Miami Herald Pub. Co. v. Brautigam, 58-409

• Decision Date: 09 March 1961
• Docket Number: No. 58-409,58-409
• Citation: 127 So.2d 718
• Parties: MIAMI HERALD PUBLISHING CO., a Florida corporation, Appellant, v. Dorothy M. BRAUTIGAM, as Administratrix of the Estate of George A. Brautigam, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 718

127 So.2d 718

MIAMI HERALD PUBLISHING CO., a Florida corporation, Appellant, v. Dorothy M. BRAUTIGAM, as Administratrix of the Estate of George A. Brautigam, Deceased, Appellee.

No. 58-409.

District Court of Appeal of Florida, Third District.

March 9, 1961.

Rehearing Denied March 23, 1961.

Smathers, Thompson & Dyer, Miami, and Elisha Hanson, Washington, D. C., for appellant.

Paul A. Louis, Bertha L. Freidus, Miami, and Melvin M. Belli, San Francisco, Cal., for appellee.

HORTON, Chief Judge

The appeal in this case was first lodged in this court. Upon motion of the appellee, and after argument of both counsel, the cause was, on November 24, 1958, ordered transferred to the Supreme Court of Florida. On June 15, 1960, the Supreme Court of Florida, by opinion and judgment, ¹ ordered the cause transferred back to this court, where the matter was orally argued on the merits.

Appellant prosecutes this appeal from a final judgment entered upon a jury verdict in an action for libel.

The record discloses that George Brautigam filed suit against the appellant newspaper alleging that certain editorial articles, published by the appellant, were defamatory. These articles allegedly criticized Brautigam's attempts, in his capacity as State's Attorney, to suppress an interim report of the Dade County Grand Jury for the 1955 Fall Term. The appellant denied the editorials were false or maliciously published but admitted that a demand for retraction had been made and refused. In a separate defense, the appellant alleged that the matters of fact contained in the editorials were true; that the opinions expressed were fair comment, made in good faith, without malice, and were privileged under both the Constitution of the United States and the Constitution of Florida.

The jury returned a verdict awarding $25,000 compensatory damages and $75,000 punitive damages. During the pendency of appellate proceedings, Brautigam passed away and his wife was substituted as appellee.

This controversy can be more easily understood when visualized against the background of public events which transpired in Dade County during the spring of 1956. It was during this period that public attention was focused upon the administration of justice in Dade County. It was a 'poorly kept secret' and 'common gossip' that the Grand Jury was investigating the conduct of certain members of the judiciary and bar. On the morning of April 26, 1956, Brautigam, as State's Attorney, was requested by the Grand Jury to examine its interim report. Upon examination, he advised that the report was in an illegal form and should be redrafted. Later the same day, Brautigam was advised that the Grand Jury was going to file its report in substantially the same form as before. He then appeared before the court when the report was about to be filed and requested the court to withhold filing of the report until he, Brautigam, could file a written motion setting out the reasons why it was invalid and should not be made a part of the public records. This request was granted and the court set the matter for argument on the afternoon of Monday, April 30, 1956.

A written motion to suppress the report was filed by Brautigam and copies distributed to all news media, including the appellant. This motion clearly stated that neither Brautigam nor any member of his staff was involved in the Grand Jury report.

Pursuant to its news coverage of this story, the appellant published the following editorial in its newspaper issue of Saturday, April 28, 1956:

'People Have the Right to Know

'Why Does State Attorney Muzzle The Grand Jury?

'The Action of George A. Brautigam, state attorney, in throwing a road block in front of a hard-working, conscientious Grand Jury, raises two immediate questions:

"Is he afraid of something, or of someone?'

"Is he trying to protect someone?'

'Neither may be the reason, but the State Attorney has invited both questions.

'The Grand Jury is the people's agency of investigation.

'It supplements the work of the State Attorney, who is the people's prosecutor in important cases.

'His office, however, is not above the Grand Jury's attention.

'When the State Attorney and the Grand Jury are in conflict, as in this instance, the people's rights are in jeopardy.

'In asking Judges [sic] Robert L. Floyd of Circuit Court to withhold the jury's report, Brautigam is off the track of his public responsibility. We think the judge should have told him so instead of granting his request.

