Petition for Writ of Certiorari — Yeager v. Camp

Supreme Court, U.S,

FILED

92-585 | SEP 3.0 1992

QE BHE CLERK

No.

IN THE

Supreme Court Of Che United States

October Term, 1992

WILLIAM N. YEAGER, JR. and

TIMBES & YEAGER, INC.,

Petitioners,

V.

BILLY JOE CAMP,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

John H. Morrow*

Stewart M. Cox

John E. Goodman

*Counsel of Record

BRADLEY, ARANT,

ROSE & WHITE

1400 Park Place Tower

2001 Park Place

Birmingham, Alabama 35203

(205) 521-8000

Counsel for Petitioners,

William N. Yeager, Jr. and

Timbes & Yeager, Inc.

QUESTIONS PRESENTED FOR REVIEW

Plainuff below (respondent herein) appealed to the Su-

preme Court of Alabama from a summary judgment entered

in favor of defendants (petitioners herein) by the Circuit

Court of Jefferson County, Alabama. The Alabama Supreme

Court reversed the judgment, holding that (1) the political

speech involved in this case is reasonably capable of a

defamatory meaning, and (2) plaintiff presented clear and

convincing evidence of actual malice sufficient to overcome

defendants’ motion for summary judgment. This petition pre-

sents the following questions for review:

(1) As a matter of constitutional law, can defen-

dants’ advertisement concerning a candidate

for public office provide the basis for liability

under state defamation law, where the ad is

not objectively provable as false?

(2) Did the Alabama Supreme Court permit a for-

bidden intrusion on defendants’ First Amend-

ment rights in holding that plaintiff had pre-

sented clear and convincing evidence of actual

malice?

il

PARTIES TO THE PROCEEDINGS BELOW

The parties in the court below were as follows:

h. Silly Joe GOW. 6 cies cebinuns sheen kee Plainuff-

Appellant ,

2. Wie M. DORR, i oc. iain cka een ee Defendant-

Appellee

3S. Fiewes & POM, TG. on. cece veh caseneeen Defendant-

Appellee

INFORMATION REQUIRED BY RULE 29.1

One of the two petitioners herein, Timbes & Yeager, Inc.,

is a corporation incorporated under the laws of the State of

Alabama, having its principal place of business in Mobile,

Alabama. Timbes & Yeager, Inc. is solely owned by petitioner

William N. Yeager, Jr. The corporation has no parent or sub-

sidiary Companies.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW............. i

PARTIES TO THE PROCEEDINGS BELOW .......... li

INFORMATION REQUIRED BY RULE 29.1........... il

pp Re es iv

| OTST TEETER ET CET CTe Tee l

ae Clk Wak bo Sls da alc sede ceeanvscunat 2

FEDERAL CONSTITUTIONAL

en 2

GU MT OOM MINE nce scceccesceveces 2

REASONS FOR GRANTING THE WRIT.............. §

iv

TABLE OF AUTHORITIES

Cases:

Anderson v. Liberty Lobby, Inc.,

SUF By I SFR aoe ckencdkcaseinacaes

Beckley Newspapers Corp. v. Hanks,

lk & errr eter ee oe

Bose Corp. v. Consumers Union of United States, Inc.,

ee Es © 44.0% wae a weenie crosses

Catalfo v. Jensen,

657 F. Supp. 463, 468 (D.N.H. 1987)..........

Garnson v. Louisiana,

ee | ereererers ce rere raa

Goldwater v. Ginzburg,

261 F. Supp. 784 (S.D. N.Y. 1966),

aff'd, 414 F.2d 324 (2d Cir. 1969),

cert. denied, 396 U.S. 1049 (1970) .............

Gouthro v. Gilgun,

427 N.E. 2d 1166 (Mass. App. Ct. 1982) .......

Greenbelt Cooperative Publ. Ass’n v. Bresler,

hah iw ks Go Wsnee en donee us

Gross v. New York Times Co.,

20 Media L. Rep. 1274

(ke Bee Oe

Hunt v. University of Minnesota,

465 N.W.2d 88 (Minn. Ct. App. 1991).........

Hustler Magazine v. Falwell,

ee cha wk neve ss ecadonccer es

Janklow v. Newsweek, Inc.,

788 F.2d 1300 (8th Cir. ),

cert. denied, 479 U.S. 883 (1986) ..............

¥

TABLE OF AUTHORITIES — (Continued)

Cases: Page(s)

Janklow v. Viking Press,

Se Fees eee GR PED vine vecasduecnsdbuaves 8

Kimura v. Superior Court,

pel Cal, Boer. GOl (C2. App. 1091) .. 2... cee cvcccccas 9

Loveless v. Graddick

fF fog ere 14

Masson v. New Yorker Magazine, Inc.,

501 US.__,111S8.Ce___,

SR My Te ED vee cs se sae ccnsuscetekaaas 15

McCabe v. Rattiner,

Ee BRUT. SUED 6 ons seve ws vet tannsacnnes 8

Milkovich v. Lorain Journal Co.,

ee We Ba 05 66 boa ki ies ewe Se es ck eemeeS 5, 7,0

Monitor Patnot Co. v. Roy,

i Sere ere eres er res: 14

New York Times v. Sulltvan,

FEE Cae BOE CRUD 06 ie kos WWE Sede ie cede es 7, & 28, Ti,

12, 13, 14, 15

Phantom Tounng, Inc. v. Affiliated Publications,

oe ee Re ee ena are 7

R.A.V. v. City of St. Paul, Minnesota,

ee ere eee 8

Scott v. News-Herald,

25 Ohio St. 3d 243, 496 N.E.2d 699 (1986) ............ 5

St. Amant v. Thompson,

ee I aac 11, 14

Sweeney v. Patterson, 128 F.2d 457,

cert. denied, 317 U.S. 678 (1942) ......0.cccccceccecees 8

vi

TABLE OF AUTHORITIES — (Continued)

Cases: Page(s)

Time, Inc. v. Hill,

SES U.S. 574 (1967)... ccc wwe cence ccncccvecece 8

Time, Inc. v. Pape,

DOE Sia, OO CME RD civ ccc neneacesdcaeesounds 7, 12, 13

Unelko Corp. v. Rooney,

912 F.2d 1049 (9th Cir. 1990),

cert. denied, 113 L.Ed. 2d 650 (1991) ..........0...00... 9

White v. Fraternal Order of Police,

909 F.2d 512 (D.C. Cir. 1990)....................0... Y

Woods v. Evansville Press Co., Inc.,

791 F.2d 480 (7th Cir. 1986) ........0.0. 00.00.0008. 8

Other Authority:

R. Vanderet et al., “Media Law and

Defamation Torts: Recent Developments,

BT Tet OF Bas. L. J, SBS CAGDR) «wn. rnc cccnccencvenss 9

No.

IN THE

Suprenve Court Of Che United States

October Term, 1992

WILLIAM N. YEAGER, JR. and

TIMBES & YEAGER, INC.,

Petitioners,

v.

BILLY JOE CAMP

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

Petitioners William N. Yeager, Jr. and Timbes & Yeager,

Inc. respectfully request this Court to issue a writ of certiorari

to review the opinion and order of the Supreme Court of

Alabama entered in this action on July 2, 1992. Petitioners

further ask this Court to reverse the order of the Alabama

Supreme Court and render judgment in their favor.

OPINIONS BELOW

The citation to the opinion of the Supreme Court of Ala-

bama is 601 So.2d 94 (Ala. 1992). A copy of the opinion is

reproduced in the Appendix hereto at pages A-1-A-23. The

decision of the trial court is reproduced in the Appendix at

pages A-24-A-26.

2

JURISDICTION

The order sought to be reviewed was entered by the Ala-

bama Supreme Court on July 2, 1992. The petition for writ of

certiorari is being filed within 90 days after entry of the Ala-

bama Supreme Court’s order reversing the judgment of the

trial court. The jurisdiction of this Court thereby is invoked

pursuant to 28 U.S.C. § 1257(a).

FEDERAL CONSTITUTIONAL PROVISION INVOLVED

This case involves the First Amendment to the Constitution

of the United States, which states: “Congress shall make no

law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably

to assemble, and to petition the government for a redress of

grievances.” The First Amendment is applicable to the States

through the Fourteenth Amendment, which provides in part:

“No state shall ... deprive any person of life, liberty or prop-

erty, without due process of law. ...”

STATEMENT OF THE CASE

Petitioner William N. Yeager, Jr. is the owner and president

of an advertising firm, petitioner Timbes & Yeager, Inc., in

Mobile, Alabama (hereinafter collectively referred to as

“Yeager”). Yeager was the media consultant to incumbent

Perry Hand (hereinafter “Hand”) and his campaign staff

during the 1990 election campaign for the Alabama Secretary

of State’s office (R.31)." Hand’s opponent in the election was

respondent Billy Joe Camp (hereinafter “Camp”). Approxi-

mately one month before the election, Hand’s campaign ran

'References herein of “R.___” are to pages of the record on appeal to the

Alabama Supreme Court References to “___ depo.” refer to deposition tran-

scripts, which were before the court on appeal (R.118), but were not sepa-

rately paginated.

