Adams v. Frontier Broadcasting Co.

• Decision Date: 21 October 1976
• Docket Number: No. 4475,4475
• Citation: 555 P.2d 556
• Parties: 2 Media L. Rep. 1166 Bob ADAMS, Appellant (Plaintiff below), v. FRONTIER BROADCASTING COMPANY, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 556

555 P.2d 556

2 Media L. Rep. 1166

Bob ADAMS, Appellant (Plaintiff below), v. FRONTIER BROADCASTING COMPANY, Appellee (Defendant below).

No. 4475.

Supreme Court of Wyoming.

Oct. 21, 1976.

Bob Adams, pro se.

Douglas Madison and Byron Hirst, Hirst, Applegate & Dray, Cheyenne, for appellee.

Before GUTHRIE, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and ARMSTRONG, District Judge, Retired.

THOMAS, Justice.

The essential conflict to be resolved in this case occurs between the common law individual right to be free from defamation and the right of free speech preserved by both the First Amendment to the Constitution of the United States and Art. 1, § 20 of the Constitution of the State of Wyoming. Specifically, the Court is called to decide whether to adopt a rule requiring private censorship or deny damages to an individual for defamation. For the reasons which follow we are compelled to reject the requirement of censorship in favor of safeguarding the fundamental right of free speech even though this result forecloses the individual from recourse for defamation.

The appeal is taken by Bob Adams (referred to hereafter as Adams) from a summary judgment entered in favor of the appellee, Frontier Broadcasting Company (referred to hereafter as Frontier) in Adams' action for defamation. The action was premised upon a comment made by an anonymous telephone caller which was broadcast directly over Frontier's assigned radio frequency operated under the call letters KFBC, as a part of Frontier's radio talk show, 'Cheyenne Today.' For purposes of the Motion for Summary Judgment Frontier admitted:

'* * * That on 21 July 1972 an unknown person called in to Frontier's radio program KFBC to a radio program conducted by its employee Larry Birleffi, called 'Cheyenne Today' stating that she wished to read a prepared statement 'Please don't stop me', and thereupon said anonymous caller stated that Adams 'had been discharged as Insurance Commissioner for dishonesty.''

Adams sought recovery for defamation on the grounds of 'violation of regulations, provisions, directives and requirements of the Federal Communications Commission,' and the 'careless, negligent and wrongful conduct of defendant (Frontier) in failure to monitor, control, maintain and supervise the use of its facilities during the program.' The record and the brief of Adams and his argument to this Court demonstrate that the specific factual premise for his contentions was the failure of Frontier to use a so-called 'tape delay system.' Such a system tape records phone calls, like the one involved in this instance, and they are not broadcast for the period of an automatic time lag, which usually is only ten seconds or less in duration. An electronic delay system was available to Frontier on July 21, 1972, but it was not used in connection with the KFBC talk show, 'Cheyenne Today.'

Frontier, as a defense and the premise of its Motion for Summary Judgment, asserted the constitutional privilege attaching to published comments relating to a public official or a public figure. The privilege relied upon is founded upon the First Amendment to the Constitution of the United States of America, ¹ which is made binding upon the states by the Fourteenth Amendment, and was judicially announced in the opinion of the Supreme Court of the United States in New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964) in the following language:

'The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not. * * *'

Frontier, of course, also relied upon the absence of any showing of actual malice.

The record before us demonstrates that the district court, in granting the summary judgment to Frontier, determined that the undisputed facts disclosed no issue of any material fact with respect to the comment which was broadcast, and which was assumed, for purposes of the summary judgment, to be defamatory to Adams. The record also demonstrates that the district court concluded, on the basis of facts which it found to be undisputed, that Adams was a public figure within the theories and definitions promulgated by the Supreme Court of the United States in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, reh. den. 389 U.S. 889, 88 S.Ct. 11, 19 L.Ed.2d 197 (1967); and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Having concluded that Adams was a public figure as a matter of law, the district court applied the rule of privilege found in New York Times Co. v. Sullivan, supra, and held, also as a matter of law, that the publication was not made with 'actual malice' as that term is there defined. Specifically, the district court held that the failure to utilize an electronic delay system did not constitute reckless disregard within the meaning of the doctrine of New York Times Co. v. Sullivan, supra.

The concept of a public figure is involved in this case because it affects the freedom of the states to adopt standards of iability for defamation. New York Times Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, supra, Gertz v. Robert Welch, Inc., supra; and Walker v. Pulitzer Publishing Company, 394 F.2d 800 (8th Cir. 1968). ² We must, therefore, determine if the conclusion of the trial court that Adams is a public figure is correct. If so, we must then decide whether the trial court correctly held that the law justifies Frontier's failure to use an electronic delay system in connection with the broadcast of its talk show, 'Cheyenne Today,' thereby permitting the instantaneous publication of the defamatory remark pertaining to Adams. ³ A negative answer to either of these questions would result in this case being reversed for further proceedings in the trial court. Both must be examined in the light of one of our constitutional lodestars, freedom of speech.

In his brief Adams does not oppose the district court conclusion that on the undisputed facts he is to be considered a public figure as a matter of law. At argument, however, he stated that he did not concede the application of the New York Times doctrine to him. The record demonstrates, without any dispute, that Adams, in addition to his real estate and insurance business, was an active politician and candidate. In both 1950 and 1952 he ran unsuccessfully for the Wyoming State Legislature. In 1951 he was elected a commissioner of the City of Cheyenne, and he was defeated for reelection for that same office in 1953. In 1954 he was an unsuccessful candidate for the office of State Auditor, and in 1956 he was elected to the Wyoming State Legislature. In 1958 he again was an unsuccessful candidate for the office of State Auditor, and in 1960 he was an unsuccessful candidate for the State Legislature. He served as a member of the Laramie County Library Board from 1957 to 1959, and was appointed Insurance Commissioner of the State of Wyoming in 1959. In 1962 he was an unsuccessful candidate for the office of State Treasurer, and in 1964 he was again elected to the State Legislature. In 1966 and 1970 he again ran for the office of State Treasurer, unsuccessfully on both occasions. Adams admitted, at the taking of his deposition, that he was preparing to be a candidate for State Treasurer in the 1974 election. In his deposition he advised that he would like to be a public figure, and that he used for purposes of identification either a 'legislative card' or a 'State Treasurer Candidate card.'

In addition to his purely political activities he promoted the Casper Troopers, a nationally recognized drum and bugle corps. At one point in time he was made an honorary Trooper, but later developments resulted in his motives for this activity being questioned. The contention was that he was using this as a political gambit to create an impression that he was endorsed by that organization. The resultant controversy did generate a good deal of publicity in which Adams was prominently named. There also was a considerable amount of publicity about the fact that he resigned from the office of Insurance Commissioner, and that event figured prominently in his campaigns for public office after that time. These are the facts which the record discloses, and Adams' denial that he is a public figure does not serve to counteract the evidentiary facts in the record.

Addressing the statues of Adams as a public figure, the rule of New York Times Co. v. Sullivan, supra, with respect to the constitutional privilege, was extended from 'public officials' to 'public figures' in Curtis Publishing Co. v. Butts, supra. The public figure concept then was refined in Gertz v. Robert Welch, Inc., supra. There the Court stated some definitions that have been applied alternatively by other courts. It first said, at 418 U.S. 342, 94 S.Ct. 3008, alluding to the public person concept:

'* * * Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures * * *.'

Later the Court said, at 418 U.S. 351, 94 S.Ct. 3012, with respect to the status of a public figure:

'* * * That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.'

The status of a public figure has been...