Johnson v. Nickerson

Decision Date17 January 1996
Docket NumberNo. 93-1703,93-1703
PartiesAyrlahn H. JOHNSON, Appellant, v. Don C. NICKERSON, Paul H. Rosenberg and The Des Moines Register and Tribune Company, Appellees.
CourtIowa Supreme Court

Ayrlahn H. Johnson, Savage, Minnesota, pro se.

Randy Duncan and Scott Duncan of Duncan, Green, Brown, Langeness & Eckley, Des Moines, for appellees Don C. Nickerson and Paul H. Rosenberg.

Kasey W. Kincaid and Michael A. Giudicessi of Faegre & Benson, Des Moines, for appellee Des Moines Register and Tribune Co.


HARRIS, Justice.

This tort suit was brought by a former jury foreman against a criminal defendant's counsel for their conduct in filing posttrial motions and against a newspaper for publishing a story concerning the attorneys' efforts. The trial court granted summary judgment in favor of the newspaper. A jury found in favor of defendant lawyers. We affirm.

John Albert Knox Jr., an African-American man, was accused of raping and murdering a Caucasian woman in 1987. We affirmed Knox's murder conviction. State v. Knox, 464 N.W.2d 445 (Iowa 1990). Knox's attorneys, Donald Nickerson and Paul Rosenberg, because of the racial overtones in the State's case, were concerned about whether Knox could receive a fair trial. With the court's permission they accordingly conducted extensive voir dire interviews in chambers during which they explored racial biases of potential jurors, including the plaintiff in the present case. Johnson was selected to serve as foreman of the jury.

Following Knox's conviction Nickerson and Rosenberg received disturbing information. A concerned citizen, alerted by television interviews with Johnson concerning the verdict, called Nickerson and Rosenberg. The citizen stated that on several occasions Johnson had solicited him to join "Posse Comitatus," described in the record as a white supremacist group. The citizen said Johnson had made derogatory comments about blacks and Jews in his presence and advocated the violent overthrow of the government.

Nickerson and Rosenberg promptly hired a private investigator to look into the matter. In order to begin the investigation the investigator requested Johnson's social security number and date of birth. Nickerson and Rosenberg solicited this information from the Polk County jury clerk.

The clerk provided the attorneys with a computer printout listing of the jurors' names, addresses, and a column of numbers labeled "SSN," an indication of social security numbers. When Nickerson and Rosenberg provided the investigator with the number listed for Johnson in this column, the investigator told them the digit was not a social security number. This led Nickerson and Rosenberg to conclude Johnson had used a false social security number when he registered for jury duty. The number was actually a juror number assigned to Johnson after he was selected for jury duty from voter registration records.

Based on this information 1 Nickerson and Rosenberg filed a motion for a new trial on January 4, 1989, alleging juror misconduct. On the same day the motion was filed, the defendant newspaper Des Moines Register, published an article detailing the motion, the allegations made against Johnson, and his denial. 2 A second article was published on January 26, 1989, recounting the story. The motion for a new trial was ultimately denied. Johnson thereafter filed this defamation and libel suit against Nickerson, Rosenberg, and the Des Moines Register.

Johnson and the Des Moines Register filed cross-motions for summary judgment. The court found the allegations of the petition constituted a matter of public concern so that a showing of actual malice was necessary for entitlement to punitive damages. The court then concluded, because the record did not demonstrate actual malice on the part of the Des Moines Register, Johnson was not entitled to punitive damages. The court went on to find that Johnson failed to produce the requisite evidence necessary to support his claim for actual damages, maintaining he could not simply rest on his original pleadings which stated he suffered an injured reputation and earning capacity. Summary judgment was therefore granted in favor of the Des Moines Register.

The case against Nickerson and Rosenberg proceeded to trial. Johnson dismissed all defamation counts based on allegations that he held racist beliefs, maintaining only the libel count grounded in the "false" social security number. The district court allowed the defense to present evidence of Johnson's racist attitudes, finding it relevant to the issues of malice and damages. This evidence included a sworn statement by a witness who died prior to trial (that was read into evidence), and testimony in an effort to show that Johnson's actions were consistent with those of someone who subscribes to white supremacist philosophies.

