Wilson v. Scripps-Howard Broadcasting Co.

• Decision Date: 16 April 1981
• Docket Number: C,Nos. 78-1585,SCRIPPS-HOWARD,WMC-T,78-1586,s. 78-1585
• Citation: 642 F.2d 371
• Parties: 8 Fed. R. Evid. Serv. 123, 7 Media L. Rep. 1169 Shelby T. WILSON, Plaintiff-Appellee Cross-Appellant, v.BROADCASTING COMPANY, d/b/ahannel 5, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 371

642 F.2d 371

8 Fed. R. Evid. Serv. 123, 7 Media L. Rep. 1169

Shelby T. WILSON, Plaintiff-Appellee Cross-Appellant, v. SCRIPPS-HOWARD BROADCASTING COMPANY, d/b/a WMC-TV, Channel

5, Defendant-Appellant Cross-Appellee.

Nos. 78-1585, 78-1586.

United States Court of Appeals, Sixth Circuit.

April 16, 1981.

Rehearing and Rehearing En Banc Denied June 4, 1981.

Lucius E. Burch, Jr. and Charles F. Newman, Burch, Proter & Johnson, John J. Heflin, III, Memphis, Tenn., for defendant-appellant cross-appellee.

Fred M. Ridolphi, Jr., Prince C. Chambliss, Jr., Armstrong, Allen, Braden, Goodman, McBrode & Prewitt, Thomas R. Prewitt, Jr., Memphis, Tenn., for plaintiff-appellee cross-appellant.

Before MERRITT, KENNEDY and BOYCE F. MARTIN, Jr., Circuit Judges.

MERRITT, Circuit Judge.

The jury rendered a verdict for plaintiff in this Tennessee libel case, and defendant raises three questions on appeal: (1) Was plaintiff a public figure so that a malice standard rather than a negligence standard applies? (2) If a private figure, does plaintiff have the burden of proving the falsity of the defamatory statement, or does defendant have the burden of proving its truth? (3) Did the District Court err in excluding evidence of prior suits and claims related to plaintiff's reputation? We decide the first issue in favor of plaintiff and the second and third issues in favor of defendant and reverse and remand for a new trial.

I. STATEMENT OF THE CASE

Plaintiff, Shelby Wilson, brought suit against Scripps-Howard Broadcasting Company, the owner of WMC-TV, Channel 5, in Memphis, Tennessee. On the evening of January 28, 1975, Channel 5 twice broadcast a report of "cow deaths" and "starving cattle" on plaintiff's cattle ranch. Plaintiff Wilson sought damages for personal humiliation, embarrassment, impairment of reputation, and loss of earnings on an oral contract. The jury awarded Wilson $75,000. The District Court ordered a new trial unless plaintiff accepted a remittitur reducing the judgment to $30,000, which plaintiff accepted "under protest."

During the late 1950s and 1960s, Wilson acquired a reputation as a successful cattleman. In 1968 he transported a herd of expensive cattle from Colorado to Mississippi and sought and obtained publicity to advertise this event. By 1974 plaintiff's farming operation in Tunica County, Mississippi sixty miles south of Memphis and within the viewing area of Channel 5 was no longer a commercial success.

Channel 5 received a report that plaintiff was broke and his cattle were starving. The station sent a reporter and a photographer out to the farm to investigate. Plaintiff talked with the reporter and denied any mistreatment. He then allowed the reporter and photographer to visit the foreman of the farm. The photographer filmed some of the cattle, including one dead calf. On the 5 o'clock and 10 o'clock news, Channel 5 reported that the high cost of feed required plaintiff to stop feeding the cattle. The report said that "because (Wilson) had no money he stopped feeding the cattle" and that "many (cattle) died and their remains were burned." It also stated that Wilson denied that the cattle starved and attributed the deaths to the weather.

At trial defendant attempted to introduce evidence of prior lawsuits and claims made against plaintiff for failure to properly feed and care for cattle. The trial court refused to admit the evidence and refused to allow the defense to cross-examine plaintiff or plaintiff's witness Rose about the prior claims.

At the close of the evidence the trial judge concluded that plaintiff was not a public figure. He also noted that "from the overall proof, it seems to me that the defendant has a pretty strong position on the accuracy of this situation." The jury was instructed that plaintiff had the burden to establish the essential elements of his claim by a preponderance of the evidence. The Court also charged that truth "is a defense to a libel action The defendant has the burden of proving substantial truth by a preponderance of the evidence."