3

a political advertisement on several television stations across

the state. The ad stated that there were three utility rate in-

creases during Camp’s prior tenure as president of Alabama’s

Public Service Commission (“Commission”). The ad then

stated: “As a reward, Georgia Power paid him [Camp] over

700 Thousand Dollars in consulting fees.”* It is uncontested

that after Camp left office, the Georgia Power Co. (an affili-

ate of the Alabama Power Co.) paid Camp’s company more

than $770,000 in consulting fees over a three year period (R.

36-37, 57-58).

Yeager was largely responsible for creating the political ad-

vertisement. He based the ad upon information from two

published news articles sent to him by Hand’s campaign

(R.31, 36-37; Yeager depo. 20-23). The information first ap-

peared in Bill Shipp’s Georgia, an Atlanta political newsletter

(R.37, 109). The same information was republished again in

an Associated Press report in The Montgomery Advertiser. This

news report reads in part:

Billy Joe Camp, former president of the Alabama

Public Service Commission and a Democratic candi-

date for secretary of state, received more than

$770,000 in consulting fees from Georgia Power Co.

during a three year period, an Atlanta-based news-

letter reported Monday.

x * x

As head of the Alabama PSC, Camp helped regu-

late Alabama Power Co. which — like Georgia

Power — is a subsidiary of the Southern Co.

(R.36). Yeager also relied on material from the Hand cam-

paign which noted that although the Commission initially dis-

approved the increases requested by Alabama Power Co., the

rate cases were remanded by the Alabama Supreme Court

and settled by the Commission under a ratemaking method-

ology known as rate stabilization and equalization (R.38).

* The full script of the ad appears on page 4, infra.

4

The ad was taped in a cemetery; its theme was Hand’s ef-

fectiveness in curbing election fraud by removing the names

of deceased persons from the voting rolls:

[Perry Hand]: Since becoming Secretary of State,

I’ve been working to keep these folks from voting.

[Voice over]: While Perry Hand’s been fighting to

clean up the voters list and curb election fraud,

what’s his opponent done?

When Billy Joe Camp was president of the Public

Service Commission, we got hit with three rate in-

creases. As a reward, Georgia Power paid him over

700 thousand dollars in consulting fees. A clear

choice, Perry Hand, a tough secretary of state who’s

cracking down on corrupt politics.

(R.35).°

One month after the campaign ad aired, on election day,

November 6, 1990, Camp insttuted this libel action in the

Circuit Court of Jefferson County, Alabama against Yeager,

Hand, and Hand’s campaign chairman. Camp won the elec-

tion by a large margin.

Yeager raised his constitutional defenses in his answer to

the complaint, and thereafter filed a motion for summary

judgment on February 14, 1991 (R.90-91). On October 4,

1991, after argument and review of the materials submitted

both in support and in opposition, the trial court granted the

motion (A-24-27). Camp appealed the grant of summary

judgment to the Alabama Supreme Court (R.122-25).

On appeal, the Alabama Supreme Court, over one Justice's

dissent, reversed. The court noted that whether the campaign

ad was reasonably capable of a defamatory meaning is a ques-

tion of law (A-3). Without analysis, the court concluded that

*Camp has never alleged that the reference to “corrupt politics” refers to

him. Indeed, the portion of the ad alleged in the complaint to be

defamatory expressly excludes the last phrase of the ad (A-23-24). Camp's

complaint is reproduced in the Appendix hereto at pages A-22 to A-26.

5

the ad was reasonably capable of a defamatory meaning (A-

4). The court held that, under the “common mind” concept,

a factual question was presented as to whether Hand’s politi-

cal remark about his opponent could be interpreted as an

accusation of corrupt or criminal conduct (A-4). The court

also ruled that Camp had presented sufficiently clear and

convincing evidence of actual malice to create a genuine is-

sue of material fact (A). From this decision, entered on July

2, 1992, this petition followed.

REASONS FOR GRANTING THE WRIT

I. The Alabama Supreme Court’s Holding That The Political

Advertisement Can Be Interpreted As Defamatory Con-

flicts With The Decisions Of This Court.

The decision of the Alabama Supreme Court warrants this

Court's review, first, because it squarely conflicts with binding

precedent interpreting the First Amendment. The court be-

low held that the political advertisement at issue was reason-

ably capable of a defamatory meaning. It so held without

analysis of whether the advertisement is “sufficiently factual

to be suscepuble of being proved true or false ... on a core

of objective evidence.” Milkovich v. Lorain Journal Co., 497

U.S. 1, __, 111 L.Ed. 2d 1, 19 (1990). The court avoided

altogether Yeager’s contention that the “as a reward” phrase

cannot be viewed as “‘an articulation of an objectively verifi-

able event,’” as required by Milkovich. Id. at __, 111 L.Ed. 2d

at 20 (quoting Scott v. News-Herald, 25 Ohio St. 3d 2438, 252,

496 N.E.2d 699, 707 (1986)).

It is plain that Camp's libel claim cannot, consistent with

this constitutional standard, be submitted to the jury for reso-

lution. The campaign ad recites truthfully that three utility

rate increases took effect while Camp was president of the

Commission, and also recites truthfully that Georgia Power

Co. later paid Camp more than $700,000 in consulting fees.

The ad connects these truthful factual assertions with the

phrase “as a reward.” It is at once apparent that the connect-

6

ing phrase, and the sentiment it conveys, cannot be proven

true or false by a core of objective evidence, and does not

describe an objectively verifiable event. Rather, the phrase de-

scribes the motivation of Georgia Power Co. in retaining

Camp's consulting services, under circumstances which sug-

gests a questionable conflict of interest. Not only is the

phrase fair comment on candidate Camp's conduct, it is sim-

ply not possible to prove or disprove objectively that the utility

chose to “reward” Camp for his service on the Commission or

for the rate increases. In order to find falsity, the jury must

look into the minds of Georgia Power officials to determine

their motivation. Such a finding depends not upon what any

party did, but upon a subjective, after-the-fact explanation of

why a narty did what it did. The reasons for Georgia Power’s

decision to retain Camp are not objectively verifiable, and the

Alabama Supreme Court erred in failing to so recognize. Cf.

Janklow v. Newsweek, Inc., 788 F.2d 1300, 1304 (8th Cir. 1986)

(defendant’s statement that attorney general had prosecuted

case out of a sense of personal revenge is not verifiable; “the

singling out of impermissible motive is a subtle and slippery

enterprise, particularly when the activities of public officials

are involved.”).

The court below, in holding that the advertisement reason-

ably implied an accusation of corruption, likewise failed to

follow this Court’s decision in Greenbelt Cooperative Publ. Ass’n.

v. Bresler, 398 U.S. 6 (1970). There, the Court held that a

description at a public meeting of a real estate developer's

conduct as “blackmail” and a “blackmailing scheme” was not

constitutionally actionable as defamation, as no reasonable

reader “could have thought that either the speakers at the

meetings or the newspaper articles reporting their words

were charging [the plaintiff] with the commission of a crimi-

nal offense.” Jd. at 14. Here, given the context of the ad in

the midst of a heated statewide political race, and the clear

potential for conflict of interest inherent in Camp's relation-

ship with-the utility companies, no reasonable viewer could

have concluded that “as a reward” implied a prior agreement

to employ Camp in exhange for rate increases and, hence,

signalled bribery or corruption.*

Even assuming a7guendo that the campaign ad is capable of

being proven defamatory under one interpretation, the ad

also clearly is susceptible of rational, non-defamatory con-

structions. Although Yeager denies that the phrase “as a re-

ward” is reasonably capable of connoting bribery or corrup-

tion, only one strained construction of the phrase could im-

part such an implication. See A-14 (Maddox, J., dissenting)

(“To make this finding, the Court must engage in a labora-

tory analysis of the commercial and decide that the words “as

a reward” are defamatory.”) Certainly an Alabama jury rea-

sonably could find that the campaign ad implied only a ques-

tion about the propriety of Camp’s acceptance of large mon-

etary payments from Georgia Power, given his prior position

as a regulator over Georgia Power's sister corporation.® This

potential disparate treatment of speech relating to a candi-

date in a political campaign is impermissible where, as this

Court has observed in a reiated context, “adoption of the lan-

guage chosen was ‘one of a number of possible rational inter-

pretations’ of an event...” Bose Corp. v. Consumers Union of

United States, Inc., 466 U.S. 485, 512 (1984) (quoting Time,

Inc. v. Pape, 401 U.S. 279, 290 (1971)).°

*Indeed, as the dissenting opinion below correcuy notes, any innuendo or

implication raised by the ad is the same as the innuendo or implication

created by the newspaper articles which previously had disclosed the same

essential facts as contained in the ad.

*Such an implication clearly would be protected under the First Amend-

ment. “It is of the utmost consequence that the people should discuss the

character and qualifications of candidates for their suffrages.” New York

Times Co. v. Sullivan, 376 U.S. 254, 281 (1964) (citation omitted); see also

Hustler Magazine v. Falwell, 485 U.S. 46, 51 (1988) (“the sort of robust politi-

cal debate encouraged by the First Amendment is bound to produce speech

that is critical of those who hold public office. . . . *).

*The decision below cenflicts with a number of lower court opinions,

both before and after Mikovich, that have recognized the impossibility of

proving or disproving the content of words that are inherently ambiguous.

See Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 728 (1st Cir.

8

The lower court’s error is of grave significance given the

context — discussion by one candidate of his opponent's

“qualifications and fitness — in which the challenged speech

was made. This Court’s “First Amendment decisions have cre-

ated a rough hierarchy in the constitutional protection of

speech. Core political speech occupies the highest, most pro-

tected position....” RA.V. v. City of St. Paul, Minnesota, ___

U.S. __, 120 L. Ed. 2d 305, 355 (1992) (Stevens, J., concur-

ring in the judgment). If not remedied by this Court, the

erroneous decision below threatens to saddle political candi-

dates with the burden of carefully surmising beforehand all

possible connotations and interpretations of their speech, lest

a jury do it for them later. Such a result is palpably at odds

with First Amendment jurisprudence. See, e.g., Time, Inc. v.

Hill, 385 U.S. 374, 406 (1967) (Harlan, J., concurring in part

and dissenting in part) (“[I]m many areas which are at the

center of public debate, ‘truth’ is not a readily identifiable

concept, and putting to the preexisting prejudices of a jury

the determination of what is ‘true’ may effectively institute a

system of censorship”); New York Times Co. v. Sullivan, 376

U.S. 254, 272 (1964) (“‘Cases which impose liability for erro-

neous reports of the political conduct of officials reflect the

obsolete doctrine that the governed must not criticize their

governors. ...'”) (quoting Sweeney v. Patterson, 128 F.2d 457,

458, cert. denied, 317 U.S. 678 (1942)).? Because the Alabama

1992) (description of a musical-comedy show as “fake” and “phony” held

unprovable, “since those adjectives admit of numerous interpretations”);

Gouthro v. Gilgun, 427 N.E.2d 1166, 1168 (Mass. App. Ct 1982) (allegedly

libelous comments by a mayoral candidate about his opponent held to be

“suscepuble of more than one interpretation” and “too vague to be cogni-

zable as the subject of a defamation action.”) (citation omitted); see also

Janklow v. Viking Press, 459 N.W.2d 415, 423 (S.D. 1990); McCabe v. Rattner,

814 F.2d 839, 842 (lst Cir. 1987); Catalfo v. Jensen, 657 F. Supp. 463, 468

(D.N.H. 1987).

” See also Woods v. Evansville Press Co., Inc., 791 F.2d 480, 487-88 (7th Cir.

1986) (“A publisher reporting on matters of general or public interest can-

not be charged with the intolerable burden of guessing what inferences a

jury might draw from an article and ruling out all possible false and

defamatory innuendoes that could be drawn from the article.”).

9

Supreme Court effectively disregarded federal constitutional

rulings of this Court, certiorari should be granted.®

II. The Alabama Supreme Court Failed To Afford This Po-

litical Speech The Heightened Constitutional Protection

Mandated By The Actual Malice Rule.

The writ should issue also because the Alabama Supreme

Court failed to recognize this Court’s decisions which afford

protection to allegedly defamatory speech where there is no

clear and convincing evidence of actual malice. The trial

court in its summary judgment order, citing New York Times

and its progeny, found that Camp could not show actual mak

ice by clear and convincing evidence (A-20). The trial court

ruled that even if Yeager “made a mistake in interpreting

documents or events,” the evidence remained that “Yeager

believed the statements and opinions in the television spot,

and relied in making them upon articles carried by the Asso-

ciated Press.” (A-20). Consequently, Camp could not show

that Yeager’s statements “were made with knowledge of their

*In addition, the writ should issue to settle confusion in the lower courts

as to whether Mikovich overruled preexisting case law on what constitutional

protection may be afforded statements of opinion as opposed to statements

of fact. Compare, e.g., Unetho Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir.

1990), cert. denied, 113 L.Ed.2d 650 (1991) (holding that pre-Mikovich opin-

ion cases have been “effectively overruled” and that “the ‘opinion’ test . . . is

now obsolete.”), White v. Fraternal Order of Police, 909 F.2d 512, 522 (D.C. Cir.

1990) (Mikouich “rejected the practice, developed by the lower courts, of

applying a strict dichotomy between assertions of fact and assertions of opin-

ion”), and Gross v. New York Times Co., 20 Media L. Rep. 1274, 1275 (N.YS.

Ct, App. Div. 1992) (“The Supreme Court has [in Mikovich] restricted the

concept of absolutely protected pure opinion in federal jurisprudence.”),

with Hunt v. University of Minnesota, 465 N.W.2d 88, 94 (Minn. Ct App. 1991)

(the “test used by Mikovich to identify protected opinions is very similar to

the four-factor inquiry used by the Circuit Courts to distinguish fact from

opinion.”), and Kimura v. Superior Court, 281 Cal. Rptr. 691, 696 (Ct App.

1991) (“It has been recognized that Mikovich does not change substantive

law in this area.”). See generally, R. Vanderet et al., “Media Law and Defama-

tion Torts: Recent Developments,” 27 Tort & Ins. L. J. 333, 33943 (1992)

(analyzing impact of Mikovich on lower courts).

10

falsity or with reckless disregard as to their truth or falsity.”

(A-20) (citing Time, Inc. v. Pape, 401 U.S. 279 (1971) and Bose

Corp. uv. Consumers Union of United States, Inc., 466 U.S. 485

(1984)). When the Alabama Supreme Court reversed the

trial court’s judgment, it professed to “traipse through the

maze” (A-4) of this Court’s decision in Anderson v. Liberty

Lobby, Inc., 477 U.S. 242 (1986). However, it is clear that the

court below did not apply the protective constitutional stan-

dard required by Anderson and other decisions of this Court

in any meaningful manner.

When ruling on a motion for summary judgment, the clear

and convincing evidentiary burden provides the qualitative

and quantitative test for the sufficiency of the evidence.

Anderson, 477 U.S. at 254. The trial judge must ascertain

whether plaintiff has presented evidence sufficient to support

a jury’s finding that actual malice has been proven with “con-

vincing clarity.” Jd. at 257. Paying lip service only to this

heightened burden of proof, the Alabama Supreme Court

stated only that Camp had presented clear and convincing

evidence that Yeager “knew that the statement, as under-

stood, was false.” (A-6). The court below substituted its own

“common mind” understanding that the ad imputes dishon-

est or criminal conduct for the state of mind Yeager actually

possessed. Yet, the court offered no explanation as to how

Yeager could or should have known that the “as a reward”

language imputed the false factual connotation that Camp

and Georgia Power had a prior arrangement to pay Camp

consulting fees in return for rate increases.®

The first fundamental flaw in the lower court’s holding is

the tacit finding that Yeager could have known the campaign

ad was false. As Yeager contends supra, his conclusory belief

*“The requirement of independent appellate review reiterated in New

York Times Co. v. Sullivan is a rule of federal constitutional law. . . . It reflects

a deeply held conviction that judges — and particularly Members of this

Court — must exercise such review in order to preserve the precious liber-

ties established and ordained by the Constitution.” Bose Corp. v. Consumers

Union of United States, Inc., 466 U.S. 485, 510-11 (1984).

11

in Georgia Power’s ulterior motive cannot be proven false in

the first instance. “‘The constitutional protection does not

turn upon the truth, popularity, or social utility of the ideas

and beliefs which are offered.’” (A-16) (Maddox, J., dissent-

ing) (quoting New York Times Co. v. Sullivan, 376 U.S. at 271).

Second, there is no clear and convinang evidence either that

Yeager “knew” his “as a reward” conclusion was false, or that

he possessed a “high degree of awareness of . . . probable fal-

sity.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (quot-

ing Garson v. Louisiana, 379 U.S. 64, 74 (1964)).

The record before the trial court overwhelmingly elimi-

nates any inference that Yeager knew the ad was false or that

he recklessly disregarded whether it was true or false. Yeager

did not fabricate the point that utility rates increased three

times during Camp’s tenure on the Commission. Yeager did

not simply imagine that Georgia Power paid Camp an inordi-

nate amount of money for consulting services. Yeager did not

concoct the affiliation between Georgia Power Co. and Ala-

bama Power Co. Yeager simply and quite understandably

viewed each one of these publicly-known facts concerning his

client’s opponent as supportive of his belief that Georgia

Power paid these consulting fees to Camp “as a reward.”

There was nothing in the record which would indicate in

any way that Yeager had reason to doubt the ad’s accuracy;

indeed, the evidence was to the contrary. For example, the

evidence showed that Hand’s campaign chairman questioned

Yeager about the language employed in the ad before it was

broadcast. In response to the inquiry, Yeager expressed his

view as to the ad’s truthfulness:

Q. What was his [Yeager’s] response?

A. He said he was not suggesting in the commer-

cial that Mr. Camp had done anything illegal or

improper, that he was setting out two facts in

the commercial.

(Edwards depo. 39-40).

Yeager firmly believed that the language he employed was

12

fair and truthful when the ad was broadcast, and he contin- |

ues to hold that belief today. Although Yeager knew the

Commission initially denied the requested rate increases

(R.38), Yeager did not know whether Camp himself voted for

or against the requests (R.38, Yeager depo. 58). Yeager be-

lieved that the significance of the $389,000,000 in rate in-

creases during Camp’s “watch” on the Commission fully sup-

ported his comment on the consulting contracts (R.33). The

following testimony of Yeager is insightful:

Q. Is it your testimony that these three words “as a

reward” are not related, are not meant to imply

that he received those consulting fees for the

rate increases?

