AMCOR Inv. Corp. v. Cox Ariz. Publications, Inc.

• Decision Date: 23 June 1988
• Docket Number: CA-CV,No. 2,2
• Citation: 764 P.2d 327,158 Ariz. 566
• Parties: , 16 Media L. Rep. 1059 AMCOR INVESTMENT CORPORATION, a California corporation, Plaintiff/Appellant, v. COX ARIZONA PUBLICATIONS INC., a Delaware corporation; Max Jennings and Carol Jennings, Defendants/Appellees. 88-0157.
• Court: Arizona Court of Appeals

Page 327

764 P.2d 327

158 Ariz. 566, 16 Media L. Rep. 1059

AMCOR INVESTMENT CORPORATION, a California corporation, Plaintiff/Appellant, v. COX ARIZONA PUBLICATIONS INC., a Delaware corporation; Max Jennings and Carol Jennings, Defendants/Appellees.

No. 2 CA-CV 88-0157.

Court of Appeals of Arizona Division 2, Department B.

June 23, 1988.

Review Denied Dec. 6, 1988.

Goldstein, Kingsley & Myres, Ltd. by Philip T. Goldstein, Phoenix, for plaintiff/appellant.

Brown & Bain by Robert E.B. Allen, David J. Bodney, and Michael W. Patten, Phoenix, for defendants/appellees.

OPINION

CHARLES E. ARES, Judge Pro Tem. ^*

This libel case requires us to determine whether an entire newspaper column is absolutely protected by the First and Fourteenth Amendments of the U.S. Constitution.

On December 21, 1986, Max Jennings, the executive editor of the Mesa Tribune published the following column on the editorial page of the newspaper ¹:

Deafening development

Homes, flight path make poor neighbors

Max Jennings

Commentary

The Mesa City Council has made perhaps its biggest mistake ever in approving a vast new high-density housing project under the screaming engines of Williams Air Force Base jets. The project, labeled as The Crossings, is the second-largest commercial development in city history.

The 1,023-acre development will, in effect, be a new city. It will involve more than 3,000 homes, near the intersection of the Superstition Freeway and the proposed southeast loop freeway near Ellsworth Road in southeast Mesa.

There will be shopping, schools, a hotel--all the necessary things for people to live. In short, it's absolute insanity.

Williams Air Force Base officials already have warned that during bad weather they send as many as 150 jets a day over the area. The development lies directly beneath the base's bad-weather landing approach. In this respect, The Crossings is aptly named. Those jets are flown by student pilots, the most inexperienced the Air Force has. And, again, these flights over The Crossings will come, by definition, in bad weather, night and day--inexperienced pilots bringing in military aircraft in bad weather over a housing area.

Incredibly, the Air Force has warned that the T-37 and T-38 jet trainers will be only 1,600 feet high when they pass over the proposed housing and stores and schools of The Crossings. Most of us have an idea how much noise a jet makes at an airport taxiing to a gate. Imagine how much noise a military jet makes on a full throttle takeoff--and these are not whisper jets.

Yeah, there's a reason why AMCOR Investments, Inc., a subsidiary of American Continental Homes, is going to make a killing on The Crossings. That land in the pathway of the Williams flights has not been worth very much, for obvious reasons. Now, almost overnight, it's already worth millions more, thanks to City Council approval of the project.

Of course the developer has eagerly agreed to add extra soundproofing. That was one of the requirements for approval by the council. Even with this expensive addition, the homes will be competitively priced because they are built on land that once was believed to be suitable only for agriculture.

But who pays for soundproofing schools and police and fire stations? What do psychologists say about the effects of living in a high-noise environment? The homes may be soundproofed, but what about back yards and school playgrounds and churches? If there were only a few homes affected, it would be one thing. But now we're talking about an area that will house perhaps 10,000 or more.

The only sign of mental activity on the part of some members of the City Council came Friday morning when some attention was given toward incorporating the land around Williams into the city's new master plan.

If this reasoning is not pursued, the people at Williams ought to start packing their bags right now. It may be the busiest fighter-training base in the Free World, but wait until thousands of taxpayers and voters start flexing their political muscle to complain about noise. It's inevitable. It's happened elsewhere.

