Little Rock Newspapers, Inc. v. Dodrill

• Decision Date: 21 November 1983
• Docket Number: No. 83-101,83-101
• Citation: 281 Ark. 25,660 S.W.2d 933
• Parties: , 10 Media L. Rep. 1063 LITTLE ROCK, NEWSPAPERS, INC., Appellant, v. Louis Art DODRILL, Appellee.
• Court: Arkansas Supreme Court

Page 933

660 S.W.2d 933

281 Ark. 25, 10 Media L. Rep. 1063

LITTLE ROCK, NEWSPAPERS, INC., Appellant, v. Louis Art DODRILL, Appellee.

No. 83-101.

Supreme Court of Arkansas.

Nov. 21, 1983.

Rehearing Denied Dec. 19, 1983.

Wright, Lindsey & Jennings, Little Rock, for appellant.

R. David Lewis, Little Rock, for appellee.

HAYS, Justice.

This is a defamation action brought by Louis Art Dodrill, appellee, against North Little Rock Newspapers, appellant arising out of two newspaper articles that appeared in the Arkansas Democrat in 1976. This case has been before this court previously. In 1975, Dodrill was suspended from the practice of law for one year for unethical conduct and was required to retake the bar examination as a condition for readmittance to the bar. He took the bar exam in August 1976. Following a long standing practice, a list of examinees who had passed the bar was published in two major Little Rock newspapers after the exam, and Dodrill's name was not on the list. Normally such an absence would indicate a failure of the exam, but in this case, Dodrill had passed but his name was withheld pending further investigation concerning his readmission to the bar by the Board of Bar Examiners. It was not known until some months later that Dodrill had in fact passed the exam.

The first of the two articles in question came out immediately after the list had appeared and was headlined, "Suspended Little Rock Lawyer Fails Bar Examination." The article noted that Dodrill had previously been suspended and then stated that he had failed the bar exam. The second article appeared a few days later and concerned a suit that Dodrill had filed against the Bar Examiners to compel them to report his score on the exam. There were two items that Dodrill alleged were libelous, both intimating ineptness or laxness on Dodrill's part in pursuing his own legal remedies. Dodrill then filed a complaint seeking damages against the Arkansas Democrat for libel.

In Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979) we heard an appeal of that case from the trial court order sustaining a motion for summary judgment which dismissed Dodrill's complaint for damages. The trial court had determined that Dodrill was a public figure and applying the standard required under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), that he had failed to demonstrate actual malice on the part of the Arkansas Democrat. After reviewing the facts of the case and the applicable United States Supreme Court decisions, we reversed and remanded, finding that Dodrill was not a public figure. For guidance of the trial court in further proceedings, we indicated that the negligence standard should measure the publisher's liability in the case of a private individual. The case was tried and a verdict returned in favor of Dodrill. The jury found the newspaper negligent and awarded Dodrill $40,000 in damages for mental suffering.

There are several issues raised by the appellant, but only one which we find has merit and which is pivotal in the determination of this case. The newspaper argues for reversal that there was no substantial evidence of damage to reputation and absent such a showing, a plaintiff in a defamation suit cannot recover damages for mental suffering alone. We sustain the argument.

It is settled law that damage to reputation is the essence of libel ¹ and protection of the reputation is the fundamental concept of the law of defamation. The action turns on whether the communication or publication tends or is reasonably calculated to cause harm to another's reputation. 50 Am.Jur.2d Libel and Slander §§ 1,357; Restatement (Second) of Torts § 559; and see generally Defamation, Privacy and the First Amendment, Duke L.J. 1976:1016. Such injury to the reputation is a prerequisite to making out a case of defamation and an action lacking that claim becomes another cause of action. Prosser states:

... [D]efamation is an invasion of the interest in reputation and good name. This is a 'relational' interest, since it involves the opinion which others in the community may have, or tend to have, of the plaintiff. Consequently, defamation requires that something be communicated to a third person that may affect that opinion. Derogatory words and insults directed to the plaintiff himself may afford ground for an action for the intentional infliction of mental suffering, but unless they are communicated to another the action cannot be one for defamation, no matter how harrowing they may be to the feelings. Defamation is not concerned with the plaintiff's own humiliation, wrath or sorrow, except as an element of 'parasitic' damages attached to an independent cause of action. Prosser, Handbook of the Law of Torts (4th ed. 1971) § 111. ²

