From v. Tallahassee Democrat, Inc.

• Citation: 400 So.2d 52
• Decision Date: 28 May 1981
• Docket Number: No. VV-379,VV-379
• Parties: 7 Media L. Rep. 1811 Shaw FROM, Appellant, v. TALLAHASSEE DEMOCRAT, INC., and Knight-Ridder Newspapers, Inc., Appellees.
• Court: Court of Appeal of Florida (US)

Page 52

400 So.2d 52

7 Media L. Rep. 1811

Shaw FROM, Appellant, v. TALLAHASSEE DEMOCRAT, INC., and Knight-Ridder Newspapers, Inc., Appellees.

No. VV-379.

District Court of Appeal of Florida, First District.

May 28, 1981.

Rehearing Denied July 13, 1981.

Jean Laramore, of Oertel & Laramore, Tallahassee, for appellant.

C. Gary Williams, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellees.

LILES, WOODIE A. (Retired), Associate Judge.

Jim Durham wrote a tennis column in the August 9, 1976, issue of the Tallahassee Democrat, which is owned by Knight-Ridder Newspapers, Inc. The article, which is set forth as follows in its entirety, concerned the tennis pro at the Winewood Country Club, Shaw From:

Winewood's pro comes a winner

Winewood Country Club's tennis program took a prestige leap Tuesday when Juan Ortiz signed a contract, replacing head pro Shaw From as of Sept. 1.

Ortiz came to Florida State University his freshman year as Puerto Rico's men's champ and fit right in at No. 2 or 3 behind Ricardo Bernd. His last year ('74), the wiry flash dropped to positions 4 and 5 due to a back injury, but started showing old form last October when he defeated Ray Bellamy for the TTA Top 16 title at Killearn.

Not only does Ortiz own the best playing credentials in town at present, but he also has a large and loyal junior following. His instructing popularity mushroomed during his six-month interim stint at Forestmeadows and now he has enlisted the majority of tourney-potential youngsters for his private lesson stable.

Winewood Corporation's Bill Cartee evidently liked the new pro's "customer is always right" philosophy, ingrained from a hotel and restaurant management background at FSU. A winning personality cinched it, but Oritz (sic) would do well not to hot (sic) all the shots in any future mixed doubles tournaments as he did at Killearn earlier this summer not (sic) matter the stakes. Ordinarily he makes all the right moves while still scratching a living.

As a teacher of tennis, Ortiz knows his members come first. He also realizes he has taken his own fine game about as far as it's going to go. Keeping in shape and a reputation up are his motives for playing these days. His predecessor Shaw From, however, has an improving player's grand illusions, which contributed to his problems as a pro.

From, who knows tennis equipment well, did not fully understand his members' needs. Perhaps time to reflect will help him decide whether he wants to devote his efforts to becoming the best player he can be or the best pro.

The descending pro has contributed a lot of time to junior development in behalf of the Tallahassee Tennis Association (although, until it is truly organized that's like spinning wheels). His interests seem to be more in line with the kind of junior boom we can expect when Tom Brown Park's facility is christened hopefully next spring.

If he stays around, From will be a candidate for the park's tennis directorship, but so will the highly capable and tournament-tested Stu Bruner. Ortiz had one foot in the door, too, by heading the successful Parks and Recreation Department summer tennis. It will be interesting to see if a scrap develops for that job.

Meanwhile, Winewood ought to appreciate their new pro and vice-versa, for both have scored a coup. And the club might get two pros for the price of one if '76 Seminole Enrique Andrade of Ecuador returns from a three-week job as instructor at Alex Mayer's (Sandy's father) Camp in New Jersey to be Ortiz' assistant.

Mr. From thought the article to be libelous, and his attorneys sued the Tallahassee Democrat together with Knight-Ridder Newspapers, Inc. Ruling that From was a public figure, that the article was not libelous per se, and that the statements in the article were opinions and not false statements of fact, the trial court entered an order dismissing the suit with prejudice. In From's appeal he assigns as error this ruling which necessitates this Court's examining that ruling in the context of the Florida law as well as numberous federal cases. We believe the court incorrectly characterized From as a public figure. The record reflects that From was known only by the membership of the Winewood Country Club who participated in the tennis program together with people who travelled in those circles. This could hardly meet the test in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and their progeny.

The article was certainly not libelous per se but does fall within the definition of opinions as opposed to false statements of fact.

Historically, publishers were strictly liable for publication of defamatory statements unless they could prove that the statements were either true or privileged. Mashburn v. Collin, 355 So.2d 879 (La.1977). Further, the common law defense of truth was sufficient. However, in 1964, the United States Supreme Court in New York Times v. Sullivan, supra, struck down that defense on the basis that truth standing alone was insufficient to protect freedom of expression and erected a constitutional privilege of fair comment respecting public officials. The Court held that guarantees afforded by the First Amendment prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not.

One of the privileges established by common law was that of "fair comment". This qualified privilege allowed a publisher to express an opinion or otherwise comment on matters of public interest. The common law evolved to offer qualified privileges to persons, institutions or groups who voluntarily injected themselves into the public scene in activities affecting a community's welfare, such as public officials, political candidates, community leaders, and persons taking a public position on a matter of public concern, as well as those offering their creations for public approval such as artists, performers and athletes. Mashburn, supra; Restatement of Torts 2d, § 566 (1977). The majority view held that only "comment" or "opinion" was protected and not misstatements of fact. Mashburn, supra; W. Prosser, Torts, § 188, p. 819 (4th Ed. 1971). This privilege, however, is lost when an opinion is published with malice showing either a bad faith or a bad motive. See Herman v. Labor Co-Op Educational & Publishing Society, 139 F.Supp. 35 (D.D.C.1956). The minority view held that even false statements of fact were privileged if they were made for the public benefit with an honest belief in their truth. Harper and James, The Law of Torts, § 5.28 (1956).

In New York Times, the United States Supreme Court elevated the minority view to constitutional status and limited its use to criticism of public officials. Three years later, a majority of the Court agreed to extend this constitutional privilege to defamatory criticism of "public figures". Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

The standard then to be applied became that of "actual malice" which was defined as "knowledge that the statement was false or ... reckless disregard of whether it was false or not." New York Times, supra; Walker, supra. The U. S. Supreme Court in St. Amant v. Thompson, 390 U.S. 727, 730-731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968), defined reckless disregard as:

"Reckless disregard" ... cannot be fully encompassed in one infallible definition... The cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.

In Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the Supreme Court extended the actual malice standard when it said "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." However, shortly thereafter in Gertz v. Robert Welch, Inc., supra, this privilege was drastically revised and a two-pronged test was pronounced for determining whether a person was a public figure and therefore subject to actual malice standard when it said:

In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. 418 U.S. 351, 94 S.Ct. 2997, 41 L.Ed.2d 312.

It therefore becomes apparent that From is not a public figure for the purposes set forth in New York Times and Walker. Appellees urge that he was a public figure under Gertz. It can be seen from the article, which is a part of the complaint, that From was a tennis pro for the Winewood Country Club. He worked diligently to obtain publicity for himself and for the program. He organized a city-wide mixed doubles tournament and worked with the Winewood ladies' team and junior team in order to obtain publicity. At times he contributed financially to purchasing television ads. The Club itself advertised From and his picture and name were prominently featured in various ads. Accordingly, we look "to the nature and extent of his participation in the particular controversy giving rise to the defamation." Id., at 418 U.S. 352, 94 S.Ct. 2997, 41 L.Ed.2d 812. The record does not reveal that From ever attempted to discuss the situation described in the article with Jim Durham or any...