Firestone v. Time, Inc.

• Decision Date: 20 December 1972
• Docket Number: No. 41868,41868
• Citation: 271 So.2d 745
• Parties: Mary Alice FIRESTONE, Petitioner, v. TIME, INC., Respondent.
• Court: Florida Supreme Court

Page 745

271 So.2d 745

Mary Alice FIRESTONE, Petitioner, v. TIME, INC., Respondent.

No. 41868.

Supreme Court of Florida.

Dec. 20, 1972.

Robert M. Montgomery, Jr., of Howell, Kirby, Montgomery, D'Aiuto, Dean and Hallowes, Jacksonville, for petitioner.

William S. Frates and Larry S. Stewart, of Frates, Floyd Pearson, Stewart, Proenza & Richman, Miami, and Harold R. Medina, Jr., of Cravath, Swaine & Moore, New York City, for respondent.

McNULTY, District Judge.

We review this day a libel action arising out of a publication in the 'Milestones' column of Time magazine relating to a divorce between petitioner and her husband. Our jurisdiction is predicated on conflict which will hereinafter appear.

The assailed publication is as follows:

'Divorced. By Russell A. Firestone Jr., 41, heir to the tire fortune: Mary Alice Sullivan Firestone, 32, his third wife; a onetime Palm Beach school-teacher; on grounds of extreme cruelty and Adultery; after six years of marriage, one son; in West Palm Beach, Fla. The 17-month intermittent trial produced enough testimony of extra-marital adventures on both sides, said the judge, 'to make Dr. Freud's hair curl. '' (Italics added)

The truth is, the divorce was Not granted on the grounds of adultery. ¹ Furthermore there was no express finding in the judgment of divorce that either of the parties was guilty of marital infidelity, although the trial judge did allude to testimony offered in that regard and commented thereon in the language quoted in the article. As to this, however, the article failed to note that the trial judge expressly stated that he was 'inclined to discount much of this testimony as unreliable.' ²

In any case, in this libel action the District Court reversed a judgment in favor of plaintiff-petitioner, concluding that because the petitioner's ex-husband was an heir to the immense Firestone rubber fortune, and because their divorce action itself together with sensational predivorce marital difficulties had received nationwide publicity, the foregoing publication was constitutionally protected under the First Amendment of the United States Constitution as being 'an event of great public interest' within the rationale of the so-called 'New York Times doctrine.' ³

I

The paramount question we must answer, therefore, is whether the publication herein, under the circumstances of its making, is thus constitutionally protected. If it is, then the New York Times standard does apply, viz., assuming a defamatory falsehood, petitioner must prove, with convincing clarity, actual malice, i.e., knowledge of the falsity or a reckless disregard of whether it was false or not. ⁴ If not constitutionally protected, and again assuming a defamatory falsehood, then the publication herein renders respondent amenable under the Florida common law on the subject, to-wit: that a published defamatory falsehood which is libelous Per se, unless otherwise privileged, ⁵ is actionable absolutely and no malice need be shown ⁶--truth being the only defense. ⁷

As noted, the District Court concluded that the publication herein was constitutionally protected and applied the New York Times standard, Supra. We disagree; and herein lies the predicate for jurisdictional conflict. For it is the conflict of Decisions, not of Opinions or Reasons, which supply jurisdiction for review by certiorari. ⁸ If, therefore, the District Court erroneously categorized the Firestone divorce action as an event of 'great public interest' within the discipline of New York Times, and thereby imposed a greater burden on petitioner than would otherwise be the case under settled Florida libel law, then its decision is in conflict with Florida law on the subject which was left unassailed by New York Times and its progeny Except to the extent of publication of matters of 'great public interest' As that term is correctly construed. We are thus faced with circumscribing 'matters of great public interest.'

