IN THE STATE OF WISCONSIN
CIRCUIT COURT IN AND FOR DANE COUNTY
Billy Bad Jones aka
Super Sensitive State Employee,
Case No. 00000007
Plaintiff,
BRIEF IN SUPPORT OF
MOTION FOR SUMMARY
JUDGMENT
vs.
William Saint Thomas aka
Heartland Truth Crusader,
Defendant.
There are two forms of defamation, libel and slander. Libel originally concerned
written or printed words; slander usually was of an oral character. Pictures, signs,
effigies, statues, and open and obvious shadowing of an individual have been held to be
libel. Nelson & Teeter, Law of Mass Communcitions, 61-62 (2nd ed. 1973). The chief
importance of the distinction between libel and slander was that some kinds of
defamatory words might be actionable without proof of any actual damage to the
plaintiff if they were written, where such damage must be if they were spoken. W.
Prosser, The Law of Torts, 752 (4th ed. 1971). In other words, the common law courts
developed the rule that slander, in general, is not actionable unless actual damage is
proved. By the beginning of the 19th century, however, the existence of damage was
conclusively assumed from the publication of a libel. The result of all this was a jury in a
state libel action could award damages for the supposed harm without any proof that it
1
has in fact occurred. Id. at 754-62. Please keep in mind of course that defamation is a
matter of state law, not federal law.
The plaintiff in a libel or slander suit must allege and prove under the applicable state
law “that the derogatory statement was published, that the statement identified the plaintiff,
and that the statement was defamatory.” Nelson & Teeter, at 94. What is defamatory is
defined in terms of time, place, and context. That is, what is actionable at one time and
place may not be so at another time and place. The state of mind of the community can be
the determining factor. Harper & James, Law of Torts, 353 (1956). For instance, it has
held in South Carolina and Mississippi that it was defamatory to call a white a Negro.
Bowen v. Independent Pub. Co., 230 S.C. 509, 96 S.E.2d 564 (1957); Natchez Times Pub.
Co. v. Dunigan, 221 Miss. 320, 72 So.2d 681 (1954)(this in turn would depend on what
percentage of “black blood” a particular individual processed with as little as 2% “black
blood” resulting in a determination of “negro status” for that particular individual). It is of
course doubtful that such a result would currently follow in Los Angeles or Chicago. Also,
a communication has been characterized as defamatory “if it tends so to harm the
reputation of another as to lower him in the estimation of the community or to deter third
persons from associating or dealing with him.” Restatement of Torts, sec.559 (1938). A
person does not need to be lowered in the esteem of an entire community, or even a
majority, to be defamed. “It is enough that the communication tends to prejudice him in
the eyes of a substantial and respectable minority of them….” Id.
If a libel is libelous “per se” the defamatory meaning is ascertainable on its face.
Libel “per quod” is a libel in which extrinsic facts “turn an apparently harmless story into
defamation. Nelson & Teeter, at 86. If a libel is merely “per quod” then it is treated like
2
slander, that is, it is actionable only on proof of damage. Prosser, at 763. In short, if a
libel is characterized as libel per se it is unnecessary to show injury, but a jury will fix the
amount of damages. Also, once libel per se is established, malice is presumed.
However, evidence of malice, offered by the plaintiff, may determine the amount of the
damages. Gillmor & Barron, Mass Communication Law, 198 (1969). In order to recover
punitive damages, express malice must be proved and the burden of proof is on the
plaintiff. Id. at 199. Express malice includes “acts done with a bad motive or with a
reckless indifference to the interest of others.” Restatement of Torts, sec. 908 (1938).
When privilege is raised as a defense to a libel action, the burden is upon the
defendant in the first instance to establish the existence of privileged occasion for the
publication, by proof of a proper interest or duty justifying the utterance of the words.
Prosser, at 796. Privilege has been defined, in the law of defamation, as “an exemption
from liability for the speaking or publishing of defamatory words concerning another,
based on the fact that that the statement was made in performance of a duty, political,
judicial, social, or personal.” Black’s Law Dictionary, 1360 (Revised 4th ed. 1968).
Privlege may be either absolute or qualified, of course. An absolute privlege will
“protect the speaker or publisher without reference to his motives or the truth or falsity of
the stsatement is shown.” Id. Traditionally, the weight of authority only recognized
statements of opinon as privleged; false statements of fact were never privleged. The
publisher-defendant could also suffer the loss of the defense of privlege, where it was
applicable, if the libeled plaintiff could bring forward evidence of either negligence or ill
will. Restatement of Torts, sec. 606(c) (1938).
3
The dissemination of news by the communications media has traditionally been
safeguarded by two qualified privileges: 1) The privlege of “fair comment” which is
generally limited to opinions about public officials and their conduct, and 2) the privlege
attached to the reporting of public proceedings. Restatement of Torts, sec. 585-92
(1938). Many courts limited the privlege of “fair comment” to the discussion of public
events or the conduct of public officials; there was no privilege accorded the media to
comment on matters merely because they were newsworthy. Prosser, at 819-22. But see
Cherry v. Des Moines Leader, 114 Iowa 298, 86 N.W. 323 (1901)(the hapless Cherry
Sisters were clearly not public officials but their shocking performances were clearly
newsworthy). Professor Prosser cites the Cherry case for the proposition that
“extravagant language” standing alone is not a basis to impose liability. Prosser, at 821.
