O'Brien v. Tribune Pub. Co.

• Decision Date: 15 June 1972
• Docket Number: No. 381--II,381--II
• Citation: 499 P.2d 24,7 Wn.App. 107
• Parties: Robert W. O'BRIEN, Appellant, v. The TRIBUNE PUBLISHING COMPANY, a Washington corporation, et al.
• Court: Washington Court of Appeals

Page 107

7 Wn.App. 107

499 P.2d 24

Robert W. O'BRIEN, Appellant, v. The TRIBUNE PUBLISHING COMPANY, a Washington corporation, et al.

No. 381--II.

Court of Appeals of Washington, Division 2.

June 15, 1972.

Argal D. Oberquell, of Oberquell & Ahlf, Lacey, for appellant.

Robert E. Ratcliffe, Seattle, for Franich & Puyallup Publishing, respondents.

Patrick C. Comfort, of Comfort, Dolack, Hansler & Billett, Tacoma, for Chase & Turner, respondents.

Valen H. Honeywell, of Gordon, Thomas, Honeywell, Malanca, Peterson, O'Hern & Johnson, Tacoma, for Tribune Publishing, respondent.

ARMSTRONG, Judge.

This is an appeal from two consolidated libel suits in which summary judgment was granted in favor of the defendants.

The appeal centers upon a determination of whether certain alleged defamatory statements made by defendants concerned an event of public or general interest, and if so, whether plaintiff is entitled to a jury trial on the issue of malice. The ultimate question is whether, resolving all factual doubts against the nonmoving party in a summary judgment, a genuine issue of fact survived the pleadings, affidavits, documentary and depositional evidence.

The plaintiff, Robert W. O'Brien, was the former administrative assistant to Congressman Floyd Hicks, and claims to have been the target of libelous statements published in The Tacoma News Tribune, Puyallup Valley Tribune and Pierce County Herald at the time of the 1968 political campaign. In that campaign incumbent Congressman Hicks was opposed by Anthony Chase, one of the defendants. The Tacoma News Tribune publication consisted of a political advertisement over the banner of 'Democrats for Chase.' This ad contained a copy of an editorial which had appeared in the Pierce County Herald and Puyallup Valley Tribune--both papers operate under a single management and they are, in practical effect, one newspaper. Defendant Franich wrote the editorial. The editorial is set forth as appendix A and the advertisement is set forth as appendix B.

The alleged libelous matter complained of revolves around four major charges made against plaintiff: (1) he received a part-time salary of over $500 per month as a district aide while engaged in other part-time employment, and thereafter received nearly $20,000 per year as a full-time district aide to Congressman Hicks while engaged in campaign work; (2) reference was made to two lawsuits filed against plaintiff which alleged that he falsely represented himself as an attorney, when in fact he was not; (3) O'Brien had sought and obtained a continuance of the lawsuit until after the election to avoid embarrassing his employer--he contends the editorial implies he improperly influenced the court; (4) a letter used in a campaign two years before was again used in the editorial and political advertisement--the letter stated that O'Brien threatened a Mrs. Hughes with termination of a government contract because she and her husband removed a Hicks sign from their place of business and replaced it with a sign of Congressman Hicks' opponent.

We find that items 1, 2 and 3 do not present genuine issues of material fact, but we find that the Hughes letter does present a genuine issue of material fact as to whether it is a defamatory falsehood and as to whether the letter was published by the defendants Chase, Turner and The Tribune Publishing Company with 'actual malice.'

The record shows that O'Brien had worked for Hicks as his administrative assistant, later had worked only part-time as a district aide in Hicks' district, but beginning early in 1968 had become a full-time district aide at an annual salary of between $18,600 and $19,353 per year. During that time he was working in Pierce and Kitsap Counties, performing those many functions which a district aide to a congressman is expected to perform, including the maintenance of good public relations with an eye on the coming political campaign. Hicks was challenged by Chase and as a result battlelines were drawn for the political contest. Chase and one of his lieutenants, Richard Turner, also a defendant, were understandably seeking to find any flaw in Hicks' conduct of his political office and, they seized upon O'Brien as one of Hicks' weaknesses. On several occasions they talked to defendant Frank Franich who wrote editorials for the Pierce County Herald. Chase gave Franich a brochure on his candidacy and photostatic copies of clippings relating to Congressman Hicks and O'Brien. At a later date Franich wrote an editorial which had Hicks for its principal target, but which, incidentally, discredited O'Brien. Chase and Turner then used tis editorial in the political advertisement in The Tacoma News Tribune.