II. PLAINTIFF IS NOT A PUBLIC FIGURE

If plaintiff is a public figure, he "may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). Gertz provides general guidelines to assist the media and the courts in determining whether an individual is a public figure: does a public controversy exist, and what is the nature and extent of the individual's participation in that controversy. The nature and extent of the individual's participation is determined by looking to three factors: the extent to which participation in the controversy is voluntary, the extent to which there is access to channels of effective communication in order to counteract false statements, and the prominence of the role played in the public controversy. Id. at 344-45, 94 S.Ct. at 3009.

The District Court properly concluded that plaintiff was not a public figure. Although plaintiff had seven years earlier acted in a manner that drew media attention to his cattle business, the trial court concluded that "the notoriety is just not that great Specifically, he did not voluntarily inject himself into this controversy " (emphasis added). The present controversy concerning cattle deaths is different from the earlier isolated efforts of Wilson to promote his cattle business. Moreover, there is no evidence that he knowingly exposed himself to the increased media attention. Nor did plaintiff have access to effective channels of communication. Although he had the opportunity to respond in the news report, he did not have "regular and continuing access to the media." Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 2688, 61 L.Ed.2d 411 (1979). Recent Supreme Court decisions clearly indicate that plaintiff is not a public figure so that the media deserves New York Times actual malice protection. See Hutchinson v. Proxmire, supra (researcher who received federal funds not a public figure); Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979) (failure to appear before grand jury and citation for contempt did not render person a public figure). The TV report was unrelated to the prior coverage of plaintiff and was prompted by an independent investigation by the TV station.

III. PLAINTIFF HAS THE BURDEN OF PROVING FALSITY

Gertz left states free to adopt any rule of liability concerning private plaintiffs so long as "they do not impose liability without fault." 418 U.S. at 347, 94 S.Ct. at 3010. The next issue presented appears to be one of first impression for federal appellate courts: whether in light of Gertz the First Amendment controls the question of who has the burden of proof on the issue of truth or falsity when the plaintiff is not a public figure.

Tennessee allows a private plaintiff to recover on a showing of negligence, or what a "reasonably prudent person would, or would not, have done under the same or similar circumstances." Memphis Pub. Co. v. Nichols, 569 S.W.2d 412, 418 (Tenn.1978). Tennessee has determined that it will continue to follow the common law rule that a plaintiff does not have to prove that a statement is false. Falsity is presumed, and the defendant must prove the truth of the defamatory statement in order to escape liability. Id. at 420.

Tennessee follows the common law rule developed during the era of strict liability in defamation cases. At common law, prior to the application of constitutional standards in the area of libel and slander, the truth of the defamatory statement was an affirmative defense for the defendant to prove. Restatement of Torts §§ 518, 613(2) (1938). Although falsity was an element of a cause of action for defamation, id. at § 558, once a statement was shown to be defamatory, falsity was presumed. Prosser, Torts § 116 (4th ed. 1971); Memphis Pub. Co. v. Nichols, 569 S.W.2d at 420. The burden of nonpersuasion on the issue of truth, the risk of jury uncertainty, fell on the defendant.

This common law allocation of the burden of proof is drawn into question by the constitutional prohibition against liability without fault established in Gertz, 418 U.S. at 347-48, 94 S.Ct. at 3010-3011. The language of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and later cases makes clear that the burden of demonstrating the falsity of the defamatory statement rests on the plaintiff when the malice standard applies. See, e. g., Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964) (public official must establish that the utterance was false); Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 675, 15 L.Ed.2d 597 (1966) (same).

The same rule requiring the plaintiff to prove falsity is required under the First Amendment in libel cases based on negligence or some other standard of fault of lesser magnitude than malice. The Supreme Court in stating that "demonstration that an article was true would seem to preclude finding the publisher at fault," Time, Inc. v. Firestone, 424 U.S. 448, 458, 96 S.Ct. 958, 967, 47 L.Ed.2d 154 (1976), has suggested that falsity is an element of fault in defamation cases. In defamation actions brought by private persons against media defendants, Tennessee has defined a standard of fault based on negligence:

(T)he appropriate question to be determined from a preponderance of the evidence is whether the defendant exercised...