A. No, sir. I didn’t say that he voted for them. I

just said while he was on there. He was on The

Public Service Commission. As a result of his be-

ing on there, as a reward, he received those

consulting contracts. Yes, sir, that was what I in-

tended to say and that’s what we said and that’s

what I believe.

(Yeager depo. 59).

Camp’s failed effort in the deposition to make Yeager

agree with the implication that Georgia Power and Camp had

a prior agreement to increase utility rates in exchange for

consulting contracts reflects the futility of arguing inferences

which are not, and cannot be, proven by any objective evi-

dence. Yeager’s choice of words, though possibly a “miscon-

ception” of events in Camp’s eyes, does not intimate in any

way that Yeager consciously disregarded any fact or circum-

stance which conflicts with his expressed belief. Without

such evidence, as this Court has held in very similar cases

discussed below, Camp cannot satisfy the actual malice test of

New York Times.

In Time, Inc. v. Pape, 401 U.S. 279 (1971), a magazine pub-

lished an article which reported details of police brutality as

if the charges constituted actual findings of a civil rights com-

mission investigating the charges, when, in reality, the

13

charges were taken from the complaint lodged by the victims

of the alleged brutality. The defendant magazine acknowl-

edged that the wording of the commission’s report had been

altered significantly, but it also maintained that the real

meaning of the report had not been changed. /d. at 285. This

Court held that the alteration of the commission's report did

not amount to a “falsification” which might support a finding

of actual malice. Jd. at 289. Further, even with the alteration,

the article offered a “possible rational interpretation” which,

even if “deliberate” and “arguably reflecting a misconcep-

tion,” still was insufficient to create a triable issue of fact un-

der New York Times. Id. at 290.

Similarly, in Beckley Newspapers Corp. v. Hanks, 389 U.S. 81

(1967), plaintiff alleged that during his campaign for public

office, he was libeled by a newspaper editorial which stated

that plaintiff was “able to intimidate” another person. /d. at

83-84. Plaintiff argued that since the article’s author failed to

investigate the charge, and because plaintiff and the other

person denied the charge, there was evidence of a reckless

disregard for the truth of the article’s assertion. The

newspaper's representative admitted the absence of any inves-

tigation, but also testified that the newspaper believed in the

“possibility” that intimidation had occurred, which was “as

near the facts and truth as we could get.” Jd. at 84. This

Court concluded that the evidence failed to reveal “‘the high

degree of awareness of ... probable falsity demanded by New

York Times.’” Id. (quoting Garrison v. Louisiana, 379 U.S. 64,

74 (1964)).

Yeager’s belief that the consulting fees were a reward, as

expressed in the campaign ad, was plainly a rational interpre-

tation of, and a fair comment upon, Camp’s dealing with the

utilities. This type of expression, as was the holding in Pape,

cannot support a finding of actual malice. Moreover, Yeager

is in the same position as that of the defendant in Hanks,

because the “as a reward” comment is “as near the facts and

truth” as anyone could get. It was not possible for Yeager to

ascertain, before or after the ad was broadcast, the subjective

motive and intent of Georgia Power officials in awarding lu-

14

crative contracts to Camp. Camp simply has not and cannot

show on this record that Yeager had the “high degree of

awareness of probable falsity” required by this Court’s deci-

sions.

Yeager’s campaign ad also is similar to the political speech

at issue in Monitor Patnot Co. v. Roy, 401 U.S. 265 (1971). In

Monitor Patriot, a newspaper editorial characterized a candi-

date for the United States Senate as a “former small-time

bootlegger.” /d. at 266. Reversing a judgment for plaintiff due

to the absence of the New York Times standard from the trial

court’s jury instructions, this Court noted that the public ben-

efit arising out of the constitutional protection of speech and

press “has its fullest and most urgent application precisely to

the conduct of campaigns for political office.” Jd. at 272. This

Court expounded on the New York Times standard: “The con-

siderations that led us to reformulate the “official conduct”

rule of New York Times in terms of ‘anything which might

touch on an official’s fitness for office’ apply with special

force to the case of the candidate.” Jd. at 274.'° See also St.

Amant v. Thompson, 390 U.S. at 731 (where political candidate

charged that “money ... had passed hands” to plaintiff, a

public official, it was not established that defendant “in fact

entertained serious doubts as to the truth of his publica-

tion.”)

Moreover, the Alabama Supreme Court appears to have re-

lied upon the definition of common law malice when it ruled

that “[t}he issue of actual malice on the part of the defen-

dants seems peculiarly inappropriate for disposition by sum-

mary judgment because it concerns ‘motive, intent, and sub-

jective feelings and reactions.’” (A-8) (quoting Loveless v.

Graddick, 325 So.2d 137, 143 (Ala. 1975) and Goldwater v.

This heightened concern, of course, rests in part upon the fact that the

election process occurs in the “hardy climate” of public debate, where

“(c)harges of gross incompetence, disregard of the public interest, commu-

nist sympathies, and the like have filled the air’ and ‘hint of bribery, em-

bezzlement, and other criminal conduct are not infrequent.’” (A-15)

(Maddox, J., dissenting) (quoting New York Times, 376 U.S. at 273).

15

Ginzburg, 261 F.Supp. 784 (S.D.N.Y. 1966), aff'd, 414 F.2d 324

(2d Cir. 1969), cert. denied, 396 U.S. 1049 (1970)). If the Ala-

bama Supreme Court meant that actual malice is provable by

the defendant’s motive and other subjective feelings concern-

ing the plaintiff, then the holding is contrary to New York

Times. “Actual malice under the New York Times standard

should not be confused with the concept of malice as an evil

intent or a motive arising from spite or ill will.” Masson v. New

Yorker Magazine, Inc, 501 U.S. __, __, 115 L. Ed. 2d 447,

468 (1991). See also Hanks, 389 U.S. at 82 (jury instruction on

“bad or corrupt motive,” “personal spite” and “ill will” was

misstatement of the law under New York Times). If the Ala-

bama Supreme Court intended instead that knowledge of

truth or falsity requires that the jury probe the defendant’s

subjective belief in the truth of his statement, so that sum-

mary judgment is rarely appropriate, then this finding effec-

tively eviscerates the First Amendment protection supposedly

afforded by the clear and convincing evidentiary standard.

16

CONCLUSION

For the foregoing reasons, petitioners request that the

Court issue a writ of certiorari to review the judgment and

opinion of the Supreme Court of Alabama, reverse that judg-

ment, and reinstate the judgment of the trial court.

September 30, 1992

Respectfully submitted,

John H. Morrow*

Stewart M. Cox

John E. Goodman

*Counsel of Record

BRADLEY, ARANT,

ROSE & WHITE

1400 Park Place Tower

2001 Park Place

Birmingham, A ‘yvama 35203

(205) 521-8000

Counsel for Petitioners,

William N. Yeager, Jr. and

Timbes & Yeager, Inc.

APPENDIX

RELEASED

July 2, 1992

SUPREME COURT OF ALABAMA

SPECIAL TERM, 1992

1910255

Billy Joe Camp

v.

William N. Yeager, Jr., and Timbes & Yeager, Inc.

Appeal from Jefferson Circuit Court

(CV-90-8590)

INGRAM, JUSTICE.

The plainuff, Billy Joe Camp, appeals from a summary judg-

ment in favor of defendants William N. Yeager, Jr., and

Timbes & Yeager, Inc., in a defamation action.

In the 1990 election for secretary of state, Camp, the Demo-

cratic Party’s nominee, faced Perry Hand, the Republican

Party’s nominee. Hand had employed Yeager of the Mobile

advertising firm Timbes & Yeager, Inc., as his media consult-

ant. Yeager wrote and produced a television commercial that

is at issue in this case.

The commercial opened with Hand standing in a cemetery

and consisted of the following text:

“[Hand]: Since becoming secretary of state, I’ve been

working to keep these folks from voting.

“[Voice over]: While Perry Hand’s been fighting to

clean up the voters’ list and curb election fraud,

what’s his opponent done? When Billy Joe Camp was

president of the Public Service Commission, we got

A-2

hit with three rate increases. As a reward, Georgia

Power paid him over 700 thousand dollars in consult-

ing fees. A clear choice. Perry Hand — a tough secre-

tary of state who’s cracking done on corrupt politics.”

The commercial was broadcast several times during the

week of October 2-9, 1990, on television stations in Birming-

ham, Huntsville, Mobile, and Montgomery.

Camp has served as president of the Public Service Commis-

sion (“PSC”) in the early 1980s. During that time, Alabama

Power Company received three rate increases. Camp voted

against each rate increase request by Alabama Power; however,

those rates increases were granted pursuant to orders of this

Court.

Sometime after Camp left the PSC, he started a consulting

firm. He entered into an agreement with Georgia Power Com-

pany to perform economic development work, labor relations

consulting, and consulting on public relations and regulatory

affairs pertaining to nuclear generation of electric power.

