Mead Corp. v. Hicks

• Decision Date: 30 September 1983
• Citation: 448 So.2d 308
• Parties: 10 Media L. Rep. 1030 MEAD CORPORATION and Merle Brown v. R.D. HICKS. 82-159.
• Court: Alabama Supreme Court

Page 308

448 So.2d 308

10 Media L. Rep. 1030

MEAD CORPORATION and Merle Brown v. R.D. HICKS.

82-159.

Supreme Court of Alabama.

Sept. 30, 1983.

Rehearing Denied April 6, 1984.

Harold F. Herring, Huntsville, for appellants.

H.R. Campbell and Robert L. Hodges, Scottsboro, for appellee.

FAULKNER, Justice.

The defendants, Merle Brown and the Mead Corporation, appealed from a judgment based on a jury verdict for $110,000.00, in favor of the plaintiff, R.D. Hicks, in a defamation action.

Hicks was a businessman in the Stevenson community in Jackson County, Alabama. He held garbage collection contracts with Jackson County and with several towns, including Stevenson. He was also responsible for collecting waste at a nuclear power plant. Hicks operated a landfill business and a grocery store, and farmed and raised cattle. Prior to the time when the allegedly slanderous remarks were made, Hicks hauled sawdust and logs for Mead, performed clean up work at Mead's facility in Stevenson, and sometimes furnished labor to Mead from his labor pool.

Hicks was widely perceived as having a wide circle of influential friends. He had a "close relationship" with the mayor and admitted having loaned money to the chief of police. The proceedings during the trial of the instant case were reported on the front page of the local newspaper. Hicks acknowledged that he was sometimes known around Stevenson as "Boss Hogg." ¹ Several witnesses testified that Hicks had a reputation around Stevenson as a bootlegger.

There was a conflict in the testimony as to who originated the accusations which Hicks complained about. The assistant police chief, Richard Brown, testified that on January 25, 1980, Merle Brown came to the police station to obtain a pistol permit. At that time, Merle Brown allegedly told Richard Brown that Hicks and his associates were running a "local mafia," that Hicks had lumber belonging to Mead, that Hicks was using Mead's logs and Mead's employees to operate Hicks's sawmill and that Hicks was a "little Al Capone." Richard Brown went on to testify that Merle told him that he knew the local police could not "finger" Hicks because "he owned the mayor." As a result of Merle Brown's alleged accusations, the Stevenson police conducted an investigation of Hicks which failed to discover any evidence of wrongdoing by Hicks.

Merle Brown, on the other hand, testified that Richard Brown was the source of the allegations. He claimed that Richard Brown told him that Hicks was hauling wood from Mead to Hicks's sawmill and that Richard Brown had cautioned him not to repeat any of the accusations because "Boss Hogg will have me killed ... he is the mafia in this county."

Regardless of where the accusations originated, Merle Brown repeated them to his supervisors and to other employees at Mead. Although a subsequent inventory revealed a shortage of about one million board feet of lumber at the Mead facility, Mead's auditors did not know whether the shortage resulted from theft, improper bookkeeping procedures, or a combination of problems.

According to Hicks, by the first part of April, talk that Hicks was in the "mafia" was "all over the streets." Hicks denied any wrongdoing and claimed that he was embarrassed and that his reputation was damaged by the "talk" originated by defendant Merle Brown. Hicks produced witnesses who testified that Hicks had had a good reputation prior to the defamatory remarks but that his reputation deteriorated afterward.

The defendants raised numerous issues on appeal. Their major contentions involved the following:

(1) whether Hicks was a public or private figure;

(2) whether the trial court charged the jury properly; and

(3) the defendants' claim that the communications complained of were privileged.

Because of the constitutional limitations on defamation actions outlined by the United States 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, ² a determination of whether the plaintiff is a public official, a public figure, or a private figure is necessary to determine the plaintiff's standard of proof. If the plaintiff is a public figure or public official, he must prove that the defendant had actual knowledge of the falsity of the defamatory statement or that he made the statement with reckless disregard for its truth or falsity. New York Times Co. v. Sullivan, supra, at 279-280, 84 S.Ct. at 725. A determination of the plaintiff's status is a question of law which must be decided by the trial court prior to charging the jury, so that the court can instruct the jury as to the applicable standard of proof. Mobile Press Register, Inc. v. Faulkner, 372 So.2d 1282, 1285 (Ala.1979).

On appeal the defendants argue that the trial court failed to make a determination as to the plaintiff's status. It is apparent, however, from the trial court's charge to the jury that it considered Hicks to be a private figure.

Public figures are those who gain notoriety due to their achievements or who seek the public's attention with vigor and success. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). There are two classes of public figures. Some individuals achieve such pervasive fame or notoriety that they become public figures for all purposes. Most public figures, however, are those who are involved in particular public controversies and become public figures for a limited range of issues. Gertz, supra, at 351, 94 S.Ct. at 3012.

While Hicks may have been in the public eye in regard to certain of his business ventures, such as litigation regarding solid waste disposal at the nuclear power plant, he did not achieve such pervasive fame or notoriety that he could be considered a public figure for all purposes. The allegations of wrongdoing were not made in connection with any matter of public controversy and were not made in connection with Hicks's involvement in local affairs which invited public comment.

"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."

Gertz, supra, at 352, 94 S.Ct. at 3013.

Having determined that Hicks was a private figure as to the allegedly defamatory statements in question, we turn to the question regarding the jury charge. At the outset we wish to acknowledge the difficulty faced by the trial court in formulating appropriate jury charges in light of the complexities engendered by the constitutional requirements established in New York Times Co. v. Sullivan, supra, and Gertz v. Robert Welch, Inc., supra. In order to ferret out the issues surrounding the jury instructions, it will be necessary to determine the proper standard of proof in a defamation action brought by a private figure.

At common law, a defamatory communication was actionable, subject only to the defenses of truth or privilege. The plaintiff was entitled to recover whether the defendant was reckless in making the defamatory statement or whether he innocently defamed the plaintiff. In New York Times Co. v. Sullivan, supra, the court ruled that the defense of truth, standing alone, was insufficient to protect freedom of speech and of the press. The court based its conclusion on the premise that the first amendment's "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open," makes erroneous statements sometimes inevitable. "False speech" on public issues was, therefore, brought within the mantle of constitutional protection. New York Times Co. v. Sullivan, supra, at 270-272, 84 S.Ct. at 720-21.

Because of the constitutional considerations involved, a public figure or public official must prove that the defamatory statement was made with knowledge of its falsity or with reckless disregard as to its truth or falsity. The same constitutional considerations do not, however, attend statements about private individuals. The Supreme Court has concluded, therefore, that "[s]tates should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood." Gertz, supra, at 346, 94 S.Ct. at 3010. Although the constitutional limitations are not as great with regard to statements about private individuals, Gertz clearly did away with the common law concept of strict liability for defamatory falsehoods. It held that "[s]tates may define for themselves the appropriate standard of liability for a publisher or broadcaster of [a] defamatory falsehood ... so long as they do not impose liability without fault." Gertz, supra, at 347, 94 S.Ct. at 3010.

Although Gertz applies on its face only to suits against newspapers and broadcasters, this court has ruled that the decision is applicable to actions against individuals as well. Bryan v. Brown, 339 So.2d 577, 583-584 (Ala.1976). The reasons for the abolition of strict liability for innocent defamation by the press would seem, a fortiori, to apply to actions against individuals. A professional publisher whose daily operations pose a likelihood of disseminating falsehoods throughout the community should not be held to a lesser standard than an individual.

It is, then, left up to the individual states to adopt a standard of conduct with regard to allegedly defamatory statements by private figures which incorporates the "fault" concept contained in Gertz. The majority of the decisions we found have adopted the negligence standard employed by the Restatement (Second) of Torts § 580 B (1976). Se...