Lathan v. Journal Co.

• Decision Date: 01 March 1966
• Citation: 30 Wis.2d 146,140 N.W.2d 417
• Parties: Raymond L. LATHAN, Appellant, v. The JOURNAL COMPANY, Respondent.
• Court: Wisconsin Supreme Court

Page 417

140 N.W.2d 417

30 Wis.2d 146

Raymond L. LATHAN, Appellant, v. The JOURNAL COMPANY, Respondent.

Supreme Court of Wisconsin.

March 1. 1966.

Harvey L. McCormick, Milwaukee, for appellant.

Foley, Sammond & Lardner, James P. Brody, and John R. Collins, Milwaukee, for respondent.

HEFFERNAN, Justice.

In an action for libel the court must first determine whether the writing complained of is defamatory. If it is not, that ends the matter. In the event of defamation, the court must consider the defenses alleged. A matter, though defamatory, is still not actionable if it is true, since truth is a complete defense. Williams v. Journal Co. (1933), 211 Wis. 362, 370, 247 N.W. 435. However, even though a matter is false, it may nevertheless be privileged or immune from the imposition of liability. Prosser, Law of Torts (hornbook series, 3d ed.), p. 795, sec. 109. The privilege may be absolute, as, for example, in the case of a legislative or judicial officer who, in the performance of his duty, is absolutely privileged as to any defamation he may utter even though he knows it to be false and is motivated by malice or ill will toward the plaintiff. Prosser, supra, pp. 796, 800. The absolute privilege extends to the legislator in the course of his legislative duties, and to principal executive officers of the nation and state. See 1 Harper & James, The Law of Torts, p. 428, sec. 5.23. There are also certain occasions where a defamation is conditionally privileged. Conditional privileges or immunities from liability for defamation are based upon public policy which recognizes the social utility of encouraging the free flow of information in respect to certain occasions and persons, even at the risk of causing harm by the defamation. Restatement, 2 Torts, p. 240, sec. 592, explains:

'Were such protection not given, true information which should be given or received would not be communicated through fear of the persons capable of giving it that they would be held liable in an action of defamation unless they could meet the heavy burden of satisfying a jury that their statements were true.'

It has been recently held on the constitutional ground of free speech that a newspaper is conditionally privileged to publish false statements in regard to a public officer in the course of his official conduct without being liable for defamation, in the absence of a showing that the publication was motivated by actual malice. Now York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. Malice was defined as being actual malice, that is, with a knowledge that the statement was false or that it was made with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, supra, p. 280, 84 S.Ct. 710. See also Garrison v. State of Louisiana (1964), 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125; Rosenblatt v. Baer, 86 S.Ct. 669 (February 21, 1966).

Were the articles defamatory?

Defamation has been defined as:

'* * * that which tends to injure 'reputation' in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him.' Prosser, supra, p. 756.

In Scofield v. Milwaukee Free Press Co. (1905), 126 Wis. 81, 85, 105 N.W. 227, 2 L.R.A.,N.S., 691, we held that for a newspaper article to be libelous it '* * * need only tend to degrade or disgrace the plaintiff generally, or to subject him to public distrust, ridicule, or contempt in the community * * *'

The Restatement, supra, p. 140, provides that:

'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'

It is the function of the court as a matte of law to determine whether a communication is capable of a defamatory meaning. Hoan v. Journal Co. (1941), 238 Wis. 311, 298 N.W. 228; Luthey v. Kronschnabl (1942), 239 Wis. 375, 1 N.W.2d 799; Puhr v. Press Publishing Co. (1946), 249 Wis. 456, 25 N.W.2d 62; De Witte v. Kearney & Trecker Corp. (1953), 265 Wis. 132, 137, 60 N.W.2d 748; Restatement, 3 Torts, p. 304, sec. 614.

We conclude that the Milwaukee Journal articles may be reasonably regarded as defamatory in that they are capable of carrying the meaning that the plaintiff (See Restatement, 3 Torts, p. 304, sec. 614) was inept in his administrative ability. The articles indicated, at a minimum, that the Rev. Lathan had not exercised reasonable judgment in making sure that he had a firm commitment from Rev. Martin Luther King before going ahead with a mass rally. Moreover, the articles tended to indicate that, although Rev. Lathan had advertised the appearance of Dr. King, he 'never was booked.' Thus, it could arguably be said that the statement of Rev. Lathan that Dr. King was scheduled to arrive at Mitchell Field was untruthful.

Rev. Lathan was a member of the legislature of the state of Wisconsin, a body to whom is delegated the policy supervision of state governmental affairs. A newspaper article that could reasonably be construed to reflect on his administrative ability might well have tended to lower him in the esteem of the community. Rev. Lathan was the pastor of a large Baptist church. Any inference that his statements were less than completely adequate representation of the facts might have reflected upon his truthfulness, and, hence, the article was capable of diminishing the esteem and high respect with which he was held. We conclude that the articles were defamatory in character.

Were the defamatory statements true?

While we conclude that the articles are defamatory, there is in fact little in Rev. Lathan's position that is in direct contradiction in regard to the events and statements as reported by The Journal. Basically, Rev. Lathan claims that arrangements for Dr. Martin Luther King's appearance were made through Rev. A. D. King, Dr. King's brother. The Journal article takes the position that its news sources have stated that no one in Milwaukee, in fact, made arrangements with anyone who had the authority to 'book' or engage Martin Luther King. In many respects, this is a quarrel over semantics. Rev. Lathan apparently takes the position that his efforts, though not made through anyone authorized to make a commitment for Martin Luther King, were in fact an engagement. Assuming, as we have, that stating that Dr. King 'Never was Booked,' was defamatory when in fact Rev. Lathan was promoting the sale of tickets bearing the legend: 'Guest Speaker, Rev. Martin Luther King,' the question presented on summary judgment is whether the statement of The Journal, 'Never was Booked,' is true. This question is before us on appeal from an order granting summary judgment, as provided by sec. 270.635, Stats., on the motion of the Journal Company. Sec. 270.635(2) provides:

'The judgment may be entered in favor of either party, on motion, upon the affidavit of any person who has knowledge thereof, setting forth such evidentiary facts, including documents or copies thereof, as shall, if the motion is by the plaintiff, establish his cause of action sufficiently to entitle him to judgment; and, if on behalf of the defendant, such evidentiary facts, including documents or copies thereof, as shall show that his denials or defenses are sufficient to defeat the plaintiff, together with the affidavit of the moving party, either that he believes that there is no defense to the action or that the action has no merit (as the case may be) unless the opposing party shall, by affidavit or other proof, show facts which the court shall deem sufficient to entitle him to a trial.'

The Journal Company submitted an affidavit from the reporter who wrote the story. In the affidavit he detailed his method of covering the story and stated his sources of information and the conversations upon which the story was based. Wyatt T. Walker, Martin Luther King's executive secretary, stated that the statements attributed to him in the article were true. He was quoted in the article as saying that Dr. King was 'never committed.' Dr. King himself deposed that the statement attributed to him, 'I had made no commitment to appear * * *' was true.

Miss Dora McDonald, Dr. King's secretary, also deposed that the newspaper honestly quoted her in saying 'She knew nothing about a Milwaukee speaking engagement. If King had been scheduled ot [sic] speak here, she would have known about it * * * because she keeps his calender.'

The Journal Company also submitted a portion of an adverse deposition taken of Rev. Lathan. Therein Rev. Lathan stated that he had never talked...