Eidson v. Berry

• Decision Date: 09 January 1992
• Docket Number: No. A91A2263,A91A2263
• Citation: 415 S.E.2d 16,202 Ga.App. 587
• Parties: EIDSON v. BERRY et al.
• Court: Georgia Court of Appeals

Page 16

415 S.E.2d 16

202 Ga.App. 587

EIDSON v. BERRY et al.

No. A91A2263.

Court of Appeals of Georgia.

Jan. 9, 1992.

Reconsideration Denied Jan. 28, 1992.

Certiorari Denied April 21, 1992.

Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Timothy R. Brennan, Atlanta, for appellant.

Scott Walters, Jr., East Point, for appellees.

McMURRAY, Presiding Judge.

James A. Eidson (plaintiff) filed a defamation action against Bobby Berry, Decatur Publishing Company, Inc. and Southside Sun Publishing Company, Inc. (defendants), alleging defendant Berry "injured [his] reputation and exposed [him] to public hatred, contempt and ridicule" in a letter that was published in the Southside Sun newspaper. Defendant Berry denied the material allegations of the complaint and filed a motion for summary judgment.

Plaintiff is an attorney licensed to practice law in the State of Georgia. Plaintiff has provided legal services for the City of East Point, Georgia, and has been characterized as the attorney for the City of East Point.

On January 4 or 5, 1991, defendant Berry posted a letter to the editor of the Southside Sun newspaper, criticizing the East Point "city attorney" for allegedly turning over a tape recorded conversation between city officials to the news media. On January 11, 1991, the letter was published in the Southside Sun newspaper and it states, in pertinent part, as follows: "It has been revealed that some tapes exist in which our Mayor and one councilman are guilty of a racial slur.... I feel that the city attorney was acting improperly when he delivered the tapes to the newspaper and that the secretary that recorded a private conversation was also acting illegally. They should both be prosecuted and the city attorney should be barred from practicing law because he knowingly violated Federal law."

The trial court granted defendant Berry's motion for summary judgment, finding that defendant Berry's statements were "merely his opinion about what he thought should take place in the future...." This appeal followed. Held:

There is no "wholesale defamation exemption for anything that might be labeled 'opinion.' [To say otherwise would] ignore the fact that expressions of 'opinion' may often imply an assertion of objective fact." Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1. Any defamatory expression on matters of public concern that is provable as false may carry liability under state defamation law. Id. 497 U.S. at ----, 110 S.Ct. at 2706, 111 L.Ed.2d at 18. Consequently, the trial court erred in excluding defendant Berry's liability for defamation based on the simple characterization of defendant Berry's comments as an opinion. The pivotal questions are whether defendant Berry's statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.

"A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." OCGA § 51-5-1(a). " 'Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality. (Cit.)' Grayson v. Savannah News-Press, 110 Ga.App. 561, 566 (139 S.E.2d 347) (1964)." Barber v. Perdue, 194 Ga.App. 287, 288, 390 S.E.2d 234. In the case sub judice, the comments in defendant Berry's letter regarding the alleged illegal conduct of the "city attorney" can easily be taken as an assertion that plaintiff, as attorney for the City of East Point, is guilty of a crime punishable by law. Further, the accusation that plaintiff is guilty of a crime punishable by law is susceptible of being proved false. It therefore appears that circumstances exist which raise genuine issues of material fact as to defendant Berry's liability for defamation. However, plaintiff "concedes, for purposes of this action, that he is a 'public figure' who is prohibited '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 v. Sullivan, 376 U.S. 254, 279-280 (84 SC...