Camp’s firm received payments in excess of $700,000 for these

services. On May 14, 1990, an article appeared in the publica-

tion Bill Shipp’s Geongia revealing the payments. The article was

based on information from the annual filings of Georgia

Power Company.

Shortly after the November election, Camp brought this ac-

tion alleging defamation. The complaint sought compensatory

and punitive damages for the malicious publication of false

statements that Camp alleged were contained in the television

commercial. The complaint sought damages from four defen-

dants: Yeager; Timbes & Yeager, Inc.; Hand; and Jack

Edwards, chairman of Hand’s campaign.

Yeager and Timbes & Yeager filed a motion for summary

judgment. The trial court granted the motion, and the judg-

ment was made final pursuant to Rule 54(b), A.R.Civ.P. Camp

appealed.

On appeal Camp raised two issues: (1) whether the televi-

sion commercial contained an actionable defamatory state-

A-3

ment, and (2) whether Camp produced sufficient evidence of

actual malice to withstand the appellees’ motion for summary

judgment.

Actionable Statement

A summary judgment is appropriate upon a showing that no

genuine issue of material fact exists and that the moving party

is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.

In reviewing a summary judgment, this Court will view the

evidence in the light most favorable to the nonmovant and will

resolve all reasonable doubts against the movant. Fincher v.

Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala. 1991).

Whether a communication is reasonably capable of a

defamatory meaning is, in the first instance, a question of law.

Hams v. School Annual Publishing Co., 466 So. 2d 963, 964 (Ala.

1985). “Thus, if the communication is not reasonably capable

of a defamatory meaning, there is no issue of fact, and sum-

mary judgment is proper.” /d. at 964-65. However, if the trial

court finds that the statement is reasonably capable of a

defamatory meaning, “it is then for the jury to say whether

[the statement was] in fact so understood.” W. Page Keeton, et

al., Prosser and Keeton on Torts § 111, at 781 (5th ed. 1984).

The test to factually determine the defamatory nature of a

statement is that meaning that would be ascribed to the lan-

guage by a reader or listener of “average or ordinary intelli-

gence, or by acommon mind.” Loveless v. Graddick, 325 So. 2d

137, 142 (Ala. 1975). In determining whether the television

commercial at issue was libelous,’

“[its] actionable character is to be taken in [its] natu-

ral meaning according to the sense in which [it] ap-

pears to have been used, and the idea [it] convey[s]

to those who heard and saw [it]. [It is] not to be

‘Broadcasting of defamatory matter by means of radio or television is

libel. See Restatement (Second) of Torts § 568A (1966); see, eg., Gray v.

WALA-TV, 384 So. 2d 1062, 1065 (Ala. 1980).

A-4

measured by [its] effect when subjected to the criti-

cal analysis of a trained legal mind, but must be con-

strued and determined by [its] natural and probable

effect upon the mind of the average television

viewer.”

Gray v. WALA-TV, 384 So. 2d 1062, 1065 (Ala. 1980).

If the words employed in the allegedly libelous publication

are understood to impute dishonesty or corruption to an indi-

vidual, they are actionable. /d.

Taking the television commercial in its entirety, this Court

holds that the television commercial was reasonably capable of

a defamatory meaning. Also, after reviewing the entire record,

we find that a genuine issue of material fact was presented as

to whether such a defamatory meaning was understood.

Actual Malice

Since New York Times Co. v. Sullivan, 376 U.S. 254 (1964), it

has been clear that the First Amendment requires that, to be

actionable, an alleged defamatory statement by a defendant

against a public official (now public figures) must be made

with actual malice. The present law is equally clear that such

actual malice must be shown with “convincing clarity.” Since

Anderson v. Liberty Lobby, Inc, 477 U.S. 242 (1986), “clear and

convincing” has been the standard mandated not only to the

jury sitting for this type of case, but to the trial judge as well in

his determination of the defendant’s motion for summary

judgment. So, we must look to a standard higher than substan-

tial evidence in the present case, because it is written that the

First Amendment requires it. We, therefore, leave our substan-

tial evidence test used for summary judgment in most other

cases so that we might apply that higher standard in this case.

A close reading of Anderson v. Liberty Lobby, Inc., or, perhaps

more appropriately, a “traipsing through the maze,” will, we

hope, lead to an understanding of the essential requirements

and their application to the present case.

A-5

The principal requirement of a plaintiff if he is to survive a

properly supported motion for summary judgment is that he

must satisfy the trial judge that there is a genuine issue of mate

nal fact. The substantive law of the case must be utilized by the

trial judge to aid him in determining whether there are criti-

cal facts to be determined, disputed facts that could affect the

decision of a jury; yet the role of the substantive law must be

for the purpose of identifying to the trial judge those facts that

are critical to the case.

A trial judge is not required “to weigh the evidence and

determine the truth of the matter but to determine whether

there is a genuine issue for trial,” id. at 251, nor is there any

requirement for him to make a finding of fact.

In reversing the summary judgment, we are satisfied that

there are facts that are critical to a proper resolution of this

case, a resolution that can be made only by a finder of fact —

a jury. We find support for our determination within the fol

lowing language from Anderson: “The inquiry performed is the

threshold inquiry of determining whether there is the need

for a trial — whether, in other words, there are any genuine

factual issues that properly can be resolved only by a finder of

fact because they may reasonably be resolved in favor of either

party.” /d. at 250.

The parties agree that Camp is a public figure and as such

cannot recover for libel unless he offers proof that the libelous

publication was made with “actual malice.” See New York Times

Co. v. Sullivan, 376 U.S. 254 (1964). The term “actual malice”

is “synonymous with, and only with, ‘knowledge of falsity or

reckless disregard of truth or falsity.’” Mobile Press Register, Inc.

v. Faulkner, 372 So. 2d 1282, 1287 (Ala. 1979) (emphasis in

original). Therefore, a false and defamatory statement may be

made purposefully and with ill will toward the public figure,

and yet the law refuses the public figure a remedy if the state-

ment was made without knowledge of the falsity or without

reckless disregard of its truth or falsity. Jd The rationale for

this rule is:

A4

“Debate on public issues will not be uninhibited if

the speaker must run the risk that it will be proved in

court that he spoke out of hatred; even if he did

speak out of hatred, utterances honestly believed

contribute to the free interchange of ideas and the

ascertainment of truth.”

Id. (quoting Garnson v. Louisiana, 379 U.S. 64, 73 (1964)).

On the particular issue of actual malice in this case, we have

looked at the evidence in the record, viewing the evidence in

the light most favorable to the nonmovant, Camp, and allow-

ing all reasonable inferences from that evidence, to determine

whether the trial court correctly found that Yeager and

Timbes & Yeager were entitled to a summary judgment based

on the issue of actual malice.

In addition to these tests, we have also examined the evi-

dence in search of a genuine issue involving material facts;

and we have considered whether those facts are critical;

whether they are in dispute on the issue of actual malice; and

whether they are facts that can the fairly resolved only by a

jury. We have assessed the trial judge’s view of the above mat-

ter within the framework of the “clear and convincing” stan-

dard. We are now compelled to conclude that the trial judge

erred when he granted Yeager and Timbes & Yeager’s motion

for summary judgment.

We are satisfied that Camp has presented evidence, that, if

believed by a jury, would be sufficient to support a finding, by

clear and convincing evidence, that Yeager knew that the state-

ment, as understood, was false.

The Benchmarks

The facts or happenings of this case are largely undisputed.

A political campaign was underway; the political advertisement

was aired on four television stations in this state; and, most

importantly, the statements of the advertisement are without

dispute. There are, however, two important factual disputes

that a jury must determine in this case: (1) whether the state-

A-7

ment was understood as imputing some sort of corrupt con-

duct to Camp; and (2) whether, if a jury finds that the state-

ment was understood as imputing corrupt conduct to Camp,

Yeager knew that such an imputation was false. The first fac-

tual dispute must be resolved by determining the “meaning

that would be ascribed to the language by a reader or listener

of ordinary or average intelligence, or by a ‘common mind,”

Loveless v. Graddick, 325 So. 2d 137, 142 (Ala. 1975), and is not

to be determined by “critical analysis of a trained legal mind,”

Gray v. WALA-TV, 384 So. 2d 1062, 1065 (Ala. 1980).

The “common mind” concept is the conduit that carries this

case through the summary judgment stage to the jury for reso-

lution. The value of the statement as suggesting corrupt con-

duct must be measured by “common mind” jurors, as opposed

to a trained legal mind. This is so because political statements,

if they are to be effecuve, must be designed to appeal to the

general public, the citizens — the voters — in an effort to

persuade them that the thrust of the statements is true or has

merit, either favorable to the candidate who makes those state-

ments or unfavorable to his opponent.

We have no hesitancy to excerpt certain language from

Anderson, language that we perceive supports out conclusion

that this case should be presented to a jury:

“Our holding that the clear and convincing stan-

dard of proof should be taken into account in ruling

on summary judgment motions does not denigrate

the role of the jury. It by no means authorizes trial on

affidavits. Credibility determinations, the weighing of

evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a

judge, whether he is ruling on a motion for summary

judgment or for a directed verdict. The evidence of

the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor. Neither do

we suggest that the trial courts should act other than

with caution in granting summary judgment or that

the trial court may not deny summary judgment in a

A-8

case where there is reason to believe that the better

course would be to proceed to a full trial.”

