Maynard v. Daily Gazette Co.

• Decision Date: 20 July 1994
• Docket Number: No. 21815,21815
• Citation: 447 S.E.2d 293,191 W.Va. 601
• Parties: , 93 Ed. Law Rep. 995, 22 Media L. Rep. 2337 Stan MAYNARD, Plaintiff Below, Appellee, v. The DAILY GAZETTE COMPANY, a corporation, dba The Charleston Gazette, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 293

447 S.E.2d 293

191 W.Va. 601, 93 Ed. Law Rep. 995,

22 Media L. Rep. 2337

Stan MAYNARD, Plaintiff Below, Appellee, v. The DAILY GAZETTE COMPANY, a corporation, dba The Charleston

Gazette, Defendant Below, Appellant.

No. 21815.

Supreme Court of Appeals of

West Virginia.

Submitted May 4, 1994.

Decided July 20, 1994.

Syllabus by the Court

1. " ' "Under New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1969 [1964] ), whenever there is a First Amendment defense to actions under state law, the state court is required to be a judge of both the facts and the law...." Syllabus Point 2, in part, Mauck v. City of Martinsburg, 167 W.Va. 332, 280 S.E.2d 216 (1981).' Syllabus point 5, Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778 (1986)." Syllabus point 2, Dixon v. Ogden Newspapers, Inc., 187 W.Va. 120, 416 S.E.2d 237 (1992).

2. " 'A court must decide initially whether as a matter of law the challenged statements in a defamation action are capable of a defamatory meaning.' Syllabus point 6, Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778 (1986)." Syllabus point 3, Dixon v. Ogden Newspapers, Inc., 187 W.Va. 120, 416 S.E.2d 237 (1992).

3. "Following Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), courts have held that statements of opinion are absolutely protected under the First Amendment and cannot form the basis for a defamation action. These courts also hold that whether a statement is one of fact or opinion is an issue that must be decided initially by a court." Syllabus point 7, Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778 (1986).

4. A statement of opinion which does not contain a provably false assertion of fact is entitled to full constitutional protection.

John H. Bicknell, Greene, Ketchum, Bailey & Tweel, Huntington, for appellee.

Rebecca A. Baitty, Lutz, Webb, Partridge, Bobo & Baitty, Sarasota, FL, and Rudolph L. DiTrapano, DiTrapano & Jackson, Charleston, for appellant.

BROTHERTON, Chief Justice:

The appellant, The Daily Gazette Company, publisher of the Charleston Gazette newspaper, appeals from the February 17, 1993, order of the Circuit Court of Cabell County, West Virginia, which sustained a jury verdict for the appellee, Stan Maynard, a professor of education at Marshall University and the former director of Marshall University's Student Athlete Program.

Maynard filed a defamation suit against the Gazette after the newspaper published the following editorial on April 21, 1989:

"Student Athletes"

We assume that coach Rick Huckabay's unexplained ouster at Marshall University was at least partly caused by the scandalous graduation rate among the basketball players he recruited--a mere four in the past six years.

But others share in that failure. What about President Dale Nitzschke, Athletic Director Lee Moon and former Athletic Director David Braine? Why aren't leaders also held accountable when dozens of functional illiterates are kept as make-believe students to thrill crowds and alumni, then dumped with no education? University presidents and athletic directors everywhere are adept at insulating themselves from the sports cesspools that go so far toward paying their salaries.

And what about the little people, the non-luminaries, who prop up the system? What about the Stan Maynards?

Maynard is an associate professor of teacher education at Marshall. He is in charge of the academic counseling, tutoring and monitoring program designed to see that Marshall athletes go to class, make decent grades, study and ostensibly, make real progress toward real degrees.

In the past, Maynard reaped favorable publicity and community goodwill from the supposed success of his program--so much goodwill, in fact, that he was able to parlay it into a Marshall basketball scholarship for his son. But, in hindsight, it appears that Maynard was interested chiefly in maintaining the athletic eligibility of his charges, not in their academic progress or career prospects. Men like Maynard are part of the corruption of college athletics.

It's proper to fire coaches who make the phrase 'student athlete' a topic of derision. But coaches aren't the only culprits in this sorry system.

