Opposition Brief — Parker v. Evening Post Publishing Co.

| Supreme Court, US.

(») FILED 4

rEB -9 1996

No. 95-1085

In The an

Supreme Court of the United States

October Term, 1995

¢

JOHN R. PARKER,

Petitioner,

vs.

EVENING POST PUBLISHING CO. AND JIM PARKER,

Respondents.

+

On Petition For A Writ Of Certiorari

To The South Carolina Court Of Appeals

*

RESPONDENTS’ BRIEF IN OPPOSITION

vy

Jay BENDER

Counsel of Record

CHARLES EDWARD BAKER

BAKER, BARWICK, RAVENEL

& Benper, L.L.P.

1730 Main St.

Post Office Box 8057

Columbia, South Carolina 29202

(803) 799-9091

D.A. BROcKINTON, Jr.

BROCKINTON, BROCKINTON

& Kerr

51 State St., Post Office Box 633

Charleston, South Carolina 29402

(803) 722-8845

Counsel for Respondents

COUNTERSTATEMENT OF QUESTIONS

PRESENTED FOR REVIEW

1. Is an individual who acquires an ownership

interest in the assets of an automobile dealership which is

located in a community in which the individual formerly

was in the automobile dealership business and, who,

while managing the dealership which is the subject of the

purchase pending closing of the sale, advertises that he is

back in the car business at that dealership’s business

name a public figure with respect to a claim of libel

arising out of a media report of his potential liability for a

judgment obtained against the former owners of the deal-

ership assets for fraudulently structuring a straw pur-

chase in the sale of a vehicle to a consumer?

2. In a news article about a judgment obtained

against a former automobile dealership for fraudulently

structuring a straw purchase in the sale of a vehicle to a

consumer, does the media defendant invade the privacy

of a private individual who had formerly been in the

automobile dealership business in the same community

and had subsequently acquired an ownership interest in

the assets of the dealership against whom the judgment

was obtained and who advertised that he was back in the

car business at that dealership’s business name while

managing the dealership pending closing of the sale

when the media defendant reports in the article that the

individual may be personally liable for the judgment?

ii

LIST OF PARTIES AND RULE 29.6 LIST

The names of all parties to the proceeding in the

Court below are contained in the caption of this Respon-

dents’ Brief in Opposition.

Respondent Evening Post Publishing Co. is a South

Carolina corporation which owns a 60% interest of the

Buenos Aires Herald, an Argentina Company (the other

40% interest therein being owned by various Argentinean

citizens), but Evening Post Publishing Co., as the parent

company, does not otherwise have any parent companies

or any subsidiaries other than its wholly owned subsid-

iaries.

ili

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRE-

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CONSTITUTIONAL PROVISION AND APPELLATE

COURT RULE INVOLVED. ........0...00c0c000:.

I. The Supreme Court Has No Jurisdiction To

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Il. The Statements Of The South Carolina Court

Of Appeals Pertaining To Petitioner’s Having

The Status Of A Limited Public Figure Do Not

Warrant Review By This Court...:..........

Ill. The South Carolina Court Of Appeals’ Deci-

sion On The Merits Of The Issue Of Whether

The Entire News Article Involved Matters Of

Pubiic Concern Is Sound And Does Not Call

For This Court’s Discretionary Review ......

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14

iv

TABLE OF AUTHORITIES

Page

Cases:

Connick v. Myers, 461 U.S. 138 (1983)...............- 16

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

472. US. FAD AAGDD) oe 6tis's 2 (REECE S fash Oots HH 16

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ........ 13

Herb v. Pitcairn, 324 U.S. 117 (1945)................. 13

National Foundation for Cancer Research, Inc. v.

