Ellerbee v. Mills
| Decision Date | 16 November 1992 |
| Docket Number | S92A0597,Nos. S92A0595,s. S92A0595 |
| Citation | 262 Ga. 516,422 S.E.2d 539 |
| Parties | , 78 Ed. Law Rep. 1104, 20 Media L. Rep. 2095 ELLERBEE v. MILLS. (Two Cases) |
| Court | Georgia Supreme Court |
Michael Weinstock, Allyson H. Baum, Weinstock & Scavo, Atlanta, for ellerbee.
Robert D. Ingram, C. Gregory Ragsdale, R. Lon Thomas, Moore & Rogers, Marietta, for Mills.
Dexter Mills, a high school principal, sued Dexter Ellerbee, a former teacher, for libel and slander. Mills contends that Ellerbee made false allegations, orally and in writing, concerning Mills' performance as principal. The trial court found that Mills was a private figure who had to prove by a preponderance of the evidence that Ellerbee failed to use ordinary care to determine the truth or falsity of his statements. The jury returned a verdict in favor of Mills. The trial court entered a judgment on that verdict, and permanently enjoined Ellerbee from making 27 statements about Mills. Ellerbee appeals. We affirm the judgment based on the jury verdict, but reverse the grant of the injunction.
1. We agree with the trial court that a high school principal is not a public official under the standard of New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). The Court in New York Times declined "to determine how far down into the lower ranks of government employees the 'public official' designation would extend." 376 U.S. at 283 n. 23, 84 S.Ct. at 728 n. 23. The category does not "include all public employees." Hutchinson v. Proxmire, 443 U.S. 111, 119 n. 8, 99 S.Ct. 2675, 2680 n. 8, 61 L.Ed.2d 411 (1979). Rather,
the "public official" designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.
Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966).
Our courts have not yet determined which persons holding positions of responsibility in the public educational system are "public officials." While we recognize that a few states have extended the New York Times privilege to high school principals, 1 we believe the better view is that principals are not public officials. This is because, implicit in the reasoning of New York Times is the concept that the people should be free to question and criticize those who govern them. See McCutcheon v. Moran, 99 Ill.App.3d 421, 54 Ill.Dec. 913, 425 N.E.2d 1130, 1133 (1981). Further, as noted in Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789 (1974), public officials and figures have greater access to media and other channels of effective communication, and, therefore, a better opportunity to rebut false statements than do private individuals. Also, as noted in Gertz, an individual who decides to seek or accept government office must accept the consequences of that involvement in public affairs, and
runs the risk of closer public scrutiny than might otherwise be the case. And society's interest in the officers of government is not strictly limited to the formal discharge of official duties ... the public's interest extends to
Id. 418 U.S. at 344-345, 94 S.Ct. at 3009. In our view, under normal circumstances, a principal simply does not have the relationship with government to warrant "public official" status under New York Times. Principals, in general, are removed from the general conduct of government, and are not policymakers at the level intended by the New York Times designation of public official.
We also agree with the trial court that under the facts of this case, Mills is not a public figure as defined by Gertz, supra, 418 U.S. at 345, 94 S.Ct. at 3009. 2 Because Mills is neither a public official nor a public figure, we affirm the judgment based on the jury's verdict for damages and attorney fees.
2. The trial court's order of a permanent injunction enjoined Ellerbee from making 27 statements. We reverse the injunction because the jury did not find all of those statements defamatory in its verdict and because the order sweeps more broadly than necessary. See Georgia Soc'y of Plastic Surgeons v. Anderson, 257 Ga. 710, 715, 363 S.E.2d 140 (1987); Retail Credit Co. v. Russell, 234 Ga. 765, 777, 218 S.E.2d 54 (1975) ().
Judgment reversed in S92A0595.
Judgment affirmed in S92A0597.
This appeal raises the issue whether a principal of a public high school is a public official or public figure who must prove that statements about his job performance were made with actual malice before recovering damages for defamation. By holding that a principal is not a public official, the majority opinion belies this court's professed commitment "to protect the right of free speech." High Country Fashions, Inc. v. Marlenna Fashions, Inc., 257 Ga. 267, 268, 357 S.E.2d 576 (1987). The opinion exalts the right of a public school principal to protect his professional reputation over the right of parents, teachers, and school officials to offer criticism of the job performance of the persons charged with the day-to-day responsibility of running our public schools. I would hold that a public school principal is a "public official" under defamation law.
1. In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725, 11 L.Ed.2d 686 (1963), the United States Supreme Court held that the constitutional guarantees of freedom of speech and press require a public official in a libel action brought against critics of his official conduct to prove that the defamatory statement was made with "actual malice." Whether a government employee is a public official is a question of federal constitutional law, although states may give the term a broader meaning. Restatement (Second) of Torts § 580A comment c (1977); see Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 675, 15 L.Ed.2d 597 (1966). In concluding that the supervisor of a county recreation area was a public official, the Court decided that
the "public official" designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.
... Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, ... the New York Times malice standards apply.
Rosenblatt, 383 U.S. at 85-86, 86 S.Ct. at 675.
No Georgia decision has determined which persons holding positions of responsibility in the public educational system are "public officials." Byers v. Southeastern Newspaper Corp., 161 Ga.App. 717, 719, 288 S.E.2d 698 (1982). The three appellate courts in other states that have considered whether a principal is a public official announce their holding without clearly explaining their reasons. 1 The majority opinion similarly fails to justify its holding that a principal is a private figure. Instead, the majority dismisses public education as a responsibility of government and belittles the role of the public school principal. Relying on the "implicit reasoning" in the New York Times decision, the opinion confuses persons elected to public office with the term "public official" under defamation law as delineated in U.S. Supreme Court cases.
I conclude that a principal of a public school is sufficiently high in the hierarchy of governmental affairs to qualify as a "public official." The principal's position is one that has "substantial responsibility for and control over the conduct" of public education and "invites public scrutiny and discussion of the person holding it." See Rosenblatt, 383 U.S. at 85-86, 86 S.Ct. at 676. The principal of a public school is the key governmental employee responsible for implementing the state's "primary obligation" to provide "an adequate public education for the citizens." Ga. Const. Art. VIII, Sec. I, Para. I (1983). As the school's chief administrative officer, the principal establishes school policy, recommends hiring and firing of teachers and staff, implements curriculum and other educational programs, expends and accounts for public funds, represents the institution before the public, and is accountable for the students' educational advancement and the faculty's performance. 2 Thus, unlike the decision in McCutcheon v. Moran on which the majority relies, I differentiate between the role of public school principals, who occupy a policymaking position and exercise substantial administrative responsibilities, and public school teachers, who do not. 3
Moreover, it is sound public policy to require a principal to prove reckless disregard before recovering damages for injury to his or her reputation. Otherwise, a parent who appears at a local school board to criticize the actions of the principal can be held liable more easily for comments made, even in good faith. It is more important to permit a robust discussion of our public schools, whether sex education, drug use, or racial insensitivity is the topic, than to permit a principal to recover damages by a lesser standard than "actual malice." "Criticism of those...
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