Grogan v. Kokh Llc, No. 107.642

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Writing for the Court: JOHN F. FISCHER, Presiding Judge.
• Citation: 256 P.3d 1021,39 Media L. Rep. 1641,2011 OK CIV APP 34
• Decision Date: 16 March 2011
• Docket Number: No. 107.642,Released for Publication by Order of the Court of Civil Appeals of Oklahoma,Division No. 2.
• Parties: Bill GROGAN, Plaintiff/Appellant,v.KOKH, LLC, a foreign limited liability company; Andrew Spino; Jaime Cerreta; Matt Austin; Jose Delossantos; Michael Ross Stewart and Todd Walker, Defendants/Appellees.

256 P.3d 1021
39 Media L. Rep. 1641
2011 OK CIV APP 34

Bill GROGAN, Plaintiff/Appellant,
v.
KOKH, LLC, a foreign limited liability company; Andrew Spino; Jaime Cerreta; Matt Austin; Jose Delossantos; Michael Ross Stewart and Todd Walker, Defendants/Appellees.

No. 107.642

Released for Publication by Order of the Court of Civil Appeals of Oklahoma

Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

Jan. 3, 2011.Certiorari Denied Feb. 28, 2011.Approved for Publication by Order of the Supreme Court March 16, 2011.

[256 P.3d 1025]

Appeal from the District Court of Pottawatomie County, Oklahoma; Honorable Douglas L. Combs, Trial Judge.AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.Steven L. Parker, Tom T. Pruitt, Tecumseh, Oklahoma, for Plaintiff/Appellant.Jon Epstein, Robert D. Nelon, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, Oklahoma, for Defendants/Appellees.JOHN F. FISCHER, Presiding Judge.

¶ 1 Plaintiff Bill Grogan appeals the order of the district court granting the motion for summary judgment filed by KOKH, LLC, a foreign limited liability company, Andrew Spino, Jaime Cerreta, and Matt Austin (KOKH defendants). Oral Argument was conducted in this case on March 5, 2010. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S. Supp.2008, ch. 15, app. 1, and the matter stands submitted without appellate briefing. We affirm in part, reverse in part and remand for further proceedings.

BACKGROUND

¶ 2 Grogan is a teacher and former coach at Macomb High School. He alleges that he was defamed and that his privacy was invaded by a television broadcast aired by KOKH Channel 25. The broadcast concerned an incident after a basketball game in which some students became upset when a referee required the removal of a cow bell a student had been ringing. According to Grogan, a student asked him if the referee had the authority to exclude the cow bell. Grogan explained that, during the game, the referee was in charge of the gym and had complete authority to take whatever measures he considered necessary. Grogan explained it was like the authority the Deputy Sheriff standing next to them had to shoot somebody if it was necessary to stop a crime.

¶ 3 Subsequently, other students standing near Grogan reported to school officials that Grogan had threatened to shoot, or have shot, students who did not leave after the game. Some parents became upset and complained to school officials. After investigating the matter, school officials concluded that there had been a misunderstanding, and that Grogan had not intended to threaten anyone. Apparently unsatisfied, some parents contacted KOKH. A KOKH reporter investigated the incident, and a story was broadcast on February 29, 2008. After the broadcast, school officials revisited the matter and decided to reprimand Grogan for unprofessional conduct and to not renew his coaching contract.

[256 P.3d 1026]

¶ 4 Grogan sued KOKH, the three KOKH employees who participated in the broadcast, and three parents. After some initial discovery, the KOKH defendants filed a motion for summary judgment. The district court's order granting that motion is the subject of this appeal.¹

STANDARD OF REVIEW

¶ 5 Rule 13 of the Rules for District Courts of Oklahoma, 12 O.S. Supp.2008, ch. 2, app., governs the procedure for summary judgment in the district court. We review the district court's grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, we examine the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears “an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.” Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699.

