Batson v. Time, Inc.

• Decision Date: 28 June 1974
• Docket Number: 9923,Nos. 9885,s. 9885
• Citation: 298 So.2d 100
• Parties: Emmett E. BATSON v. TIME, INC., and David Chandler (two cases).
• Court: Court of Appeal of Louisiana — District of US

Page 100

298 So.2d 100

Emmett E. BATSON v. TIME, INC., and David Chandler (two cases).

Nos. 9885, 9923.

Court of Appeal of Louisiana, First Circuit.

June 28, 1974.

Rehearing Denied Aug. 13, 1974.

Writ Refused Sept. 18, 1974.

Cicero C. Sessions, Robert E. Winn and Robert E. Barkley, Jr., New Orleans, for appellant.

Donald C. Theriot, Baton Rouge, for appellees.

Before LANDRY, SARTAIN and BLANCHE, JJ.

LANDRY, Judge.

Time, Inc. and David Chandler (Defendants) have appealed from a judgment of the trial court rejecting Defendants' motions for summary judgment in this action by Emmett E. Batson (Plaintiff), for damages for alleged defamation by an article published by Defendants in Life Magazine. We ex proprio motu ordered defendants to show cause why Defendants' appeals should not be dismissed on the ground that LSA-C.C.P. art. 968 prohibits appeal from a judgment denying a motion for summary judgment. On issuance of our rule, Defendants alternatively applied for supervisory writs on the ground that denial of appeal would result in irreparable injury to Defendants, in violation of Defendants' rights to freedom of speech and freedom of the press, as guaranteed by the First and Fourteenth Amendments to the United States Constitution, and as also proclaimed in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and its innumerable progeny. We consolidated the motion to show cause and Defendants' applications for writs of certiorari and review. We dismiss Defendants' appeals, we recall the alternative writs issued herein, we affirm the judgment of the lower court, and remand this matter for further proceedings.

This matter was initiated in the Nineteenth Judicial District Court, East Baton Rouge Parish, and removed by Defendants to the United States District Court, Eastern District Baton Rouge Division. The Federal District Court remanded the matter to the State Court. In the State Court, Defendants filed exceptions of no right and no cause of actions which were overruled. Defendants then filed motions for summary judgments which were also denied.

Defendants basically contend, on authority of New York Times, above, and the innumerable cases spawned thereby, that Defendants' rights of freedom of speech and freedom of the press, as guaranteed by the First and Fourteenth Amendments, have been violated by the trial court's denial of their motions for summary judgment. Defendants correctly argue that New York Times, above, and the plethora of Federal cases dealing with the issue, have engrafted upon and into every action for libel or defamation involving a matter of public interest, the requirement that, on defendant's motion for summary judgment, plaintiff must show with convincing clarity, facts which justify the conclusion that defendant published the allegedly defamatory article with malice, meaning with knowledge of the statement's falsity, or with reckless disregard of whether the statement was true or false. Cervantes v. Time, Inc., 464 F.2d 986 (1972) Eighth Circuit; Miller v. News Syndicate Co., Inc., 445 F.2d 356 (1971) Second Circuit; Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (1970) Fifth Circuit; Time, Inc. v. McLaney, 406 F.2d 565 (1969) Fifth Circuit.

With propriety, Defendants also contend that on trial of a defendant's motion for summary judgment in an action for libel, plaintiff must establish by affidavits, interrogatories, or otherwise, that a dispute exists as to a genuine issue of material fact regarding defendant's alleged actual knowledge of falsity, or reckless disregard for the truth or falsity of the offensive publication, to a preclude defendant's right to summary judgment under the First and Fourteenth Amendments. Cervantes v. Time, Inc., above; Gospel Spreading Church v. Johnson Publishing Co., Inc., 147 U.S.App.D.C. 207, 454 F.2d 1050 (1971) D.C. Circuit; Time, Inc. v. Ragano,427 F.2d 219 (1970) Fifth Circuit; Bon Air Hotel, Inc. v. Time, Inc., above; Goldwater v. Ginzburg, 414 F.2d 324 (1969) Second Circuit; Washington Post Company v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966) D.C. Circuit; Davis v. National Broadcasting Company, 320 F.Supp. 1070 (1970), E.D.La.