Id. at 255 (citations omitted).

The determination of whether the summary judgment here

should be denied on the issue of actual malice is whether the

evidence in the record could support a jury finding either that

the plaintiff has shown actual malice by clear and convincing

evidence or that the plaintiff has not.

Finally, we note, as an earlier Court noted:

“The issue of actual malice on the part of defen-

dants seems peculiarly inappropriate for disposition

by summary judgment because it concerns “motive,

intent, and subjective feelings and reactions.”’”

Loveless, 325 So. 2d at 143 (quoting Goldwater v. Ginzburg, 261

F. Supp. 784 (S.D.N.Y. 1966), affd, 414 F.2d 324 (2d Cir.

1969), cert. denied, 396 U.S. 1049 (1970)). For reasons indi-

cated, not the least of which is the necessity of a jury’s oppor-

tunity to weigh and determine credibility and subjective in-

tent, we find this case uniquely suited for presentation to a

jury. We, therefore, determine that the factual disputes here

should be presented to a jury for decision pursuant to the

“clear and convincing” evidence standard mandated by the

current law.

The summary judgment entered in favor of Yeager and

Timbes & Yeager is reversed, and this cause is remanded to

the trial court for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

Hornsby, C.J., and Shores, Adams, and Steagall, [J., concur.

Houston, J., concurs specially.

Maddox, J., dissents.

A-9

HOUSTON, JUSTICE (concurring specially).

In the June 22, 1992, issue of The New Yorker, at page 28, a

cartoon depicts a robed judge on the bench, with fingers

touching and a pontificating smile, who says: “Call it ‘legislat-

ing from the bench,’ if you will, but on this occasion I should

like to repeal the First Amendment.”

After reading Justice Maddox’s excellent dissent, as one who

is voting with the majority, I felt like a fellow traveler with the

judge in the aforementioned satirical drawing. I write to ad-

dress Justice Maddox's dissent.

Does New York Times Co. v. Sullivan, 376 U.S. 254 (1964),

protect the publication of known lies about a political oppo-

nent made for the sole purpose of gaining a political advan-

tage? If it does, my vote is wrong. New York Times protects

debate on public issues that is “uninhibited”* (“Not inhibited;

open. ... Free from the expected social or moral con-

straints”); “robust” (“vigorous; hardy, boisterous, rough”);

“wide-open” (“Opened completely. ... Without laws or law

enforcement”); “vehement” (“Characterized by forcefulness of

expression or intensity of emotion, passion, or conviction; ar-

dent; emphatic. ... Marked by or full of vigor or energy;

strong; violent”); and “caustic” (“Marked by sharp and bitter

wit; cutting”). New York Times protects debate that uses “un-

pleasantly sharp attacks.” 376 U.S. at 270.

I am aware of the statement that “[t]he constitutional pro-

tecuon does not turn upon ‘the truth ... of the ideas and

beliefs which are offered.’” 376 U.S. at 271. But does this not

merely protect a defamatory untruth made without actual mal-

ice? Yes. How can actual malice be proven? By proof that the

false defamatory statement was made “with knowledge that it

was false or with reckless disregard of whether it was false or

not.” 376 U.S. at 280.

To me, the holding in New York Times is this: “[T]here was

no evidence whatever that [New York Times was] aware of any

*All definitions are from The American Heritage Dictionary of the English

Language (1969).

A-10

erroneous statements or [was] in any way reckless in that re-

gard. The judgment against the New York Times Company is

thus without constitutional support.” 376 U.S. at 286.

In the case at issue, there is clear and convincing evidence

of actual malice. This, in my opinion, distinguishes this case

from New York Times. Therefore, the trier of fact should deter-

mine whether the television commercial was defamatory, un-

true, and made with knowledge of the falsity or with a reckless

disregard of whether it was false or not.

The First Amendment does not make a person who seeks

public office a pariah. The First Amendment is not at odds

with Truth; the First Amendment was promulgated by our

forebears to ensure that Truth will out

A-11

MADDOX, JUSTICE (dissenting).

The majority’s decision, which permits the continued pros-

ecution of this action, is wrong. It is wrong, based, at least, on

these reasons:

(1) The television commercial that is the subject

matter of this action was a form of core political

speech that enjoys the highest, most protected position of

any speech, and the majority has failed to grant it First

Amendment protection, as required by the principles

of law announced in New York Times Co. v. Sullivan,

376 U.S. 254 (1964); and

(2) There are no fact questions for a jury to decide,

because the plaintiff has failed to offer clear and con-

vincing evidence that the defendant acted with actual

malice; therefore, the summary judgment was appro-

priate, and indeed, was required under the principles

of law announced in Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986).

Because the Court fails to apply the principles of First Amend-

ment law that are uniquely applicable to this case, | must re-

spectfully dissent.

The issue presented here — whether allegedly false and

defamatory speech about a public official or political candi-

date is protected speech — is not a new one. It was decided 28

years ago, when the Supreme Court of the United States, in

the landmark case of New York Times Co. v. Sullivan, 376 U.S.

254 (1964), established a new rule to be applied in such cases.

New York Times was decided by a unanimous Court, the only

disagreement being whether core political speech should be

accorded a qualified privilege or an absolute privilege.”

The New York Times case was decided, as the Supreme Court

expressed it, “against the background of a profound national

* Justice Hugo Black was of the opinion that the First Amendment granted

an absolute privilege. 876 U.S. at 293 (Black, J., with whom Douglas, J.,

joined, concurring specially).

A-12

commitment to the principle that debate on public issue

should be uninhibited, robust, and wide-open, and that it may well

include vehement, caustic, and sometimes unpleasanily sharp attacks

upon government and public officials.” 376 U.S. at 270 (emphasis

added). Considering the Supreme Court’s review, in New York

Times, of the history of the First Amendment, it is clear to me

that the Court came ever so close to holding that political

speech, even speech that is false and defamatory, as it was in

that case, has absolute protection under the First Amendment. |

recognize, of course, that the Court did not hold that political

speech is absolutely privileged, but the Court did severely nar-

row the scope of the traditional categorical exception that had

applied when defamatory speech was involved. The narrow-

ness of this defamation exception was just recently com-

mented upon by the current Supreme Court in a case involv-

ing the constitutionality of a so-called “hate crime” statute.

R.A.V. v. City of St. Paul, Minnesota [Ms. 90-7675, June 22,

1992}, ___ U.S. __ (1992).*

The broad scope of the protection offered for political

speech by New York Times and the narrowness of the defama-

tion exception is shown by the following quote from that opin-

ion:

“In the realm of religious faith, and in that of po-

litical belief, sharp differences arise. In both fields

the tenets of one man may seem the rankest error to

his neighbor. To persuade others to his own point of

view, the pleader, as we know, at times, resorts to

exaggeration, to vilification of men who have been,

or are, prominent in church or state, and even to false

statement. But the people of this nation have ordained

in the light of history, that, in spite of the probability

of excesses and abuses, these liberties are, in the long

*In RA.V. v. City of St. Paul the majority stated: “Our decisions since the

1960's have narrowed the scope of the traditional categorical exceptions for

defamation, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gert v.

Robert Welch, Inc., 418 U.S. 323 (1974); see generally Mikovich v. Lorain

Journal Co., 497 U.S. 1, 13-17 (1974).”

A-13

view, essential to enlightened opinion and right con-

duct on the part of the citizens of a democracy.”

376 U.S. at 254, at 271, quoting from Cantwell v. Connecticut,

310 U.S. 296, 310 (1940) (emphasis added).

New York Times involved the publication of a newspaper ad-

vertisement that contained false statements about the police

commissioner of Montgomery, Alabama. The purpose of the

advertisement was to raise money, but the Supreme Court

found that the advertisement was core political speech that

was the very heart of the First Amendment. Political speech is

still protected today and occupies the top position in the hier-

archy of protected speech.°

Political speech involving public officials, especially that made

during political campaigns, seems to be especially protected. To

emphasize the First Amendment protection afforded core po-

litical speech, and the toughness required of those whose

reputations or feelings may be affected by it, the Supreme

Court, in New York Times, used as an example speech that was

critical of a judge. The Court, citing and quoting from one of

its prior cases involving criticism of a judge, said that “[i]f

judges are to be treated as ‘men of fortitude, able to thrive in a

hardy climate,’ Craig v. Harney, supra, 331 U.S. at 376. 67 S.Ct.,

at 1255. 91 L.Ed. at 1546, surely the same must be true of

other government officials such as elected city commission-

ers.” 376 U.S. at 273. As a footnote to this statement in its

opinion, the Court noted that political speech and politicians

have always operated in a different environment, and strongly

*In RA.V. v. City of St. Paul, Justice Stevens, in a special concurrence,

stated that “speech about public officials or matters of public concern re-

ceives greater protection than speech about other topics.”___ U.S. at __,

1992 WL 135564, *23 (Stevens, J., concurring in the judgment, by separate

opinion, in which, White, J. and Blackmun, J. also concurred). Justice

Stevens further stated that “[o] ur First Amendment decisions have created a

rough hierarchy in the constitutional protection of speech. Core political

speech occupies the highest, most protected position; commercial speech

and obscene, sexually explicit speech are regarded as a sort of second-class

expression; obscenity and fighting words receive the least protection of all.”

