing by the person who is the focus of the
inquiry.
Accordinginly, the decision of this Court remains
unchanged. The Court would, however, specifially invite
any reviewing authority not to limit inquiry to appellate
briefs but, as this Court has done, review each submission of
the parties, including the many briefs, pleadings,
depositions, affidavits and other documents in order to gain
a full appreciation of the issues confronting this Court and
the manner in which this litigation has progressed.
LET THIS MEMORANDUM BE MADE PART OF THE
FOREGOING ORDER.
RG. S.
F. 2
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