Defendants also correctly contend that the foregoing Federal jurisprudence is based on the premise that summary dismissal of a libel action, where plaintiff fails to make the required initial showing, is constitutionally mandated to avoid the abhorred and constitutionally reprobated 'chilling effect' that the prosecution of an unfounded libel action would otherwise have on the fundamental guarantee of freedom of speech and freedom of the press. Bon Air Hotel, Inc. v. Time, Inc., above; Time, Inc. v. McLaney, above; Washington Post Company v. Keogh, above; Davis v. National Broadcasting Company, above. Stated otherwise, the Federal authorities have repeatedly held that, unless plaintiff in a libel action is required to make such a preliminary showing on defendant's motion for summary judgment, the ever present threat of harassment and expensive, time-consuming litigation could so erode and infrings upon the rights of freedom of speech and freedom of the press as to seriously impede, if not nullify, these constitutional previleges. Bon Air Hotel, Inc. v. Time, Inc., above; Time, Inc. v. McLaney, above; Washington Post Company v. Keogh, above.

Defendants' contention that the foregoing rules of constitutional law are applicable in defamation actions in state courts needs no authoritative support.

Plaintiff is former Chief Counsel for the Louisiana State Department of Revenue (Department). The Department's duties include, among others, collecting state taxes and filing suits for the enforcement and collection of unpaid or delinquent taxes. The Department has no criminal jurisdiction or authority to prosecute for criminal violations of tax laws.

The allegedly libelous article, entitled 'The 'Little Man' is Bigger Than Ever', appeared in the April 10, 1970, issue of Life Magazine, a weekly published by defendant Time. Subject article was a sequel to three prior articles by Life dealing with the reputed presence of the Cosa Nostra in Louisiana.

The article in question purports to link one Carlos Marcello, whom the article suggests is a member of the Mafia or Costa Nostra, to plaintiff and other state officials. A portion of the article is captioned: 'FOR MARCELLO THERE IS NEVER A SHORTAGE OF HELPFUL MEN IN HIGH PLACES.' Under this heading, plaintiff's photograph appears with those of four other state officials. Beneath plaintiff's picture is the statement: 'Last year he was promoted to chief counsel.' In previous paragraphs, the article recites:

'The state officials he is known to have dealt with are still in office--some have even been promoted.

'One area in which Marcello's influence is particularly effective is the State Revenue Department. In this office, charged with collecting all state taxes, the Mob boss seems able to control the hiring and placement of agents and can manipulate state auditing procedures at will. High-lever revenue officials have admitted to Life that the surest solution for a Louisiana businessman seeking a tax settlement is to approach the Department through Carlos Marcello.

'An example of plain laxity was the nullification last year of a long-standing tax claim for $32 million against large national corporation that operates in Louisiana. The claim was allowed to expire on the desk of Emmett Batson, the department attorney then in charge of prosecuting state income tax evasions.'

Plaintiff contends the foregoing statements are defamatory in that: (1) They convey the unequivocal impression that plaintiff knows Marcello personally; that plaintiff, in his official capacity has helped Marcello avoid payment of state taxes, and that plaintiff was promoted to Chief Counsel because of plaintiff's alleged relationship with Marcello; (2) they indicate that plaintiff could be corruptly influenced by Marcello to improperly settle tax claims for third parties; (3) they imply, if not expressly state, that plaintiff improperly permitted a $32,000,000.00 tax claim to prescribe, and (4) they give the impression that plaintiff's duties include civil and criminal prosecution of tax matters but that plaintiff, as counsel for the Department, had never instituted either type action.

Defendants' motions for summary judgment assert that the article concerns an area of legitimate public interest, and that it was published without knowledge of falsity, in the complete belief that all remarks therein concerning plaintiff were true and correct. In support of their motions for summary judgment, Defendants contended that maintenance of plaintiff's action, in the absence of plaintiff showing actual malice, would deprive Defendants of their rights under the First and Fourteenth Amendments to the United States Constitution. Additionally, Defendants maintained there existed no genuine issue of material fact, and that Defendants were entitled to summary judgment of dismissal as a matter of law. In support of their contentions, Defendants introduced affidavits by Defendant Chandler and the following employees of Life Magazine: Russell Sackett (then Senior Editor); Thomas Flaherty (then Associate Editor); Janice Pikey (then Reporter), and John Dowd (then Editorial Counsel).

Chandler's affidavit recites that he investigated the subject matter and compiled the data for the article in question, which data was accumulated by investigations conducted within the State of Louisiana. Chandler asserts that he conducted interviews with high-level officials of the Department, especially including Millard Byrd, then Director of the Department's Miscellaneous Tax Division. The affidavit further alleges that, based on an interview with Byrd, and on physical evidence of dismissal of a tax case against Sperry-Rand Corporation, Chandler reported that Plaintiff allowed a $32,000,000.00 tax claim to expire on ...