Baker v. Charles

• Decision Date: 16 February 1996
• Docket Number: Civil No. 95-183-P-H.
• Citation: 919 F. Supp. 41
• Parties: Bill BAKER, et al., Plaintiffs, v. Robert CHARLES, Defendant.
• Court: U.S. District Court — District of Maine

919 F. Supp. 41

Bill BAKER, et al., Plaintiffs, v. Robert CHARLES, Defendant.

Civil No. 95-183-P-H.

United States District Court, D. Maine.

February 16, 1996.

Sumner H. Lipman, Laura J. Garcia, Lipman & Katz, P.A., Augusta, ME, for Plaintiffs.

Richard L. O'Meara, Murray, Plumb & Murray, Portland, ME, for Defendant.

ORDER ON THE DEFENDANT CHARLES'S MOTION FOR SUMMARY JUDGMENT

HORNBY, District Judge.

This case probes the extent of First Amendment and common law protection for a private citizen who petitions a state administrative agency on a subject within its jurisdiction. Surprisingly, the protection turns out to be not very broad. Examination of United States Supreme Court caselaw and Maine Law Court caselaw leads me to the conclusion that if a private figure plaintiff who claims to be defamed by a First Amendment petition can show that the defamer was motivated by ill will, then statements that are false by reason only of negligence are nevertheless actionable.

BACKGROUND

Since the issues are presented on the defendant's motion for summary judgment, I report the facts in the light most favorable to the plaintiffs. These facts, however, are hotly disputed.

In September of 1993, the defendant Robert Charles and his wife arrived at Monhegan Island off the Maine coast for a stay in a cottage that they had rented through the plaintiffs, Bill Baker and Amy Melenbacker. Shortly after arriving, Charles went to Melenbacker to complain about the condition of the cottage. After an exchange of words, Melenbacker ultimately fled the scene in tears and Baker called the local constable. Mr. and Mrs. Charles stayed in the rental cottage for the remainder of their two-week vacation.

Upon returning to his home in Washington, D.C., Charles, a lawyer, wrote a September 10, 1993, letter on law firm stationery to Maine's Land Use Regulation Commission ("LURC"). The letter complained about Melenbacker's and Baker's activities on Monhegan Island and challenged their recent request for an advisory ruling regarding potential modifications to their property. Charles wrote the letter within two weeks of his island confrontation with Baker and Melenbacker. Charles never contacted Melenbacker and Baker about his concerns before or after writing the letter. The letter has been a matter of public record since LURC received it.

Melenbacker and Baker voluntarily withdrew their application from LURC in December of 1993, in light of what they perceived as a change of attitude on LURC's part that fall. They did not learn of Charles's letter, however, until an acquaintance brought it to their attention in the summer of 1994.

Melenbacker and Baker have filed suit against Charles and his (then) law firm alleging defamation, intentional infliction of emotional distress, interference with economic relations, and abuse of process, and seeking punitive damages. The defendants removed the case from state court, based upon diversity of citizenship. See 28 U.S.C. §§ 1332(a), 1441(b). I dismissed the complaint as to the law firm defendant for lack of personal jurisdiction. The defendant Robert Charles now moves for summary judgment on all counts, claiming, among other things, that his letter was privileged.

FIRST AMENDMENT PROTECTION

Charles's letter to LURC, a state agency, concerning a matter under LURC's jurisdiction, is undoubtedly included within the protection of the First Amendment right to petition the government for redress of grievances. California Motor Transport Co. v. Trucking Unltd., 404 U.S. 508, 510, 92 S.Ct. 609, 611-12, 30 L.Ed.2d 642, 646 (1972). In McDonald v. Smith, 472 U.S. 479, 485, 105 S.Ct. 2787, 2791, 86 L.Ed.2d 384, 390 (1985), the Supreme Court held that this right of petition (there to the President) has no greater or different protection than free speech generally. The Court in McDonald held specifically that petitions have no absolute immunity under the Constitution against defamation actions and that "petitions to the President that contain intentional and reckless falsehoods `do not enjoy constitutional protection.' ...." 472 U.S. at 484, 105 S.Ct. at 2791, 86 L.Ed.2d at 389-90 (quoting Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, 133 (1964)).

