Keohane v. Stewart

• Decision Date: 11 July 1994
• Docket Number: No. 93SC382,93SC382
• Citation: 882 P.2d 1293
• Parties: 22 Media L. Rep. 2545, 54 A.L.R.5th 835 Paul J. KEOHANE, Petitioner/Cross-Respondent, v. Stephen STEWART, Cross-Petitioner, and Grover K. Wilkerson and Terri Campbell, Respondents.
• Court: Colorado Supreme Court

Page 1293

882 P.2d 1293

22 Media L. Rep. 2545, 54 A.L.R.5th 835

Paul J. KEOHANE, Petitioner/Cross-Respondent, v. Stephen STEWART, Cross-Petitioner and Grover K. Wilkerson and Terri Campbell, Respondents.

No. 93SC382.

Supreme Court of Colorado En Banc.

July 11, 1994.

Rehearing Denied Sept. 6, 1994.

Paul J. Keohane, pro se.

Holland & Hart, A. Bruce Jones, Alan N. Stern, Stephanie D. Welsh, American Civil Liberties Union, David H. Miller, Denver, for cross-petitioner and respondents.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari to review Keohane v. Wilkerson, 859 P.2d 291 (Colo.App.1993), in which the court of appeals held that the plaintiff's defamation claim against a newspaper and the author of two articles was not actionable but that the defamation claim against Stephen Stewart, a city councilman, was actionable. The court of appeals also held that there was sufficient evidence in the record to support an award of damages against Stewart. We affirm the court of appeals.

I

Dr. Michael Gallagher was charged with sexually assaulting an anesthetized sixteen-year-old female patient at St. Thomas More Hospital on October 15, 1987. According to the allegations, anesthesiologist Dr. Gallagher masturbated and ejaculated into the patient's mouth during surgery. According to the Canon City Daily Record and other regional newspapers, evidence suggested that Gallagher was guilty of sexual assault. For example, the papers reported: Gallagher destroyed his scrub suit before the crime was reported to the police; DNA testing revealed that the chances were one in 4.7 billion that someone other than Gallagher committed the assault; and Gallagher revealed his actions to another doctor and asked him not to disclose the crime.

After criminal charges were filed against Dr. Gallagher, the case was assigned to Judge Paul J. Keohane, a district court judge in the 11th Judicial District. Dr. Gallagher waived a jury and opted for trial to the court. Judge Keohane had represented St. Thomas More Hospital from 1965-1980, but did not recuse himself. He did, however, disqualify a deputy district attorney whose wife was a hospital employee. After the prospect arose that Judge Keohane might not be able to preside over the case due to an injury that required surgery, Dr. Gallagher requested a continuance. Judge Keohane was, however, able to preside over the case shortly after his surgery. The Canon City Daily Record and other newspapers published these factual and procedural details regarding Judge Keohane's decisions to remain the judge presiding over Dr. Gallagher's trial.

After Dr. Gallagher's trial began, Dwight Jurgens, a reporter for the Canon City Daily Record, heard Canon City Councilman Stephen Stewart comment: "That's the best judge money can buy." Jurgens subsequently published an article about the Gallagher trial which included Stewart's remark.

On November 3, 1987, Judge Keohane found Dr. Gallagher not guilty by reason of impaired mental condition and ordered Dr. Gallagher to report to a state mental institution. Judge Keohane did not impose a prison sentence. There was widespread outrage among the citizens of Canon City about the outcome of the Gallagher trial.

After the verdict in the Gallagher trial was announced, Stewart approached Jurgens and asked him: "What do you think, was [Judge Keohane] paid off in drugs or money?" and "Do you think he was paid off in cash or cocaine?" These remarks were not published in the newspaper.

On November 8, 1988, the day of Judge Keohane's retention election, two letters written by Terri Campbell, a retiree and resident of Canon City, appeared under assumed names in the Fremont Observer, a local weekly newspaper. The letters did not refer to Judge Keohane by name, but did refer to collusion and pay-offs between judges and doctors. ¹ A few days after the trial was completed, Judge Keohane appeared on the ballot and before the electorate for retention. The citizens of the 11th Judicial District voted not to retain Judge Keohane in office.