In this regard, the Iowa Supreme Court quotes the media defendant in the Cherry case
regarding the pitiable Cherry Sisters and their public appearances as follows: “Effie is an
old jade of 50 summers, Jessie is frisky filly of 40, and Addie, the flower of the family, a
capering monstrosity of 35.” Cherry, 114 Iowa at 299. The qualified privilege to report
public proceedings vindicates the public interest in having public affairs made known to
all concerned and rests upon the idea that a reporter is merely a substitute for any member
of the public who could attend a public proceeding or scrutinize a public record if he or
she so desired. Id. at 830. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct.
1029, 43 L.Ed.2d 328 (1975), the Court held that the U.S. Constitution precludes the
states from imposing civil liability based upon the publication of truthful information
contained in offical court records open to public inspection. However, the Court in Time,
Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), would not extend
4
constitutional protection to inaccurate and false statements about judicial proceedings.
Cox was a privacy action; Firestone was a defamatoin action.
To what extent does the First and Fourteenth Amendments to the U.S.
Constitution limit the powers of the states to regulate speech? The First Amendment
guarantee of free speech and press applies to the states through the Due Process Clause
of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69
L.Ed. 1138 (1925). Gitlow was challenging his conviction in a New York court for the
statutory crime of criminal anarchy. New York Penal Laws, sec. 160-61, Laws of 1901,
ch. 40. Gitlow had been indicted for advocating principles espoused in “The Left Wing
Manifesto” and for distributing, among other things, a paper entitled “The Revolutionary
Age.” 268 U.S. at 655. The applicable section of the criminal anarchy statute, section
161, prohibited written or oral advocacy which taught the propriety of overthrowing the
government by force. It also outlawed the printing, publishing, editing, circulating,
selling or distribution of any printed matter which taught the propriety of overthrowing
the government by force. 268 U.S. at 654-55. The U.S. Supreme Court was asked to
decide whether this criminal statute, as construed and applied in state court, deprived Mr.
Gitlow of his liberty of expression in contravention of the Due Process Clause of the
Fourthteenth Amendment to the U.S. Constitution. The Court concluded that the statute
“does not penalize the utterance or publication of abstract ‘doctrine’ or academic
discusssion having no quality of incitement to any concrete action…”, and hence was not
constitutional. 268 U.S. at 664. What the statute did prohibit, according to the Court,
was “language advocating, advising, or teaching the overthrow of organized government
by unlawful means.” 268 U.S. at 664-65. Of course the next question is the meaning of
5
the language “unlawful means” but that is beyond the scope of this brief as it is not at
issue in the current litigated dispute captioned above. However, some guidance in this
regard is found in the following paragraph summarizing the holding of Gitlow.
In summary, the Gitlow Court applied the First Amendment guarantees of free
speech and press to the states, but also concluded “That a State in the exercise of its
police power may punish those who abuse this freedom by utterances inimical to the
public welfare, tending to corrupt public morals, incite to crime, or disturb the public
peace. 268 U.S. at 667. The Court held that the statute at issue was an arbitrary or
unreasonable exercise of the police power of the state. In this regard, the Gitlow Court
made it crystal clear that liberty of speech is not absolute; however, it is not clear from
the Gitlow opinion just what speech is constitutionally protected free speech. Future
decisions weighing a citizen’s First Amendment rights against the “necessities” of the
public welfare would have to clarify the line of demarcation.
Such a case was Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86
L.Ed. 1031 (1942). Mr. Justice Murphy, speaking for a unanimous Court, upheld the
constitutionality of a New Hampshire statute which prohibited the use of language, in a
place public, which would be offensive, derisive or annoying if done “with intent to
deride, offend or annoy him, or to prevent him from pursuing his lawful business or
occupation.” 315 U.S. at 569. The U.S. Supreme Court quoted from the New Hampshire
Supreme Court’s opinion in this case in an attempt to clarify what language may be
punished by criminal sanctions without infringing on a citizen’s First Amendment rights:
“The English language has a number of words and expressions which by general consent
are ‘fighting words’ when said without a disarming smile…. Such words, as ordinary
6
men know, are likely to cause a fight. So are threatening, profane or obscene revilings.”
315 U.S. at 573. Chaplinsky was charged with saying to a person on the street, “You are
a God damned racketeer” and “a damned Fascist and the whole government of Rochester
are Fascists or agents of Fascists.” 315 U.S. at 569.
In upholding the constitutionality of the New Hampshire statute the Court
remarked in addition that “There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been thought to raise any
constiutional probem. These include the lewd and obscene, the profane, the libelous, and
the insulting or ‘fighting’ words….” 315 U.S. at 571-72. (Emphasis added.)
Specifically, a unanimous Court in Chaplinsky characterized libelous speech as a
category of speech which is not entitled to First Amendment protection. Id.
A little over ten years later, the constitutionality of an Illinois criminal libel statute
was challenged, which was upheld by a 5-4 margin in Beauharnais v. Illinois, 343 U.S.
250, 72 S.Ct. 725, 96 L.Ed. 919 (1952). Mr. Justice Frankfurter speaking for the majority
cited Chaplinsky as authority for the proposition that not all communication of
information or opinion is safeguarded by the U.S. Constitution. 343 U.S. at 257. The
Court stated: “Libelous utterancees, not being within the area of constitutionally
protected speech, it is unnecessary, either for us or for the State courts, to consider the
issues behind the phrase ‘clear and present danger.’ Certainly no one would contend that
obscene speech, for example, my be punished only upon a showing of such
circumstances. Libel, as we have seen, is in the same class.” 343 U.S. at 266. However,
it is important to remember that rights in addition to those protected by the U.S.
Constiution may be created or declared by a state supreme court interpreting one or more
7
provisions of a state constitution and this subject area will be addressed at a later point in
this brief. See, e. g., State v. Knapp, 265 Wis. 2d 278, 666 N.W.2d 881 (2005). But see
Jacobs v. Major, 139 Wis. 2d 492, 402 N.W.2d 832 (1987).
