Magnusson v. New York Times Co.

Decision Date29 June 2004
Docket NumberNo. 97,703.,97,703.
Citation2004 OK 53,98 P.3d 1070
PartiesJames E. MAGNUSSON, Plaintiff/Appellant, v. NEW YORK TIMES CO. d/b/a KFOR, and Brad Edwards, Defendants/Appellees.
CourtOklahoma Supreme Court

Holly Hefton, Oklahoma City, OK, for Plaintiff/Appellant.

Robert D. Nelon, Jon Epstein, Oklahoma City, OK, for Defendants/Appellees.


¶ 1 We granted certiorari to consider two issues: 1) whether two broadcasts aired by the defendants/appellees, New York Times Co. d/b/a KFOR (KFOR) and Brad Edwards (Edwards) (collectively, media) come within the common law fair comment privilege, affording individuals the opportunity for honest expressions of opinion on matters of legitimate public interest based on true or privileged statements of fact; and 2) whether the media may utilize the privilege as a defense to a defamation cause filed by a private person.1 We determine that the broadcasts, both of which were focused on alleged complications arising from plastic surgery and the conditions associated therewith, meet the requirements for the application of the privilege and that the media is entitled to raise the defense of fair comment in a cause filed by a private individual.

¶ 2 Our holding that the broadcasts are entitled to protection under the common law reflects the majority position and results from: an application of the standards of the privilege; a consideration of the statements' phrasing, content and the medium through which it was presented; the circumstances surrounding its publication and a determination that the broadcasts do not imply the existence of undisclosed facts. The position that the media defendants may utilize the common law privilege is supported by Oklahoma jurisprudence as expressed in: Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 16, 958 P.2d 128; Mitchell v. Griffin Television, L.L.C., 2002 OK CIV APP 115, ¶ 17, 60 P.3d 1058, cert. denied, 538 U.S. 1013, 123 S.Ct. 1931, 155 L.Ed.2d 850 (2003); Sturgeon v. Retherford Pub., Inc., 1999 OK CIV APP 78, ¶ 18, 987 P.2d 1218; and Martin v. Griffin Television, Inc., 1976 OK 13, ¶ 23, 549 P.2d 85. Furthermore, it coincides with the majority position.


¶ 3 In May of 2000, KFOR and Edwards broadcast two "In Your Corner" consumer news reports concerning Magnusson. Before airing the original story on May 18, 2000, Edwards attempted to interview Magnusson, but was told that the doctor was in surgery and unavailable. Along with a copy of his curriculum vitae, a summary presented to patients and several certificates showing board certification, Magnusson faxed Edwards a document in which he stated that the dissatisfied patients failed to follow his advice and were informed by two lawyers that their claims were without merit. Additionally, he indicated that one patient's allegations were associated with the doctor's attempt to collect a judgment against her.

¶ 4 The initial story had footage of a woman displaying a hip-to-hip scar resulting from an alleged "botched" tummy tuck and two other women complaining about complications associated with breast implants. The report also contained footage of Edwards in Magnusson's office speaking to an office manager who commented that there were facts the women weren't revealing. She did not elaborate on what those facts might be. Edwards stated that although he did not speak with the doctor, Magnusson sent him a statement in which he placed the blame for complications on the patients. Edwards also indicated that he had uncovered a form in which the doctor had applied for a license renewal declaring that he had no lawsuits pending against him. In checking court records, Edwards discovered lawsuits filed as early as 1996. At the end of the broadcast, another reporter stated that seven women had complained to KFOR about dealing with the doctor and urged any other dissatisfied patients to contact the licensing board.

¶ 5 Approximately a week later, on May 24, 2000, the second story aired. Although Magnusson alleges that he was not contacted after the first broadcast, the reporter introducing the story indicated that Magnusson continued to refuse to go on air and blamed the complaints on his patients who were informed there could be complications of surgery, but that the dissatisfied patients denied the doctor's allegations. Again, Edwards interviewed two patients on air who were unhappy with the doctor's treatment—each complaining of their results and unsafe or unsanitary conditions. In addition, both patients said that Magnusson had represented himself as a board certified plastic surgeon but that he did not become certified until sometime after their procedures were performed. Nevertheless, the story also included an interview with a patient who praised Magnusson and his staff saying: "I couldn't have asked for anyone to treat me any better than Dr. Magnusson or his staff". The patient also stated she was "very pleased" with her results.

