First Independent Baptist Church of Arab v. Southerland

• Decision Date: 27 July 1979
• Citation: 373 So.2d 647
• Parties: FIRST INDEPENDENT BAPTIST CHURCH OF ARAB et al. v. Fred SOUTHERLAND. 78-475.
• Court: Alabama Supreme Court

Page 647

373 So.2d 647

FIRST INDEPENDENT BAPTIST CHURCH OF ARAB et al. v. Fred SOUTHERLAND.

78-475.

Supreme Court of Alabama.

July 27, 1979.

William D. Jetton of Jetton & Ogden, Guntersville, for appellants.

Clyde D. Baker, Guntersville, for appellee.

BEATTY, Justice.

This is an appeal under Rule 5, ARAP, from an interlocutory order of the Circuit Court of Marshall County declaring that certain radio broadcasts, if defamatory, would constitute libel rather than slander. We affirm.

For the purposes of this opinion it is necessary to recite only the facts essential to our decision. These are that the defendant Bailey, as pastor of the defendant church, taped a series of sermons at an Arab radio station, and each of these tapes was later broadcast over the airwaves by the station.

This is a case of first impression in our jurisdiction. A similar case has been decided but this precise issue was not before the Court because the parties themselves considered the case as one involving slander and so the case was reviewed from that premise. Brown v. W. R. M. A. Broadcasting Company, 286 Ala. 186, 238 So.2d 540 (1970).

Libel is commonly perceived as a defamation which springs from the publication of written or printed material. Cf. Marion v. Davis, 217 Ala. 16, 114 So. 357 (1927) with White v. Birmingham Post Co., 233 Ala. 547, 172 So. 649 (1937). "Generally," it was stated in Bowling v. Pow, 293 Ala. 178, 301 So.2d 55 (1974), "any false and malicious publication, when expressed in printing or writing, or by signs or pictures, is a libel, which . . . tends to bring an individual into public hatred, contempt, or ridicule . . . ."

The expansion of communication technology has also enlarged the opportunities for dissemination of defamatory material, bringing with them difficulties in applying the original conceptions to contemporary innovations. These difficulties have led to divergent views. In an early case on the question, Sorenson v. Wood, 123 Neb. 348, 243 N.W. 82 (1932), it was held that statements in a written political address read over the radio constituted libel, not slander. Likewise, when a news commentator read defamatory words from a written script, this was held to be libel. Hartmann v. Winchell, 296 N.Y. 296, 73 N.E.2d 30 (1947). Accord, Gibler v. Houston Post Co., Tex.Civ.App., 310 S.W.2d 377 (1958) (television broadcast); Christy v. Stauffer Pub., Inc., Tex., 437 S.W.2d 814 (1969) (television broadcast). Even when a prepared script has not been used but the defamatory material was included in a statement made during a radio dialogue, this has been held to be libel rather than slander. Shor v. Billingsley, 4 Misc.2d 857, 158 N.Y.S.2d 476; Aff'd. 4 A.D.2d 1017, 169 N.Y.S.2d 416 (1956). And in at least one case the jury has been instructed that a broadcast containing defamatory material was libelous per se without any qualification. Wanamaker v. Lewis, D.C., 173 F.Supp. 126 (1956). Contra, Arno v. Stewart, 245 Cal.App.2d 955, 54 Cal.Rptr. 392 (1966).

Dean Prosser has commented upon these developments in his treatise, Prosser, The Law of Torts, § 112, p. 752 (4th ed. 1971):

The distinction itself between libel and slander is not free from difficulty and uncertainty. As it took form in the seventeenth century, it was one between written and oral words. But later on libel was extended to include pictures . . . and even conduct carrying a defamatory imputation, such as hanging the plaintiff in effigy, erecting a gallows before his door, dishonoring his valid check drawn upon the defendant's bank, or even, in one Wisconsin case, following him over a considerable period in a conspicuous manner. From this it has been concluded that libel is that which is communicated by the sense of sight, or perhaps also by touch and smell, while slander is that which is conveyed by the sense of hearing. But this certainly does not fit all of the cases, since it seems to be agreed that defamatory gestures or the signals of a deaf-mute are to be regarded as slander only, while matter communicated by sound to be reduced to writing afterwards, as in the case of a telegraph message, or dictation to a stenographer, or even an interview given to a reporter, is considered libel. Furthermore, it is generally held that it is a publication of a libel to read a defamatory writing aloud. This might suggest that the distinction is one of embodiment in some more or less permanent physical form, and frequently it is so stated. . . .

The unexpected advent of new methods of communication has left the courts struggling with the distinction. They have found no difficulty in holding that the sound in a "talking" picture is libel, since it accompanies and is identified with the film itself. Defamation by radio and television is, however, still a subject of violent debate. It has been considered by comparatively few courts, and held by some to be libel, by one slander, . . . while still others apparently have regarded it as having special characteristics half way between the two . . . .

The concurring opinion of Fuld, J., in Winchell, supra, 296 N.Y. at 300-304, 73 N.E.2d at 33 articulates the policy issues inherent in reaching a decision on the classification:

It impresses me as unreal to have...