The Illinois statute at issue in Beauharnais outlawed communication which
attacked a class of citizens since such communication might incite a breach of the peace.
The Court in Beauharnais was concerned about public order as was the Court in
Chaplinsky. Mr. Bealuharnais was not fond of black people. He was concerned that the
white race was “becoming mongrelized by the negro….” 343 U.S. at 252. He distributed
leaflets to alert the white public of the immenent takeover by the black race. Beauharnais
was arrested and convicted under a criminal libel statute which he claimed violated the
liberty of speech and press guaranteed by the Due Process Clause of the Fourthteenth
Amendment as applied to the states by Gitlow, supra. The Court did not accepts these
arguments as stated above. It held that the State of Illinois, being a melting pot and a hot
bed of racial and religious tension, was free to regulate “extreme racial and religious
propaganda” because it was not protected free speech nor did the guarantee of a free
press apply in this context. 343 U.S. at 261. The danger of the times, as well as the
place, legitimated this legislative action according to the Court. Id. In sum, whether a
court is dealing with libel as a criminal matter or libel as a civil matter, the context of the
speech or printed material such as time frame, place, and ultimately the state of mind of a
given community are outcome determinative. Bowen, supra.
The legal landscape changed dramatically in 1964 because the U.S. Supreme
Court reached the conclusion that the bigots of the world could no longer be allowed to
use state law to punish media defendants for advancing the cause of civil rights in
8
America by using and abusing state defamation laws whether statutory or common law
decisions. In 1964 in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964), the U.S. Supreme Court decided to restrict the power of the states by
mandating the standard (“actual malice” standard) under which a public official can
recover money damages for comment on his or her offtcial conduct. Until 1964, the socalled “fair comment” privilege had no First Amendment dimensions. It was the
judgment of the Court that a “fair comment” privlege of sorts was constitutionally
compelled by the First Amendment guarantees of freedom of speech and freedom of
press.
Sullivan was a Commissioner of the City of Montgomery, Alabama and was
charged with supervising the city police department, among other duties. Sullivan
claimed he was libeled by a full page advertisment that was carried in the New York
Times on March 29, 1960. 376 U.S. at 256. Sullivan alleged that the defendant, New
York Times Co., had printed false statements about his role in controlling students at
Alabama State College, and that he was at least partially responsible for the belligerent
treatment of Dr. Martin Luther King. 376 U.S. at 257-58.
Some of the statements describing the events in Montgomery were inaccurate.
376 U.S. at 258. The case went to a jury. The trial judge instructed the jury that the
statements made by the Times were “libelous per se,” legal injury being implied without
proof of actual damages, and that for the purpose of compensatory damages malice was
presumed, so that such damages could be awarded against defendents if the statements
were found to have been published by them and to have been related to the plaintiff. 376
U.S. at 262. The New York Times Co. was just one of a number of defendents in this
9
action. As to punitive damages, the trial judge refused to instruct that actual intent to
harm or recklessness had to be found before punitive damages could be awarded, or that a
verdict for the plaintiff should differentiate between compensatory and punitive damages.
376 U.S. at 262. The Supreme Court of Alabama sustained the trial judges rulings and
instructions in all respects. 273 Ala. 656, 144 So. 2d 25. Besides approving the rulings
and instuctions mentoined above, the Supreme Court of Alabama approved the trial
courts ruling that the jury could find the statements to have been made “at and
concerning” the plaintiff. 273 Ala. 656, 674-75, 144 So.2d 25, 39. The Alabama
Supreme Court also sustained the trial court’s determination that malice could be inferred
from the Times’ printing the advertisement in light of the fact that it had articles in its
possession which “demonstrated the falsity of the allegations in the advertsement”; and
from the Times’ employee that he thought the paragraphs in issue were substantially
correct.” 273 Ala. 656, 686-87, 144 So.2d 25, 50-51 The U.S. Supreme Court decided to
review the Alabama Supreme Court’s handling of the case.
After reviewing the facts, the U.S. Supreme Court sifted through the
idiosyncrasies of Alabama libel law. Under Alabama law, as applied in this case, “ a
publication in libelous per se if the words ‘tend to injure a person… in his reputation’ or
to ‘bring him into public contempt’; the trial court stated that the standard was met if the
words are such as to ‘injure him in his public office, or impute misconduct to him in his
office, or want of official integrity, or want of fidelity to a public trust….’ ” 376 U.S. at
276. Once “ libel per se” had been established in Alabama, the defendents only defense
was to persuade the jury that the stated facts were true in all their particulars. Alabama
Ride Co. v. Vanoe, 235 Ala. 263, 178 So. 438 (1938); Johnson Publishing Co. v Davis,
10
271 Ala. 474, 124 So.2d 441 (1960). The effect of all this was that the vitality of the
privlege of “fair comment”, for expressions of opinion, depended on the truth of the facts
upon which the comments were based. 376 U.S. at 267. Absent a showing of truth,
general damages were presumed; nor was proof of pecuniary injury necessary under
Alabama law. 376 U. S. at 267.
The Court then briefly discussed previous cases which were cited as authority that
the U.S. Constitution does not protect libelous publications and dismissed them as
authority in the Sullivan case since none of them “sustained the use of libel laws to
impose sanctions upon expression critical of the official conduct of public officials.” 376
U.S at 268. “[L]ibel can claim no talismantic immunity from constitutional limitations.”
