Franklin v. Benevolent etc. Order of Elks

• Decision Date: 23 October 1979
• Citation: 159 Cal.Rptr. 131,97 Cal.App.3d 915
• Parties: , 5 Media L. Rep. 1977 Virginia T. FRANKLIN, Plaintiff and Appellant, v. LODGE 1108, BENEVOLENT AND PROTECTIVE ORDER OF ELKS; the Benevolent and Protective Orders of Elks of the United States of America; the Elks Magazine, Defendants and Respondents. Civ. 41924.
• Court: California Court of Appeals Court of Appeals

Page 131

159 Cal.Rptr. 131

97 Cal.App.3d 915, 5 Media L. Rep. 1977

Virginia T. FRANKLIN, Plaintiff and Appellant, v. LODGE 1108, BENEVOLENT AND PROTECTIVE ORDER OF ELKS; the Benevolent and Protective Orders of Elks of the United States of America; the Elks Magazine, Defendants and Respondents.

Civ. 41924.

Court of Appeal, First District, Division 1, California.

Oct. 23, 1979.

Hearing Denied Dec. 20, 1979.

Carnes & Bailey, San Francisco, for plaintiff and appellant.

Pillsbury, Madison & Sutro, John A. Sutro, Jr., Walter R. Allan, San Francisco, for defendants and respondents.

Elise Snyder, National Education Association, Washington, D.C., for amicus curiae.

MARTIN, ^* Associate Justice.

Appellant Virginia T. Franklin sued respondents Benevolent and Protective Order of Elks of the United States of America ("the Elks"), and San Rafael Elks Lodge No. 1108 ("Lodge 1108"), for libel. She appeals from a summary judgment in favor of respondents. We reverse the judgment.

The facts relevant to the issues dispositive of this appeal are essentially uncontradicted. Appellant was a teacher in the social sciences department at San Rafael High School. For a unit on propaganda which analyzed the political philosophies and techniques of various groups, in her class on American Government, and pursuant to a course outline approved by the board of education, appellant selected, copied, and distributed to her students excerpts from a book called Movement Toward A New America. The book, parts of which are in the record, appears to be a pastiche of underground writings concerning revolution, sex, and drugs, vividly illustrated and replete with vulgar language. Appellant regarded the book as "an encyclopedia of propaganda of the '60s" and used it "to expose leftwing propaganda and militant Black rhetoric, etc." She "did not consider the book to be a 'shocker' or one which would offend any student."

Appellant decided to obtain a set of the books for classroom use and ordered several copies, as a supplementary text, through her acting department chairman, who approved her use of the book. When the books arrived, students helped carry them to appellant's classroom. One student asked and received permission to take a copy home, but then left the book at her boyfriend's house. The boyfriend's father brought the book to the attention of Lodge 1108 and the lodge immediately protested the use of the book to the board of education. The board of education held a public hearing regarding use of the book, and its suitability as instructional material was vigorously debated. At that meeting, appellant offered to withdraw the book and instead to use only selected excerpts from it. When the meeting did not result in total withdrawal of the book from the curriculum at San Rafael High School, the lodge initiated a "citizens request for reconsideration of instructional materials" under school district regulations. This procedure involved consultations between district personnel and the complaints and several meetings of the special committee drawn from district personnel, and culminated in a committee recommendation for action by the superintendent of schools subject to approval by the board of education. Appellant was required by district regulations to participate and cooperate in the reconsideration procedure, and she did so in order "to explain to those interested the way in which the book was used, the parts that were used, and how it fit into my class in American Government." She "did not intend, nor did I in fact, become involved in the controversy beyond what was required of me." The entire process was reported in several news stories and editorials in the local newspaper.

The committee recommended to the superintendent that the book Not be withdrawn but that it "should not be placed in the hands of students without guidance from the teacher." The superintendent recommended to the board of education that the board "limit the use of the . . . textbook . . . to certain specific and selected excerpts as identified by the teacher, and that the issuance of the textbook to students be discontinued." The board of education adopted the superintendent's recommendation in December 1971.