A-14

suggested that political speech in political campaigns is differ-

ent in nature from other forms of speech:

“The climate in which public officials operate, es-

pecially during a political campaign, has been de-

scribed by one commentator in the following terms:

‘Charges of gross incompetence, disregard of the

public interest, communist sympathies, and the like

usually have filled the air: and hints of bribery, em-

bezzlement, and other criminal conduct are not in-

frequent.’ Noel, Defamation of Public Officers and

Candidates, 49 Col.L.Rev. 875 (1949).

“For a similar description written 60 years earlier,

see Chase, Criticism of Public Officers and Candi-

dates for Office, 23 Am.L.Rev. 346 (1889).”

376 U.S. at 274.

Based on the foregoing, I can only conclude that the major-

ity has ignored the teachings of New York Times that public

officials and political candidates, especially in political cam-

paigns, should be “men [and women] of fortitude” and should

not expect to be protected from the “hardly climate” of the

public arena.

I must also disagree with other aspects of the majority opin-

ion. The majority holds that “Taking the television commer-

cial in its entirety, this Court holds that the television commer-

cial was reasonably capable of a defamatory meaning.” To

make this finding, the Court must engage in a laboratory

analysis of the commercial and decide that the words “as a

reward” are defamatory. In my opinion, the parties in their

briefs, and the Court, at oral argument, spent too much time

trying to analyze what these three words meant. The fact that

so much analysis and discussion revolved around the meaning

of the commercial should be proof positive that the plainuff

has failed to offer proof, with “convincing clarity,” that the

commercial was so defamatory that it could receive no First

Amendment protection. Why should core political speech suf-

fer such close scrutiny as the Court has given this commercial?

A-15

Does the commercial lose its First Amendment protection if it

is not completely true and if it hints of misconduct on the part

of the plainuff? I think not. I do not believe that political

speech must suffer such close scrutiny on our part, or on the

speaker's part. On the contrary, as the Supreme Court said in

footnote 14 of New York Times, the climate in which public

officials operate, especially during a political campaign, is a

“hardly climate.” “Charges of gross incompetence, disregard

of the public interest, communist sympathies, and the like

usually have filled the air” and “hints of bribery, embezzle-

ment, and other criminal conduct are not infrequent,’” notes

the court. 376 U.S. at 273.

“Our political history reeks of unfair, intemperate,

scurrilous and irresponsible charges against those in

or seeking public office. Washington was called a

murder, Jefferson ... insane ..., Henry Clay a pimp,

Andrew Jackson an adulterer, and Andrew Johnson

and Ulysses Grant drunkards. Lincoln was called a

half-witted usurper, a baboon, a gorilla, a ghev"!. ...

Franklin Delano Roosevelt was castigated as a traitor

to his country. Dwight D. Eisenhower was charged

with being a conscious agent of the Communist con-

spiracy. [H]arsh criticism of politicians is] an un-

pleasant fact of our political background — a history

of rough, crude, brawling, mud-slinging, muck-rak-

ing, name-calling attacks on those in or seeking po-

litical office.”

Desert Sun Pub. Co. v. Superior Court, 97 Cal. App. 3d 49, 158

Cal. Rptr. 519, 521 (1979). See also Clark v. Allen, 415 Pa. 484,

204 A.2d 42, 44 (1964).

Even assuming that the plaintiff has shown that the televi-

sion commercial contained a false statement and that it was

defamatory, that does not entitle the plaintiff to a trial on the

issues. “Authoritative interpretations of the First Amendment

guarantees have consistently refused to recognize an excep-

tion for any test of truth — whether administered by judges,

juries, or administrative officials — and especially one that

A-16

puts the burden of proving truth on the speaker.” New York

Times v. Sullivan, 376 U.S. at 271. In that case, the Court also

said that “erroneous statement is inevitable in free debate, and

that it must be protected if the freedoms of expression are to

have the ‘breathing space’ that they ‘need * * * to survive.”

376 U.S. at 271, 272. “The constitutional protection does not

turn upon ‘the truth, popularity, or social utility of the ideas

and beliefs which are offered.” 376 U.S. at 271.

There is another reason why I think the trial judge properly

entered the summary judgment in this case. The substance of

the television commercial was not materially different from

that of a newspaper account of the same facts. In fact, the

record in this case shows that the defendant created the cam-

paign commercial based, in part, upon information contained

in two published articles, one describing the plaintiff as “an

Alabama political operative” who had received over $700,000

in consulting fees, and the other an Associated Press story that

ran in The Montgomery Advertiser, that read, in part, as follows:

“Billy Joe Camp, former president of the Alabama

Public Service Commission and a Democratic candi-

date for secretary of state, received more than

$770,000 in consulting fees from Georgia Power Co.

during a three year period, an Atlanta based newslet-

ter reported Monday.

“As head of the Alabama PSC, Camp helped regu-

late Alabama Power Co. which — like Georgia Power

— is a subsidiary of the Southern Co.”

The Associated Press and the editors of The Montgomery Adver-

tiser considered the receipt by Mr. Camp of over $770,000

from Georgia Power Company, the sister company of Alabarna

Power Company, a company that he had formerly regulated,

to be newsworthy and of public interest. When I compare the

news accounts with the television commercial, the implications

and innuendos are basically the same — a former public ser-

vice commissioner has received $770,000 from a sister com-

A-17

pany of a company he regulated when he was president of the

PSC. But even assuming that the implications and innuendos

of the television commercial and the news stories are differ-

ent, does that mean that the television commercial is not the

sort of “robust speech” that the Constitution of the United

States protects in cases such as this where two political candi-

dates are engaged in the “hardy climate” of a hotly contested

political race? I believe that the television commercial was just

the kind of protected political speech that the Supreme Court

of the United States found to be protected in New York Times.

Also, I disagree with the majority because I think that the

plainuff has failed to sustain his burden of offering “clear and

convincing” evidence that the defendant was guilty of “actual

malice.” The plaintiff presented no evidence from which a

“reasonable factfinder could conclude ... that [he] ha[s]

shown actual malice with convincing clarity.” Anderson v. Lib

erty Lobby, Inc., 477 U.S. at 252. As I have already stated, if

lawyers and judges have to spend as much time as we have

spent trying to decide whether the commercial is true or false,

then the burden of proving that it was defamatory with “con-

vincing clarity” has clearly not been met. Let me make another

point: Implicit in the majority’s holding is a conclusion that

the Anderson case involves federal procedural law, and that this

Court is not bound by it. Anderson involved federal constitu-

tional law that is applicable to Alabama, and it must be remem-

bered that, in New York Times, there was a trial, there was a jury

verdict for the plaintiff, and the Supreme Court said: “Apply-

ing these standards, we consider that the proof presented to

show actual malice lacks the convincing clarity which the con-

stitutional standard demands, and hence that it would not

constitutionally sustain the judgment for respondent under

the proper rule of law.” 376 U.S. at 286.

When constitutional principles such as freedom of speech is

involved, I do not believe that Alabama procedural rules, if

they result in a continuing violation of a defendant’s constitu-

tiona! rights, would be sanctioned.

A-18

As the Supreme Court noted in New York Times, political

speech, especially during a political campaign, can become

quite “robust,” but it is protected speech. Political speech in

the “hardy climate” of public affairs is the very type of speech

the framers of the First Amendment were most anxious to

protect. While I realize that there is a narrow category of

defamatory speech that the Constitution of the United States

does not protect, I fail to see how the television commercial

here fits in that category.

The opinion today will have a “chilling effect” upon the

right of political candidates, and others, to freely comment

and express opinions on candidates and great public issues for

fear of being hailed into court and charged with defamation.

That is regrettable.

I would affirm the judgment of the trial court, even though

it is a summary judgment, because I believe the plaintiff has

failed to show that he can prove by clear and convincing evi-

dence that the defendant’s speech was not protected by the

First Amendment. I firmly believe that the holdings in New

York Times and Anderson v. Liberty Lobby, Inc., compel such a

result.

A-I9

IN THE CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMA

BILLY JOE CAMP,

Plaintiff,

CIVIL ACTION NO.

VS.

CV-99-8590

WILLIAM N. YEAGER, JR.,

et al.,

ee ee eee

Defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on defendants, William N.

Yeager, Jr.,’s and Timbes and Yeager, Inc.’s, Motion for Sum-

mary Judgment, having been argued, submitted and taken un-

der consideration. The court has taken into consideration the

pleadings, affidavits and depositions and has reviewed a video-

tape of the television advertisement in issue.

It is established without dispute that the television advertise-

ment or spot at issue sets forth facts which had been distrib-

uted by Associated Press and published by at least one newspa-

per in Alabama, The Montgomery Advertiser. The same informa-

tion had appeared in a publication in the State of Georgia,

known as Bill Shipp’s Georgia. This information set forth Pay-

ments by Georgia Power Company, an affiliate of Alabama

Power Company, to plaintiff. It is undisputed that defendant

Yeager relied upon this published information in formulating

the television spot.

