McCall v. Courier-Journal and Louisville Times Co., COURIER-JOURNAL

Decision Date13 October 1981
Docket NumberCOURIER-JOURNAL,No. 80-SC-285-DG,80-SC-285-DG
Parties7 Media L. Rep. 2118 John Tim McCALL, Movant, v.AND LOUISVILLE TIMES COMPANY, et al., Respondents.
CourtUnited States State Supreme Court — District of Kentucky
OPINION OF THE COURT

The general problem to be addressed on this appeal is the tort liability of print media to private citizens for the publication of defamatory statements and for the invasion of their right of privacy. The specific issue to be decided deals with such liability for the contents of an article appearing in the Louisville Times, a daily newspaper of substantial circulation distributed primarily in Jefferson County, Kentucky.

Movant, John Tim McCall, a Louisville attorney, was contacted by Kristie Frazier about the possibility of his representing her in two narcotic-related criminal charges. About the same time, respondents Krantz and Van Howe, reporters for the Times, were investigating alleged harassment of the drug community by narcotics agents and other local police. In the course of their investigation, the reporters interviewed Frazier who informed them that McCall had offered to represent her for a contingent fee and that part of the fee would be used to "fix" the cases or to bribe a judge. On March 17, 1976, the Times published a front page article, authored by Krantz and Van Howe, which described the results of the investigation, including the repetition of the allegations of bribery and a "fix." 1

McCall filed suit against the two reporters and the Courier-Journal and Louisville Times Company, which owns and operates the Times. The basis of the suit was two-fold: (1) libel, for publishing the allegation of a "fix" or bribery, even though the charge admittedly could not be sustained, and (2) invasion of McCall's right of privacy. The trial judge granted summary judgment to the newspaper and the reporters. The Court of Appeals affirmed. Because of the importance of the issues raised, we granted discretionary review.

Movant argues that (1) the statement that he as an attorney was guilty of intent to bribe a judge or "fix" a case is defamatory; (2) the newspaper libeled him as a private citizen by simply printing such an allegation, even though the reporters did not specifically accuse him of bribing a judge or "fixing" a case; and (3) the newspaper invaded his privacy by arranging for Frazier to trespass on his property with a tape recorder concealed in her purse. Respondents argue that (1) the article when read as a whole is not libelous; (2) a newspaper cannot be held strictly liable for publishing defamatory statements about private individuals; and (3) newspapers are not guilty of libel when they simply report what occurred.

We will discuss the two possible bases of liability, libel and invasion of privacy, separately.

I. LIBEL
A. WAS THE ARTICLE LIBELOUS?

Libel is the publication of a written, defamatory, and unprivileged statement. Writing and publication are conceded here. The writing is defamatory if it tends to (1) bring a person into public hatred, contempt or ridicule; (2) cause him to be shunned or avoided; or, (3) injure him in his business or occupation.

It is an elementary principle of the law of libel that the defamatory matter complained of should be construed as a whole. Smith v. Pure Oil Co., 278 Ky. 430, 128 S.W.2d 931 (1939); Restatement (Second) of Torts, Sec. 563, comment d (1976). The alleged defamatory words must be measured by their natural and probable effect on the mind of the average lay reader and not be subjected to the critical analysis of the legal mind. Digest Publishing Company v. Perry Publishing Co., Ky., 284 S.W.2d 832 (1955). We must, therefore, analyze the article in its entirety and determine if its gist or sting is defamatory.

The gist of the article is that the reporters became interested in McCall's conduct while they were interviewing Frazier on another matter. She alleged, in the first interview, that McCall had offered to "fix" her case for $10,000. Frazier signed an affidavit to the effect that McCall for said fee would guarantee that she would "walk in the courtroom and turn around and walk back out." A witness corroborated that McCall had said this. The interview and the affidavits relating to an alleged "fix" were the sparks that ignited the investigation and the subsequent publication of the article.

At the instance of the two reporters, Frazier agreed to make an appointment with McCall, and to carry a concealed tape recorder. She was told only one specific question to ask: "Can't this case be handled in the regular way for $1,500, without a payoff, or does it have to take $10,000 to keep me out of jail?" The plan was that if the answer given by McCall to that question (and presumably any other incriminating statement he made) constituted an attempt to bribe a judge, 2 the newspaper would provide the money. Following the meeting between McCall and Frazier, the Times analyzed the transcript of their conversation and "found no indication of any 'fix'."

In spite of this conclusion, the Times decided to publish a detailed description of the entire transaction. The story appeared on page one and included the allegations made by Frazier and her witness that McCall had offered to "fix" the case or bribe a judge. These allegations were published, in spite of the fact that the newspaper knew-and admitted it knew-that there was no evidence of any such crime on the part of McCall.

What we have is a situation where the newspaper says to the reader, "we don't find any evidence of a crime on the part of McCall, but we heard some contrary stories and we are going to repeat them anyway." Contrary to the statement of respondents' counsel that there were only one or two references to an alleged illegal act of McCall in the article, we have found references in nine paragraphs in the article which use the words "fix," "illegally," "improper offers," "possible mishandling," "fix or bribe," "payoff," and "illegal way." All these terms refer to the allegations of McCall's alleged misconduct.

In addition, the article spends a great deal of time to show that a contingent fee, allegedly suggested by McCall in a criminal case, may be a serious violation of the canons of legal ethics. The article unquestionably paints a sordid picture of McCall as an attorney. The repeated use of the words "fix," "bribe," etc., with reference to McCall, are so overwhelming that a lay person would, we believe, inevitably conclude that McCall did solicit a high legal fee for the purpose of "fixing" a case or bribing a judge. We conclude that the article in question is defamatory as a matter of law.

B. IS THE NEWSPAPER LIABLE FOR PUBLICATION OF THE DEFAMATORY

STATEMENTS?

In the present case, the newspaper did not specifically accuse McCall of offering to "fix" the case or to bribe a judge. It simply repeated numerous times the allegations made to this effect. The newspaper argues that it is not liable to McCall because there has been no showing of fault in its actions in printing these statements of another, and that it is not strictly liable for what appears on its pages, even if the stories are defamatory.

The Federal courts, led by the United States Supreme Court, have been developing a body of law in recent years which defines the protection the First and Fourteenth Amendments give the press for libelous publications.

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court ruled that damages could not be recovered for defamation of a public official without clear and convincing evidence of actual malice on the part of the publisher. Actual malice requires a showing of knowledge of falsity of the defamatory statement or reckless disregard of its truth or falsity. Id. In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the court applied the Sullivan standard of defamation to "public figures." In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the court, in a plurality opinion, applied Sullivan to a publication concerning private individuals where the matter was of concern to the public.

If the Supreme Court had left Rosenbloom untouched, respondent here clearly would have had the right to publish the defamatory statements made by Frazier about McCall (who concededly is a private individual) with relative impunity because they dealt with a matter of public interest, viz., possible bribery of a judge or "fixing a case". The Court modified the Rosenbloom case and retreated from it in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). This case sounded the death knell of the doctrine of liability without fault in libel cases by private individuals against media defendants. The Court ruled that each state may allow private individuals to recover compensatory damages, even if the defendant publisher or broadcaster disseminated the defamatory statement without actual malice.

"(S)o long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual."

Id. at 347, 94 S.Ct. at 3010, 41 L.Ed.2d at 809. See Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), where the court characterized Gertz as a repudiation of Rosenbloom with respect to defamation of private individuals.

While it is not our function to approve or disapprove the ruling or reasoning of the Supreme Court, we concur in the rationale that the court used in balancing the interests of the press with those of private individuals. Private individuals and their reputations were declared...

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