Maynard v. Port Publications, Inc.

• Decision Date: 28 October 1980
• Docket Number: No. 78-602,78-602
• Citation: 297 N.W.2d 500,98 Wis.2d 555
• Parties: , 16 A.L.R.4th 1361, 6 Media L. Rep. 2239 Julie MAYNARD, Plaintiff-Appellant-Petitioner, v. PORT PUBLICATIONS, INC., Defendant-Respondent, Michael Fellner, Ruth Ticktin and Ken Mate, Defendants.
• Court: Wisconsin Supreme Court

Page 500

297 N.W.2d 500

98 Wis.2d 555, 16 A.L.R.4th 1361, 6

Media L. Rep. 2239

Julie MAYNARD, Plaintiff-Appellant-Petitioner, v. PORT PUBLICATIONS, INC., Defendant-Respondent Michael Fellner, Ruth Ticktin and Ken Mate, Defendants.

No. 78-602.

Supreme Court of Wisconsin.

Argued Sept. 29, 1980.

Decided Oct. 28, 1980.

Carroll Metzner, Madison, for plaintiff-appellant-petitioner; Michael E. Ehrsam and Bell, Metzner & Siebold, S. C., Madison, on brief.

Harry F. Peck (argued), Louise A. Ptacek and Petrie, Stocking, Meixner & Zeisig, S. C., Milwaukee, on brief for defendant-respondent.

David Shute, D. Craig Mikkelsen and Foley & Lardner, Milwaukee, for amicus curiae Wisconsin Civil Liberties Union.

CALLOW, Justice.

We granted review in this case to decide whether a contract printer without knowledge of the content of the material it prints is subject to liability for defamation arising from the printing of the material and whether summary judgment was properly granted in favor of the defendant printer. We hold that a contract printer having no knowledge of the content of the material it prints cannot be subject to liability for defamation resulting from such printing and that the defendant printer was entitled to summary judgment.

I.

The defendant Port Publications, Inc. (Port) is a Wisconsin corporation engaged in the business of publishing and printing a variety of newspapers, periodicals, and similar publications. Port's operations can be divided into two functions. As a publisher it writes, edits, prints, and publishes certain publications, including the Ozaukee Press, Sailing Magazine, Port Fisherman, and the Ozaukee County Advertiser. As a contract printer Port accepts material which has been written, edited, or otherwise prepared by other organizations and, for a fee, reproduces it on its photo-offset printing machinery. Publications which Port produces in its capacity as a contract printer include Vegetarian Times, Christian Courier, WFMR Guide, Wisconsin Conservatory Bulletin, and several others including the newspaper Take Over. The individual named defendants in this lawsuit are alleged to own and to have editorial responsibility for the production of Take Over. They are not parties to this review.

The February 9-26, 1976, issue of Take Over contained a photograph of the face of the plaintiff-petitioner, Julie Maynard (Maynard), imposed upon the nude figure of another woman. Accompanying the photograph, which is alleged to be "obscene, malicious and defamatory," was an article which Maynard alleges contained "false, malicious and defamatory statements" about her.

Routine procedures were followed by Port in the contract printing of the February 9-26, 1976, issue of Take Over in accordance with its business arrangements with that newspaper. Take Over personnel delivered to Port photographic negatives of the paper's "layout," which is the arrangement of the material to be printed in the position in which it is to appear. Port then transferred the image from the negatives onto offset plates, a process which takes approximately one-half hour. The offset plates were then mounted on an offset printing press which, through the offset printing process, ultimately transferred the image onto a printed page. Port's offset printer is capable of printing approximately 20,000 copies of a 32-page newspaper per hour. Port admits that it did not attempt to read or investigate the truth or falsity of the material in the negatives supplied to it by Take Over and that it does not customarily read the negatives supplied to it for printing by its contract printing customers.

Maynard initiated this defamation suit against Port and the personnel of Take Over, seeking $50,000 in compensatory and $25,000 in punitive damages. Port moved for and was granted judgment on the pleadings based upon Maynard's original complaint and Port's answer, and Maynard filed an amended complaint. Port moved to dismiss Maynard's amended complaint for failure to state a claim upon which relief could be granted. That motion was denied. Port then answered and subsequently moved for summary judgment. Based upon the pleadings and affidavits submitted by several Port employees and a counteraffidavit submitted by Maynard's attorney, Port's motion was granted by the trial court on the theory that Port, for constitutional reasons, had no duty to investigate the truth of the content of Take Over. The court of appeals, 91 Wis.2d 850, 284 N.W.2d 121, affirmed, holding that the mere mechanical act by Port in reproducing, as a contract printer, material furnished by a customer is constitutionally privileged and that summary judgment was properly granted. We affirm the decision of the court of appeals, but we do not adopt its reasoning.