Once the board of education had acted, the Americanism Committee of Lodge 1108 compiled a set of newspaper clippings and correspondence reflecting their efforts, in the form of a "preface" written by the Americanism Committee chairman, and delivered these materials to representatives of the national Elks organization. The director of public relations for the Elks, with the approval of the business manager of the Elks' national publication, The Elks Magazine, then wrote and published in the October 1972 issue of the magazine an editorial which strongly criticized the book and its use as instructional material, reporting the action of the board of education, and concluding as follows: "Incredible? Yes . . . but it is even more interesting to note that the teacher who introduced the book into the school had been relieved from teaching the same sort of rot in the Paradise, California school system. The American Legion and aroused parents caused her dismissal there. She was turned down in 62 other school systems before being hired at San Rafael. She is still teaching there and is a director of the Northern California Civil Liberties Union. Is this the sort of 'teacher' we want in our school system? The Order of Elks would emphatically say, 'NO$' (P) We do not advocate thought control groups as they exist in dictatorships. We have always supported education and freedom of speech and expression . . . but nobody except a truly fuzzy-minded thinker would say we should permit this nation to be overthrown by such revolutionaries as wish to expound their communist, Godless philosophies to our young people in the very institutions which were conceived, built and operated under the system of government we are blessed to call the United States of America."

The editorial was brought to the attention of appellant who promptly wrote to The Elks Magazine pointing out "error in fact and . . . clear misunderstanding" in the editorial and requesting a retraction. Among other things appellant denied that she had ever been fired or asked to resign at Paradise and that she was ever "turned down" in any school district. The Elks published appellant's letter (deleting a paragraph in which she had stated her church affiliation and certain of her educational credentials) in a subsequent issue of The Elks Magazine, adding an editorial note which stated, among other things, that "Our review of the questioned book only causes us to reiterate our opinion."

Appellant then sued for libel.

Respondents' motion for summary judgment was based on the contention that appellant could not establish, as an essential element of her case, that the alleged libels were published with actual malice. "If the defendants' declarations in support of a motion for summary judgment establishes a complete defense to plaintiff's action or demonstrates an absence of an essential element of plaintiff's case, and the plaintiff's declaration in reply does not show that a triable issue of fact with respect to that defense or that essential element exists, no amount of factual conflicts upon other aspects of the case will affect the result and the motion for summary judgment should be granted. (Smith v. Southern Pacific Co., 222 Cal.App.2d 728, 733, 35 Cal.Rptr. 575.)" (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 338, 138 Cal.Rptr. 670, 673.) The trial court granted respondents' motion, concluding, first, that because appellant was a public figure actual malice was an essential element of her case and, second, that the record demonstrated as a matter of law that respondents had published without such actual malice. Judgment was entered for respondents and this appeal followed.

We disagree with the trial court's conclusion that appellant was a public figure and thus required to prove actual malice, and we reverse on that ground. Therefore we need not and do not consider the validity of the trial court's determination that there was no triable issue of fact with respect to actual malice.

Not every cause of action for libel requires as an essential element that actual malice be shown. In general, "Libel is a false and unprivileged publication by writing, printing, picture, effigy or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation" (Civ.Code § 45). One of the several types of Privilege which may operate to immunize the publisher of an otherwise libellous statement from liability is the qualified constitutional privilege, founded in the First Amendment and extended to state-court libel actions by the Fourteenth Amendment of the United States Constitution, to comment with relative impunity upon individuals who are "public officials" (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686) or "public figures" (Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 162, 87 S.Ct. 1975, 18 L.Ed.2d 1094). If a publication concerning a public official or a public figure would otherwise be libellous it will be actionable only if the plaintiff can establish that the publication was made with actual malice, which is to say "with knowledge that it was false or with reckless disregard of whether it was false or not" (New York Times Co. v. Sullivan, supra, 376 U.S. at 279-280, 84 S.Ct. at 726). Thus, where it appears that the libelled plaintiff was a public official or a public figure, proof of actual malice will as a practical matter be an essential element of plaintiff's case. But if the plaintiff is neither a public official nor a public figure the qualified...