¶ 6 When considering a motion for summary judgment, the evidence and the inferences to be drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50, 55. If the moving party “has not addressed all material facts, or if one or more such facts is not supported by” acceptable evidentiary material, summary judgment “is not proper.” Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court). We will reverse an order granting summary judgment where it appears from the record that material facts concerning issues raised are conflicting or, if the material facts are undisputed, that reasonable persons in the exercise of fair and impartial judgment might reach different conclusions from those facts. Buck's Sporting Goods, Inc. of Tulsa v. First Nat'l Bank & Trust Co. of Tulsa, 1994 OK 14, ¶ 11, 868 P.2d 693, 697–98. “Only if the court should conclude that there is no material fact in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.” Copeland, 2000 OK 36 at ¶ 8, 4 P.3d at 699. “Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials” before the district court “establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Davis v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924, 926; Northrip v. Montgomery Ward & Co., 1974 OK 142, ¶¶ 11–13, 529 P.2d 489, 494–95.

ANALYSIS

¶ 7 The KOKH defendants' motion for summary judgment and Grogan's response have narrowed the issues in this appeal. Grogan complains about only two aspects of the broadcast: (1) at the beginning of the broadcast a KOKH employee stated “a teacher is accused of threatening to shoot students”; and (2) the broadcast then showed Grogan's picture while a reporter stated “on the heels of terrorist threats at local schools and a shooting at NIU, some parents in Macomb are fuming. They say a teacher threatened their children and he should be punished like anyone else.” On the basis of these statements, Grogan asserts two theories of recovery. First, he contends that he never threatened to shoot students and was defamed when KOKH employees stated during the broadcast that he had done so. Second, he contends that his privacy was invaded when he was falsely portrayed as a terrorist during the broadcast.

I. Defamation

¶ 8 A plaintiff seeking to recover for defamation must prove “a false or malicious unprivileged publication by writing, printing, picture, or effigy ... which exposes [the plaintiff] to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of

[256 P.3d 1027]

public confidence, or to injure him in his occupation....” 12 O.S.2001 § 1441.² Because of the media context in which much of Grogan's claim is grounded, the summary judgment briefing in this case focused on the extent to which the KOKH broadcast was protected by constitutional principles.

¶ 9 The First Amendment to the United States Constitution establishes a foundational principle of this democracy. “Congress shall make no law ... abridging the freedom of speech, or of the press.” ³ Likewise, the Oklahoma Constitution provides vigilant protection for the right to speak. “Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” Okla. Const. art. 2, § 22. But freedom to speak is not without limitation; responsibility for the abuse of the right to speak is preserved:

Freedom of the press does not impart an absolute right to publish without responsibility whatever one may choose, or an unrestricted and unbridled license that affords immunity for every possible use of language. Recovery should be allowed for the abuse of such freedom. Libel is one such abuse. Invasion of privacy is another.McCormack v. Oklahoma Publ'g Co., 1980 OK 98, ¶ 17, 613 P.2d 737, 741.

¶ 10 The parties seem to be in essential agreement as to the law applied by the district court. Grogan is a public figure. See Johnston v. Corinthian Television Corp., 1978 OK 88, ¶ 5, 583 P.2d 1101, 1102–03. Consequently, the KOKH defendants are not liable for any false statement made during the broadcast unless Grogan can prove “actual malice” on the part of those defendants. See New York Times Co. v. Sullivan, 376 U.S. at 279, 84 S.Ct. at 726.

Before a public official ... may recover for defamation he must show: (1) The publication of a defamatory statement, (2) that was false, and (3) was made with ‘actual malice,’ that is with knowledge that it was false or was made with reckless disregard of whether or not it was false.... [I]n St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the court amplified the definition of ‘reckless disregard’ to include a requirement that the statement was made, although the publisher ‘entertained serious doubts' concerning its truthfulness.

Hart v. Blalock, 1997 OK 8, ¶ 9, 932 P.2d 1124, 1126 (citations omitted).

¶ 11 The material facts regarding Grogan's defamation theory of recovery are not in dispute. KOKH reported that parents had accused Grogan of threatening to shoot students. That statement is true. In fact, part of the broadcast replayed interviews with parents in which they made that claim. Whether Grogan did or did not threaten to shoot students is immaterial. Parents accused him of doing so and KOKH reported that fact. A defendant in a libel action may, “[a]s a defense thereto ... prove that the matter charged as defamatory was true....” 12 O.S.2001 § 1444.1. “The general rule is that the ‘truth of the communication is a complete defense to a civil action for libel.’ ” Oklahoma Publ'g Co. v....