Brown v. K.N.D. Corp.

• Decision Date: 20 May 1986
• Docket Number: No. 3016,3016
• Citation: 509 A.2d 533,7 Conn.App. 418
• Parties: , 12 Media L. Rep. 2201 Michael F. BROWN v. K.N.D. CORPORATION et al.
• Court: Connecticut Court of Appeals

Page 533

509 A.2d 533

7 Conn.App. 418, 12 Media L. Rep. 2201

Michael F. BROWN v. K.N.D. CORPORATION et al.

No. 3016.

Appellate Court of Connecticut.

Argued Nov. 8, 1985.

Decided May 20, 1986.

John F. McKenna, with whom, on brief, was Peter Facey, for appellant (plaintiff).

Sydney T. Schulman, with whom, on brief, was William P. Lane, for appellee (defendant Wilbur Smith).

Before DUPONT, C.J., and BORDEN and SPALLONE, JJ.

DUPONT, Chief Judge.

The plaintiff, Michael F. Brown, has appealed from a judgment rendered for the defendant Wilbur Smith, after a trial to the court. The plaintiff sought damages for libel arising from a statement made during a radio broadcast. ¹ The defendant K.N.D. Corporation was the owner and operator of radio station WKND, and the defendant Wilbur Smith was the host of a public affairs program on that station. ²

The plaintiff's revised complaint alleged that on December 16, 1979, the defendant Wilbur Smith made the following statement during a radio broadcast of "What's On Your Mind" aired by WKND. "The [Ku Klux] Klan has not only sympathizers who are willing to march with them but they also have sympathizers in the Chamber of Commerce, they have them in these banks and insurance companies and they are sympathizers. They are in state government, they are in City Hall right now ah if Mr. Peach isn't one of them Mike Brown is a sympathizer of the Klan if he is not a member. Now if he wants to sue me about it then we go into his record and racist activity that he has been putting out in this City."

The complaint further alleged that the statement was false and malicious, that the plaintiff was not a member or sympathizer of the Ku Klux Klan, and that the defendant knew the statement was false or made it with reckless disregard of its truth. Other allegations were that the Ku Klux Klan was a racist organization which condones force and violence to further segregationist goals, that the defendant's statement held the plaintiff up to public ridicule, hatred and contempt, that the plaintiff had mailed a letter to the defendant asking for a retraction in as public a manner as that in which the statement was made, that the defendant did not retract the statement, and that the statement caused and will continue to cause the plaintiff great damage to his personal and professional reputation.

The defendant raised three special defenses. He alleged that the plaintiff was a public official and, therefore, the defendant's statement was protected by the first amendment to the constitution of the United States and by article first, § 4 of the constitution of Connecticut ³ because it was neither knowingly false nor made in reckless disregard of the truth. He also claimed that the statement was a privileged communication and that it was fair comment.

The trial court found that the statement was false and libelous per se, and that the defendant had not sustained his burden of proving his defense of fair comment. It also found that the plaintiff, then an assistant city manager, was a "public official" as defined in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), and as such could not recover damages for the defamatory falsehood because he failed to sustain his burden of proving by clear and convincing evidence that the statement was made with actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). On appeal, the plaintiff claims that the trial court erred in holding that the plaintiff was a public official and in finding that the defendant did not act with actual malice.

The first issue of this appeal is whether the plaintiff is a "public official" within the meaning of New York Times Co. v. Sullivan, supra, and as defined by Rosenblatt v. Baer, supra, 383 U.S. at 84-85, 86 S.Ct. at 675. ⁴ Whether a party is a public official is an issue to be resolved with reference to standards set by federal law. Id., 84, 86 S.Ct. at 675. A public official is defined as a person within the hierarchy of government "who [has], or appear[s] to the public to have, substantial responsibility for or control over the conduct of governmental affairs." (Footnote omitted.) Id., 85, 86 S.Ct. at 675. "Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees ... the New York Times malice standards apply." (Footnotes omitted.) Id., 86, 86 S.Ct. at 676. "The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy." Id., 86-87 n. 13, 86 S.Ct. at 676 n. 13.

