Deutcsh v. Birmingham Post Co.

• Decision Date: 02 July 1992
• Citation: 603 So.2d 910
• Parties: 20 Media L. Rep. 1483 Arthur V. DEUTCSH v. BIRMINGHAM POST COMPANY. 1902000.
• Court: Alabama Supreme Court

Page 910

603 So.2d 910

20 Media L. Rep. 1483

Arthur V. DEUTCSH v. BIRMINGHAM POST COMPANY.

1902000.

Supreme Court of Alabama.

July 2, 1992.

Rehearing Denied Aug. 7, 1992.

Frank O. Burge, Jr. of Burge & Wettermark, P.C., Birmingham, for appellant.

James E. Simpson and R. Alan Deer of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.

PER CURIAM.

The plaintiff, Arthur V. Deutcsh, appeals from a summary judgment in favor of the defendant, the Birmingham Post Company (publisher of the Post-Herald newspaper and hereinafter referred to as "the Post-Herald").

The issue is whether, in opposition to the Post-Herald's summary judgment motion, Deutcsh presented clear and convincing evidence of actual malice on the part of the Post-Herald.

Deutcsh was hired in 1981 to be the police chief of the City of Birmingham. Deutcsh claimed that the Post-Herald libeled him in 37 newspaper articles. In his complaint against the Post-Herald, Deutcsh claimed that the newspaper acted as a "publicity agent and publicity organ for certain officers of the Fraternal Order of Police in an effort to legitimatize the effort of the said officers of the Fraternal Order of Police to dispose of the plaintiff as Police Chief of the City of Birmingham." (C.R. 3.)

In his brief, Deutcsh claims that specific statements in the following 13 articles and editorials are libelous: (1) an editorial entitled "Deutcsh's moving bill," dated January 12, 1984; (2) an editorial entitled "The Deutcsh predicament," dated January 13, 1984; (3) an article entitled "Public outcry spurs council to action," dated February 1, 1984; (4) an editorial entitled "An out-of-control police chief," dated February 10, 1984; (5) an article entitled "Deutcsh on defense--Chief praises city's crime stats while attacking media coverage," dated May 1, 1984; (6) an article entitled "Federal judge hands Birmingham $3,607 bill for police chief's move," dated May 23, 1984; (7) an editorial entitled "Check previous list before buying gifts," dated June 21, 1984; (8) an article entitled "Suspect in '83 slaying captured in R.I.," dated August 18, 1984; (9) an article entitled "Lowe tells of fear of death," dated August 20, 1984; (10) an article entitled "Cash gap grows; Deutcsh had warning," dated September 8, 1984; (11) an editorial entitled "Deutcsh and missing money," dated September 14, 1984; (12) an editorial entitled "No confidence in Deutcsh," dated October 10, 1984; and (13) an editorial entitled "Arthur Deutcsh--The problem persists," dated February 15, 1985.

Although Deutcsh's complaint and the amendments to his complaint mention more articles and allege specific statements of libel other than those alleged to be in the 13 articles listed above, Deutcsh did not discuss them in his brief. Therefore, we have no choice but to deem any claims of libel based on those omitted articles to be waived. Issues not argued in appellate brief are waived. Bogle v. Scheer, 512 So.2d 1336 (Ala.1987); Barrett v. Farmers & Merchants Bank of Piedmont, 451 So.2d 257 (Ala.1984); Humane Soc. of Marshall County v. Adams, 439 So.2d 150 (Ala.1983). In determining whether the summary judgment was proper, our review is limited to the libel claims discussed in Deutcsh's brief. ¹

Deutcsh contends that the summary judgment was inappropriate because, he says, the articles published by the Post-Herald contained clear and convincing evidence of libel. We disagree.

"The constitutional guarantees [of the First and Fourteenth Amendments] 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."

New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964). The public official must present "clear and convincing proof" of actual malice. Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

" '[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.' "

Pemberton v. Birmingham News Co., 482 So.2d 257, 264 (Ala.1985), citing St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). If the published statements are true, there is no actionable cause for libel. Pemberton, 482 So.2d at 264.

"Where a statement of 'opinion' on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth."

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