Mashburn v. Collin

• Decision Date: 13 December 1977
• Docket Number: No. 59466,59466
• Citation: 96 ALR3d 590,355 So.2d 879
• Parties: , 3 Media L. Rep. 1673 Donald James MASHBURN, d/b/a Maison de Mashburn v. Richard H. COLLIN et al.
• Court: Louisiana Supreme Court

Page 879

355 So.2d 879

96 A.L.R.3d 590, 3 Media L. Rep. 1673

Donald James MASHBURN, d/b/a Maison de Mashburn v. Richard H. COLLIN et al.

No. 59466.

Supreme Court of Louisiana.

Dec. 13, 1977.

Garic K. Barranger, Barranger, Barranger, Jones & Fussell, Covington, Mack Barham, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-applicant.

Carl W. Cleveland, Henican, James & Cleveland, New Orleans, for plaintiff-respondent.

DENNIS, Justice.

"T'aint Creole, t'aint Cajun, t'aint French, t'aint country American, t'aint good." So began a critique of the cuisine served at Maison de Mashburn, a restaurant near Hammond, which appeared in the "Underground Gourmet" column of the June 22, 1974 New Orleans States-Item newspaper. Shortly after the article was published Donald J. Mashburn, owner and operator of Maison de Mashburn, filed a defamation suit against the column's author, Richard H. Collin, and the publisher, Times-Picayune Publishing Corporation, seeking $2,000,000 in damages for humiliation, injury to professional reputation and loss of business allegedly caused by the publication. The claim against the Times-Picayune Publishing Corporation was subsequently dismissed following an out of court settlement.

Defendant Richard Collin filed a motion for summary judgment, asserting that the criticism complained of was privileged as "fair comment." The trial court found that there was no genuine issue as to the fact that the defamatory statements had been made without "actual malice," that is, without knowledge of their falsity and without reckless disregard for whether they were false, and granted the motion for summary judgment.

The First Circuit Court of Appeal held that, on the record established by the pleadings, affidavit, and deposition on file, see, Louisiana Code of Civil Procedure Article 966, the issue of whether the statements were made with knowing or reckless falsity was not material because Mashburn was a "private" plaintiff, not a "public figure," who therefore, under the applicable principles of law, Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), needed only to show "fault" to recover damages for defamatory falsehoods. Since the question of Collin's "fault," as opposed to "malice," in publishing the statements, does present a genuine issue as to a material fact, the court of appeal reversed the summary judgment and remanded for further proceedings. 341 So.2d 1236 (La.App. 1st Cir. 1977). We granted certiorari to determine what protection, if any, the common law privilege of "fair comment," which has been given a federal constitutional dimension by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny, affords to the libelous statements of a restaurant critic. 343 So.2d 1074 (La.1977).

Before 1925, the Supreme Court did not intimate that the First Amendment was applicable to the states by reason of the Fourteenth Amendment, ¹ and a definite decision to this effect did not occur until six years later. ² Even after this development, the high court consistently refused to extend constitutional protection to libelous statements under the guarantees of freedom of speech and freedom of press. ³ It was not until 1964 that the Supreme Court, in New York Times v. Sullivan, supra, declared that the common law defense of truth, standing alone, was insufficient to protect freedom of expression, and erected a constitutional privilege for fair comment respecting public officials. The Court held that the First Amendment guarantees prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. ⁴

Under the common law rules of defamation, which the Supreme Court used as models in shaping the constitutional privilege of New York Times, a publisher was strictly liable for publication of defamatory statements unless he could prove that the statements were either true or privileged. One of the most important privileges recognized at common law was the privilege of "fair comment." This was a qualified privilege to express an opinion or otherwise comment on matters of public interest. ⁵ Traditionally, fair comment concerned persons, institutions or groups who voluntarily injected themselves into the public scene or affected the community's welfare, such as public officials, political candidates, community leaders from the private sector or private enterprises which affected public welfare, persons taking a public position on a matter of public concern, and those who offered their creations for public approval such as artists, performers and athletes. ⁶ While the existence of the privilege was undisputed, a large majority of state courts held that only "comment" or opinion was protected and not misstatements of fact. ⁷ There was, however, a substantial, and vigorous, minority view that even false statements of fact were privileged, if they were made for the public benefit with an honest belief in their truth. ⁸

In fashioning the New York Times First Amendment privilege, the Supreme Court borrowed the minority common law fair comment view, elevated it to constitutional status, and limited its use to good faith criticism of public officials. ⁹ Following New York Times, the Court in a series of decisions clarified and expanded the new constitutional privilege. ¹⁰ The designation of "public officials" was expanded to include relatively low-ranking government employees including "at the very least . . . those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." ¹¹ Protection was afforded a broad range of comments about public officials, including, for example, "a charge of criminal conduct, no matter how remote in time or place." ¹² The ambit of the privilege was enlarged to include comments about "public figures" requiring them to prove knowing or reckless falsity before recovering for defamatory statements made respecting their public involvement. ¹³ "Actual malice," for purposes of the New York Times constitutional privilege, does not mean either "malice" or "recklessness" as defined at common law, but "knowledge that (the statement) was false or . . . reckless disregard of whether it was false or not." ¹⁴ A showing of common law "actual malice" is not sufficient to meet the Times standard. ¹⁵ In St. Amant v. Thompson, the Court declared:

" 'Reckless disregard' . . . cannot be fully encompassed in one infallible definition . . . (however, the) cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." ¹⁶

A plurality of the Supreme Court in Rosenbloom v. Metromedia ¹⁷ would have extended the constitutional privilege to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." ¹⁸ Under this extension, private individuals, like public officials and public figures, would have had to prove knowing or reckless falsity where the defamatory statement concerned matters of public or general concern.

The Rosenbloom plurality view, however, was short-lived. A shift in position by one member of the Court and the replacement of two others resulted in a new majority in Gertz v. Robert Welch, Inc., ¹⁹ which approved New York Times and Butts, retreated from the Rosenbloom extension, and drastically revised the constitutional privilege, along with a great deal of the states' traditional defamation law. ²⁰ The Court held that (1) public officials and public figures may recover for defamation only upon clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard of the truth; ²¹ (2) the states may define the standard of liability for a publisher of defamatory falsehood injurious to a private individual (at least where the defamatory potential of the material is apparent on its face) so long as they do not impose liability without fault; ²² and, (3) presumed and punitive damages may be recovered only by establishing with clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or reckless disregard for the truth. ²³ Thus, the Gertz court, in a radical reinterpretation of the First Amendment, retreated from the position taken in Rosenbloom in some respects, but in others it made "more sweeping incursions" into the common law. ²⁴ For our purposes in the instant case it is important to note that, whatever the restrictions imposed in other areas, Gertz actually broadened the class of defendants protected under the privileges by extending it to include those accused of defaming "private" plaintiffs.

These cases in which the Supreme Court has struggled to reconcile First Amendment freedoms and the law of defamation have involved misstatements of facts. Nevertheless, the decisions have had a correlative effect upon the power of the states to impose liability for defamatory opinions. The Court specifically stated in New York Times that since the First Amendment, which is applicable to the states through the Fourteenth Amendment, "requires recognition of the conditional privilege for honest misstatements of fact, it follows that a defense of fair comment must be afforded for honest expression of opinion based upon privileged, as well as true, statements of fact." ²⁵ In the Gertz decision it is strongly indicated that ...