Council of Better Business Bureaus, Inc., 705 F.2d

98 (4th Cir. 1983), cert. denied, 464 U.S. 830....... 15

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767

CRG sid so ccnaehel ess tasse ees iieees 9, 10, 13, 14

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

FO CIR ks 28 005 Freee Seen hes eraeeal ess three 15

Rycroft v. Gaddy, 281 S.C. 119, 314 S.E.2d 39

CEO, TRE, cc pecacetinstad uhgges<adehsianns ess 12

Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3rd

BEER re ee rt Pe ree 15

Sunshine Sportswear & Elec. Inc. v. WSOC Television,

Inc., 738 F.Supp. 1499 (D.S.C. 1989) ............... 15

CONSTITUTION:

Sp GeN SUOMI: Bos cvsicnscaavdieedes 1, 12, 13, 16

STATUTES AND RULEs:

Fee ees Se NE 6-36 0 eWR 05s hana neckdoaueeadsdaekuaan 1

eke BG, SOR. Chev. 1998). ou. cece ncsveccssvcecs 15

SUD SAEs MARIE. 5 ccbesnevevacdcarnsvsuctsaesed 1, 13

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents, Evening Post Publishing Co. and Jim

Parker, respectfully submit this brief in opposition to the

petition for a writ of certiorari filed by petitioner, John R.

Parker.

¢

OPINIONS BELOW

Respondents adopt the statement of the Opinions

Below set forth in the Petition.

4

JURISDICTION

Petitioner seeks to invoke the Court's jurisdiction

under 28 U.S.C. § 1257(a). Respondents aeatiion the

Supreme Court’s jurisdiction at I, infra.

¢

CONSTITUTIONAL PROVISION AND

APPELLATE COURT RULE INVOLVED |

U.S. CONST. amend. I :

The text of this provision is reproduced in the

Appendix to the Petition at Pet.App. p. 6-1.

Rule 220(c), South Carolina Appellate Court Rules

Affirmance on Any Ground Appearing in Record.

The appellate court may affirm any ruling,

order, or judgment upon any ground(s) appear-

ing in the Record on Appeal.

r

vy

COUNTERSTATEMENT OF THE CASE

Respondents submit the following as a counterstate-

ment of the case in order to correct inaccuracies in the

STATEMENT OF THE CASE in the petitioner’s Petition,

including matters stated in said Petition under the sepa-

rate heading of “STAGE AT WHICH FEDERAL QUES-

TION WAS RAISED:”

This action was commenced in the Court of Common

Pleas for Charleston County, South Carolina, by peti-

tioner, John R. Parker, against respondent Evening Post

Publishing Co., publisher of the News and Courier news-

paper in Charleston, South Carolina, and respondent Jim

Parker, a reporter for that paper, upon a Complaint alleg-

ing libel and invasion of privacy based upon an article

written by respondent Jim Parker published in the News

and Courier on August 3, 1989. The article concerned the

outcome of a lawsuit by Yulonda Adams (“Adams”)

against Classic Lincoln-Mercury, Inc. (“Classic”), an auto-

mobile dealership, over Classic’s use of a so-called “straw

purchase” in the October, 1987, financing of Adams’ vehi-

cle purchase.

On December 13, 1988, petitioner and Jack M. Mills

(“Mills”) (an individual not a party to this action),

entered into an Asset Purchase Agreement with Classic,

then doing business as Heritage Lincoln-Mercury, to pur-

chase the assets of Classic (R.pp. 267-269; R.p. 839).1 At

the same time, petitioner entered into a Management

1 References to the Record on Appeal before the South

Carolina Court of Appeals are designated herein by the letter

mt

3

Agreement by which he agreed to manage and operate

the Heritage dealership pending approval of the sale by

the manufacturer and the closing of the sale (R.pp.

274-276; R.p. 867; R.p. 871). Pursuant thereto, petitioner

took over the management and operation of the Heritage

dealership on December 26, 1988 (R.p. 276).

Petitioner had previously been in the automobile

dealership business in Charleston. When he entered upon

the operation of Heritage Lincoln-Mercury under the

Management Agreement, he ran newspaper and radio

ads in his individual name announcing that he was back

in the car business at Heritage Lincoln-Mercury (R.pp.

364-365.)

On March 13, 1989, a corporation named Parker Lin-

coln-Mercury, Inc. was organized for the purpose of tak-

ing over and operating the dealership upon the closing of

the purchase (R.pp. 422-423; R.p. 937). Mills held 85% of

the stock of that corporation and petitioner held 15% of

the stock.