There is no substantial dispute as to the facts surrounding the plaintiff's employment. The plaintiff was one of four assistant city managers in the city of Hartford who, by his own admission, shared responsibility for the budget, management services, data processing and personnel. He also acted on behalf of the city manager at meetings of city council subcommittees and addressed city groups. It is clear that such a position would invite public scrutiny entirely apart from the statements made by the defendant. Employees at lower levels of government have been held to be public officials. See Moriarty v. Lippe, 162 Conn. 371, 294 A.2d 326 (1972) (patrolman); Ryan v. Dionne, 28 Conn.Sup. 35, 248 A.2d 583 (1968) (tax collector). The trial court was correct in finding that the plaintiff, as an assistant city manager of the city of Hartford, is a public official for first amendment purposes. ⁵

The significance of this finding is that it establishes the standard of proof which governs the case. A public official may not recover damages for a defamatory falsehood unless he proves by clear and convincing evidence that the defamatory falsehood was published with actual malice, that is with knowledge that the statement was false or with reckless disregard for its falsity. New York Times Co. v. Sullivan, supra. ⁶ The rule for private individuals seeking defamation damages is not the same. The first Supreme Court decision after New York Times relating to a private individual stated that a private individual in an action for defamation, need only prove a negligent misstatement of fact. Rosenblatt v. Baer, supra, 383 U.S. at 84, 86 S.Ct. at 675. That doctrine was refined and expanded by subsequent decisions. As long as the individual states do not impose liability without fault, they may define for themselves the standard of liability for recovery of compensatory damages for a defamatory falsehood made about a public matter which injures a private individual, without federal hindrance. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-50, 94 S.Ct. 2997, 3010-12, 41 L.Ed.2d 789 (1974). A private individual about whom a statement of public concern is made, however, must show actual malice in order to recover punitive damages for a defamatory falsehood. If a statement is of exclusively private concern and refers to a private figure, the common law controls and actual malice need not be proven in order to recover punitive or compensatory damages. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. ----, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). The burden of proving that a statement is false in an action by a private figure about a statement of public concern is on the private figure plaintiff. Philadelphia Newspapers, Inc. v. Hepps, --- U.S. ----, 106 S.Ct. 1558, 89 L.Ed. 783 (1986).

In this case, the plaintiff, as a public official, cannot prevail in his action for defamation unless he can prove actual malice with clear and convincing evidence, and that the statement about him was both defamatory and false. New York Times Co. v. Sullivan, supra. Therefore, we must resolve the second issue of this appeal which is whether the trial court erred in finding that the plaintiff failed to prove actual malice by clear and convincing evidence. Actual malice is defined, as previously noted, as knowledge that the statement was false, or made with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, supra, 376 U.S. at 279-80, 84 S.Ct. at 725-26.

In the more than the score of years which has passed since the Supreme Court established in the New York Times case that a federal standard must be used in actions involving public officials to define the appropriate accommodation between the law of defamation and the freedoms of speech and press protected by the first amendment to the constitution of the United States, that court has, in succeeding cases, sharpened the words "reckless disregard of whether it was false or not." "Reckless disregard" for falsity of statements has been equated with a "high degree of awareness of their probable falsity"; Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964) or a reckless publication made despite an awareness of its probable falsity; Curtis Publishing Co. v. Butts, 388 U.S. 130, 153, 87 S.Ct. 1975, 1990, 18 L.Ed.2d 1094, reh. denied, 389 U.S. 889, 88 S.Ct. 11, 13, 19 L.Ed.2d 197, 198 (1967); or the entertainment of serious doubts as to truth of the publication. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); see Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).

In order to determine whether the trial court erred in its finding of actual malice, we must first determine the proper appellate standard of review. Although appellate courts ordinarily do not disturb the facts as found by a trial court unless the finding of facts is clearly erroneous; see Practice Book § 3060D; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Jackson...