Holden v. Pioneer Broadcasting Co.

• Decision Date: 18 October 1961
• Parties: Lucille HOLDEN, Appellant, v. PIONEER BROADCASTING COMPANY, a corporation, Richard Ross and Ivan Smith, Respondents.
• Court: Oregon Supreme Court

Page 845

365 P.2d 845

228 Or. 405

Lucille HOLDEN, Appellant, v. PIONEER BROADCASTING COMPANY, a corporation, Richard Ross and Ivan Smith, Respondents.

Supreme Court of Oregon.

Argued and Submitted March 15, 1961.

Reargued and Submitted Sept. 6, 1961.

Decided Oct. 18, 1961.

Philip A. Levin, Portland, argued the cause for appellant. With him on the brief were Rader & Kitson, Portland, and Peterson & Lent, Portland.

James H. Clarke, Portland, argued the cause for respondents. With him on the brief were Koerner, Young, McColloch & Dezendorf and Wayne Hilliard, Portland.

Before ROSSMAN, J. P., and WARNER, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.

O'CONNELL, Justice.

This is an action to recover damages for an alleged libelous statement made by defendants during a television broadcast. The defendant company is the owner of the television station; the individual defendants are the news director and announcer respectively.

The complaint alleges '[t]hat on or about the 30th day of January, 1959, on a certain news broadcast over said television station, Defendants, and each of them, did broadcast and publish a certain photograph of said restaurant operated by Plaintiff and accompanied by words uttered and published by the Grand Jury * * * for the County of Multnomah * * *.' The grand jury report referred to a 'deplorable situation' involving runaway girls who, it was reported, were being given aid and assistance by the operators of plaintiff's restaurant and that 'these girls soon find themselves engaged in prostitution and similar vices.' The complaint further alleges that these utterances were false and libelous and that they were made 'willfully, maliciously and wrongfully.' Special, general and punitive damages were alleged in the complaint. Defendants moved to strike the allegations of general and punitive damages on the ground that the complaint did not allege that defendants intended to defame plaintiff, or that defendants refused to publish a requested retraction of a non-intentional libel, the pleading and proof of which are conditions precedent to recovery of such damages under ORS 30.155 to 30.175. The trial court granted defendants' motion and, plaintiff failing to plead further, judgment was entered for defendants, from which plaintiff appeals.

The statutes material to this appeal are as follows:

'ORS 30.155 Damages recoverable for defamation by radio, television, motion pictures, newspaper or printed periodical. Except as provided in ORS 30.160, in an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff may recover any general and special damages which, by competent evidence, he can prove to have suffered as a direct and proximate result of the publication of the defamatory statement.'

'ORS 30.160 When general damages allowed. (1) In an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff shall not recover general damages unless:

'(a) A correction or retraction is demanded but not published as provided in ORS 30.165; or

'(b) The plaintiff proves by a preponderance of the evidence that the defendant actually intended to defame the plaintiff.

'(2) Where the plaintiff is entitled to recover general damages, the publication of a correction or retraction may be considered in mitigation of damages.'

'ORS 30.165 Publication of correction or retraction upon demand. (1) The demand for correction or retraction shall be in writing, signed by the defamed person or his attorney and be delivered to the publisher of the defamatory statement, either personally or by registered mail at the publisher's place of business or residence within 20 days after the defamed person receives actual knowledge of the defamatory statement. The demand shall specify which statements are false and defamatory and request that they be corrected or retracted. The demand may also refer to the sources from which the true facts may be ascertained with accuracy.

'(2) The publisher of the defamatory statement shall have not more than two weeks after receipt of the demand for correction or retraction in which to investigate the demand; and, after making such investigation, he shall publish the correction or retraction in:

'(a) The first issue thereafter published, in the case of newspapers, magazines or other printed periodicals.

'(b) The first broadcast or telecast thereafter made, in the case of radio or television stations.

'(c) The first public exhibition thereafter made, in the case of motion picture theatres.

'(3) The correction or retraction shall consist of a statement by the publisher substantially to the effect that the defamatory statements previously made are not factually supported and that the publisher regrets the original publication thereof.

'(4) The correction or retraction shall be published in substantially as conspicuous a manner as the defamatory statement.'

