Luper v. Black Dispatch Pub. Co.

Decision Date06 September 1983
Docket NumberNo. 58246,No. 2,58246,2
Citation675 P.2d 1028
Parties1983 OK CIV APP 54, 15 Ed. Law Rep. 1318 Clara LUPER, Appellant, v. The BLACK DISPATCH PUBLISHING COMPANY, an Oklahoma corporation; Richard K. Nash; Dr. Johnson W. Sanford; and Dr. Gravelly E. Finley, Appellees
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Appeal from the District Court of Oklahoma County; John M. Amick, Trial Judge.

Defamation action by public official/public figure against newspaper, editor, and owner/managers. From sustention of defendants' motion for summary judgment, plaintiff appeals.


E. Melvin Porter, Oklahoma City, for appellant.

C. William Threlkeld, Fenton, Fenton, Smith, Reneau & Moon, Woodrow H. McConnell, McConnell & Wall, Oklahoma City, for appellees.


Plaintiff Clara Luper brought this libel action against Defendant newspaper company, The Black Dispatch Publishing Company, Richard K. Nash (Editor), and Drs. Johnson W. Sanford and Gravelly E. Finley board members, officers, and owners of the paper (Owners) for publishing two allegedly libelous news articles. Plaintiff appeals trial court's granting of summary judgment in favor of Defendants.

Although not specifically stated in the journal entry of judgment, trial court's ruling, according to the briefs, was based upon a finding that the record contained no evidence to support the allegation that the lies were published with actual malice or that they were published with reckless disregard for the truth or falsity of the matters asserted. We find trial court erred as a matter of law and reverse.

Plaintiff is an Oklahoma City public school teacher and a well-known civil rights worker, radio show hostess, and author. Defendant newspaper is published weekly and distributed to 50 states and seven foreign countries.

The first news article was printed by Defendants on October 30, 1980. It stated that Thomas J. Clark of Tulsa [now deceased] claimed that Plaintiff is "living in adultery" and is "a bigamist." The article referred to a court case number, supplied by Clark, to support Clark's claim that Plaintiff, now remarried, never obtained a legal divorce from him.

The sole basis for this article was a copy of a mailgram (one of 60,000 supposedly distributed throughout Oklahoma by Clark) addressed to John Marshall High School in Oklahoma City, in which Clark demanded the school discharge Plaintiff because of the alleged crimes. This copy came into Defendants' hands more than five months after its initial distribution. The tone and tenor of the scandalous material is, on its face, venomous and obviously consists of the rantings of a bitter ex-husband. More importantly, the material was all lies, the falsity of which could have been determined by a simple telephone call to the local court clerk. However, Defendant Editor testified he did not check the court file nor contact Plaintiff before publishing this first article. He claims to have printed the story without knowledge of the truth or falsity of the allegations.

After publication Plaintiff protested to Editor that the article was libelous, asked him not to print any further allegations by Clark, and informed Editor that Clark had been committed to a mental hospital. Editor was also warned by newspaper owner Defendant Sanford not to pursue the topic.

Nevertheless, one week later, Editor printed a second libelous article, along with an editorial comment below it. This article specifically called attention to the previous publication, characterized the piece as an "update," and conceded that "upon further investigations," Defendant found that Clark and Plaintiff were indeed legally divorced as of late 1970.

The article continued, however, with more accusations by Clark, taken from Defendant Editor's telephone interview with him. The article stated, in part:

"Thomas J. Clark charges that Clara Luper along with her lawyer at the time, [a] former District Judge ... of Tulsa, Oklahoma, [now an Oklahoma Supreme Court Justice] and several others were involved together in a gangster style plot against him. [criminal conspiracy] In the March 10, 1977 issue of the Oklahoma Eagle, page 5, section 8 an explicit article was published concerning Thomas J. Clarks [sic] charges. [republishing the libel by inviting readers to refer back to previously printed lies] In the 1974 January/February issue of Progress Magazine, Hank Moore-Editor, also went into mass detail concerning Thomas J. Clark and his alledged [sic] conspiracy against him.

