DiLeo v. Koltnow

• Decision Date: 23 June 1980
• Docket Number: No. 79SC70,79SC70
• Citation: 200 Colo. 119,613 P.2d 318
• Parties: , 6 Media L. Rep. 2011 Philip F. DiLEO, Plaintiff-Appellant, v. Barry KOLTNOW, Boulder Daily Camera, Boulder Publishing, Inc., Defendants- Appellees. v. COLORADO PRESS ASSOCIATION, Colorado Broadcasters Association, and KBTV, Inc., Amici Curiae.
• Court: Colorado Supreme Court

Page 318

613 P.2d 318

200 Colo. 119, 6 Media L. Rep. 2011

Philip F. DiLEO, Plaintiff-Appellant, v. Barry KOLTNOW, Boulder Daily Camera, Boulder Publishing, Inc., Defendants- Appellees. v. COLORADO PRESS ASSOCIATION, Colorado Broadcasters

Association, and KBTV, Inc., Amici Curiae.

No. 79SC70.

Supreme Court of Colorado, En Banc.

June 23, 1980.

Rehearing Denied July 7, 1980.

Gerash & Robinson, P. C., Scott H. Robinson, Denver, for plaintiff-appellant.

Newcomer & Douglass, William A. Ahlstrand, Boulder, for defendants-appellees.

Yegge, Hall & Evans, Thomas B. Kelley, Davis, Graham & Stubbs, Richard P. Holme, Denver, for amici curiae.

HODGES, Chief Justice.

Plaintiff-appellant, Philip F. DiLeo, commenced a defamation action against defendants-appellees Boulder Daily Camera, Boulder Publishing, Inc., publisher of the Boulder Daily Camera, Barry Koltnow, a reporter, and others. The trial court granted defendants' motion for summary judgment and DiLeo appealed to the court of appeals. The case was transferred to this court prior to judgment pursuant to C.A.R. 50. We affirm the trial court's judgment.

The case arises out of a controversy stemming from DiLeo's employment as a patrolman for the Boulder Police Department (Department). DiLeo's employment, which had commenced in October 1972, was terminated by the Department in June 1973. DiLeo commenced a court action in December 1973, alleging that his employment had been illegally terminated. On October 20, 1975, the court ordered him reinstated. ¹

The Boulder Police Benefit Association (BPBA) is an unincorporated association consisting of approximately 70 members of the Department. The BPBA held a formal meeting on October 30, 1975. DiLeo's fitness for official duties as a police officer with the Department was discussed. At this meeting, the BPBA passed a resolution which expressed the group's opposition to the reinstatement of DiLeo and urged the city council to appeal the decision ordering DiLeo's reinstatement.

On the morning of October 31, 1975, defendant Koltnow, a reporter, noticed a copy of the resolution posted on the bulletin board at the Department's headquarters. He conducted an investigation to verify statements made in the resolution, and thereafter wrote an article reporting the BPBA meeting and the contents of the resolution. This article was published in the October 31, 1975 edition of the Boulder Daily Camera. It contained actual excerpts from the resolution. By affidavit, Stephen A. Burton, vice president and acting chairman at the October 30, 1975 meeting of the BPBA, stated that the newspaper's account was a fair and accurate report of the meeting and the resolution.

On the basis of this article, DiLeo commenced the present defamation action. He asserts that the story contained the following untrue defamatory statements: " 'DiLeo had on several occasions interfered with the investigation of criminal matters since his dismissal from the force,' and that 'on one noteworthy occasion DiLeo exposed an undercover narcotics officer's identity to a known narcotics dealer in the middle of a narcotics transaction' and further published the false and reckless statement that 'the B.P.B.A. members (about sixty were present for the meeting) made those charges' and that 'the B.P.B.A. voted unanimously to oppose the reinstatement. . . . ' "

The trial court granted defendants' motion for summary judgment, ruling that DiLeo was a public figure, that the matter was of public concern, and that there were no disputed issues of fact indicating that the defendants published the article with knowledge that it was false or published the article with reckless disregard as to whether it was false. We agree with these rulings. ²

I.