We construe ORS 30.155-30.175 as requiring plaintiff to plead and prove, as a condition precedent to recovery, defendants' intent to defame or, in the absence of such intent, the failure to retract upon demand. Hall v. Kelly, 1940, 61 Ga.App. 694, 7 S.E.2d 290; Frye, Libel and Slander--Damages--Constitutionality of Statute Limiting Recovery of General Damages in Libel Actions, 36 Or.L.Rev. 70, 77 (1956). Cf. Oregon Liquor Control Comm. v. Anderson Food Markets, Inc., 1939, 160 Or. 646, 87 P.2d 206; Smith v. Laflar, 1931, 137 Or. 230, 2 P.2d 18; Annotation, 130 A.L.R. 440 (1941). We also construe the statute to be applicable to actions brought against the individual agents and employees of the owner or operator of the designated types of news media, if the defamatory publication is made in the course of the employment. Pridonoff v. Balokovich, 1951, 36 Cal.2d 788, 228 P.2d 6.

Plaintiff contends that the foregoing statutes, in purporting to eliminate the right of a defamed person to recover general damages for an inadvertent libel when a retraction is made, are unconstitutional under Article I, §§ 8, 10, and 20 of the Oregon Constitution, ¹ and under the due process and equal protection clauses of the fourteenth amendment to the federal constitution.

The constitutionality of statutes of a similar nature has been passed upon in other states. In a majority of the cases in which the question has been raised the courts have held, or stated in dicta, that the denial of the remedy of general damages for defamation is unconstitutional. The contrary view is taken in Allen v. Pioneer Press Co., 1889, 40 Minn. 117, 41 N.W. 936, 3 L.R.A. 532 and Werner v. Southern California Associated Newspapers, 1950, 35 Cal.2d 121, 216 P.2d 825, 13 A.L.R.2d 277, appeal dismissed 1951, 340 U.S. 910, 71 S.Ct. 290, 95 L.Ed. 657. The cases are collected in 13 A.L.R.2d 277.

The retraction statutes in the several states vary in the extent to which they remove the defamed person's remedy, ² but the constitutional attack upon these statutes has been essentially the same as that urged by plaintiff in the case at bar, it being contended that the denial of a remedy by way of general damages is repugnant to the due process and equal protection clauses of the fourteenth amendment and repugnant to the sections of the state constitutions declaring that persons abusing the right of freedom of expression shall be responsible (e. g., Art. I, § 8, Oregon Constitution) and repugnant to the sections guaranteeing a remedy for defamation (e. g., Art. I, § 10, Oregon Constitution).

Plaintiff's central point of attack is based upon the guarantee in Art. I, § 10, Oregon Constitution, that 'every man shall have remedy by due course of law for injury done him in his person, property, or reputation.' It is contended that retraction is not a substitute for the remedy of general damages and that, therefore, the constitution is violated. This and the other constitutional objections raised by plaintiff are carefully analyzed in two excellent opinions; one by Mr. Justice Traynor in Werner v. Southern California Associated Newspapers, supra, and the other by Mr. Justice Mitchell in Allen v. Pioneer Press Co., supra. Although the statutes and constitutional provisions dealt with in the Werner and Allen cases are not precisely the same as ours, the basic constitutional problems presented are the same. ³ We agree with the courts' analysis in these cases and adopt it as dispositive of the case at bar.

It is not necessary to repeat what was there expressed. In the Werner case the court held that the enactment of the California retraction statute (Civil Code, § 48a) was the result of a legislative determination and choice based upon the resolution of considerations of certain matters of policy which were within the province of the legislature. The statutory scheme enacted in ORS 30.160-30.170 is the result of similar considerations. Unless it is clear that the legislature exceeded the constitutional bounds within which it has the power to exercise its policy making functions we must hold this legislative choice to be valid.

Were we to hold that the legislature cannot constitutionally modify the remedies available to a person who contends that he has been defamed we would, in effect, freeze the law of defamation in the form in which it existed at the time our constitution was adopted. And, logically, such a holding would congeal the remedies for all actions, whether arising out of the law of defamation or any other area of the law. The effect would be to preclude the legislature from modifying the fault principle in tort law, at least to the extent that it would affect the remedy of a plaintiff. Thus, the legislature would be powerless to effect a change in the law were it to decide that the interests of the state would be better served if...