II

To begin with, the term 'matters of public or general concern' is more apt, as will become obvious, than the expression 'matters of great public interest,' and we prefer it. Conceptually, it is public Concern which clearly underlies the Ratio decidendi of the entire line of Supreme Court cases beginning with New York Times; and the concept was ultimately resolved in Rosenbloom v. Metromedia, Inc, 403 U.S. 29, 91 S.Ct. 1811, 26 L.Ed.2d 296: ⁹

'. . . It is clear that there has emerged from our cases decided since New York Times the concept that the First Amendment's impact upon state libel laws derives not so much from whether the plaintiff is a 'public official,' 'public figure,' or 'private individual,' as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general interest. See T. Emerson, The System of Freedom of Expression 531--532, 540 (1970). In that circumstance we think the time has come forthrightly to announce that the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of Public or general concern, albeit leaving the delineation of the reach of that term to future cases.' (Italics ours)

Now, it is implicit in these decisions, terminating with Metromedia, that not All news items or feature articles are constitutionally protected. ¹⁰ It must be taken as true, on the other hand, that 'news-worthiness' is that which is well calculated to generate wide reader interest and thus may be a legitimate area of exploitation by the communications media. But we perceive a clear distinction between mere curiosity, or the undeniably prevalent morbid or prurient intrigue with scandal or with the potentially humorous misfortune of others, on the one hand and Real public or general concern on the other.

What, then, are matters of real public or general concern? Most obvious, of course, are matters relating to governmental affairs, which necessarily involve public officers, public servants and employees and even candidates for public office. Both the public and private activities of these people, to the extent that they relate to performance of their duties or their qualifications or fitness for public service are clearly matters of public concern.

But public concern is not limited to matters governmental. As was said, again in Metromedia: ¹¹

'. . . the constitutional protection was not intended to be limited to matters bearing broadly on issues of responsible government. ' (T)he Founders . . . felt that a free press would advance 'truth, science, morality, and arts in general' as well as responsible government.' (Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)), Id., at 147, 87 S.Ct., at 1987, 18 L.Ed.2d at 1107 (opinion of Harlan, J.). Comments in other cases reiterate this judgment that the First Amendment extends to myriad matters of public interest. In Time, Inc. v. Hill, supra, we had 'no doubt that the . . . opening of a new play linked to an actual incident, is a matter of public interest,' 385 U.S. (374,) at 388, 87 S.Ct. (534) at 542, 17 L.Ed.2d 456 at 467, which was entitled to constitutional protection. Butts held that an alleged 'fix' of a college football game was a public issue. Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), a companion case to Butts, established that the public had a similar interest in the events and personalities involved in federal efforts to enforce a court decree ordering the enrollment of a Negro student in the University of Mississippi. Thus, these cases underscore the vitality, as well as the scope, of the 'profound national commitment to the principle that debate on Public issues should be uninhibited, robust, and wide-open.' New York Times Co. v. Sullivan, 376 U.S. at 270--271, 84 S.Ct. at 721, 11 L.Ed.2d at 701, 95 A.L.R.2d 1412.'

Thus, it appears, it can be broadly said that matters of real public or general concern are those which invoke common and predominant public activity, participation or indulgence, and cogitation, study and debate; and they include such matters as sporting events, ¹² the performing and fine arts, ¹³ morality and religion, ¹⁴ the sciences, ¹⁵ and matters relating generally to the health, well-being and general comfort of the public As a whole. ¹⁶ Accordingly, news items or featured articles or commentaries by communications media relating to these matters are and should be constitutionally protected notwithstanding that obscure Or prominent individuals may be caught up in the current and regretfully defamed. That this is the law is again postulated in Metromedia: ¹⁷

'If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety. . . . We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication Involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.' (Italics added)

A fortiori, if one By his own volition thrusts himself on the passing scene to the extent that he knowingly and consciously wants and needs publicity or public support for his endeavors or activities he Surely submits himself to public scrutiny, which oftentimes may justly expose his private affairs as they might relate to the activities or endeavors for which he is seeking public approval. ¹⁸ Justice Terrell aptly noted this maxim in Kennett v. Barber: ¹⁹

'. . . one . . . who makes his living by dealing with the public or otherwise seeks public...