376 U. S. at 269.
Probably the most memorable quotation which emerged from this litigation and
the rationale for the final disposition thereof is “we consider this case against the
background of a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide open, and that it may well include
vehement, caustic and sometimes unpleasantly sharp attack on government and public
officials.” 376 U.S. at 270. The advertisement at issue in Sullivan was obviously a
discussion of public issues, and hence the Court was faced with the question of whether
the falsity of some of the ad’s factual statements and alleged defamation contained
therein deprived the defendants of First Amendment insulation.
The Court held that the combination of factual error and defamatory content is not
sufficient to “remove the constitutional shield from criticism of official conduct….” 376
U.S. at 273. The Court also cited N.A.A.C.P. v Button, 371 U.S. 415, 445, 83 S.Ct. 328,
11
9 L.Ed.2d 405 (1963) for the broad proposition that constitutional protection does not
depend on the truth, popularity, or utility of ideas and beliefs held or espoused. 376 U.S.
at 271.
The U.S. Supreme Court held that Alabama could not do indirectly what it could
not do directly, that is, it would have been constitutionally impermissible for the State of
Alabama to punish the exercise of a right to discuss public affairs by criminal sanctions,
and hence it was beyond its reach to penalize the exercise of this right by its civil law of
libel. 376 U.S. at 277.
A constitutional privlege for erroneous statements honestly made was carved by
the Court in Sullivan since it believed that the defense of truth was not sufficient to
promote robust discussion of public affairs. 376 U.S. at 278. The Court fashioned a rule
requiring a showing of “actual malice” for libel concerning the public conduct of public
officials; specifically, the defendant must know the statement is false or make it with
reckless disregard of its falsity. 376 U.S. at 279-80.
The Court also held that the presumption of malice, which made possible an
award of general damages in this case, was constitutionally impermissible and since the
trial judge did not instruct the jury to differenciate between general and punitive
damages, the verdict was set aside. 376 U.S. at 283-84.
The Court then took it upon itself to see that the constitutional principles it had
just announced were constitutionally applied. Applying these standards, the Court
concluded “the proof presented to show actual malice lacks the convincing clarity which
the constitutional standard demands....” 376 U.S. at 285-86.
12
Mr. Justice Black, concurring stated: “An unconditional right to say what one
pleases about public affairs is what I consider to be the minimum gaurantee of the First
Amendment.” 376 U.S. at 297. Under the standard announced by the Court in Sullivan,
the right to speak one’s mind about public affairs will “depend upon a probing by the jury
of the motivation of the citizen or press.” 376 U.S. at 298. (Goldberg, J., concurring in
the result). The rule announced in Sullivan allows “the imposition of liability upon the
jury’s evaluation of the speaker’s state of mind.” 376 U.S. at 300. (Goldberg J.,
concurring the result). However, Mr. Justice Goldberg was of the opinion that “purely
private defamation”, that is, defamatory statements directed against the private conduct of
a public official or private citizen,” is not entitled to First Amendment or Fourteenth
Amendment protection. 376 U.S. at 301-02.
The holding in Sullivan was that a “public official” is barred, absent knowing or
reckless falsity, from recovering money damages for harm to his or her reputation. The
reason for the holding was the Court’s and the nations commitment to open and
unrestrained discussion of public affairs. The Sullivan rationale was utilized in Time,
Inc. v Hill, 385 U.S. 374, 87 S.Ct. 534 17 L.Ed.2d 456 (1967). The Court in Hill
characterized the plaiantiffs as “public figures.” The Hill case was an invasion of privacy
case in which the plaintiff had allegedly been placed in a false light in the public eye by
the statements of the defendant. Less than six months later the U.S. Supreme Court
applied the Sullivan standard in a defamation action involving a “public figure.” Curtis
Publishing Co. v Butts, 388 U.S. 130, 87 S.C.t 1975, 18 L.Ed.2d 1094 (1967). See also
Associated Press v. Walker, 388 U.S. 130, 87 S.C.t 1975, 18 L.Ed.2d 1094 (1967).
13
After Curtis, the law in this area stood as follows: “Public officials” and “public
figures” as defined by federal constitutional standards, could not recover money damages
unless the alleged defamatory statements or the statements which put that plaintiff in a
false light in the public eye were made with knowledge that they were false or with
“reckless disregard” as to their truth.
The next issue to be resolved by the Court was the applicability of the Sullivan
standard to private individuals involved in an event of public or general interest. The
Court addressed this issue in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct.
1811, 29 L.Ed.2d 296 (1971). The plurality opinion in Rosenbloom (the unusual
combination of Brennan, Burger and Blackmun) determined that if a publication about
private individuals is in an area of legitimate public interest, then the Sullivan standard of
deliberate or reckless error (“actual malice”) is applicable. In other words, the plurality
opinion in Rosenbloom shifted the focus from the person’s status to the newsworthiness
of the statement published. However, three years later, the majority opinion in Gertz v.
Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed. 2d 789 (1974), however,
specifically rejected the approach outlined by the plurality opinion in Rosenbloom.
The Court held in Gertz that the Sullivan standard need not be applied (but could
be applied if a state so chose) by a state if neither a “public official” or “public figure” is
involved, regardless of whether an issue of public or general interest is the focus of the
publication. Various opinions from state supreme courts will be cited at a later point in
this brief, but not all of these state court decisions specifically mention the plurality
opinion in Rosenbloom even when a court adopts this standard apparently because the
was so fragmented in Rosenbloom. As mentioned above, Rosenbloom had shifted the
14
emphasis from the plaintiff’s status to the newsworthiness of the statement published.
