Bon Air Hotel, Inc. v. Time, Inc.

• Decision Date: 06 May 1970
• Docket Number: No. 27490.,27490.
• Citation: 426 F.2d 858
• Parties: BON AIR HOTEL, INC., Plaintiff-Appellant, v. TIME, INC. and Dan Jenkins, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

426 F.2d 858 (1970)

BON AIR HOTEL, INC., Plaintiff-Appellant, v. TIME, INC. and Dan Jenkins, Defendants-Appellees.

No. 27490.

United States Court of Appeals, Fifth Circuit.

May 6, 1970.

Jack D. Capers, Richard E. Allen, Augusta, Ga., for appellant.

Harold Medina, New York City, E. D. Fulcher, Augusta, Ga., for appellees.

Before RIVES, COLEMAN and MORGAN, Circuit Judges.

RIVES, Circuit Judge:

Bon Air appeals from the district court's order granting Time, Inc. and Dan Jenkins' (hereinafter referred to as Time) motion for summary judgment. Bon Air Hotel, Inc. v. Time, Inc., 295 F.Supp. 704 (S.D.Ga.1969).

Appellant, owner of the Bon Air Hotel in Augusta, Georgia, brought this libel action against Time for an article written by Jenkins and published in its magazine Sports Illustrated. Time's initial motion for summary judgment was denied by Judge Scarlett on December 20, 1967. On March 4, 1968, this Court denied Time's application for leave to appeal under 28 U.S.C.A. § 1292(b). Subsequently, the Supreme Court denied certiorari. 393 U.S. 859, 89 S.Ct. 131, 21 L.Ed.2d 127. Meanwhile Judge Scarlett had retired. Further proceedings were held before his successor, Judge Lawrence. On January 30, 1969, Judge Lawrence, pursuant to Rule 60(b), Fed.R. Civ.P., vacated Judge Scarlett's order and granted Time's motion for summary judgment.

Bon Air contends that the district court's order should be reversed on the grounds that: (1) The district court erred in applying the New York Times¹ rule to the publication in question; (2) the district court denied Bon Air due process of law in granting the motion for summary judgment without notice or opportunity for hearing; and (3) the district court erred in granting summary judgment.

The facts surrounding the publication will be mentioned only briefly since the district court's opinion sets forth the facts in detail. The April 6, 1964 issue of Sports Illustrated was devoted in large part to the Masters' Golf Tournament which is held each April in Augusta, Georgia. This issue included an article written by Jenkins, a well-known sports writer, who had visited Augusta during the week of the Tournament for fourteen years. The article described conditions under which the Tournament was held, accommodations available in Augusta for both players and spectators, and, in particular, conditions at the Bon Air Hotel. Examining the present condition of the hotel and past experiences of its guests during the week of the Tournament, Jenkins focused on the

"decline into dishevelment of the Bon Air Hotel though the general theme was Augusta and the Masters Tournament. According to the author, 100,000 golf enthusiasts visit that city each year when it is played. Millions watch the event on television. For over twenty years prior to 1960 the Bon Air had been a landmark of the Masters scene. It was part and parcel of the Tournament. As the article says, `The Bon Air was the place to be, and to be seen.\' During the period 1961-1964 the hotel was closed for fifty-one weeks of each year and was opened only for the week of the Masters. The author had stayed at or visited the Bon Air for thirteen years and had observed first hand its alleged decline from the status of grande dame into the station of a dowdy, decrepit and disheveled old woman."

295 F.Supp. at 707.

I. New York Times Issue.

The district court held the case was a proper one for application of the actual malice standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Bon Air contends this holding is erroneous in that (1) the New York Times rule applies only to defamation of "public officials" and "public figures" and (2) assuming that New York Times is applicable, the subject matter of the publication in question is not of sufficient public interest to warrant first amendment immunity. We conclude that both contentions are without merit.

In New York Times the Supreme Court held that the first amendment limits a state's power to award damages in a libel action brought by a public official against critics of his official conduct. The rationale of the decision was that in the area of free debate, where exaggeration and misstatement are inevitable, freedom of expression must have the breathing space it needs to survive regardless of "the truth, popularity, or social utility" of the statements. 376 U.S. at 271, 84 S.Ct. at 721. However, the Court conditioned the first amendment protection on a lack of actual malice, i. e., knowledge that a statement is false or reckless disregard of whether or not it is false. In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Court extended the first amendment guarantees to misstatement of fact in discussing public figures.