Prior to the television ad at issue, the facts stated in that ad

were Clearly in the public domain and plaintiff has not chal-

lenged the substantial accuracy of those facts. Plaintiff con-

PN ee

A-20

tends that the fees in question were paid to plaintiff's com-

pany, rather than plaintiff, but this distinction does not pre-

vent, for libel purposes, the facts stated from being substan-

tially correct.

The television ad also cites rate increases granted by the

Alabama Public Service Commission during plaintiff's tenure

as Chairman of the Commission. Although the plaintiff con-

tends that he did not personally vote for the increases, there

has been no challenge to the substantial accuracy of these

statements, which reflect matters of public record. The televi-

sion ad restates those facts and then draws the conclusion that

the fees were paid “as a reward” for the rate increases during

plainuff’s tenure on the Public Service Commission. The court

finds that “as a reward” is a conclusion to be drawn from the

facts stated, and, as such, on the facts here presented cannot

be the basis of a recovery by plaintiff for libel. See Restatement

(Second) of Torts, § 566; Anderson v. The Untroyal-Goodrich Tire

Co., CV88-P-0448-W (N.D. Ala. Jan. 10, 1990) (Pointer, J.).

Moreover, the phrase “as a reward” is ambiguous and suscep-

tible to different meanings, and is not capable of being proven

true or false by objective evidence. Milkovich v. Lorain Journal

Co., 497 U.S. ___, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990).

In addition, the plaintiff in this case has not disputed that

he is a “public figure” under New York Times v. Sullivan, 376

U.S. 254 (1964) and its progeny. Defendant Yeager’s testi-

mony that he believed that his conclusion was truthful is not

controverted. In dealing with publication about a public fig-

ure, constitutional malice must be shown. That the defendant

made a mistake in interpreting documents or events is insuffi-

cient to prove constitutional malice. Time, Inc. v. Pape, 401

U.S. 279 (1971). Where the evidence is without dispute that

Yeager believed the statements and opinions in the television

spot, and relied in making them upon articles carried by the

Associated Press, no showing can be made by “clear and con-

vincing evidence” that the statements were made with knowl

edge of their falsity or reckless disregard as to their truth or

falsity. Bose Corp. v. Consumers Union of United States, Inc., 466

U.S. 485 (1984).

a aa

A-21

Accordingly, it is hereby Ordered, Adjudged, and Decreed

that the Motion of defendants William N. Yeager, Jr. and

Timbes & Yeager, Inc. for Summary Judgment be and the

same is hereby granted. The Court finds that there is no just

reason for delay and this judgment in favor of defendants

William N. Yeager, Jr. and Timbes and Yeager, Inc., is hereby

made final pursuant to Rule 54(b) of the Rules of Civil Proce-

dure.

Done this the 4 day of Oct., 1991.

/s/ Claude Hughes

CIRCUIT JUDGE

A-22

IN THE CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMA

BILLY JOE CAMP,

Plaintiff,

CIVIL ACTION NO.

vs.

CV90 8590

WILLIAM N. YEAGER, JR.

TIMBES & YEAGER, INC., PERRY

HAND, JACK EDWARDS, and

FICTITIOUS DEFENDANTS A, B & C,

those persons, firms, or entities

responsible for producing, writing,

or otherwise responsible for the

content of the television ad

produced and published at the

request of the Perry Hand Campaign

whose identities are unknown to

Plaintiff at this ime but whose true

and correct names will be added by

amendment when ascertained,

* *£ &£ © &© & & & & & & & & & H HF HF He HF OH H

Defendants

COMPLAINT

1. Plaintiff, BILLY JOE CAMP, is the Democratic nominee

for Secretary of State subject to the November, 1990, General

Election and is a resident of Montgomery County, Alabama.

2. Defendant WILLIAM N. YEAGER, JR. is over the age of

nineteen (19) years and is a resident of Mobile County, Ala-

bama.

3. Defendant TIMBES & YEAGER, INC. is an Alabama cor-

poration with its principal place of business in Mobile, Ala-

bama.

A-23

4. Defendant PERRY HAND is the Republican nominee for

Secretary of State and is a resident of Montgomery County,

Alabama.

5. Defendant JACK EDWARDS is over the age of nineteen

(19) years and is a resident of Baldwin County, Alabama. JACK

EDWARDS is the Chairman of the PERRY HAND Campaign.

6. Fictitious Defendants A, B & C, are the persons, firms or

entities responsible for producing, writing, or otherwise re-

sponsible for the content of the television ad produced and

published at the request of the PERRY HAND Campaign. The

identities of said Fictitious Defendants are unknown to the

Plainuff at present, but will be substituted by amendment

when the identities of the fictitious defendants are ascer-

tained.

COUNT I

7. Plaintiff claims that each of the previously named Defen-

dants was involved in producing, writing, or is otherwise re

sponsible for the content of a television commercial produced

at the request of the PERRY HAND Campaign, the Republi-

can candidate for Secretary of State. Plaintiff alleges that the

Defendants maliciously produced and caused to be published

a television commercial which aired on WBRC Channel 6

Television, a TV station in Jefferson County, Alabama, and

said ad aired beginning on October 2, 1990, and was repub-

lished through October 8, 1990, on the aforementioned televi-

sion station as well as other television stations throughout the

State of Alabama. The content of said ad was as follows:

“When Billy Joe Camp was President of the Public

Service Commission, we got hit with three rate in-

creases. As a reward, Georgia Power paid him over

$700,000 in consulting fees.”

8. The above quoted statement was false, and the Defen-

dants knew that said statement was false, or the Defendants

made said statement with reckless disregard for whether it was

false or not. Plaintiff further alleges that the Defendants re-

sponsible for the publication of said statement acted with ac-

tual malice.

A-24

9. The published ad, when construed according to the

natural and probable effect upon the mind of the average lay

person, is such that they would believe that Billy Joe Camp has

committed an indictable offense and/or is guilty of public

corruption. As such, the ad is libelous per se.

10. As a proximate consequence of the aforementioned

defamatory statement, Plainuff has sustained the following in-

juries and damages:

(a) The reputation of the Plaintiff has been irreparably

harmed;

(b) Plaintiff has undergone emotional distress and men-

tal anguish and will continue to undergo such emotional dis-

tress and mental anguish in the future;

(c) Plainuff claims an award of punitive damages against

each of the Defendants.

WHEREFORE, Plaintiff demands judgment against each of

the aforementioned Defendants, separately and severally, for

damages in the amount of Ten Million and no/100

($10,000,000.00) Dollars, plus interest and all costs of this pro-

ceeding.

COUNT I

11. Plaintiff realleges and repeats all of the previous allega-

tions of his complaint.

12. Plainuff claims damages from each of the previously

mentioned Defendants for maliciously publishing or mali-

ciously causing to be published a television ad concerning the

Plaintiff which aired on WBRC Channel 6 TV, a television

station in Jefferson County, Alabama. Said ad was published

beginning on October 2, 1990 and ending on October 8,

1990, which contained the following statement:

“When BILLY JOE CAMP was President of the Public

Service Commission, we got hit with three rate in-

creases (at this point on the electronic screen there

was flashed up $389,000,000). As a reward, Georgia

Power paid him over $700,000 (on the television

screen there is shown the number $770,000) in con-

sulting fees.” :

:

A-25

13. The above statement was false, and the Defendants

knew said statement was false, or the Defendant made said

statement with reckless disregard of the truth.

14. The published ad, when construed according to the

natural and probable effect upon the mind of the average lay

person, subjects the Plaintiff to disgrace, ridicule, and/or con-

tempt, and said publication is false and was made maliciously.

15. As a proximate consequence of the aforementioned

defamatory statement, Plaintiff has sustained the following in-

juries and damages:

(a) The reputation of the Plaintiff has been irreparably

harmed;

(b) Plainuff has undergone emotional distress and men-

tal anguish and will continue to undergo such in the future;

(c) Plainuff claims punitive damages from each of the

Defendants.

WHEREFORE, Plaintiff demands judgment against each of

the Defendants, separately and severally, for damages in the

amount of Ten Million and no/100 ($10,000,000.00) Dollars,

plus interest and all costs of this proceeding.

/s/_ Ved Taylor

Ted Taylor

/s/ Jerry D. Roberson

Jerry D. Roberson,

Attorneys for Plaintiff,

Billy Joe Camp

OF COUNSEL:

TAYLOR & ROBERSON

2112 First Avenue North

sirmingham, Alabama

(205) 323-3300

PLAINTIFF DEMAND A TRIAL BY STRUCK JURY IN

THE ABOVE-STYLED CASE.

A-26

Defendants may be served by Certified Mail\ Return Receipt

Requested at the following:

WILLIAM N. YEAGER, JR.

c/o Timbes & Yeager, Inc.

263 No. Conception

Mobile, Alabama 36603

TIMBES & YEAGER, INC.

William N. Yeager, Jr., Registered Agent

263 No. Conception

Mobile, Alabama 36603

PERRY HAND

Secretary of State

208 Alabama State House

Montgomery, Alabama 36130

JACK EDWARDS

Campaign Chairman

Perry Hand for Secretary of State

P. O. Box 23545

Montgomery, Alabama 36123