The Gertz majority re-emphasized the status of the private individual while deemphasizing “newsworthiness.” The Gertz majority proposed a simple negligence
standard at the discretion of an individual state; however, it ruled out liability without
fault or libel per se as part of a constitutionally permissible negligence standard. If a
negligence standard is applied by an individual state, damages are limited to “actual
damages.” The Gertz Court’s definition of “actual injury” includes “impairment of
reputation and standing in the community,” as well as personal humiliation, and mental
anguish and suffering.” 418 U.S. at 350. Iowa requires a showing of damage to
reputation before mental-based damages may be recovered, but other states allow mentalbased damages without a showing of damage to reputation. In sum, the states may
permit recovery of presumed or punitive damages, but only upon a showing of reckless
falsity (the “actual malice” standard mandated by the U.S. Constitution). Finally, states
are given the option to define their own standard of constitutional privlege for the
defamatoin of private individuals, provided of course that the standard does not provide
for liability without fault as defined above. This definitional option left to the states are
the conceptualized privileges mentioned in Gertz as a so-called negligence standard or
the “actual malice” standard proposed by the plurality opinion in Rosenbloom.
The terms “public official”, “public figure”, and “reckless disregard” need further
defintion. The meaning of the term “public official” has caused the Court little difficulty;
however, the question of who is and who is not a “public figure” has caued the Court
considerable anxiety. Also, the Court’s definition of the term “reckless disregard” as part
of the “actual malice” standard has been in a state of flux. The first test of the “actual
15
malice” is knowing falsity which is not difficult to define because a jury is able to
determine one way or another whether an defendant knew or did not knew whether a
statement of fact or opinion was false.
The Court in Sullivan did not define the outer limits of the “public official”
designation, since the Court had no occasion to do so. The “public official” issue arose
again in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), at which
time the Court stated: “… that the ‘public official’ designation applies at the very least to
those among the hierarchy of government employees who have, or appear to the public to
have, substantial responsibility for or control over the conduct of governmental affairs.”
383 U.S. at 85. The Court in Rosenblatt also stated: “There is, first, a strong interest in
debate about those persons who are in a position significcantly to influence the resolution
of those issues.” 382 U.S. at 85. On the “public official” issue see also Garrison v.
Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)(the plaintiffs in Garrison
were state court judges). It could be naively assumd that only state trial court judges
appointed by a governor would be covered by the Garrison holding. The problem with
such an assumption is that administrative law after the New Deal took hold governs much
more of our American lives that the expensive and slow traditional legal process ruled
over by state trial court judges. For example, in Wisconsin the worker’s compensation
agency has administrative law judges determine the allocation of ten of millions of
dollars of medical expense. In fact, medical expense in Wisconsin represents more
dollars currently than the disability dollars paid pursuant to Wisconsin Worker’s
Compensation Act, chapter 102. In other words, a majority of dollars are allocated for
medical expense such as surgeries and the like rather than wage loss replacement dollars
16
or permanent disability dollars on the physical/functional basis or so-called loss of
earning capacity dollars when a worker injured her back, neck or other body part. In
sum, the attorneys in a management posture regarding Wisconsin worker’s compensation
who govern the distribution of massive dollars are clearly within the holding of Garrison
as they are "public officials” as defined in Garrison.
The “public figure” designation was defined by Mr. Justice Harlan in Curtis
Publishing Co. v. Butts, supra. He defined “public figures” as those who “command a
substantial amount of independent public interest at the time of the publications.” 388
U.S. at 154. The Gertz majority used a similar formulation as one of two alternatives in
resolving the “public figure” issue when it arises. A person is a “public figure,”
according to Gertz, when “an individual has achieved such pervasive fame or notoriety
that he becomes a public figure for all purposes and in all contexts.” 418 U.S. at 351.
The alternative approach to resolving the “public figure” issue is “looking to the nature
and extent of an individual’s participation in the particular controversy giving rise to the
defamation.” 418 U.S. at 352. In other words, an individual under this second
formulation can be a public figure for some purpose or purposes and a private figure for
others. Id.
The “public figure” designation was at issue in Time, Inc. v. Firestone, supra.
The majority decided that Ms. Firestone was not a “public figure,” since she “did not
assume any role of especial prominence in the affairs of society, other than Palm Beach
society, and she did not thrust herself to the forefront of any particular public controversy
in order to influence the resolution of the issues involved in it.” 424 U.S. at 453. In
addition, the majority decided that the “dissolution of a marriage through judicial
17
proceedings is not the sort of ‘public controversy’ referred to in Gertz.” Id. Mr. Justice
Marshall, a member of the Gertz majority, dissented. He thought that the facts in
Firestone were sufficient to warrant the conclusion that Ms. Firestone was a “public
figure” for purposes of reports on the judicial proceedings that she initiated. Id. at 485.
The two distinguishing features between public figures and private figures,
according to Gertz, are that a public figure has greater ability to resort to self-help and
that a public figure, one who invites attention and comment, is less deserving of
protection from defamatory falsehood. Gertz, 418 U.S. at 344-45. In this regard, Ms.
Firestone held several press conferences during the course of the lawsuit which gave rise
to her defamation action, and hence had access to the media to counter alleged
falsehoods. 424 U.S. at 485. It is not likely that a so-called ordinary citizen would be
able to hold a press conference or two that would attract media attention. Also, it would
appear that Ms. Firestone invited public attention and comment in that she subscribed to a
service which gathered press clippings about herself, and had become an active member
of the “sporting set.” Id. The Firestone decision has therefore received its share of fire in
legal journals and publications that find its holding to be suspect.
The Sullivan “actual malice” standard has undergone considerable refinement
since its announcement in 1964. For example, it was initially determined that “reckless
disregard” for the truth “meant false statements made with a high degree of awareness of
their probable falsity.” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d
125 (1964). However, later cases by the Court emphasized instead the distinction
between the Sullivan “actual malice” test and malice in the traditional sense of ill will.
Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967);
18
Greenbelt Cooperative Publishing Assoc. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26
L.Ed.2d 6 (1970); Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 42
L.Ed.2d 419 (1974). In St. Amant v. Thompson, supra, the Court held, not too
surprisingly, that reckless conduct could not be measured by whether a reasonably
prudent person (“reasonble mind” standard) would have published the alleged libel or
would have investigated before publishing. The Court determined that under the Sullivan
“actual malice” standard the evidence must show “that the defendant in fact entertained
serious doubts as to the truth of his publication.” 390 U.S. at 731. In other words, a
subjective standard was adopted and an objective standard was rejected. The
Rosenbloom plurality followed the St. Amant definition of “reckless disregard.” 403
U.S. at 52. However, it appears that the St.Amant definition was not used in Cantrell v.
Forest City Publishing Co., supra. It quotes the trial judge’s instructions as follows:
“Recklessness implies a higher degree of culpability than negligence. Recklessly means
wantonly, with indifference to consequences.” 419 U.S. at 250. This definition of
“reckless disregard” appears to be less strict than the St. Amant definition.
How does Gertz differ from Sullivan and its progeny? What issues did Gertz
resolve? Which definitional options have the states chosen after Gertz, the Gertz
majority approach to privilege in the sense it allowed a negligence standard or the
Rosenbloom plurality approach to privilege assuming regarding both options that a
private figure is allegedly defamed.
As early as 1958 the U.S. Supreme Court expressed concern that “A mere
negligence standard would promote self-censorship by causing publishers to ‘steer far
wider of the unlawful zone.’ ” Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2
19
L.Ed.2d 1460 (1958). The Court picked up on this theme in Sullivan and reiterated it for
a decade, that is, up until Gertz was handed down. For example, the plurality opinion in
Rosenbloom in 1971 (Gertz was decided in 1974) stated that “[T]he vagueness of the
negligence standard itself, would create a strong impetus toward self-censorship, which
the First Amendment cannot tolerate.” 403 U.S. at 50. The Court in Sullivan and Gertz
was of course balancing the competing interests of freedom of speech and press with a
state’s power to protect an individual’s reputation. The Court in Sullivan spoke of a
“profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open….” 376 U.S. at 270, while the Gertz Court in moving
away this so-called “national commitment” emphasized the power of a state to protect an
individual who had involuntarily been brought into the public eye and who would have
difficulty gaining access to some media to counter the harm to his or her reputation or to
deny the allegedly untrue allegations. 418 U.S. at 344-45. It is important to recall that
the purpose of the law state of defamation is to afford a public forum in the form of a
court for an individual to vindicate his or her reputation and to recover money damages
for the harm which resulted from the defamation. Clark v. Pearson, 248 F.Supp. 188
(D.C.D.C. 1965). As mentioned above, prominent individuals in the form of public
figures for all purposes or even a limited purpose have access to “forums” other than the
state civil courts meaning press conferences or significant access to the print media.
An incidental effect of this shift in focus away from the “national commitment” to
open public debate is that the status of the plaintiff has taken on new importance, while
the character of the issue as a matter of general or public concern is of diminishing
importance but only when the individual is characterized under federal constitutional law
20
as a so-called “private individual.” For instance, a play, which was supposedly based on
an actual incident, was treated as a matter of public interest in Time, Inc. v. Hill, supra.
Time’s defense was that its article was “a subject of general interest and of value and
concern to the public,” “a subject of legitimate news interest.” 385 U.S. at 379. In this
regard, in a footnote to Mr. Justice Powell’s concurring opinion in Cox Broadcasting
Corp. v. Cohn, supra, he commented that “The Court’s abandonment of the ‘matter of
general or public interest’ standard as the determinative factor for deciding whether to
apply the New York Times [Sullivan] malice standard to defamation litigation brought by
private individuals, Gertz v. Welch, 418 U.S. 346 (1974), calls into question the
conceptual basis of Time, Inc. v. Hill.” 420 U.S. at 498, n. 2. Cantrell v. Forest City
Publishing Co., supra, a false-light invasion of privacy case, did not overrule Hill though
because the trial court had instructed the jury that there must be a finding of knowing or
reckless disregard of the truth in order for the defendant to be held liable, and hence the
U.S. Supreme Court was not called upon to determine whether a state may
constitutionally apply a more relaxed standard of liability in an invasion of privacy case.
Where does all this leave our friend the publisher? Ms. or Mr. Publisher U.S.A.
would be well-advised to concentrate her or his energies ascertaining whether a given
individual, whose name may occur in a publication, is a public figure for all purposes or a
limited purpose or a private individual. This may be a more difficult task than
ascertaining whether an issue is of general or public concern or not, but given Gertz it is
imperative that the status of an individual be given strict scrutiny. It is interesting that
across the idealogical divide in this country that Justices such as Powell and Marshall
came together to form the Gertz majority. Privacy interests remain viable as well as the
21
“national commitment” to free and open public debate on matters of general or public
concern. Also, it is paramount that the law of the jurisdiction in which the publisher
distributes writings be checked to see which definitional opition a given state has chosen
in the private individual-issue of general or public concern context, a mere negligence
standard or the Sullivan “actual malice” standard. State court decisions will be discussed
later in this brief. Statutes as well as judicial precedent must be consulted within each
jurisdiction, of the complexities of a state’s defamation law are to be appreciated. But
before we start looking at what the states are up to, let up pause for a moment to discuss
the applicability of the Gertz holdings to a defendant other than a media defendant, and
whether Gertz should be read as limited to instance in which the allegedly defamatory
statement is directed at a private individual involved in an even of general or public
interest.