Defendants Turner and Chase denied any malice toward Mr. O'Brien and further denied any malice relating to the accumulation of materials transmitted to defendant Franich or The Tacoma News Tribune. Defendants Franich and The Tribune Publishing Company also specifically denied malice.

Defendants Turner and Chase have stated that they both felt, based upon investigation undertaken, that the content of the information contained in the editorial, and ultimately the political advertisement in its entirety, was true to the best of their knowledge.

On the basis of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) the trial court concluded that plaintiff occupied a public figure status and that O'Brien had not presented a material issue of 'actual malice' which would justify submitting the case to a jury.

The New York Times case involved a libel suit by an Alabama public official against The New York Times publishers and several members of civil rights groups for the publishing of an editorial-type advertisement by The Times. The jury awarded plaintiff damages against all the defendants and the judgment on the verdict was affirmed by the Supreme Court of Alabama on the grounds that the statements in the advertisement were libelous per se, false and not privileged, and that the evidence showed malice on the part of the newspaper. The defendants' constitutional objections were rejected by the Alabama court on the ground that the first amendment to the United States Constitution does not protect libelous publications. The decision of the Alabama court was based upon the then existing majority rule relating to libel actions.

The Supreme Court of the United States reversed the Supreme Court of Alabama on the basis that its holding infringed upon the safeguards provided by the First Amendment for freedoms of speech and press, made applicable to the states by the Fourteenth Amendment. In doing so, the court promulgated the now famous New York Times rule:

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.

376 U.S. at 279, 280, 84 S.Ct. at 726.

In subsequent cases the court expanded the concept of 'public officials' to 'public figures' in the combined opinion of Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

The latest expression in the constitutional aspects of the evolving law of libel is contained in Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). This was published after the trial court rendered its opinion in the instant case. In Miller v. Argus Publishing Co. 79 Wash.2d 816, 490 P.2d 101 (1971) the court analyzed the Rosenbloom case as it applied to the facts and issues before it. At 825, 490 P.2d at 107, the Washington Supreme Court stated:

In Rosenbloom, supra a majority of the Supreme Court has, in effect, abolished the 'public official'--'public figure' test of New York Times, Inc. v. Sullivan, Supra; Curtis Publishing Co. v. Butts, Supra; and Associated Press v. Walker, Supra. Although the lead opinion in Rosenbloom is signed by only three Justices, it is observed by Justice White in his concurring opinion that two additional Justices would go even further than does the lead opinion in protecting the news media from damage actions for their defamatory falsehoods. This, we may look to the expressions in the lead opinion as constituting the principles to which we should adhere.

(Italics ours. Footnotes omitted.)

After discussing the constitutional issues and prior holdings in New York Times and its progeny, the Rosenbloom court, 403 U.S. 29, at 44, 91 S.Ct. 1811, at 1820 stated:

It is clear that there has emerged from our cases decided since New York Times the concept that the First Amendment's impact upon state libel laws derives not so much from whether the plaintiff is a 'public official,' 'public figure,' or 'private individual,' as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general interest. See T. Emerson, The System of Freedom of Expression 531--532, 540 (1970). In that circumstance we think the time has come forthrightly to announce that the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern, albeit leaving the delineation of the reach of that term to future cases.

The shift from the 'public figure' concept of prior cases is illustrated by the observation in the lead opinion of Rosenbloom:

If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved. The public's primary interest is in the evnet; the public focus is on the conduct of the participant and the content effect, and significance of the conduct, not the...