"Thomas J. Clark states that he was sent to prison and to the Oklahoma State Mental Hospital in Vinita, Oklahoma all on false charges against him. [perjury and criminal conspiracy] Thomas J. Clark also states that while he was in detention he was tricked, schemed upon, double-crossed, and defrauded out of his lifetime investments of $200,000 or more, he further states that there was no Doctor, Authority, or trained Psychiatrist, of any kind, to testify, or to give proof or statement as to his need for mental evaluation. [criminal fraud and conspiracy]

"Thomas J. Clark stated that at present, a total of 32 persons have mysteriously died [mass murder] who could have testified on his behalf, and a number of lives have been threatened, [felonious threats] if they take the witness stand to testify in support of his case. Thomas J. Clark also stated in February of 1972 his close associate was offered $25,000.00 to kill him. [conspiracy to commit murder] Thomas J. Clark told the Black Dispatch that he would continue his fight until he finds justice in the court system." (Bracketed material added.)

Plaintiff contends these articles are libelous per se because they charge her with criminal acts. We agree.

The related editorial comment printed in the second issue stated the paper was "neutral" regarding conflict between Plaintiff and Clark, an apparently naive attempt to insulate itself from libel litigation.

Editor testified that before the second article was printed, he interviewed Clark and believed him to be a "reliable source." Editor testified he had no malice when he published what he thought was "newsworthy" and "more probably true than not." Editor claimed to retain this belief, despite the fact he had personally investigated the previous lies told by Clark relative to the adultery and bigamy charges and knew Clark to be an ex-convict 1 and ex-mental patient. In this regard, Editor displays a remarkably tenacious intellectual innocence rarely found amidst the publishing community, for the second catalogue of lies told by Clark and printed by Defendants, on its face, reveals the same venomous, nearly hysterical, outrageous quality as the first set of lies reveals, if not more so. We find Editor's bare assertion of a lack of malice to be unpersuasive and grossly outweighed by other, more objective evidence.


The issue on appeal is whether summary judgment was properly granted. Based on our review of the record and the applicable law, we conclude it was not.

The trial court's decision must turn on whether the evidence and pleadings raise controverted material facts under the constitutional libel standards established by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and reiterated by our supreme court in Miskovsky v. Oklahoma Publishing Co., Okl., 654 P.2d 587 (1982), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982).

The standard put forth in New York Times Co., 376 U.S. at 279-80, 84 S.Ct. at 725-26 (emphasis added), is:

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not...."

First, it is conceded that Plaintiff is a "public official" by virtue of her position as a public school teacher. Johnston v. Corinthian Television Corp., Okl., 583 P.2d 1101 (1978). She is also a "public figure" within the meaning of Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (extending the New York Times Co. rule for "public officials" to include "public figures") by virtue of her civil rights work, radio show, and books.

The defamatory allegations of the crimes of adultery, bigamy, and criminal conspiracy have been held as a matter of law to directly relate to a public official's conduct. As the Supreme Court stated in Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971):

"The respondent argues that under New York Times a plaintiff has a special burden of proof only as to libels 'relating to official conduct,' that for a candidate 'official conduct' means 'conduct relevant to fitness for office,' and that the public-private issue is one of fact for the jury. In our view, however, the syllogistic manipulation of distinctions between 'private sectors' and 'public sectors,' or matters of fact and matters of law, is of little utility in resolving questions of First Amendment protection.

"In Garrison v. Louisiana, [379 U.S. 64 [85 S.Ct. 209, 13 L.Ed.2d 125] (1964) ] ... [t]his Court rejected the proposed distinction:

'Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. The New York Times rule is not rendered inapplicable merely because an official's private reputation, as well as his public reputation, is harmed. The public official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might...

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