Cox v. Hatch

• Decision Date: 18 July 1988
• Docket Number: D,I-,No. 19257,19257
• Citation: 761 P.2d 556
• Parties: 16 Media L. Rep. 1366 Shelia Ann COX, Susan Keller and Susan Smith, Plaintiffs and Appellants, v. Orrin HATCH, Union Members for Hatch Committee, Friends for Orrin Hatch Committee, Hatch Election Committee, Michael Leavitt and John Doesefendants and Appellees.
• Court: Utah Supreme Court

Page 556

761 P.2d 556

16 Media L. Rep. 1366

Shelia Ann COX, Susan Keller and Susan Smith, Plaintiffs and Appellants, v. Orrin HATCH, Union Members for Hatch Committee, Friends for Orrin Hatch Committee, Hatch Election Committee Michael Leavitt and John Does I-X Defendants and Appellees.

No. 19257.

Supreme Court of Utah.

July 18, 1988.

Brian M. Barnard, Debra J. Moore, A. Howard Lundgren, Aldrea C. Alcabes, Salt Lake City, for plaintiffs and appellants.

Robert S. Campbell, Jr., Richard B. Ferrari, Cory H. Maxwell, Salt Lake City, for defendants and appellees.

STEWART, Justice:

Plaintiffs Shelia Ann Cox, Susan Keller, and Susan Smith brought this action against United States Senator Orrin Hatch and several of his campaign staff, alleging three claims for relief, defamation, invasion of privacy, and abuse of personal identity. All three claims for relief are based on the defendants' publication of a photograph of the plaintiffs together with Senator Hatch that was used in a political advertisement during his 1982 senatorial campaign. The trial court dismissed all three claims on the ground that the actions had "a chilling effect on the closely guarded right of free speech" and, therefore, were barred by the First Amendment to the United States Constitution.

The plaintiffs are employees of the United States Postal Service and members of the American Postal Workers Union. On September 6, 1982, Senator Hatch, accompanied by campaign workers, went to the plaintiffs' place of employment to take photographs for use in his 1982 reelection campaign. The plaintiffs posed for several photographs with Senator Hatch. They maintain that although they consented to the photographs, they did not consent to the manner in which they were used. One of the photographs was included in an eight-page political flier entitled "Senator Orrin Hatch Labor Letter," which was distributed by the Senator's "Union Members for Hatch Committee." It contained several articles related to labor issues and five photographs showing Senator Hatch in various settings talking with workers. None of the photographs was captioned. The plaintiffs were shown in one photograph smiling at Senator Hatch, who was looking at their work.

That photograph was approximately three inches square and appeared on an 11 1/2 X 17-inch page. The page contained a reprint of an article entitled "Bargaining For a Better America," which was written by Senator Hatch and had appeared in the September, 1981, issue of First Monday Magazine. The article discussed the Republican Party's commitment, and particularly the commitment of the then Republican-controlled Senate, to make a better life for union members. The article does not refer to the photograph or the plaintiffs and does not state that the persons in the photograph supported Hatch or his views. Nor is the photograph used to illustrate any particular point in the article or in the flier.

The plaintiffs allege that the photograph can reasonably be construed to be an implicit endorsement of Senator Hatch for reelection. They deny having endorsed him; indeed, they point out that because they are postal employees they are precluded by federal law from publicly approving or endorsing any political candidate or actively participating in a political campaign. They assert that after the publication of the photograph, they were investigated by their employer and the union as to the extent of their involvement in Hatch's campaign.

We address first whether the free speech clause of the First Amendment bars the plaintiffs' action for defamation. We assume at this point, for the purpose of argument, that the publication of the plaintiffs' photograph in Senator Hatch's campaign flier was defamatory, and also an invasion of the common law right of privacy, and a violation of the Utah Abuse of Identity statute. The defendants assert that the First Amendment establishes an absolute defense to all three actions because the photograph was part of a communication made during the course of a political campaign by a candidate for office. The defendants cite no case that directly supports such a sweeping proposition. On the other hand, the plaintiffs contend that the First Amendment provides no protection whatsoever to the defendants' publication of the picture.