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'As Long as Brautigam stands in the untenable position of asking the court to keep the jury's findings from the people he invites suspicion.

'He can remove it only by reversing his course; By making available to the People, who have the right to know, what the Grand Jury has uncovered.

'As it stands, Brautigam, the man the people elected to represent them, has run out on them.

'Who will speak for the people in Judge Floyd's court Monday?'

Upon reading this editorial, Brautigam visited the office of appellant's managing editor and voiced his objection to the unfair manner in which his actions were being reported. He requested his side of the story be published.

Thereafter, on Monday, April 30, 1956, the appellant published the following editorial:

'Who Will Represent the Public?

'State Attorney Brautigam Runs Out On The People

'This Afternoon at 2 o'clock, the people's right to know what its own agency, the Grand Jury, is doing will be tested before Judge Robert L. Floyd in Circuit Court.

'Who will represent the people in this outlandish situation in which they have been blocked by court order from being told what their Grand Jury wants to tell them in the interest of law and order.

'State Attorney George Brautigam was permitted by Judge Floyd to withhold release of the jury's report until Brautigam had a chance to review the contents. It was highly unusual, if not unprecedented procedure.

'Brautigam is the people's lawyer through the office that he holds.

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'Judge Floyd should take full cognizance of the fact that in seeking even a temporary suppression of the jury's report, Brautigam was not the servant of the people. He ran out on them.

'Judge Floyd should see to it that the people are ably and immediately represented if he feels that his judicial position prevents him from assuring the people in their right to know.

'The Dade County Grand Jury Association should get in touch with Gov. LeRoy Collins, point out that Brautigam turned his back on the people who employ him as well as on his job when he got the court to hold release of the jury's report, and demand his replacement.

'The people of this county will watch with concern and long memories how their rights are safe-guarded by interested officialdom this afternoon.'

After reading this editorial in an early edition of the Monday paper, Brautigam, by telegram addressed to the managing editor, demanded a retraction. The appellant refused the demand.

At the hearing on the Grand Jury report, the circuit court overruled Brautigam's motion to suppress and ordered the report spread on the public records. This order was subsequently reversed on appeal and the report ordered expunged by the Supreme Court of Florida. State ex rel. Brautigam v. Interim Report of Grand Jury, Fla.1957, 93 So.2d 99. In May, 1956, Brautigam was defeated in his bid for reelection as State's Attorney.

The appellant contends the judgment deprived it of the right of free speech and fair comment guaranteed by the First and Fourteenth Amendments of the United States Constitution, as well as Section XIII of the Declaration of Rights of the Florida Constitution, F.S.A.

In the United States and this state, every citizen is guaranteed the right of fair expression. This right includes freedom of speech and of the press. However, both the citizen and the newspaper are held to the same liability for the abuse of these rights. Freedom of speech and freedom of the press do not carry with them freedom from responsibility in the misuse of those rights. See Ross v. Gore, Fla.1950, 48 So.2d 412; Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295.

In contrast to the right of free speech, the law of libel exists as limitation on the right of every citizen to write freely. It has long been established that the guarantees of free speech and press do not render the publisher of lewd and obscene materials profane statements or defamatory utterances immune. See Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Layne v. Tribune Co., 108 Fla. 177, 146 So. 234, 86 A.L.R. 466. The difficulty in construing these constitutional guarantees arises when the right of free expression collides with an individual's right to the protection of his good name. These conflicts defy precise analysis. However, it is sufficient for this discussion to say that the rights of free speech and press were designed primarily to prevent interference by the government with a man's speech or writing but not to obviate his responsibility for what has been published.

The reported decisions of this state, as well as others, clearly establish that a publication is libelous, per se; that is, actionable, per se; without a showing of special damage, if it imputes to another (a) a criminal offense amounting to a felony; or (b) a presently existing venereal or other loathsome and communicable disease; or (c) conduct, characteristics, or a condition incompatible with the proper exercise of his lawful business, trade, profession or office; or (d) the other being a woman, acts of unchastity. Teare v. Local Union No. 295, Fla.1957, 98 So.2d 79.

The principle defenses to an action upon a publication, libelous, per se, are consent, justification and privilege. The defense of privilege has been by some subdivided into three distinct classifications, i. e., (1) absolute privilege; (2) qualified privilege; and (3) fair comment. See 3...