The so-called “media limitation” question will be dealt with first. A number of
U.S. Supreme Court cases have applied the First Amendment constitutional privilege in
the absence of a media defendant. Garrison v. Louisiana, supra; St. Amant v. Thompson,
supra; Henry v. Collins, 380 U.S. 356, 85 S.Ct. 1323, 20 L.Ed.2d 892 (1965). In St.
Amant, the defamatory comments were made during a televised speech, and in Garrison,
the defamatory comments were made during a press conference. In Henry, an arrestee
had written a letter to a deputy sheriff and made a statement to several wire services.
The Court at least tacitly recognized that a private citizen, as well as a media person or
entity, can be an important source of news of a general or public interest nature. Also, “It
has generally been held that the First Amendment does not guarantee the press a
constitutional right of special access to information not available to the public generally.”
22
Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).
“Similarly , newsmen have no constitutional right to access to prisons or their inmates
beyond that afforded the general public.” Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct.
2800, 41 L.Ed.2d 495 (1974). On the other hand, the Gertz opinion repeatedly referred to
“publisher or broadcaster,” “the presss and broadcast media,” “the communications
media,” and the “media.” 418 U.S. at 340-48. Mr. Justice Blackmun’s concurring
opinion read the majority opinion as applicable only to media defendants. 418 U.S. at
353-54. However, Mr. Justice White, dissenting, thought otherwise. 418 U.S. at 369404. Mr. Justice Powell, concurring in Cox, said of his Gertz opinion for the majority,
“In Gertz we held that the First Amendment prohibits the States from imposing strict
liability for media publication of allegedlly false statements that are claimed to defame a
private individual.” 420 U.S. at 499. (Emphasis added.) However, an intermediate
appellate court in Maryland has voiced the opinion, that when the Gertz holdings are
applicable, they are not restricted to media cases. Sindorf v. Jacron Sales Co., Inc., 27
Md.App. 53, 341 A.2d 856 (1975). “The key to the application of the Gertz holdings
must be in our opinion, whether the communcation is a matter of general or public
interest, not its media origin.” 341 A.2d at 881. This quote turned out to be wishful
thinking because the highest court in Maryland granted certiorari this case. Jacron Sales
Co., Inc. Sindorf, 350 A.2d 688 (Md. 1976), and then disagreed on the proper
interpretation of federal constitutional law while reaching the same result based on state
constiutional law or policy. A state is free to interpret its own constituition, or
alternatively, develop its own “common law” which is generally court decisions made
separately from dictates of a state legislature. Specifically, the Maryland Court of
23
Appeals in Sindorf as Maryland’s highest court was unable to discern any persuasive
basis for distinguishing media and non-media cases. “Issues of public interest may
equally be discussed in media and non-media contexts, and the need for a constitutional
privilege, therefore, obtains in either case.” 350 A.2d at 695. The American Law
Institute has taken a similar position. Restatement (Second) of Torts, sec. 580A,
Comment h (Tent. Draft, No. 21, 1975). In sum, the Maryland Court of Appeals as a
matter of state constitutional or policy concluded that as a matter of state law the Gertz
holdings should apply to media and non-media defendants, and to both libel and slander
even though only slander was alleged in Sindorf. However, the Maryland Court of
Appeals in Sindorf thought it was “plain that the holding in Gertz was limited to media
expression.” 350 A.2d at 695. 695. In Calero v. Del Chemical Corp., 68 Wis. 2d 487,
228 N.W.2d 737 (1975), the Wisconsin Supreme Court concluded that Gertz does not
apply to non-media defendants. “[F]ocus on the media and the ‘matter of public
conern’…is the key to the distinction between constitutional and non-constitutional
conditional privileges in defamation law.” 228 N.W.2d at 745. It would appear that the
Wisconsin Supreme Court was only developing the common law of this jurisdiction as
opposed to interpreting the Wisconsin Constitution.
Do the Gertz holdings apply to a defamation action which is purely private? That
is, do the Gertz holdings apply when the parties involved are private persons, neither
public officials nor public figures, and he defamatory statement are private, neither a
matter of public interest nor general concern? The Gertz majority felt that courts should
not get involved making fine line determinations as to what matters are of general or
public concern. 418 U.S. at 346. Hence, it would seem that the Gertz holdings would
24
apply to all defamatory statements about private individuals irrespective of he subject
matter of the publicaiton. The Maryland intermediate appellate court in Sindorf, as
mentoined above, held that the Gertz rules apply only when a private person is defamed
concerning a matter of public or general interest, since the goal of Sullivan was to protect
uninhibited public debate. 341 A.2d at 878. As mentioned above, the highest court of
Maryland disagreed, but only as a matter of interpreting federal constiutional law rather
than as a matter of state constiutional law or state policy as the case may be. In the words
of the Maryland Court of Appeals, “We read Gertz to apply to actions brought by private
persons regardless of whether the subject matter of the defamation is one of public or
general interest. Accordingly, as a matter of federal constitutional law, those defendants
who are protected by Gertz would be insulated from strict liability, and presumed and
punitive damages in any defamation case maintained by a private person.” 350 A.2d. at
694. The Maryland Court of Appeals noted the Gertz majority’s shift away from the
emphasis on uninhibited debate to an emphasis on the state’s interest in protecting the
reputation of a private person. However, it is extremely important to remember that the
Gertz majority provided some federal constitutional protection even if only a private
individuals is the plaintiff by prohibiting “strict liability” in the form of presumed
damages or punitive damages or both.
