Gibson v. Maloney

Decision Date28 January 1970
Docket NumberNo. 37914,37914
PartiesB. Roy GIBSON, Jr., and St. Joseph Telephone and Telegraph Company, a corporation under the Laws of Florida, Petitioners, v. Joseph A. MALONEY, d/b/a the Apalachicola Times, Respondent.
CourtFlorida Supreme Court

Ford L. Thompson, of Thompson & Wadsworth, Tallahassee, and Charles S. Isler, Jr., of Isler, Welch, Bryant, Smith & Higby, Panama City, for petitioners.

J. Ben Watkins, of Truett & Watkins, Miami, for respondent.

ADKINS, Justice.

This cause is before the Court for review on conflict certiorari of the decision of the District Court of Appeal, First District, reported in Gibson v. Maloney, Fla.App., 214 So.2d 89 It is conflict of Decisions, not conflict of Opinions or reasons that supplies jurisdiction for review by certiorari. Fla.Const., Art. V, § 4(2), F.S.A. When comparing decisions it may be necessary to consult the record to some extent. Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965).

The record clearly shows that appellees acquired a small weekly newspaper in Apalachicola, Florida, and immediately started a news and editorial campaign against the Alfred I. duPont interests and its affiliates, St. Joe Paper Company and St. Joseph Telephone and Telegraph Company. Samples of the publications in the record demonstrate an attempt to harass and abuse the duPont interests, apparently for the purpose of convincing the public that these interests were some sort of evil influence in the community of Apalachicola and that it would therefore not be a good place to live and do business.

At a meeting of the Rotary Club in Port St. Joe, located a short distance from Apalachicola, one Gibson, President of St. Joseph Telephone and Telegraph Company, addressed the Rotary Club commenting generally on development of the area, and in his remarks said:

'Now, I shall take Apalachicola: Our exchange there in the year 1964 lost 74 telephones--only exchange that we have that showed any loss in telephones--and, in my opinion, this loss can be attributed largely to the local newspaper in Apalachicola and its publisher, who seems to take pleasure in berating and abusing any business interest in his community, including the larger taxpayers in this County; and, in my opinion, frequently, in referring to the Alfred I. duPont Estate and its various interests, not only vents his displeasure, venom, and, in some instances, outright falsehoods--this in spite of the fact that the interests of the Alfred I. duPont Estate are one of the largest taxpayers in the County.

'In closing, I shall simply say that I think we in Port St. Joe, and in all of the communities where the St. Joseph Telephone & Telegraph Company furnishes telephone services--with the exception of Apalachicola--are fortunate in having newspapers, in their communities, or near them, that welcome and invite business and industry. Business and industry do not go where they are unwanted and vilified, but where they are wanted and invited.'

Subsequently, Maloney, as a publisher and editor of the Apalachicola Times, the only newspaper published in the County, filed suit against Gibson and St. Joseph Telephone and Telegraph Company for slander and libel, and at conclusion of a trial Maloney was awarded damages in the amount of $15,000.00 against defendants, which award was affirmed by the District Court of Appeal, First District, the decision appearing as Gibson v. Apalachicola Times, 214 So.2d 89. During the course of the trial defendants requested certain charges anchored to the decision of the Supreme Court of the United States in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, defining the limitations and requirements for recovery against public figures. The charges were refused by the trial court.

There can be little doubt that Maloney entered the area and established the anti-duPont editorial policy of his Apalachicola Times, for the purpose of arousing public indignation against these interests, and by virtue of that made himself a public figure engaged in a public enterprise and for the purpose, among other things, of influencing public opinion. He became a part of the passing scene and therefore subject to fair comment. The case is clearly controlled, and a reversal called for, by the decision of this court in Abrams v. Odham, 89 So.2d 334 (Fla.1956). In that case Abrams had entered the publishing business much as Maloney did, for the purpose, among other things, of influencing opinion to his will by the publishing of a so-called political poll with limited circulation. After his poll had down-graded candidate Odham, Odham struck back by calling Abrams a 'phoney pollster', as a result of which Abrams sued Odham and a newspaper publishing his remarks. In disposing of that case this Court said:

'We agree with the trial judge that in these circumstances the remarks of the defendant Odham, even though defamatory, were qualifiedly privileged, for which There is no liability in the absence of express malice. The plaintiff injected himself into the 1954 gubernatorial campaign and made derogatory remarks respecting the defendant Odham's candidacy. The defendant Odham had an interest in defending and a right to defend his candidacy, and his remarks in rebuttal to those of the plaintiff were directed to persons having a corresponding interest, right, or duty, and were made upon an occasion to properly serve such right, interest or duty, within the rule stated in Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 10 L.R.A.,N.S. 1051, as to qualifiedly privileged communications. * * * (Emphasis added.)

'It should first be noted that in cases of qualified privilege, 'the presumption which attends cases not so privileged of malice from the publication of libelous language does not prevail. The burden of proof is changed, and, in order for the plaintiff to recover he is called upon affirmatively and expressly to show malice in the publisher.' Coogler v. Rhodes, 38 Fla. 240, 21 So. 109, 112. If the uncontroverted facts are equally consistent with either the existence or nonexistence of malice, there can be no recovery, for 'there is nothing to rebut the presumption which has arisen in favor of the defendant from the privileged publication.' Myers v. Hodges, 53 Fla. 197, 44 So. 357, 365. Evidence of malice may be either intrinsic, that is, inferable from the very nature of the defamatory language itself, or extrinsic. Myers v. Hodges, supra, 53 Fla. 197, 44 So. 357. But while malice may be inferred from the nature of the communication itself, it cannot be inferred from the mere fact that the statements are untrue. Coogler v. Rhodes, supra, 38 Fla. 240, 21 So. 109.'

Actually, we need go no further to reverse the case sub judice than the Abrams case. However, this Court in Jacova v. Southern Radio and Television Company, Fla., 83 So.2d 34, in denying a claim by Jacova who had made himself an actor in a newsworthy event, said:

'* * * Or, as stated by some courts, 'Where one, whether willingly or not, becomes an actor in an occurrence of public or general interest, he emerges from his seclusion, and it is not an invasion of his 'right of privacy' to publish his photograph with an account of such occurrence.' Metter v. Los Angeles Examiner, 1939, 35 Cal.App.2d 304, 95 P.2d 491. Accord: Jones v. Herald Post Co., 1929, 230 Ky. 227, 18 S.W.2d 972; Berg v. Minneapolis Star & Tribune Co., D.C.Minn.1948, 79 F.Supp. 957.'

In New York Times Company v. Sullivan, Supra, the Supreme Court of the United States said:

'The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498. 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.' Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117. '(I)t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions.' Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 197, 86 L.Ed. 192 and this opportunity is to be afforded for 'vigorous advocacy' no less than 'abstract discussion.' N.A.A.C.P. v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405.

'The First Amendment, said Judge Learned Hand, 'presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.' United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943).

'Thus we consider this case against the background of 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. See Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131; De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278.'

What the public knows generally the courts are presumed to know, and we therefore are aware that the underlying policy of Rotary Clubs is to support the normal growth of their respective communities. It was therefore fitting and proper that at such a public meeting the failure of a segment of the community to grow and the apparent reason for it not growing should be freely discussed. Therefore, under the command of the Abrams, Jocova and Sullivan case...

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