An action for defamation has always required this concept of reputational injury and recovery for mental suffering alone has not been allowed. 53 C.J.S. Libel and Slander, § 243. At common law, publications that were actionable per se always presumed damage to reputation as well as other injuries, including mental suffering. Reese v. Haywood, 235 Ark. 442, 360 S.W.2d 488 (1962); Prosser, supra, § 112. While recovery was allowed in some jurisdictions for mental suffering alone, this was clearly allowed only when the publication was actionable per se. 50 Am.Jur.2d § 358; 90 A.L.R. 1175, 1182-83, 1200-02. Recovery was allowed in such cases only then because damage to reputation, which was essential to recovery, was always presumed. If the publication was not actionable per se, recovery for mental suffering alone was not allowed because of this absence of presumption of damage to reputation. ³ An early case discusses this distinction in recoveries and explains The action for slander is given by the law as a remedy for injuries affecting a man's reputation or good name by malicious, scandalous, and slanderous words. It is injuries affecting the reputation only which are the subject of the action. In the case of slanderous words actionable per se, the law, from their natural and immediate tendency to produce injury, adjudges them to be injurious, though no special loss or damage can be proved. But with regard to words that do not apparently and upon the face of them import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damages to have happened.... There must be some limit to liability for words not actionable per se, both as to the words and the kind of damages.... Terwilliger v. Wands, 17 N.Y. 54, 72 Am. Dec. 420 (1858).

Even words that were not actionable per se which required proof of special harm, presumed damage to reputation once that showing was made. Restatement (Second) of Torts § 575; Prosser, supra § 112. That the reputational interest has always been at the heart of any defamation suit is further evidenced by the fact that the defendant has always been allowed to introduce evidence of the plaintiff's bad reputation to mitigate damages. Simonson v. Lovewell, 118 Ark. 81, 175 S.W. 407 (1915); McDonald v. Louthen, 136 Ark. 368, 206 S.W. 674 (1918); 50 Am.Jur.2d § 381, Prosser, supra § 116.

One of the underlying principles of these common law theories of recovery was drastically altered with the United States Supreme Court decision in Gertz v. Robert Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). With Gertz, a change has been worked, at least as against media defendants, on all actions which formerly presumed damages upon establishing defamation per se. No longer may any damages be recovered, absent a showing of actual malice, unless there is proof of some actual injury. Therefore, it follows that damage to reputation cannot be presumed in any case. We do not find however, that this decision requires a change in the traditional requirement of the reputational element in defamation actions.

The stated purpose in Gertz for the presumption limitation is to prevent the giving of "gratuitous awards of money damages far in excess of any actual injury." Gertz at 349, 94 S.Ct. at 3011-12. The Court states:

The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact.

The spirit of the Gertz decision on this point is clearly one to protect First Amendment rights from unjustifiable and unsubstantiated intrusions. To allow recovery in a defamation action where the primary element of the cause of action is missing not only sets the law of defamation on end, but also substantially undercuts the impact Gertz seeks to effect. The law of defamation has always attempted to balance the tension between the individual's right to protect his reputation and the right of free speech. To totally change the character of defamation to allow recovery when there has been no loss of the former right, would be an unjustified infringement on the First Amendment.

While Gertz suggests, and Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) confirms, that the Constitution does not require proof of damage to reputation before recovery for mental suffering can be had, neither does Firestone indicate that such an approach is favored. Indeed, the Firestone decision has been strongly criticized ⁴ and the opposite approach has been taken in subsequent decisions in other states. See Gobin v. Globe Publ. Co., 232 Kan. 1, 649 P.2d 1239 (1982); France v. St. Clare's Hospital and Health Center, 82 App.Div.2d 1, 441 N.Y.S.2d 79 (1981). We can find no greater substantiation after Gertz than before that would permit recovery for a defamation action without...