The time hs come to look at what other state court judges have been up to. The
Colorado Supreme Court has exercised its options, under Gertz, to chose between the
Sullivan “actual malice” standard or a more relaxed standard in the privarte individualpublic interest issue context. Walker v. Colorado Springs Sun, Inc., 538 P.2d 450 (Colo.
1975). The Colorado Supreme Court adopted the standard espoused by the plurality in
25
Rosenbloon, but without the St. Amant definition of “reckless disregard.” The majority
of the Colorado Supreme Court did not approve the St. Amant definition, since the term
“reckless disregard” is frequently used in the tort field in the state. 538 P.2d at 457. The
Walker majority opinion cited the Cantrell Court’s apparent abandonment of the St.
Amant definition of “reckless disregard.” Id.
The abandoment is “apparent” because
the Court will change directions with a change of personnel or a change of mind without
stating in clear language that it has changed course. The Walker court expressed concern
about the chilling effect of a negligence standard in this area of the law. “Our ruling here
results simply from our conclusion that a simple negligence rule would cast such a
chilling effect upon the news media that it would print insufficient facts in order to
protect itself against libel actions; and that this insufficiency would be more harmful to
the public interest than the possibility of lack of adequate compensation to a defamationinjured private individual. 538 P.2d at 458.
An intermediate appellate court in Louisanna opted for a more relaxed standard,
however. Wilson v. Capital City Press, 315 So.2d 393 (La.App. 3rd Cir. 1975). “The
First Amendment protects the defendant in this case only from the imposition of liability
without fault.” 315 So.2d at 397. The court went to to say that the printing of the untruth
itself does not constitute fault and since the plaintiff had failed to establish negligence on
the defendant’s part, the plaintiff could not recover. Also, the Supreme Court of
Massachusetts has opted for a negligence standard when a private plaintiff brings suit,
even though the defamation occurred in the reporting of an event of general or public
concern or interest. Stone v. Essex County Newspapers, Inc., 330 N.E.2d 161 (Mass.
1975). The court also announced, that when the “actual malice” standard is applicable,
26
the plaintiff must establish its existence by “clear and convincing proof” and not merely a
preponderance of the evidence. 330 N.E.2d at 164. The Wisconsin Supreme Court is in
accord in holding as follows: “[T]he burden of proof before actual malice can be found is
that there must be clear and convincing evidence.” Calero, 68 Wis. 2d at 500. In
addition, in Gobin v. Glode Publishing Co., 216 Kan. 223, 531 P.2d 76 (1975), a
negligence standard was adopted in a case of a private individual suing media defendants
for defamation in reporting judicial proceedings. See, inter alia, Firestone, supra.
An intermediate appellate court in Indiana hs rejected the simple negligence
standard provided as an option by the Gertz holdings. Aafco Heating & Air Conditioning
Co. v. Northwest Publishing Co., 321 N.E.2d 580 (Ind.App. 3rd Dist. 1974). “A
publisher’s fear of guessing wrong about juror assessment of the reasonableness of the
news gathering procedures he employs would inevitably deter ‘protected’ speech. The
preponderance of the evidence standard employed in a libel action, a civil suit, heighens
the risk of self-censorship inherent in a ‘reasonable care’ standard of media privilege.”
321 N.E.2d at 588. The Aafco also stated: “Drawing a distinction between ‘public’ and
‘private’ figures makes no sense in terms of our constitutional guarantees of free speech
and press. The New York Times privilege standard was applied to defamatory falsehood
concerning a public official or public figure to give effect to the primary function of our
system of free expression – the encouragement of discussion and commentary on public
issues. The media was not accorded a special constitutional privilege merely because
society has a lesser interest in the protection and vindication of the reputation of public
officials and public figures. The reputations of public figures and public officials merit
the same quatum of protection as those of private citizens.” 321 N.E.2d at 587.
27
Finally, the tort of invasion of privacy should be researched when a person is
contemplating bringing suit for defamation. As mentioned above, the Hill and Cantrell
cases were false-light invasion of privacy cases. The plaintiff in Cox had brought suit fpr
the tort of public disclosure, a subcategory of the tort of invasion of privacy.
The law is obviously always emerging. For example, the Chicago Tribune
(Section One of the Midwest Edition for February 5, 2008 at page 4) reported that the
father of a deceased marine recovered a large verdict in U.S. District Court in Baltimore
on claims of intentional infliction of emotional distresss and also invasion of privacy
even though the defendant Westboro Baptist Church of Kansas asserted various First
Amendment defenses. This so-called church had gone to the marine’s funeral waving
signs decrying homosexuality even though there was no proof the deceased marine was
gay with the church taking the position that the marine’s death was God’s punishment for
America’s supposed tolerance of homosexuality. The presiding federal judge stated in
part in ruling on post trial motions: “Defendants [the church and three members thereof]
cannot transform a private funeral into a public event and then bootstrap their position by
arguing that Matthew Snyder [the deceased marine] was a public figure.” On September
24, 2009, in this case entitled Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009) the United
States Court of Appeals for the Fourth Circuit reversed the trial court. The United States
Supreme Court promptly granted review and oral arguments was heard before the U.S.
Supreme Court on October 6, 2010. On March 2, 2011, the U.S. Supreme Court affirmed
the Court of Appeals in a 8-1 opinion reported at 562 U.S.____ (2011).
On June 1, 2010, the New York Times described the current dilemma that occurs
when private individuals attack other private individuals on the Internet which is purely
28
private speech. If a particular state has a negligence standard under the Gertz framework
an expensive jury trial is the result for the defendant.
Respectfully submitted,
Attorney Tom McSweeney
1423 Spaight Street, Suite 100
Madison, WI 53703-3723
www.wiscwc.com
ATTORNEY FOR THE DEFENDANT
29