The Asset Purchase Agreement was closed on May

30, 1989 (R.p. 918) with title to the assets being conveyed

to petitioner and Mills, as Buyer (R.p. 916). The Closing

Memorandum provided that the Seller, in lieu of compli-

ance with the South Carolina Bulk Sales Act, would pay

all creditors (other than creditors by reason of the Buyer’s

management of the previous dealership assets by Buyer

under the Management Agreement) when due and would

hold the Buyer harmless from any claim of a creditor

(R.p. 920).

ws

4

The action by Adams against Classic was pending at

the time of the execution by petitioner of the Asset Pur-

chase Agreement and at the time of the closing of the

purchase. In June, 1989, the attorneys for Adams submit-

ted a Pre-trial Brief in the action against Classic which

stated under the heading “UNUSUAL MATTERS” as fol-

lows:

The only unusual matter in this case

involves the identity of the Defendant. Appar-

ently, the dealership was sold, and the name

was changed to Heritage Lincoln Mercury, Inc.

Subsequently, the dealership was again sold to

John Parker, and it is now John Parker Lincoln-

Mercury, Inc. However, the Defendant made no

attempt to comply with the Bulk Sales Act, and

Heritage has filed an affidavit with the South

Carolina Department of Highways and Public

Transportation swearing that Classic and Heri-

tage are one and the same dealership. Therefore,

if the Defendant’s attorney believes that his cli-

ent can sit back and let Mrs. Adams obtain. a

judgment against Classic without risk to Heri-

tage or John Parker, he may be mistaken.

(Pet.App. p. 8-11.)

The Adams’ case was tried in July, 1989, and resulted

in a verdict for Adams, with judgment being entered

thereon against Classic on July 28, 1989, in the total

amount of $716,000.50, including actual and punitive

damages, attorney’s fees and costs.

There was evidence in the instant case that both the

judgment and the plaintiff’s Pre-trial Brief in the Adams

case were contained in the record of the Adams’ case on

file in the Office of the Clerk of Court for Charleston

County. Utilizing the Pre-trial Brief, the judgment and

information obtained from the attorneys in the Adams

case, respondent Jim Parker wrote the news article which

is the subject of the present lawsuit (Pet.App. p. 7-1). The

article described the judgment as rendered against Clas-

sic and the alleged conduct of Classic that led to the

judgment as related in the Pre-trial Brief, which included

Classic’s use of a “straw purchase” in the sale of the car

to Adams and Classic’s subsequent repossession of the

car in October, 1987. The article related information sup-

plied by Classic’s attorney that the case had been

appealed and stated toward the end of the article:

It’s unclear who is liable in this case. Classic

since has been sold, first becoming Heritage

Lincoln Mercury Inc. and now John Parker Lin-

coln-Mercury Inc.

In the brief, Buckley [Adams’ attorney]

argues that if the lawyer for Classic lets Mrs.

Adams obtain a judgment against Classic with-

out risk to Heritage or John Parker, “he may be

mistaken . . . ” Gowder [Classic’s attorney] said

since the case is on appeal, there’s no reason to

speculate on liability.

(Pet.App. p. 7-1.)

On August 9, 1989, Adams filed an Amended Com-

plaint against petitioner, Mills and Parker Lincoln-

Mercury, Inc., for recovery of the judgment from the

assets purchased from Classic, alleging violation of the

South Carolina Bulk Sales Act. That action was subse-

quently settled with funds paid “by or on behalf” of them

(R.p. 941). The funds were apparently paid by Classic

pursuant to the indemnification clause in the Closing

Memorandum.

The petitioner’s Complaint in the instant case alleges

that the aforesaid article stated that petitioner was possi-

bly liable for any judgment awarded to Adams and that

by the article, respondents falsely led the public and any

ordinary reader to believe that John Parker Lincoln-Mer-

cury, Inc., and specifically John Parker himself, was

involved in and responsible for the unfair trade practices,

fraud and consumer practices and criminal acts of Classic

and the large judgment awarded to Adams (Pet.App. p.

10-2). The first of two separately stated causes of action in

the Complaint is characterized “FALSE LIGHT/INVA-

SION OF PRIVACY” (Pet.App. p. 10-4) and the second of

the said causes of action is characterized “DEFAMA-

TION” (Pet.App. p. 1-5). Petitioner sought recovery of

“special, general and punitive damages” (Pet.App. p.

10-6).

Upon trial of petitioner’s action, the trial judge

granted respondents’ motion for directed verdict as to

petitioner’s claim for invasion of privacy under the “false

light” theory, which had not been officially recognized in

South Carolina, and also under the public disclosure of

private facts theory, pointing to the principle that the

right of privacy does not prohibit publication of matters

which are of “legitimate public concern” (R.p. 495.)

The cause of action for libel was submitted to the

jury. The jury instructions placed upon petitioner the

burden of proving falsity of the information and also that

respondents negligently reported the false information. It

was petitioner’s theory of recovery that the statements

were libelous per se. The trial judge charged that the

plaintiff was required to prove that the defendant “acted

with malice” in writing and publishing the words (R.p.

773) and that a libelous per se statement is one in which

malicious intent is presumed (R.p. 774). The jury was also

instructed that implied malice would support an award

of actual damages (R.p. 781) and that petitioner was

required to prove actual damages (R.p. 781). The trial

judge did not require proof of actual malice for recovery

of actual damage proved by petitioner and did not indi-

cate to the jury, expressly or by implication, that peti-

tioner was a public figure.?

Petitioner’s counsel took exception to the trial

judge’s failure to charge various specific requests to

charge submitted by petitioner. One of those requests

provided for the respondents to have the burden of pro-

ving truth. The remaining requests provided in effect for

recoverability of presumed damages without including

the requirement that constitutional malice be shown.

2 In the charge on damages, the trial judge specifically used

the term “private person,” saying:

...€@ private person may recoup for defamation if he

believes that the defamatory language was published

and that he suffered some actual injury. He need not

prove a dollar amount of damage in order to recover.

A private person may also recover punitive or

exemplary damages, if he proves actual malice. That

is if the defendants acted with actual knowledge that

the charge was false or that it was made with reckless

disregard for the truth.

(R.p. 780, lines 11-18.)

The jury returned a verdict in favor of respondents.

Petitioner moved for a new trial or judgment notwith-

standing the verdict, which was denied by Order dated

August 5, 1992 (Pet.App. p. 2-1). The Order denying

petitioner’s post-trial motion sets forth the petitioner’s

contentions with respect to the motion:

. The plaintiff asserts that the court erred in

requiring the plaintiff to prove that the news

story was false, published with fault on the part

of the defendants and-caused actual injury to

the plaintiff; that the invasion of privacy claim

should have been for the jury, and that the jury

verdict was unjust.

(Pet.App. p. 2-2.)

With respect to the libel claim, the Order continued:

As he had at trial, plaintiff argues that the

communication involving the plaintiff was not

of public concern, and the controlling law is the

common law of libel unmodified by the consti-

tutional defenses recognized in cases involving

communication of material in the public inter-

est. Dun & Bradstreet, Inc. v. Greenmoss Builders,

Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593

(1985).

(Pet.App. p. 2-2.) The trial judge concluded in “ Order

with respect to the libel claim: \

Utilizing the Supreme Court's broad defini-

tion of what is in the public interest, and recog-

nizing that the story was based on information

in a court file leads to the conclusion that the

constitutional defenses urged by the defendants

were correctly applied. Philadelphia Newspapers,

Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89

L.Ed.2d 783 (1986); Gertz v. Robert Welch, Inc.,

418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789

(1974).

(Pet.App. p. 2-3.)

With respect to the invasion of privacy claim, the trial

judge concluded in the aforesaid Order that none of the

evidence offered by the petitioner supported the claim

that the news story publicized private affairs of no legiti-

mate public concern (Pet.App. p. 2-4).

The South Carolina Court of Appeals affirmed the

judgment of the trial court (Pet.App. pp. 1-1 through

1-14). On the appeal, petitioner challenged the jury

charge on his libel claim, arguing that the trial court

improperly placed on him the burden of proving falsity

of the statements in the article. He contended that he was

a private figure and that the subject matter of the article

was of purely private concern, thus placing his libel claim

outside the realm of constitutional defamation (see

Pet.App. p. 1-6). In the Opinion for which review is

sought by petitioner herein, the South Carolina Court of

Appeals pointed out that in private figure cases involving

matters of public concern, the common law presumption

of falsity is invalid and the plaintiff must prove the

statement was false, citing Philadelphia Newspapers, Inc. v.

Hepps, 475 U.S. 767 (1986). The Court stated:

. .. Therefore, as Parker [petitioner herein] con-

ceded at oral argument, the dispositive issue

here is whether the article involved a matter of

public concern. If so, then Parker’s claim is gov-

erned by Hepps, and the jury was properly

charged.

(Pet.App. p. 1-7.)

10

In a footnote to the above-quoted statement, the

Court of Appeals pointed out that whether or not peti-

tioner was considered a public figure, his claim was

subject to the requirements of Hepps if the challenged

statements involved matters of public concern (Pet.App.

p. 1-7), stating further that the Court believed, however,

that by extensively advertising his return to the car busi-

ness, petitioner became a public figure, at least in the

limited area of his business dealings (Pet.App. p. 1-7).

The Court observed that through his advertising cam-

paign, petitioner invited the public’s attention and

assumed the accompanying risk of that attention and,

thus, as to statements regarding petitioner’s dealership, it

seemed clear that petitioner was a public figure.

With respect to the libel claim, the Court of Appeals

found that the entire article, including references to peti-

tioner, involved matters of public concern and that the

trial court properly placed on petitioner the burden of

proving falsity (Pet.App. p. 1-9). In addition, the Court of

Appeals found that upon viewing the evidence and rea-

sonable inferences in the light most favorable to peti-

tioner, the article was substantially true as a matter of

law, which, under South Carolina law, was an absolute

defense that mooted all jury charge questions and was a

reason for affirmance of the defense verdict (Pet.App. pp.

1-9, 1-10).

Because the Court of Appeals found that the article

involved matters of legitimate public concern, the Court

held that petitioner’s invasion of privacy claim for public

disclosure of private facts failed under the South Carolina

substantive law providing that a cause of action for pub-

lic disclosure lies only for disclosure of private facts

11

which are of no legitimate public concern. The Court

noted petitioner’s acknowledgement at oral argument

that if the statements in the article were of legitimate

concern to the public, both his libel and invasion of

privacy challenges would fail (Pet.App. p. 1-11).

The Court of Appeals found that petitioner’s argu-

ment regarding false light was “so conclusory as to be an

abandonment of the issue” and therefore determined that

it would not consider whether the tort of false light exists

in South Carolina (Pet.App. p. 1-10).

The South Carolina Court of Appeals denied a peti-

tion of petitioner for rehearing on January 26, 1995,

(Pet.App. p. 3-1) and the Supreme Court of South Caro-

lina denied a petition of petitioner for a writ of certiorari

on October 5, 1995 (Pet.App. p. 4-1).

*

REASONS FOR DENYING THE WRIT

I. The Supreme Court Has No Jurisdiction To Review

This Case Wi

The judgment of the Court below determined the

case in favor of respondents with respect to both the

petitioner’s cause of action for invasion of privacy and

the petitioner’s cause of action for libel and petitioner has

included in the Questions Presented for Review in the

Petition a question relating to each of those causes of

action.

3 Neither of the Questions Presented for Review as stated

by petitioner is accurately expressed in the actual circumstances

12

No federal question was involved in or determined

by the decision of the South Carolina Court of Appeals

regarding petitioner’s invasion of privacy claim so as to

provide a jurisdictional basis for this Court to review the

judgment with respect thereto. The affirmance of the

directed verdict on the invasion of privacy cause of action

was based upon state law. Although the Court of Appeals

determined the question of whether the statements in the

news article were matters of public concern, the deter-

mination of that question was not made with respect to

the invasion of privacy claim as a First Amendment issue.