After the loss of his retention election, Keohane filed a defamation action against thirteen defendants including Stewart, ^{2 2} Campbell, and Grover Wilkerson, the editor of the Fremont Observer. At the conclusion of the trial, only the claims against Stewart, Campbell, and Wilkerson were submitted to the jury. The trial court instructed the jury that Stewart's statements constituted slander per se. With respect to Campbell's letters, the court instructed the jury as to libel per quod. ³ The jury returned verdicts in favor of Judge Keohane, awarding him $15,000 in compensatory damages and $5,000 in punitive damages against Stewart, $25,000 in compensatory damages and; $1,000 in punitive damages against Campbell; and $25,000 in compensatory damages and $2,500 in punitive damages against Wilkerson. The punitive damages award against Stewart was subsequently reduced to $2,500 by the trial court.

On appeal, the court of appeals concluded that the letters written by Campbell and published by Wilkerson were constitutionally protected and thus not actionable in a defamation action. It also concluded that Stewart's remarks were not constitutionally protected because "a reasonable person could conclude that Stewart was implicitly asserting as actual fact that Judge Keohane had accepted a bribe based upon undisclosed facts known to him as a city councilman." Keohane, 859 P.2d at 291. ⁴ The court of appeals also held that the evidence was sufficient to permit the jury to conclude that Judge Keohane suffered actual damages as a result of Stewart's comments to Jurgens.

II

The respondents assert that their respective statements are not actionable because they are constitutionally protected under the First Amendment to the United States Constitution and article II, section 10 of the Colorado Constitution. Therefore, we first consider the standards for determining the actionability of a defamation claim.

In Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo.1983), this court set forth the standard for determining the actionability of a defamation claim. The Burns standard was subsequently fortified by Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), which eliminated the arbitrary distinction between statements of fact and statements of opinion. The respondents assert that because their communications are statements of opinion, they are constitutionally protected speech. We are not persuaded.

Defamation is a communication that holds an individual up to contempt or ridicule thereby causing him to incur injury or damage. ⁵ See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111, at 771-85 (5th ed. 1984). At common law, the tort of defamation existed to redress and compensate individuals who suffered serious harm to their reputations due to the careless or malicious communications of others. See Milkovich, 497 U.S. at 11, 110 S.Ct. at 2702 ("Since the latter half of the 16th century, the common law has afforded a cause of action for damage to a person's reputation by the publication of false and defamatory statements."); Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 3007-08, 41 L.Ed.2d 789 (1974) (stating that the legislature has an interest in protecting and compensating individuals who are harmed by defamation). A cause of action for the tort of defamation exists today to protect individuals from those who would inflict an invidious and careless harm: "The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being--a concept at the root of any decent system of ordered liberty." Rosenblatt v. Baer, 383 U.S. 75, 92-93, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (Stewart, J., concurring). Additionally, defamatory statements are so egregious and intolerable because the statement destroys an individual's reputation: a characteristic which cannot be bought, and one that, once lost, is extremely difficult to restore. ⁶ See Curtis Publishing Co. v. Butts, 388 U.S. 130, 152, 87 S.Ct. 1975, 1990, 18 L.Ed.2d 1094 (1967) (noting that libel is as serious as the keeping of dangerous animals and the use of explosives); Hayes v. Todd, 34 Fla. 233, 15 So. 752, 755 (1894) (discussing why there is such a compelling interest in preventing and redressing attacks upon an individual's reputation). Additionally, a defamatory statement is an action over which the defamed individual has little control. See generally Diane L. Zimmerman, Curbing the High Price of Loose Talk, 18 U.C.Davis L.Rev. 359, 360 (1985) ("In modern times, the potential for the careless, or worse, the intentional falsehood to destroy livelihoods, disrupt families, and damage friendships has been viewed almost without exception by English and American judges as so serious a wrong that no judicial system would dare abandon a remedy for it."); Joan E. Schaffner, Note, Protection of Reputation Versus Freedom of Expression: Striking a Manageable Compromise in the Tort of Defamation, 63 S.Cal.L.Rev. 435, 440 (1990) (stressing the importance of redressing libelous injury).

Weighed against the individual's right to be free from false and defamatory assertions, however, is society's interest in encouraging and fostering vigorous public debate. Public debate is crucial to modern society because "the ultimate good desired is better reached by free trade in ideas ... the best test of truth is the power of the thought to get itself accepted in the competition of the market." Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting). In order to balance these competing needs, the privilege of "fair comment" was incorporated into the law of defamation. "Fair comment" protected statements that "concerned a matter of public concern, was upon...