Beyond this last statement, the scope of McDonald is open to considerable doubt. The Court upheld North Carolina's definition of defamation as constitutional notwithstanding the First Amendment right of petition, observing that North Carolina permitted liability only if the plaintiff could show "malice." 472 U.S. at 485, 105 S.Ct. at 2791, 86 L.Ed.2d at 390. But the defamation plaintiff in that case was a candidate for United States Attorney and thus would qualify as a public figure (unlike the plaintiffs here) and the issue was his qualification for office, a matter of public concern. Under general First Amendment doctrine, a public figure must meet a higher standard in a defamation lawsuit: unlike ordinary people, see Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010-11, 41 L.Ed.2d 789, 809 (1974), a public figure must prove "actual malice" to recover even compensatory defamation damages. Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094, 1111 (1967); see New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964). Unfortunately, in McDonald the Court gave no indication whether either the public figure status of the plaintiff there or the public concern at issue was relevant to its holding.¹

McDonald's ambiguity has divided the only lower court to consider it. A majority of the Eighth Circuit Court of Appeals en banc has read McDonald narrowly to require proof of actual malice only when the plaintiff bringing the defamation action is a public figure. In re IBP Confidential Documents Litig., 800 F.2d 787, 788 (8th Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1293, 94 L.Ed.2d 150 (1987). But Judge Richard Arnold wrote a dissenting opinion joined by three other judges arguing that McDonald established that "`whenever the right to petition is exercised, that right is afforded the protection of the actual malice standard; the nature of the communication and not the status of the defamation plaintiff is the touchstone.'" 800 F.2d at 789 (quoting the petition for rehearing; emphasis original).

If Judge Arnold's dissent were the law, this would be an easy case, for the plaintiffs on this summary judgment record cannot show by clear and convincing evidence, Gertz, 418 U.S. at 342, 94 S.Ct. at 3008, 41 L.Ed.2d at 807, that actual malice under the New York Times standard is present. On the evidence most favorable to the plaintiffs, Charles's letter may be negligently, but it is not recklessly, off the mark. The plaintiffs here are not public figures, however, and the defendant has not argued that their business expansion is a matter of public concern, or even that the latter determination would be relevant under McDonald. Given the Supreme Court's broad language in McDonald asserting that the right to petition is to be treated the same as other First Amendment rights, it seems safer for me as a trial judge to conclude that proof of actual malice is not constitutionally required. Under that reasoning, the only constitutional requirement for defamation damages under the First Amendment is that strict liability not be imposed, Gertz, 418 U.S. at 347, 94 S.Ct. at 3010-11, 41 L.Ed.2d at 809-10; see also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 763, 105 S.Ct. 2939, 2947, 86 L.Ed.2d 593, 605 (1985) (plurality opinion) (when defamatory statements about a private individual do not involve matters of public concern, recovery of presumed and punitive damages absent a showing of "actual malice" is constitutional).

MAINE LAW

In any event, Maine law does not recognize strict liability for defamation. The Maine Law Court has held that a plaintiff must prove at least negligence in order to recover in an action for defamation. See Lester v. Powers, 596 A.2d 65, 69 (Me.1991). I turn therefore to explore what qualified privilege may be available under Maine common law. Maine's Law Court has generally adopted the Restatement (Second) of Torts ("Restatement") in its development of common law defamation. See, e.g., Staples v. Bangor Hydro-Elec. Co., 629 A.2d 601, 604 (Me.1991). The applicable provision here is § 598:

An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that

(a) there is information that affects a sufficiently important public interest, and

(b) the public interest requires the communication of the defamatory matter to a public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true.

That definition certainly includes communications to a governmental agency like LURC on subjects within its jurisdiction, like those addressed in Charles's letter. See Restatement § 598 cmt. e ("The rule stated in this Section is applicable to defamatory communications to public officials concerning matters that affect the discharge of their duties.").² Then, according to the Law Court, the burden is on the defamation plaintiff seeking to overcome the privilege to prove by a preponderance of the evidence either that the utterer "knew his statement to be false or recklessly disregarded its truth or falsity, i.e. entertained a high degree of awareness of probable falsity or serious doubt as to the truth of the statement," — essentially the First Amendment standard of actual malice — or that the utterer "acted entirely out of ill will" toward the defamed plaintiff, Staples, 629 A.2d at 603 — a separate way of overcoming the privilege. See Restatement §§ 600, 603.

As I have said, the plaintiffs here cannot meet the knowing or reckless falsity prong on the summary judgment record, but there is evidence from which a fact-finder...