The Court of Appeals determined that question in con-

nection with the invasion of privacy claim in deciding

whether the claim met the requirement of South Carolina

substantive law for an invasion of privacy cause of action

under the theory of public disclosure of private facts that

there be “disclosure of private facts which are of no

legitimate public concern,” as enunciated in Rycroft v.

Gaddy, 281 S.C. 119, 314 S.E.2d 39 (Ct.App. 1984)

(Pet.App. p. 1-11).

There is also no jurisdictional basis for this Court to

review the judgment with respect to the libel claim. Peti-

tioner’s Question Presented for Review relating to the

libel claim pertains to whether the petitioner had the

status of a public figure. As discussed at II, infra, that

of the case and respondents have accordingly restated them in

this brief in opposition in order to set forth the correct

circumstances concerned. Respondents contend, however, that

there is no basis for jurisdiction in this Court to review the

judgment of the Court below under either version of the

Questions Presented for Review.

LE eT I ee eT ee ee TS

13

question, although involving First Amendment consider-

ations, was not a dispositive issue before the Court below.

The dispositive issue on the libel claim was whether the

news article involved matters of public concern. In con-

trast to the invasion of privacy claim, the public concern

issue was a First Amendment issue as to the libel claim,

necessary for resolution in order to determine the appli-

cability of the requirement of Philadelphia Newspapers, Inc.

v. Hepps, 475 U.S. 767 (1986), that a private figure plaintiff

prove falsity of the statements in a suit for defamation.

However, regardless of how the matter of petitioner’s

status as a public figure may be perceived and regardless

of any comments or determinations made by the Court

below with respect thereto, or with respect to the issue of

whether the statements in the article were matters of

public concern, this Court lacks jurisdiction to review the

judgment as to the libel claim. Because the Court of

Appeals held that the news article was substantially true

as a matter of law, which was an absolute defense that

mooted all jury charge questions under South Carolina

law and was a reason for affirming the defense verdict

under Rule 220(c), SCACR, the decision of the Court of

Appeals rested on an independent and adequate state

ground. It is well settled that where the judgment of a

state court rests upon two grounds, one of which is

federal and the other non-federal in character, this

Court’s jurisdiction fails if the non-federal ground is

independent of the federal ground and adequate to sup-

port the judgment. Fox Film Corp. v. Muller, 296 U.S. 207

(1935); Herb v. Pitcairn, 324 U.S. 117 (1945).

14

Il. The Statements Of The South Carolina Court Of

Appeals Pertaining To Petitioner’s Having The Sta-

tus Of A Limited Public Figure Do Not Warrant

Review By This Court.

The thrust of petitioner’s argument for granting the

writ is the contention that the South Carolina Court of

Appeals erroneously concluded that petitioner was a

public figure. The statements of the Court of Appeals

relating to whether petitioner was a public figure are

contained in a footnote (Pet.App. p. 1-7, fn. 3) in connec-

tion with the Court’s consideration of petitioner’s conten-

tion on the appeal that the trial court had erroneously

placed upon him the burden of proving falsity in the jury

charge on the libel claim. In the body of the Opinion, the

Court of Appeals pointed out the principle established by

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986),

that in private cases involving matters of public concern,

the common law presumption of falsity is invalid and the

plaintiff must prove the statement was false. The Court of

Appeals then specifically stated that, therefore, the “dis-

positive issue” was whether the article involved a matter

of public concern (Pet.App. p. 1-7). Further, in the foot-

note, the Court of Appeals specifically pointed out that

“whether or not” petitioner was considered a public fig-

ure, his claim was subject to the requirement of Hepps if

the challenged statements involved matters of public con-

cern (Pet.App. p. 1-7, fn. 3). It is thus apparent that the

statements of the Court of Appeals in the footnote expres-

sing the Court’s view that by extensively advertising his

return to the car business, petitioner became a public

figure in the limited sense of his business dealings and

that petitioner was a public figure as to statements

15

regarding his dealership are unnecessary to the Court’s

decision and are obiter dicta in the purest form. Even if

this Court has jurisdiction in this matter, the Court

should not exercise its discretionary review to consider

statements that were not necessary to determination of

the case. The “compelling reasons” which Rule 10 of the

Supreme Court Rules (Rev. 1995) now requires for grant

of certiorari clearly continues to imply a reach to a prob-

lem “beyond the academic or the episodic” as stated in

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 74

(1955) (construing the former Rule criterion of “special

and important” reasons).