I. DEFAMATION

A. First Amendment Privilege

The indispensable conditions of self-government are protected by the free speech clause of the First Amendment. Freedom of speech is not only the hallmark of a free people, but is, indeed, an essential attribute of the sovereignty of citizenship. It has its "most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971). Freedom of speech is not only essential for the psychological, moral, intellectual, and political well-being of individuals, but it is also "the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). Free speech does not, however always prevail against all other values, such as those protected by the state law of defamation, invasion of privacy, and abuse of personal identity.

For over two decades now the courts have attempted to strike a balance between free speech interests protected by the federal constitution and personality and reputational interests protected by state tort law. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); 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 in New York Times Co. v. Sullivan first recognized a qualified privilege under the First Amendment for a false, defamatory communication made by a defendant concerning a public official. The privilege effectuates an accommodation between free speech interests and reputational interests by requiring a plaintiff who is a public official to prove that a defendant acted with "actual malice" in making a false, defamatory statement about the plaintiff. Thus, a public official may recover damages for a defamatory falsehood relating to his official conduct, but only if he proves that the defendant made the statement "with knowledge that it was false or with reckless disregard of whether it was false or not." ¹ Id. at 279-80, 84 S.Ct. at 726. The New York Times privilege was extended to include "public figures" in Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), and Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

Gertz v. Robert Welch, Inc., 418 U.S. 323, 346-49, 94 S.Ct. 2997, 3010-11, 41 L.Ed.2d 789 (1974), made a different accommodation between free speech and reputational interests in cases involving plaintiffs who are private persons. Gertz held that (1) the reputational interests of private individuals could receive greater constitutional protection than the protection accorded public officials and public figures; (2) the libel laws of the states had to require some degree of fault on the part of a defendant for a private plaintiff to recover for defamation, and the states could choose the degree of fault that had to be proved, as long as some level of fault was required; and (3) presumed and punitive damages could be awarded only if the plaintiff proved actual malice. ² Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981), reviewed the case law from New York Times through Gertz and traced the development and expansion of the constitutional privilege concept. Seegmiller held that private person plaintiffs in a libel action who are neither public officials nor public figures must prove that the defendant was negligent in making a false, defamatory statement. 626 P.2d at 973. After Seegmiller was decided, Dun & Bradstreet Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), made clear that the constitutional requirement of fault in a private plaintiff defamation case applies only if the subject matter of the defamatory falsehood pertains to a matter of "public concern." ³ If the defamatory falsehood does not relate to a matter of "public concern," state law could constitutionally continue to apply the common law doctrine of strict liability in a defamation action. Dun & Bradstreet also made clear that New York Times and Gertz were not limited in their holdings to instances where the defendants are institutional media organizations. Dun & Bradstreet, 472 U.S. at 784, 105 S.Ct. at 2958 (Brennan, J., dissenting) (expressing the opinion of five members of the Court).

It is not altogether clear which principle of fault controls here, i.e., whether the plaintiffs would have to prove constitutional malice or negligence or whether they could proceed on the basis of strict liability. The case is before us on a truncated record; we have only a complaint, which apparently was not drafted in light of any of the above law, no answer, a few motion papers, and interrogatories. Nevertheless, it is apparent that the plaintiffs argue that the photograph implicitly asserts that they are Republicans and supporters of Senator Hatch, and we assume arguendo at this point that that assertion is both defamatory and a violation of the plaintiffs' privacy interests.

The plaintiffs' assertion clearly pertains to a matter of public concern, as that term is used in Dun & Bradstreet. Communications to voters by an elected official or a candidate for public office which appropriately pertain to a political campaign are a matter of public interest. A candidate's identification of himself with workers or other constituents is part and parcel of ordinary political communication. Such communications are essential to the public in choosing governmental officials and to the latter in informing the public. See St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). It follows that...