The appellee alleges that this editorial is defamatory on its face because it "falsely accused Professor Maynard of using his position and influence to obtain a scholarship for his son, ... of not being concerned for the academic progress or career prospects of Marshall University Student Athletes, ... of corruption, falsely characterized Professor Maynard as a 'culprit' and implied that he should be fired from his job at the university."

Maynard, Don Perry, and Marshall basketball coach Rick Huckabay founded the Student Athlete Program in 1983. The goal of this self-improvement program was to offer better opportunities for the "whole student," by assisting student-athletes in their classroom work and in other areas of college life. The program drew considerable media attention, including a feature during a nationally televised basketball game. Because of the publicity received by the program and by Maynard personally as its director, Maynard stipulated at trial that he was a limited purpose public figure. This meant that under the United States Supreme Court's decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny, Maynard could not prevail on a defamation claim unless he proved, by clear and convincing evidence, that the Gazette made false and defamatory statements about him and did so with actual malice.

After deliberating for a little over an hour, the jury returned a verdict awarding Maynard $1.00 in compensatory damages and $160,000.00 in punitive damages. Final judgment was entered against the Gazette on June 26, 1991. The circuit court subsequently upheld the $160,000.00 punitive damage award by order entered February 17, 1993.

The Gazette now asks this Court to reverse the lower court's order, arguing that the editorial was not defamatory, contained no provably false assertion of fact, and that the evidence fails to establish that the defendant acted with actual malice.

" ' "Under New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), whenever there is a First Amendment defense to actions under state law, the state court is required to be a judge of both the facts and the law...." Syllabus Point 2, in part, Mauck v. City of Martinsburg, 167 W.Va. 332, 280 S.E.2d 216 (1981).' Syllabus point 5, Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778 (1986)." Syl. pt. 2, Dixon v. Ogden Newspapers, Inc., 187 W.Va. 120, 416 S.E.2d 237 (1992). This Court is required to conduct "an independent review of the evidence in libel cases to determine, as a matter of constitutional law, whether the statement was libelous or was made with actual malice." Long v. Egnor, 176 W.Va. 628, 634, 346 S.E.2d 778, 784 (1986). However, " '[a] court must decide initially whether as a matter of law the challenged statements in a defamation action are capable of a defamatory meaning.' Syllabus point 6, Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778 (1986)." Syl. pt. 3, Dixon v. Ogden Newspapers, Inc., 187 W.Va. 120, 416 S.E.2d 237 (1992).

Before examining the specific charges of defamation that are set forth in this case, we note the privileges that are afforded to the form of expression known as "opinion." "Following Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), courts have held that statements of opinion are absolutely protected under the First Amendment and cannot form the basis for a defamation action. These courts also hold that whether a statement is one of fact or opinion is an issue that must be decided initially by a court." Syllabus point 7, Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778 (1986).

In its more recent decision in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), the United States Supreme Court elaborated on Gertz, and, in the process, the Court refused to recognize "still another First Amendment-based protection for defamatory statements which are categorized as 'opinion' as opposed to 'fact.' " Milkovich, 497 U.S. at 17, 110 S.Ct. at 2705. "Rather than recognize a constitutional distinction between 'fact' and 'opinion,' the Court recognized a constitutional distinction between 'fact' and 'non-fact.' The Court thus changed the terminology of constitutional law in Milkovich, but not the underlying substance." Rodney A. Smolla, Law of Defamation § 6.02 (1994).

Confusion had arisen in lower courts following Gertz as a result of the following passage:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.

Gertz, 418 U.S. at 339-40, 94 S.Ct. at 3007. The Milkovich Court explained it did not think that this famous and often-cited dictum from Gertz "was intended to create a wholesale defamation exemption for anything that might be labeled 'opinion'.... Not only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of 'opinion' may often imply an assertion of objective fact." Milkovich, 497 U.S. at 18, 110 S.Ct. at 2705.

Rejecting the opportunity to require courts to conduct a preliminary inquiry into whether a statement is "opinion" or "fact," the Milkovich Court concluded that "the ' "breathing space," ' which ' "[f]reedoms of expression require in order to survive" ' [Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 772, 106 S.Ct. 1558, 1561, 89 L.Ed.2d 783, 790 (1986) ] (quoting New York Times, 376 U.S., at 272, 84 S.Ct., at 721), is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy...