Channel 4, KGBT v. Briggs

• Decision Date: 29 June 1988
• Docket Number: No. C-6982,C-6982
• Citation: Channel 4, KGBT v. Briggs, 759 S.W.2d 939 (Tex. 1988)
• Parties: 15 Media L. Rep. 1789 CHANNEL 4, KGBT et al. v. Jimmy BRIGGS and Jimmie Briggs.
• Court: Texas Supreme Court

Page 939

759 S.W.2d 939

15 Media L. Rep. 1789

CHANNEL 4, KGBT et al. v.Jimmy BRIGGS and Jimmie Briggs.

No. C-6982.

Supreme Court of Texas.

June 29, 1988.

Rollins M. Koppell, Michael R. Ezell and William Kimball, Koppel, Ezell, Jackson & Powers, Harlingen, for petitioners.

Larry Watts and Bonnie Cervin, Watts & Company, Houston, for respondents.

OPINION

RAY, Justice.

This is a libel action brought by Jimmy Briggs, now deceased, a former political candidate, in which KGBT, a television station, and two news reporters were alleged to have defamed Briggs in a news broadcast.The media defendants were awarded a summary judgment by the trial court.The court of appeals reversed the judgment of the trial court on the grounds that the defendants had failed to conclusively negate the existence of actual malice.739 S.W.2d 377.We reverse the judgment of the court of appeals and affirm the judgment of the the trial court.

In 1982, Briggs was a candidate for the office of State Representative, and was defeated in the general election.Four days after the election, KGBT broadcast a television news segment concerning the activities of the Ku Klux Klan and anti-Klan demonstrators.During the broadcast, an image of Briggs standing at a podium appeared for two or three seconds while the audio portion of the broadcast continued.Briggs' name was not mentioned and the news piece stated that it covered events that took place outside the Rio Grande Valley, which was the viewing area of the station.The depiction of Briggs during the broadcast prompted numerous telephone calls to his residence and caused him and his wife, Jimmie Briggs, to suffer abusive treatment from viewers who inferred that Briggs was affiliated with the Klan.

Briggs and his wife sued KGBT, its news manager David Merrill and news reporter David Marquis, alleging libel and negligent infliction of emotional distress.¹ Each of the defendants moved separately for summary judgment contending that they were not negligent in broadcasting the news segment, and alternatively, that Briggs was a public figure and/or a public official and that the defendants had not acted with actual malice as is required for a finding of liability.

Marquis' summary judgment evidence consisted of an affidavit in which he said that he:

(a) did not know the Briggses personally prior to the newscast;

(b) knew of Jimmy Briggs as a Republican candidate for office in Hidalgo County;

(c) had no ill feelings toward the Briggses nor any reason to want to injure them;

(d) did not know Jimmy Briggs' likeness would appear on the newscast, nor did he authorize or direct it to be shown;

(e) believed Jimmy Briggs' likeness appeared as a fluke from the re-use of a tape of him which was not entirely erased;

(f) received a call from Jimmy Briggs during the same telecast, and upon learning of what happened, stated on the air that Jimmy Briggs was not connected with the Ku Klux Klan news segment.

Merrill's affidavit stated that he:

(a) did not know the Briggses personally prior to the newscast;

(b) knew of Jimmy Briggs as a Republican candidate in Hidalgo County;

(c) had no reason to dislike Jimmy Briggs;

(d) never heard any discussion by any Channel 4 employee which indicated any negative feelings toward them;

(e) did not see the newscast and was not aware of the matter until after the newscast was on the air;

(f) had no knowledge that Jimmy Briggs' likeness would appear on the newscast, nor did he authorize or direct it to be shown;

(g) the occurrence was a fluke or accident because Jimmy Briggs' likeness had been recorded in the course of his political campaign and had not been entirely erased.

The trial judge granted the defendants' motions for summary judgment.On appeal by the Briggses, the court of appeals held that the affidavits in question "do nothing more than raise a fact issue on the existence of actual malice," and that the recent United States Supreme Court decision of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986) addressing the burden of proof in federal summary judgment proceedings did not apply.739 S.W.2d at 379-80.The application of Anderson need not be reached in the present case.

Beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686(1964), the United States Supreme Court has sought to balance the concern embodied in the first amendment that debate on public issues be wide-open and uninhibited, with the concern that a defamed individual be allowed to recover for his unjust suffering.In New York Times, the Supreme Court declared that the First Amendment"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'...."Id. at 279-80, 84 S.Ct. at 726.The New York Times requirements have since been extended to libel suits brought by public figures as well.Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094(1967).

In the present case, in accordance with Curtis Publishing and its progeny, the court of appeals determined that Briggs is a public figure.Briggs has not contested this characterization by point of error to this court.Since Briggs in effect concedes that he is a public figure, he must prove that the broadcast which defamed him was published by KGBT with actual malice.For purposes of First Amendment litigation, "actual malice" requires that the defamatory statement be made with knowledge that the utterance was false or with reckless disregard of its truth or falsity.Id. at 280, 84 S.Ct. at 725."Reckless disregard" means that the publisher "in fact, entertained serious doubts as to the truth of his publication."St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262(1968).See alsoGertz v. Robert Welch, Inc., 418 U.S. 323, 334 n. 6, 94 S.Ct. 2997, 3004 n. 6, 41 L.Ed.2d 789(1974).

The evidence presented by the defendants in their affidavits militates against a finding of actual malice as defined by the U.S. Supreme Court.As explained by the defendants, the appearance of Briggs' image in the telecast was caused by a mistake on the part of the production crew, and occurred without the direction or knowledge of the defendants.At most, the defendants were negligent.

This court has recognized that actual malice does not encompass mere negligence:

[R]eckless disregard is not to be measured by a reasonably prudent person standard.The New York Times malice standard looks to the defendant's state of mind at the time of publication.It is not enough for a plaintiff to show that the defendant made a mistake.An "erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the 'breathing space' that they'need ... to survive'."

Foster v. Upchurch, 624 S.W.2d 564, 566(Tex.1981)(citations omitted)(quoting New York Times ).

The defendants' uncontroverted affidavits in this case clearly establish the absence of any subjective awareness that they were broadcasting the image of Briggs in a defamatory fashion.Rule 166a(c) of the Texas Rules of Civil Procedure provides that "a summary judgment may be based on uncontroverted testimonial evidence of an interested witness, ... if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted."The affidavits in this case, while failing to set out specific facts as to the station's normal operating procedure, do state that the image of Briggs during the telecast was a technical mistake.The affidavits are clear, unambiguous, and as far as the technical procedures for the production of a telecast are concerned, subject to investigation.More importantly, this evidence was never controverted by the Briggses.Thus, under the plain language of Rule 166a(c), the defendants were entitled to summary judgment.

Here, Briggs filed the lawsuit in January, 1983 and it lay dormant until July of 1985, when it was placed on the dismissal docket.It was later reinstated.All discovery that was conducted in this case was done by the defendants.The Briggses had ample opportunity to conduct their own discovery to rebut the defendants allegations of lack of malice, in an attempt to raise a fact issue, but chose not to do so.Accordingly, we hold that in considering the evidence presented by the parties on the issue of actual malice, the trial court was correct in rendering summary judgment in favor of the defendants.

Contrary to the assertion of the concurring opinion, our decision does not "cast a cloud" on our prior holdings in Bessent v. Times-Herald Printing Co., 709 S.W.2d 635(Tex.1986), andBeaumont Enterprise & Journal v. Smith, 687 S.W.2d 729(Tex.1985).In those cases, the defendants sought to negate malice as a matter of law by mere self-serving statements about their state of mind.Here, the affidavits of Marquis and Merrill go far beyond state of mind to establish an objective explanation for the mistake.The distinction is clear.As there is no reason under the facts of this case to disturb our holdings in Bessent or Smith, we need not determine their continued viability or their constitutionality.

Having determined that the defendants are entitled to summary judgment on the defamation claim, we next turn to the Briggs' negligent infliction of emotional distress claim.The United States Supreme Court has recently held that the same protections which the first amendment affords defendants from libel claims also protect them from intentional infliction of emotional distress claims.Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41(1988).This means that a public official or figure asserting a claim for intentional infliction of emotional distress based upon a defamatory publication must meet those...