Martin v. Griffin Television, Inc.

• Citation: 1976 OK 13,549 P.2d 85
• Decision Date: 27 January 1976
• Docket Number: No. 47172,47172
• Parties: Jack Lester MARTIN, Appellee, v. GRIFFIN TELEVISION, INC., an Oklahoma Corporation, Appellant.
• Court: Supreme Court of Oklahoma

Page 85

549 P.2d 85

Jack Lester MARTIN, Appellee, v. GRIFFIN TELEVISION, INC., an Oklahoma Corporation, Appellant.

No. 47172.

Supreme Court of Oklahoma.

Jan. 27, 1976.

Rehearing Denied April 27, 1976.

Patrick Brown, Oklahoma City, for appellee.

Roy J. Davis, James W. Shepherd, Andrews, Mosburg, Davis, Elam, Legg & Bixler, Oklahoma City, for appellant.

LAVENDER, Justice:

Jack Lester Martin (Martin) owned and operated a commercial pet shop. That shop offered pet grooming, sold pet supplies, and at times purchased and sold pets, including dogs. An individual bought a dog from Martin's pet shop. The dog was purchased as the only means to recover that particular dog believed by purchaser to be his family's pet which had been missing for about a month. The purchaser reported the incident to 'Call for Action,' including a report of the poor condition of the dog, of other pets found there, and of the shop in general. 'Call for Action' was a voluntarily manned program with close association to the appellant television station. Telephone complaints coming to that voluntary program were cleared for possible broadcasting with the one calling in. If judged newsworthy by appellant's newsman, items reported to 'Call for Action' were form time to time used as a portion of the early evening news program. Additional checking of the item was at the newsman's or his producer's discretion. This pet shop complaint became a basis for some four broadcasts by the television station as part of the news program on separate days.

Martin brought this action against Griffin Television, Inc. (television station), the owner and operator of the television station for its broadcasting the script prepared by its newsman containing statements alleged to be defamatory and injurious to Martin. At trial, the jury awarded Martin $55,000 actual damages and $30,000 punitive damages. Defendant television station appeals that judgment.

The broadcast content is not disputed. Affirmative defense of its truth is raised. Evidence is in conflict as to that issue. Evidentiary conflict occurs as to identity of the dog, its physical condition, the conditions at the pet shop and the pets' conditions at the shop. Witnesses testified of lost confidence in the pet shop after hearing the broadcast. Evidence showed some business actually lost. Bookkeeper testified as to the effect on the business and of business losses. By jury verdict, all the fact issues were resolved in favor of Martin and against the television station.

The 'Call for Action' voluntary program is not operated by the television station. The station does provide space and other services to the program. It does have some degree of control as to procedures. The appellant television station does not argue it has no responsibility for that program. The station uses the program for its own purpose as a news source. In the instant case, the newsman used one of the volunteers to do some checking for him.

The appellant television station argues failure of Oklahoma law of defamation to safeguard free speech as guaranteed in the First and Fourteenth Amendments to the United States Constitution and failure to prove damages.

What some call 'New York Times standard' is promulgated by the United States Supreme Court decision of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There a city official in Alabama brought a libel action against the New York Times for publishing a paid advertisement describing the maltreatment of Negro students. The decision required actual malice and not presumed malice to be an essential element of libel as applied to a public official. ¹ Actual malice was defined as 'with knowledge that it was false or with reckless disregard of whether it was false or not.' The rationale of this standard is not to bridle debate and discussion. Debate on public issues should be uninhibited, robust and wide open, and such debate may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The 'Times standard' was extended from public officials to public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Its application was broadened to matters of public interest. Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). ²

Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) refused to require actual malice (Times standard) by reason of public concern (Rosenbloom decision) to a private individual which, according to the evidence, was not shown to be a public figure. The plaintiff Gertz was an attorney. He had briefly served on an opportunity city housing committee. He did not assume an 'influential role in ordering society.' The opinion held him to be neither a public official nor a public figure. In representing a client, he was the attorney that brought a civil action against a policeman. This brought a published charge of Gertz's association with some unpopular organizations.

The latest expression of the Supreme Court of the United States in the field of free speech and free press is Cox Broadcasting Corp. et al. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). There damages were bought for invasion of privacy caused by a televised report of the name of a deceased rape victim. The name had been secured from a public court record. The court reversed the damage recovery. It refused to allow the broadcast to be the basis of civil liability for invasion of privacy. Emphasis was placed on the need for reporting government action and of the proper conduct of public business, including the events of judicial proceedings. Crime, its prosecution, and judicial proceedings arising from the prosecutions were said to be events of legitimate concern to the public and fall within the responsibility of the press to report the operations of government. Interest in privacy was allowed to fade when the information involved already appeared on the public record. The majority opinion and a concurring opinion noted that court's holdings in this constitutional area involving protection of reputational interest in defamation actions. Both opinions acknowledged possible different interest in such cases particularly as to private libels, unrelated to public affairs. The concurring opinion cites Gertz, supra.

Basic to Gertz and to the present case is the determination as to whether the defamatory plaintiff is a private individual or a public official or figure. The Gertz opinion aids in that determination, saying:

'* * * That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntary (sic) injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

'We would not lightly assume that a citizen's participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation.'

In commenting on the 'looking to the nature and extent of an individual's participation,' the opinion continues:

'He (Gertz) plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.' (Explanation added.)

We believe the characterization of the defamed party, as to public or private personality, is an issue to be determined by the judge using the general guidelines suggested by Gertz.

Here, Martin, as was Gertz, must be characterized as a private individual. Martin was not a public figure for all purposes and in all contexts by achieving pervasive fame and notoriety. He had not become a public figure for a particular issue by voluntarily injecting himself into a particular public controversy; he had not thrust himself into the vortex of a public issue nor attempted to engage the public's attention to influence the outcome of a public issue. Martin was a private individual. ³

The Gertz decision seeks a balance of competing values between (1) the legitimate state interest through its libel laws of compensating individuals for the harm inflicted on them by defamatory falsehoods, and (2) the constitutionally guaranteed freedoms of speech and press with the need to avoid self-censorship by the news media. The opinion refused to constitutionally require the extension of the New York Times standard to media defamation of private persons if an issue of general or public interest was involved, as did Rosenbloom, supra. The balance is struck by allowing the states to define for themselves the appropriate standard of liability of the news media for defamatory falsehoods which injure a private individual; but the choice is not unlimited. The standard must not impose liability without fault. ⁴ The rationale in constitutionally allowing a lesser standard is through distinguishing between defamation plaintiffs--those public and those private. That difference is based on greater access to the channels of effective communication as between public and private persons, and the usually voluntary aspect of becoming a public official or figure. 'Thus, private...