¶ 6 On September 19, 2000, Magnusson sued KFOR and Edwards for defamation, invasion of privacy and intentional infliction of emotional distress alleging that the broad-casts contained false statements and created untrue impressions of his professional skills. KFOR and Edwards answered on October 10, 2000, asserting that the broadcasts were privileged in whole or in part under both the Oklahoma2 and United States Constitutions.3 They filed a joint motion for summary judgment on February 28, 2002, alleging that the doctor could not demonstrate that the statements in the broadcasts were false or that they caused him actionable harm. They also contended that the broadcasts were constitutionally protected expressions of opinion. On April 9, 2002, the trial court sustained the motion for summary judgment. The Court of Civil Appeals affirmed in part, reversed in part and remanded on June 24, 2003, determining that although Magnusson was not entitled to relief on his claims for false light invasion of privacy or intentional infliction of emotional distress, a question of fact existed on the defamation claim. Further, it held that the defenses of opinion or fair comment did not apply in causes brought by private individuals. We granted certiorari on March 9, 2004.



¶ 8 KFOR and Edwards contend that the broadcasts were nothing more than opinionative expressions entitled to full constitutional protection under both the Oklahoma4 and United States Constitutions.5 Magnusson argues a defense based on fair comment or expressed opinion is unavailable. We disagree.

a. The fair comment common law defense.

¶ 9 Fair comment is a common law defense to a defamation action.6 The principle affords legal immunity for comment by any and all members of the public7 and extends to virtually all matters of legitimate public interest.8 Its purpose is to promote the free and open exchange of ideas.9 ¶ 10 The common law fair comment privilege extends to fair expressions on matters of public interest.10 It differs from both: 1) the common law fair report privilege—which affords a qualified or conditional privilege to the media when they republish defamatory material in an account of a public or official proceeding, i.e. judicial proceedings, legislative sessions, judicial hearings, or official news conferences; and 2) its statutory counterpart, 12 O.S.2001 § 1443.111—which embodies a similar statutory privilege as a complete defense to libel. Although all three concepts overlap, the scope of the common law fair comment privilege, encompassing expressions of opinion on all matters of public opinion, is broader than either the common law fair report doctrine or the terms of the statute12—both of which have their roots in political speech concepts and encompass public interest reports of official actions or proceedings.13

b. Applicability of the defense to the facts presented.

¶ 11 Under the common law defense of fair comment, a statement is generally privileged when it: 1) deals with a matter of public concern; 2) is based on true or privileged facts; and 3) represents the actual opinion of the speaker, but is not made for the sole purpose of causing harm.14 In making the privilege determination, courts look to the phrasing of the statement, the context in which it appears, the medium through which it is disseminated, the circumstances surrounding its publication, and a consideration of whether the statement implies the existence of undisclosed facts.15

¶ 12 First, there is no question that the opinions expressed in the broadcasts involved a matter of public concern. Public health is clearly a matter of public consonance.16 Furthermore, the availability and skills of surgeons constitute matters relating to a community's public health.17

¶ 13 Second, Magnusson does not allege that the stories were false in the sense that they did not accurately report the patients' complaints.18 Statements about an individual which cannot be proven "true" or "false", because they are opinions19 or conclusions based on a review of the individual's actions are privileged.20 Furthermore, statements of pure opinion—based on stated facts or on facts known by the parties or assumed by them to exist—as a matter of constitutional law, enjoy absolute immunity protected both by the First Amendment and by art. 2, § 22 of the Oklahoma Constitution.21 Here, all the patients interviewed by Edwards and included in the KFOR broadcasts were clearly basing their statements about the doctor's professionalism—both those patients who were upset with their results and the one patient who was very pleased...

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