The question before us is whether the first amendment protection, extended to public officials in New York Times and to public figures in Butts, applies to publication concerning matters of public interest. In decisions since New York Times, the Court has continued to emphasize that freedom of expression upon public questions is secured by the first amendment.² This Court in Time, Inc. v. McLaney, 406 F.2d 565 (5 Cir.), cert. den., 395 U.S. 922, 89 S.Ct. 1776, 23 L. Ed.2d 239 (1969), noted that the New York Times actual malice standard is applicable to publications involving matters of great public interest.³

Since the Butts decision, which extended first amendment protection to public figures, numerous lower courts have extended application of the actual malice standard to publications possessing a valid public interest.⁴ We agree with these decisions that publications concerning matters of public interest are protected by the first amendment absent proof of actual malice.

Bon Air also contends that, if the New York Times actual malice standard applies to publications discussing matters of public interest, the article in Sports Illustrated is not of sufficient public interest to warrant first amendment immunity. In particular, Bon Air argues that the Masters' Golf Tournament does not make an inconspicuous and little-known hotel a matter of such public interest.

In rejecting this contention, the district court found that the national interest in the particular event and the interest of 100,000 golf enthusiasts in the accommodations in Augusta during the Masters' Tournament constituted a valid public interest. We agree. Although some "public interest" cases have dealt with matters of a more critical nature, e.g., public health⁵ and organized crime,⁶ we conclude that Time's article, focusing on Augusta, the Masters' Golf Tournament and the public accommodations available for the many thousands of spectators, was of a legitimate public interest.⁷ For these reasons, the district court did not err in applying the New York Times actual malice standard to the publication in question.

II. Denial of Due Process.

Bon Air next contends that it was denied due process of law when the district court granted Time's motion for summary judgment without notice or opportunity to develop a case by oral argument or by presentation of evidence.

The district court on January 20, 1969, wrote counsel and inquired whether the court had the power, and if so whether it should be exercised under the circumstances, to vacate the court's previous denial of Time's motion for summary judgment. Counsel for Time replied that the court did have the power to vacate and suggested that his letter be treated as a motion for reconsideration of Time's earlier motion for summary judgment. On January 23 the court notified counsel that it was treating the letter as a motion to vacate the earlier order denying summary judgment and also as a motion to reopen Time's earlier motion for summary judgment. Counsel for Bon Air, in replying to the court on January 27, 1969, conceded that the court had the power to vacate the earlier order denying summary judgment but urged the court not to exercise that power. On January 30, 1969,⁸ the court granted Time's motion for summary judgment.

The district court's denial of Time's motion for summary judgment on December 20, 1967, was only an interlocutory order and thus not subject to being vacated under Rule 60(b), Fed.R. Civ.P.⁹ However, because the order was interlocutory, "the court at any time before final decree could modify or rescind it." John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 88, 42 S.Ct. 196, 198, 66 L.Ed. 475 (1922); see Carter v. American Bus Lines, Inc., 22 F.R.D. 323, 325 (D.Neb.1958); Kliaguine v. Jerome, supra. Thus, vacating the earlier order was within the district court's power, and we do not find that the court abused its discretion. See Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1, 47-48, 63 S.Ct. 1393, 87 L.Ed. 1731 (1943).

Rule 56(c), Fed.R.Civ.P., provides that the "motion for summary judgment shall be served at least 10 days before the time fixed for the hearing." This Court has interpreted Rule 56(c) as requiring notice to the adverse party and a hearing.¹⁰

We are of the opinion that both of these requirements were complied with in the district court. Through the district judge's letter to counsel on January 20, 1969, and the court's notification on January 23, 1969, Bon Air received sufficient notice that the district court was reconsidering Time's motion for summary judgment.

The following factors are relevant in our consideration of the question of whether Bon Air was allowed to be heard on the summary judgment motion: (1) Oral argument was conducted on Time's original motion for summary judgment, which was denied; (2) Bon Air filed briefs in opposition to Time's petition in this Court for leave to appeal the denial of its motion and also in opposition to Time's petition for rehearing of this Court's denial of the above petition; (3) affidavits and interrogatories with Time and Dan Jenkins' answers thereto were filed with the district court by...