Council members Willie Wong, Keno Hawker and Peggy Rubach voted against The Crossings proposal, to their credit. I've got a suggestion for Dave Guthrie, Ross Farnsworth, Pat Blake and Mayor Al Brooks. They should drive out to The Crossings on one of Williams' bad-weather approach days, find a location where one of the thousands of homes will be built, and try to have a conversation. They'll find that the jets, one after the other, will produce 70 to 80 decibels. They'll find out that they'll probably have to stop talking while each jet passes overhead--150 times a day. But, as Guthrie points out, "We have to be fair to the developer in pursuit of planning and developing his property." He's got a point, I guess. If people are dumb enough to buy houses there, why not sell 'em to 'em?

It's the largest-scale case of caveat emptor I've ever seen. Only thing I'm not sure of is whether it's buyer beware or Air Force beware. Actually, it's city beware. Another cockamamie development in a city where the thought of planning is little more than a concept. The developers win another one; the quality of life consideration takes it on the chin again.

That's becoming the pattern these days. The only winner I can see in this sorry affair is AMCOR Investment Co., which is certainly doing exactly what it should be--making money.

___

Max Jennings is executive editor of the Mesa Tribune.

Alleging that the column constituted corporate defamation and commercial disparagement, AMCOR Investment Corporation sued Cox Arizona Publications, Inc., the owner and publisher of the Tribune, and Max Jennings. On a 12(b)(6) motion ², the trial court dismissed the complaint, concluding that the column constituted opinion protected by the First Amendment. We agree.

I.

We recognize at the outset that motions to dismiss are not favored in our law and that trial courts should normally resist the temptation to abort cases at the pleading stage. State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 594, 667 P.2d 1304, 1309 (1983). The general rule is that a complaint is to be construed liberally in the plaintiff's favor and should not be dismissed unless it appears beyond doubt that the plaintiff could prove no facts in support of its claim that would entitle it to relief. Chirco Const. Co. v. Stewart Title and Trust, 129 Ariz. 187, 188, 629 P.2d 1023, 1024 (App.1981). However, when the complaint implicates the fundamental value of freedom of the press, there is good reason for a court to examine the complaint with a more rigorous eye in order not to burden public debate with insupportable litigation. 5 C. Wright and A. Miller, Federal Practice and Procedure § 1357 at 610 (1969). Compare Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C.Cir.1966) (holding summary disposition of case essential "[f]or the stake here, if harassment succeeds, is public debate.")

But in this case, there was no need for the trial court to construe the complaint either strictly or liberally or to speculate about what facts the plaintiff might be able to prove at trial. We do not need therefore to hold explicitly that a special pleading rule is required in First Amendment cases. The complaint here, to which the critical column was attached, set out the offending statements precisely. The sole issue for the trial court was whether the words used were, as a matter of law, actionable. We turn then to our reasons for concluding that the trial court decided that question correctly.

II. OPINION IS ABSOLUTELY PROTECTED

The expression of one's opinion is absolutely protected by the First and Fourteenth Amendments to the U.S. Constitution. MacConnell v. Mitten, 131 Ariz. 22, 638 P.2d 689 (1981); Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App.1986). ³ The rationale for this opinion im munity is summed up in Justice Powell's dictum in Gertz v. Robert Welch, Inc.:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.

418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974).

The need to distinguish between fact and opinion is not new in the law of libel; it has its origins in common law cases dealing with the defense of fair comment. Prosser and Keeton on Torts, § 113A at 813 (5th ed. 1984). Particularly since Gertz, courts have struggled with the difficult task of articulating the constitutional standard by which to make the necessary distinction. We are invited by the appellant to avoid this slippery problem by leaving the job to the jury. This we plainly cannot do since the issue is one of law. Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 783 (9th Cir.1980). It could hardly be otherwise in view of the constitutional basis for the protection of opinion. Lewis v. Time, Inc., 710 F.2d 549, 555 (9th Cir.1983). Although it was half-heartedly argued at one point in this case that opinion commercially disparaging a plaintiff's business or product was not entitled to constitutional protection, it is obvious that there is no basis for distinguishing between libel and disparagement in this respect. Gertz v. Robert Welch, Inc., supra; Redco Corp. v. CBS, Inc., 758 F.2d 970 (3d Cir.1985). We accordingly treat them identically in this opinion.

The case before us illustrates the inadequacy of a mechanical attempt to isolate statements of fact from those of opinion. We deal here with a newspaper column evaluating and criticizing an act of governmental officials on a matter of serious public importance. It combines clearly evaluative characterizations of the project and the council's actions, predictions of the future impact of the project, and speculations about political consequences with a few statements that appear on the surface to...