In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1963), it was held that the First and Fourteenth Amendments protect freedom of expression concerning public officials, ³ and that in order to accommodate this constitutional right, a public official can only recover damages for a defamatory statement concerning his official conduct by presenting clear and convincing proof that the statement was made with actual malice. "Actual malice" in the New York Times sense, means that the defamatory statement was known to be false or was made with reckless disregard ⁴ of whether it was true or false. Although this rule places a significant burden on the plaintiff's ability to recover damages, such a rule was deemed necessary to balance the competing interests of protecting a person's reputation while at the same time providing ample breathing space to assure unrestricted debate of public issues. See New York Times v. Sullivan, supra. See also Gertz v. Robert Welch, Inc., supra. In New York Times, the United States Supreme Court noted a profound national commitment that "debate on public issues should be uninhibited, robust, and wide-open. . . . "

The New York Times rule was held to include "public figures" in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The rule was extended primarily for three reasons. First, the public's interest in obtaining information concerning either public officials or public figures is substantially similar. Second, the same justifications exist whereby a public figure's interest in protecting his reputation ought to defer to the public interest of assuring open discussion of public issues. Both public officials and public figures usually have the ability to resort to effective self-help, i. e., the ability to refute criticism and counteract false statements through effective channels of communication. Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); Gertz, supra. Finally, and more important, is the normative consideration that: "public figures, like public officials, have 'voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.' " Wolston v. Readers Digest Ass'n, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979), citing Gertz, supra. See also Curtis Publishing Co. v. Butts, supra.

A person may become a public figure in either of two ways:

"For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment."

Gertz, supra. See also Hutchinson, supra; Wolston, supra; Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976).

Thus, two categories of public figures exist. First, there are those who acquired a status in society so as to have such persuasive power and influence to be properly deemed public figures for all purposes of comment. Such persons enjoy significant access to the effective channels of communication to rebut defamatory falsehoods, and have broadly exposed themselves to the increased risk of defamatory falsehoods through their attainment of public prominence. The second category of public figures consists of those who have thrust themselves to the forefront of a particular public controversy to affect its resolution. Such individuals would generally be capable of effectively countering criticism and exposing the falsity of defamatory statements concerning them. More importantly, this type of public figure has invited public attention and comment in regard to the particular controversy.

In the instant case, we are asked to determine whether DiLeo was a public figure for purposes of this libel action. It requires no lengthy discussion to conclude that DiLeo was not a public figure for all purposes. He does not occupy a position having "persuasive power and influence." See Hutchinson, supra; Wolston, supra; Time, Inc. v. Firestone, supra; Gertz, supra. We therefore focus our discussion on whether DiLeo was a public figure for the limited purpose of comment on his involvement in seeking reinstatement with the Department as a police officer.

In determining whether a person is a public figure in this category, we must primarily focus on the "nature and extent of an individual's participation in the particular controversy giving rise to the defamation." Wolston, supra, at 167, 99 S.Ct. at 2707, 61 L.Ed.2d at 460, citing Gertz, supra, at 352, 94 S.Ct. at 3013, 41 L.Ed.2d at 812. See also Hutchinson, supra. The particular controversy in the present case evolves from DiLeo's termination of employment and his various suits seeking reinstatement and redress for asserted violations of his civil rights.

DiLeo argues that the controversy concerned his suit to regain his position with the Department, a purely private matter. See generally Time, Inc. v. Firestone, supra. We disagree. Even if initially a private matter, it became a public controversy through DiLeo's efforts. Cf. Hutchinson, supra; Time, Inc. v. Firestone, supra. He instituted several lawsuits asserting the alleged illegal termination of his employment as well as other violations of his civil rights. ⁵ Rather than quietly seeking to exert his legal rights, he invited public attention and comment. Also, at his deposition, DiLeo admitted initiating contact with various newspapers and reporters. He contacted reporters from the Boulder Daily Camera, Colorado Daily, Rocky Mountain News, and the Denver Post on several occasions regarding his various lawsuits. DiLeo explained that he believed the cases to be newsworthy and that he wanted to get information to the public.

That DiLeo effectively cast himself and his views into public controversy is evidenced by the fact that his various lawsuits and charges attracted the attention of Colorado newspapers, generating at least twenty articles. ⁶ This...