Moreover, petitioner’s own contentions in the case

support the conclusion that petitioner was a limited pub-

lic figure in the sense described by the Court of Appeals

for the purposes of his libel claim. Petitioner contended

that the article charged that he was involved in the con-

duct of Classic that led to the judgment. Petitioner pub-

licly promoted his personal identification with the

dealership, obviously seeking to establish a good busi-

ness image. Under petitioner’s own theory of the case,

the allegedly defamatory statements were directly related

to the business image petitioner sought to promote to the

public. He would be regarded as a limited public figure

with respect to those statements under the analysis in

Sunshine Sportswear & Elec., Inc. v. WSOC Television, Inc.

738 FSupp. 1499 (D.S.C. 1989), cited by the Court of

Appeals, and other decisions such as National Foundation

for Cancer Research, Inc. v. Council of Better Business

Bureaus, Inc., 705 F.2d 98 (4th Cir. 1983), cert. denied, 464

U.S. 830; and Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264

(3rd Cir. 1980).

16

III. The South Carolina Court Of Appeals’ Decision

On The Merits Of The Issue Of Whether The

Entire News Article Involved Matters Of Public

Concern Is Sound And Does Not Call For This

Court’s Discretionary Review.

The conclusion of the South Carolina Court of

Appeals that the entire news article, including references

to the petitioner, involved matters of public concern, is

eminently sound.

The question of whether speech addresses a matter of

public concern for purposes of the First Amendment is

“determined by [the expression’s] content, form and con-

text . . . as revealed by the whole record.” Dun &

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761

(1985), quoting from Connick v. Myers, 461 U.S. 138,

147-148 (1983). The South Carolina Court of Appeals cor-

rectly followed that approach, taking into account the

pertinent facts and circumstances shown by the record.

The Court properly considered that the public had an

interest in being informed about potential methods of

collecting a judgment, particularly when the judgment

resulted from unfair credit practices. The Court also

properly took into account petitioner’s own voluntary

acts of publicly announcing his connection with the for-

mer dealership and inviting the public to conduct busi-

ness with him, and the Court correctly reasoned that it

was of public interest that “the new owner of the dealer-

ship, for whatever reason, might bear some responsibility

for the damages in the lawsuit. .. . ” (Pet.App. pp. 1-7,

1-8). As the trial judge observed in denying petitioner's

motion for a new trial or judgment n.0o.v.:

17

.. . A determination of what is in the public

interest is not to be narrowly made because the

constitutional guarantee of freedom of the press

allows the public to obtain information neces-

sary on a wide range of topics “to cope with the

exigencies of their period.” Thornhill v. State of

Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84

L.Ed. 1093 quoted in Time, Inc. v. Hill, 385 U.S.

374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1967).

(Pet.App. pp. 2-2, 2-3).

It is facially apparent from the Opinion of the Court

below that the Court’s decision with respect to whether

the entire article, including references to petitioner,

invoived matters of public concern, both for purposes of

the libel claim and for purposes of the invasion of privacy

claim, is a proper application of applicable law to the

evidence and that the decision does not warrant further

consideration by this Court.

.

18

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Jay BENDER

Counsel of Record

CHaRLes EDwarD BAKER

Baker, BARWICK, RAVENEL

& Benper, L.L.P.

1730 Main St.

Post Office Box 8057

Columbia, South Carolina 29202

(803) 799-9091

D.A. BROcKINGTON, JR.

BROCKINGTON, BROCKINGTON & KERR

51 State St., Post Office Box 633

Charleston, South Carolina 29402

(803) 722-8845

Counsel for Respondents

February 9, 1996