In reviewing an order granting summary judgment, we begin with an examination of the pleadings to determine whether a claim for relief has been stated. Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473 (1980); Kanack v. Kremski, 96 Wis.2d 426, 430, 291 N.W.2d 864 (1980). The inquiry then shifts to whether there exists any material issues of fact. Pursuant to sec. 802.08(2), Stats., summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." This is also the standard which governs our review. Heck & Paetow Claim Service, Inc. v. Heck, 93 Wis.2d 349, 356, 286 N.W.2d 831 (1980); Wright v. Hasley, 86 Wis.2d 572, 577-78, 273 N.W.2d 319 (1979).

The material allegations of Maynard's amended complaint, as they relate to Port, are as follows:

"7. That upon information and belief the defendant, Port Publications, Inc. is the printer of the aforementioned 'Take Over' newspaper and has been employed in that capacity for a number of years; that on prior occasions Port Publications, Inc. had refused to print certain issues of 'Take Over' because of libelous and defamatory material that was contained in certain articles.

"8. That on February 9, 1976, or prior thereto, the defendants maliciously prepared, composed and caused to be printed and published in the February 9-26 issue of the newspaper 'Take Over' an article entitled 'February Valentine Queen Julie Maynard' a copy of which is attached hereto and marked Exhibit A, which article contains false, malicious and defamatory statements relative to the plaintiff herein. Julie Maynard; that the aforementioned news article contained the following false, malicious and defamatory matter concerning the plaintiff:

"At the same time, she continued, my brother who is now employed by the Army in a top security clearance job, began taking sexual liberties with me. When I complained of his advances to my mother, she would curse me and beat me. Thank God I found a father figure neighborhood policeman who rescued me from juvenile detention.

"(9.) That the aforementioned article was also accompanied by a photo of Julie Maynard's face, which is imposed on a drawing or picture of a grotesque nude woman; that said picture is obscene, malicious and defamatory.

"10. That the defendants then and there maliciously and wrongfully published, or caused the publication of said false and defamatory articles in 'Take Over', a newspaper of general circulation in the City of Madison, Dane County, Wisconsin.

"11. That the defendants prepared, printed or caused to be printed and published the false, malicious and defamatory statements and picture in Exhibit A willfully and with intent to injure the plaintiff.

"12. That at the time of printing the aforementioned defamatory article, the defendants knew that the words thereof were false and untrue and in publishing said defamatory publication, the defendants acted with malice toward the plaintiff."

It was upon these allegations that the trial court denied Port's earlier motion to dismiss the complaint for failure to state a claim upon which relief could be granted. We are satisfied that these allegations constitute a claim upon which relief can be granted against Port for defamation. See: D'Amato v. Freeman Printing Co., 38 Wis.2d 589, 157 N.W.2d 686 (1968); Olston v. Hallock, 55 Wis.2d 687, 201 N.W.2d 35 (1972). See also : Restatement (Second) of Torts, sec. 558 (1977).

The affidavits and other papers supporting and opposing the motion for summary judgment must then be examined to determine whether there is a genuine issue as to any material fact. In support of its motion, Port submitted affidavits of its president, William F. Schanen, III, and two of its employees, Joseph Evraets, offset plate maker, and Edna Plier, business manager. Schanen's affidavit details the photo-offset printing process as it is utilized by Port. It describes the business relationship between Port and Take Over as it existed before and at the time of the defamatory issue, and, most significantly, states that with respect to the issue in question, Port, its agents, or employees did not read or attempt to read the photographic negatives submitted by Take Over for printing. The affidavit states that it is customary for Port, acting as a printer, not to read the materials presented to it in the form of photographic negatives for offset printing. As a consequence, the Schanen affidavit states that

"49. At and after printing the allegedly defamatory materials which are the subject of this litigation, Defendant was unaware of the content of the issues of 'Take Over' in question and neither knew, believed nor suspected that the materials contained therein might have been inaccurate, false or defamatory."

The affidavit of Evraets, the plate maker, corroborates the Schanen affidavit by stating that in making the offset plates, from which the materials are ultimately printed, he does not attempt to read the material contained in the negatives and that he...