Brewer v. Memphis Pub. Co., Inc.

• Decision Date: 13 September 1976
• Docket Number: No. 75-1073,75-1073
• Citation: 538 F.2d 699
• Parties: John L. BREWER, Plaintiff-Appellee Cross-Appellant, v. MEMPHIS PUBLISHING COMPANY, INC., Defendant-Appellant Cross-Appellee. Anita W. BREWER, Plaintiff-Appellee Cross-Appellant, v. MEMPHIS PUBLISHING COMPANY, INC., Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 699

538 F.2d 699

John L. BREWER, Plaintiff-Appellee Cross-Appellant, v. MEMPHIS PUBLISHING COMPANY, INC., Defendant-Appellant

Cross-Appellee.

Anita W. BREWER, Plaintiff-Appellee Cross-Appellant, v. MEMPHIS PUBLISHING COMPANY, INC., Defendant-Appellant Cross-Appellee.

No. 75-1073.

United States Court of Appeals Fifth Circuit.

Sept. 13, 1976.

Robert A. Weems, Frank E. Everett, Jr., Vicksburg, Miss., Russell E. Leasure, Cleveland, Ohio, for Memphis Pub. Co., Inc.

J. Mack Varner, R. Louis Field, John W. Prewitt, Vicksburg, Miss., for plaintiffs-appellees.

Appeals from the United States District Court for the Southern District of Mississippi.

Before DYER, RONEY and TJOFLAT, Circuit Judges.

RONEY, Circuit Judge:

Elvis Presley called television singer Anita Wood his "No. 1 girl" in 1957. By 1972 she was leading a private domestic life as a mother and housewife in Pass Christian, Mississippi, when defendant's newspaper, The Commercial Appeal, published the following bit of false gossip:

FLICKERING FLAME: Back in 1957 Anita Wood, who came from Jackson, Tenn., to Memphis to sing on TV, was Elvis Presley's "No. 1 girl." This week as Elvis closed his month-long show at the Las Vegas Hilton, Miss Wood stopped by the hotel for what appeared to be a "'reunion" of two old friends. Elvis recently filed for divorce from his wife of five years, Priscilla. Miss Wood is divorced from former Ole Miss football star Johnny Brewer.

Anita Wood Brewer had not been in Las Vegas as reported. There had been no "reunion" with Elvis Presley. She was not divorced from former Ole Miss football star Johnny Brewer.

Eight months later the Brewers demanded and received this retraction:

CORRECTION On Sept. 8 of last year an item in this column reported that the former Antia Wood, now Mrs. John Brewer, had been in Las Vegas, Nev., a few days previously and had stopped by the Las Vegas Hilton to visit Elvis Presley, an old friend, who was entertaining there. That apparently was a case of mistaken identity, because Mrs. Brewer says she was not in Las Vegas on or anywhere near that date. The item also said she and former Ole Miss football star Johnny Brewer were divorced, which was incorrect. The Commercial Appeal regrets the error.

The Brewers then sued the paper for libel. The suits were brought in federal court as a diversity action. The first jury found the defamation worth $400,000 to each plaintiff for a total verdict of $800,000. District Judge Cox thought that excessive and granted a new trial on damages alone, where he directed a verdict as to liability on the basis of the first jury verdict. The second jury gave $250,000 to Mrs. Brewer and $150,000 to her husband. The plaintiffs accepted a reduction in these verdicts by way of remittitur to $100,000 and $50,000 respectively. On the ground that liability should have been an issue in the second trial in the context of the differing standard to be applied to this First Amendment case depending on whether plaintiffs were public or private figures, we reverse and remand for a new trial.

The news squib developed out of a telephone call to The Commercial Appeal's entertainment reporter James Kingsley from his sister, who resided in Las Vegas, Nevada. The sister, a reliable source of information in the past, informed Mr. Kingsley that a girl identifying herself as Anita Wood from the Memphis area had recently visited the dress shop in the Las Vegas Hilton Hotel. Anita Wood had enjoyed public acclaim as a Memphis area TV and radio personality in the 50's and was briefly in the national limelight as an actress and entertainer. At one time she was a frequent companion of nationally known entertainer Elvis Presley who called her his "number one girlfriend." When reporter Kingsley received his sister's call, Presley was entertaining in the same Las Vegas hotel. Kingsley discussed this coincidence with the writer of the "People" column who expressed interest in running a story on the subject. Mr. Kingsley then called his sister again to recheck the information. He ascertained that his sister knew the clerk in the dress shop who had participated in the conversation with the individual identifying herself as Anita Wood.

A check of the newspaper files revealed that Anita Wood had, subsequent to her celebrated relationship with Mr. Presley, married Johnny Brewer, a former Ole Miss and professional football player whose professional career concluded in 1970. Kingsley checked with a former teammate and with others who had followed both Brewer careers. From these conversations the reporter developed the impression that the couple was separated and divorced. Thereupon the September 8, 1972 article was printed.

Although liability for libel must be established under state law, the First Amendment dictates the minimum contours within which the state law must fit in cases involving the press. The First Amendment overlay on the law of libel has developed certain established principles. A person who is a public official may recover in a libel action only upon clear and convincing proof that the defamatory falsehood was published with knowledge of its falsity or with reckless disregard for its truth. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This same stringent standard applies to libel actions brought by persons who are "public figures," even though they are not public officials. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). A state would, of course, be free to adopt a more severe standard for recovery in such cases if it chose to do so. But it could not permit recovery by a public official or public figure plaintiff on any showing less than that required by New York Times and Curtis Publishing Co.

As to a private individual, however, the state may define any standard of liability it may choose for a publisher or broadcaster of defamatory falsehood so long as it does not impose liability without fault. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Gertz also established the following: Only compensatory damages may be awarded to a successful private defamation plaintiff who does not demonstrate liability under the demanding standard set forth in New York Times. All such awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. Thus, a state may not...