Dodson v. Dicker

• Decision Date: 24 June 1991
• Docket Number: No. 91-7,91-7
• Citation: 306 Ark. 108,812 S.W.2d 97
• Parties: , 19 Media L. Rep. 1124 Jo DODSON, Appellant, v. David DICKER, Appellee.
• Court: Arkansas Supreme Court

Page 97

812 S.W.2d 97

306 Ark. 108, 19 Media L. Rep. 1124

Jo DODSON, Appellant, v. David DICKER, Appellee.

No. 91-7.

Supreme Court of Arkansas.

June 24, 1991.

W.H. Taylor, Fayetteville, for appellant.

Harry McDermott, Fayetteville, for appellee.

HAYS, Justice.

This is a defamation and invasion of privacy action arising from a letter written by the appellant, Ms. Jo Dodson, on October 18, 1988, to the State Board of Therapy Technology, with copies sent to the Governor, Attorney General, a reporter and several others.

Ms. Dodson's letter focused on the actions of the president of the State Board of Therapy Technology, Marinetta Dicker, and also included references to her husband, appellee David Dicker. ¹ The letter asserted, among other things, that David Dicker assisted Marinetta Dicker in rewriting the test for licensing of therapy technicians, which may have been done for profit; the Dickers drafted the budget for the board without the approval of other board members; the Dickers drew up a proposed license law for presentation to the Arkansas legislature without the approval of the board; and, David Dicker has imposed himself as the sixth member of the board. Dodson also stated that, in her opinion, the board has slandered a fellow therapist, Steve Schechter, and David Dicker's letter to the Rolf Institute was a good example of it; and she wrote "he [Dicker] has such a 'hate' for Steve, and to be fair, Steve does not have any great love for him either, and in fact neither do I. I hate a bully ... especially a sneaky bully, which is what he appears to be in my opinion."

David Dicker filed suit against Ms. Jo Dodson in Washington County Circuit Court. After a jury trial on June 7, 1990, a verdict was returned in favor of Dicker and he was awarded $7,000 in actual damages and $5,000 in punitive damages.

Dicker offered two alternative theories to the jury, namely, invasion of privacy and libel, specifically, libel per se. Both causes of action may be joined in the same suit, nevertheless, there can be only one recovery for any particular publication. Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). Ms. Dodson insists that her directed verdict motion should have been granted on both the invasion of privacy and libel theories and we agree.

I. The Libel Claim

First, we consider Dicker's libel action. In doing so we note that in cases raising First Amendment issues the United States Supreme Court has repeatedly held that an appellate court "has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.' " Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-286, 84 S.Ct. 710, 728-729, 11 L.Ed.2d 686.) See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933-934, 102 S.Ct. 3409, 3436-3437, 73 L.Ed.2d 1215 (1982); Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 11, 90 S.Ct. 1537, 1540, 26 L.Ed.2d 6 (1970); St. Amant v. Thompson, 390 U.S. 727, 732-733, 88 S.Ct. 1323, 1326-1327, 20 L.Ed.2d 262 (1968). We have exercised independent judgment on this issue and conclude that a finding of libel would constitute a forbidden intrusion on free expression because the words involved are not capable of sustaining a defamatory meaning.

In Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), the Supreme Court established that the threshold question in defamation actions is not whether a statement could be considered an "opinion" but rather whether a reasonable fact-finder could conclude that the statement implies an assertion of an objective verifiable fact. Id., 110 S.Ct. at 2707; See generally, Note, Freedom of Speech--No Separate "Opinion" Privilege in Defamation Actions, 13 U.A.L.R. L.J. 517 (1991). The holding in Milkovich was recently applied in Unelko Corp. v. Rooney, 912 F.2d 1049 (9th Cir.1990). In order to determine whether a statement could be viewed as implying an assertion of fact, the Ninth Circuit set forth three factors to be weighed: (1) whether the author used figurative or hyperbolic language that would negate the impression that s(he) was seriously maintaining implied fact; (2) whether the general tenor of the publication negates this impression; and (3) whether the published assertion is susceptible of being proved true or false. Id. at 1053. We think the Ninth Circuit's method of analysis is a reasonable extension of the Milkovich doctrine, therefore, our examination of Dodson's statements follow the Rooney considerations. As this court enters an area of defamation law where we have not previously ventured, we caution that every set of circumstances subsequently considered under this analysis must be examined on a case-by-case basis.

In this case it is not necessary to discuss Dodson's statements under each category because evidence supporting the second category--the tenor, or general drift of thought of Dodson's letter--completely negates any impression that Dodson's statements were presented as an assertion of objective facts about David Dicker. This letter was about Dodson's protestation of the actions of a state board and her views on what she perceived to be Mr. Dicker's interference with its operations. It is most significant that the board's own policy required that all requests and concerns addressed to it by therapists be submitted in writing. That is precisely what Dodson was doing. Her letter was expressed in terms of her "opinion" and "protest." It criticized not only Dicker, but also his wife who was president of the state board and the state board itself. In fact, her letter opens with the following statement, "I do hereby formally and strongly protest the actions of the President of the State Board of Therapy Technology, Marinetta Dicker." Dodson, as a massage therapist, had a substantial interest in the conduct of the State Board of Therapy Technology and her freedom to engage in uninhibited debate over its actions is both legitimate and desirable. ² The fact that she referred to David Dicker with intemperate language does not convince us that the statements, in their totality, were the type of assertions of objective facts about Mr. Dicker that give rise to liability in a defamation action. Dodson's statements do not meet the threshold requirement for a defamation action thus, the trial court erred in denying a directed verdict on the libel theory.

II. The Invasion of Privacy Claim

Next, we consider the denial of Ms. Dodson's motion for a directed verdict on the issue of invasion of privacy. ³ Dodson argued that David Dicker did not present sufficient proof of malice to produce a submissible issue for the jury.

This court applies certain standards when reviewing the denial of a directed verdict. A motion for directed verdict should only be granted if the evidence is so insubstantial as to require a jury verdict to be set aside. Bice v. Hartford Acc. & Indem. Co., 300 Ark. 122, 777 S.W.2d 213 (1989). In determining the propriety of the trial court's action concerning a motion for directed verdict, the evidence is given its highest probative value and viewed in a light most favorable to the party against whom the verdict is sought. Id.

The right to recover for an invasion of privacy requires the plaintiff to demonstrate:

(1) the false light in which he was placed by the publicity would be highly offensive to a reasonable person, and (2) ...