The jury reached a verdict in favor of defendants Nickerson and Rosenberg. Johnson appeals both the dismissal of his suit against the newspaper and from the adverse judgment based on the jury verdict.

I. The scope of our review on Johnson's appeal from the grant of summary judgment in favor of the defendant newspaper is on error. Iowa R.App.P. 4; Lihs v. Lihs, 504 N.W.2d 890, 892 (Iowa 1993). Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R.Civ.P. 237(c); Lihs, 504 N.W.2d at 892. Our task is to determine whether a genuine issue of fact exists and whether the law was correctly applied. Lihs, 504 N.W.2d at 892.

Defamation is an invasion of the interest in reputation and good name. It consists of a complex set of rules developed over a period of centuries in the common-law courts of England and later refined in the state court systems of America. See Note, Iowa Libel Law and the First Amendment: Defamation Displaced, 62 Iowa L.Rev. 1067, 1068 (1977). Defamation is made up of the twin torts of libel and slander--the former being written and the latter being oral. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111, at 771 (5th ed. 1984). Of particular concern here, libel has been defined as the "malicious publication, expressed either in printing or in writing, or by signs or pictures, tending to injure the reputation of another person or to expose [that person] to public hatred, contempt, or ridicule or to injure [the person] in the maintenance of [a] business." Plendl v. Beuttler, 253 Iowa 259, 262, 111 N.W.2d 669, 670-71 (1961). Thus to establish a prima facie case of libel the plaintiff must show the defendant (1) published a statement that (2) was defamatory (3) of and concerning the plaintiff, and (4) resulted in injury to the plaintiff. Under the traditional rule, malice is not an element of libel and will be presumed from the publication unless privilege is pleaded. 62 Iowa L.Rev. at 1068 n. 10.

There are traditionally two types of libel: libel per se and libel per quod. A statement is libelous per se if it has "a natural tendency to provoke the plaintiff to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse." Prewitt v. Wilson, 128 Iowa 198, 202, 103 N.W. 365, 367 (1905). A statement is libelous per quod if it is necessary to refer to facts or circumstances beyond the words actually used to establish the defamation. 50 Am.Jur.2d Libel and Slander § 146 (1995). If a statement is libelous per quod, the plaintiff is required to prove damages. Id. On the other hand, all the elements of proof are presumed to exist for statements that are libelous per se (based on the very nature of the language used). Vojak v. Jensen, 161 N.W.2d 100, 104 (Iowa 1968); Kluender v. Semann, 203 Iowa 68, 70, 212 N.W. 326, 327 (1927).

A series of United States Supreme Court decisions has reshaped the law of defamation as it relates to suits against the news media. Beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the court for the first time afforded first amendment protection to defamation concerning the official conduct of a public official. The court held a public official may not recover damages for a defamatory falsehood relating to his or her official conduct without first proving the statement was made with actual malice. 376 U.S. at 279, 84 S.Ct. at 725-26, 11 L.Ed.2d at 706. Actual malice was defined as knowledge or reckless disregard of whether a statement was false. Id. On the heels of New York Times, a plurality of the court extended actual malice protection to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 43-44, 91 S.Ct. 1811, 1819, 29 L.Ed.2d 296, 312 (1971) (plurality).

The court retreated, however, from the Rosenbloom standard in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Instead the court prescribed two levels of protection. Speech concerning public officials and public figures was still protected by the actual malice requirement. For speech concerning private parties, however, the states were free to interpret their own law and apply any level of protection below strict liability. Id. at 346-47, 94 S.Ct. at 3010, 41 L.Ed.2d at 809. Actual damages can no longer be recovered against a media defendant under a strict liability standard. Hence, in cases against a media defendant, the distinction between libel and libel per se has become irrelevant. Id. at 347 n. 10, 94 S.Ct. at 3010 n. 10, 41 L.Ed.2d at 809 n. 10.

We had occasion to determine the standard of proof for a private figure plaintiff seeking damages for libel from a media defendant in Jones v. Palmer Communications, Inc., 440 N.W.2d 884 (Iowa 1989). We held a private plaintif...

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