Foster v. Laredo Newspapers, Inc.

• Decision Date: 14 July 1976
• Docket Number: No. B--5747,B--5747
• Citation: 541 S.W.2d 809
• Parties: John E. FOSTER, Petitioner, v. LAREDO NEWSPAPERS, INC., Respondent.
• Court: Texas Supreme Court

Page 809

541 S.W.2d 809

John E. FOSTER, Petitioner, v. LAREDO NEWSPAPERS, INC., Respondent.

No. B--5747.

Supreme Court of Texas.

July 14, 1976.

Jacob G. Hornberger, Laredo, for petitioner.

Mann, Castillon, Freed & Kazen, George P. Kazen, Laredo, for respondent.

SAM D. JOHNSON, Justice.

This libel action instituted by John E. Foster against Laredo Newspapers, Inc. affords this court an opportunity to interpret recent rulings of the United States Supreme Court that establish differing standards of care applicable to various classes of defamation plaintiffs. The trial court rendered a take-nothing summary judgment in favor of the defendant Newspaper and the court of civil appeals affirmed. 530 S.W.2d 611. We reverse and remand the case for trial.

The plaintiff Foster is a licensed civil engineer engaged in private engineering practice in Laredo, Texas. Additionally, Foster is the duly elected county surveyor of Webb County. He also has been regularly hired by the County as a private consulting engineer to perform specific projects. One such private consulting project involved the investigation by Foster of a flooding problem in a subdivision known as Del Mar Hills. On June 17, 1973 an article printed in the Laredo Times newspaper in connection with the flooding problem made the following references to Foster 'The Rice development official said the flooded area in question was platted by Jack Foster, who doubles as a consultant engineer for Webb County.

'Foster has been handling numerous engineering jobs for the Commissioners Court on a consultant basis involving road improvements, some paving, park recreational work and drainage problems in Del Mar Hills.'

The article resulted from a recent flooding incident and an appearance before the commissioner's court of Webb County by a resident of Del Mar Hills complaining of the flooding problem in his subdivision. Following the meeting of the commissioner's court an initial article appeared in the Laredo Times covering the court hearing on the flooding problem. One week later the Newspaper published a follow-up article on the flooding problem, and it was this second article which contained the allegedly libelous statements upon which this action is based. The second article was prompted by a contractor engaged in development of the subdivision who complained to the Newspaper that the first article left a misleading impression that the flooding problem existed throughout Del Mar Hills. The article quoted the contractor's statements at length with regard to the nature of the flooding and his opinion that the County should solve the flooding problem. The statement in the article that Foster platted the flooded area was false.

Foster filed this action against Laredo Newspapers, Inc. alleging that the article was libelous because (1) it attributed to him 'direct responsibility for the severe flooding of homes located in said Del Mar Hills, thereby indicating that (Foster's) work was of inferior and unsatisfactory quality,' and (2) the phrase 'who doubles as consultant engineer for Webb County' used in the article indicated that Foster 'was performing services for the County of Webb and other parties when a direct conflict of interest between the said County and other said parties existed, and that therefore (Foster) was guilty of unethical and illegal conduct.' Foster sought $250,000 as damages for the allegedly libelous statements and an additional $125,000 punitive damages.

The Newspaper filed a motion for summary judgment on the grounds that Foster is either a 'public official' or 'public figure' as defined by the Supreme Court of the United States in the line of decisions beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and consequently there could be no liability without a showing of 'actual malice.' The Newspaper further contended that the undisputed evidence in the record negated a finding of 'actual malice.'

The trial court sustained the Newspaper's motion for summary judgnent and the court of civil appeals affirmed holding that 'Foster clearly falls within the most restrictive definition of a 'public official' or a 'public figure,' and we hold that he was both a public official and a public figure as those terms are defined by the courts of this state and of the United States.' 530 S.W.2d 611 at 616. The court further held that the summary judgment proof 'establishes as a matter of law that such publication was not made with malice as that term is defined in the applicable state and federal court decision.' 530 S.W.2d 611 at 619.

Foster's principal points of error attack the holding of the court of civil appeals (1) that he was either a 'public official' or 'public figure,' and (2) that the summary judgment proof negated the existence of a fact issue with respect to the question of malice. The initial and crucial question is whether the court of civil appeals correctly classified Foster as a 'public official' or 'public figure.'

I. PUBLIC OFFICIAL

In New York Times Co. v. Sullivan, supra, the Supreme Court of the United States, for the first time, considered the extent to which the constitutional protections for speech and press limit recovery in a libel action brought by a public official against critics of his official conduct. The plaintiff, an elected city commissioner whose duties included supervision of the city's police department, brought suit in a state court alleging that he had been libeled by an advertisement printed in the New York Times newspaper. The advertisement included statements, some of which were false, about action by the city police directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement. Following a jury verdict for the plaintiff and affirmance by the state supreme court, the case was reviewed by the Supreme Court of the United States which reversed and remanded holding that the constitutional guarantees of the First and Fourteenth Amendments require 'a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his offical 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.' ¹ (Emphasis added.) 376 U.S. 254 at 279--80, 84 S.Ct. 710 at 726. In so holding the Court recognized 'a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' 376 U.S. 254 at 270, 84 S.Ct. 710, at 721. The Court further reasoned that '(a) rule compelling the critic of official conduct to guarantee the truth of all his factual assertions--and to do so on pain of libel judgments virtually unlimited in amount--leads to . . . 'self-censorship." 376 U.S. 254 at 279, 84 S.Ct. 710 at 725.

In New York Times the Court did not attempt to define the 'public official' and 'official conduct' concepts, but left determination of the scope of those concepts for future cases. ² Further explanation of the 'public official' concept was then provided by the United States Supreme Court in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). The plaintiff in Rosenblatt was not an Elected official but, rather, a former supervisor of a county recreation area who was employed by and directly responsible to the county commissioners. His libel action was brought against a local newspaper for publication of a column that allegedly criticized the financial management of the recreation area while it was under the plaintiff's supervision. In deciding whether to classify the plaintiff as a public official, the Court set forth the competing values that must be weighed and formulated a broad definition of the 'public official' concept. First, the Court emphasized that there is a strong interest in debate on public issues and about persons who are in a position to influence the resolution of those issues.

'Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.' 383 U.S. 75 at 85, 86 S.Ct. 669 at 676.

Secondly, the Court recognized that '(s)ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation.' In balancing society's interest in protecting the reputations of its citizens and the constitutional values of free speech and press, the Court unmistakably concluded that the 'public official' designation does not apply to All government employees. ³ Rather, the designation applies '(w)here 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.' (Emphasis added.) 383 U.S. 75 at 86, 86 S.Ct. 699 at 676.

In determining whether Foster was a 'public official' for purposes of the New York Times rule, two aspects of Foster's relationship with the county government must be examined. Foster was, first, a private consulting engineer who was from time to time employed by the County and, second, he was the duly elected county surveyor.

The Newspaper contends that the New York Times rule is applicable because Foster was a 'public official' in his capacity as a private consulting engineer employed by the County. The summary judgment proof shows that Foster was employed by the County as a private consulting engineer for numerous projects and, according to the county judge, Foster performed the large majority of the County's engineering jobs. Nevertheless, Foster had no permanent engineering...