Metromedia, Inc. v. Hillman

Decision Date08 May 1979
Docket NumberNo. 5,5
Citation400 A.2d 1117,285 Md. 161
Parties, 5 Media L. Rep. 1620 METROMEDIA, INC., etc. v. David H. HILLMAN et al. Misc.
CourtMaryland Court of Appeals

H. Thomas Howell, Baltimore (John H. Mudd and Semmes, Bowen & Semmes, Baltimore, on brief), for appellant.

Steven A. Michael, Bethesda (Sando & Michael, Bethesda, on brief), for appellees.

Argued before MURPHY, C. J., SMITH, DIGGES, ELDRIDGE, COLE and DAVIDSON, JJ., and ALAN M. WILNER, Associate Judge of the Court of Special Appeals, Specially Assigned.

SMITH, Judge.

This case comes to us by certification from the United States District Court for the District of Maryland. Under Maryland Code (1974) § 12-601, Courts and Judicial Proceedings Article, jurisdiction is granted to this Court to "answer questions of law certified to it by . . . a United States District Court . . . if there is involved in any proceeding before the certifying court a question of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the Court of Appeals of this state." Pursuant to that authority two questions have been certified to us:

(1) In light of Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976), and General Motors Corporation v. Piskor, 277 Md. 165, 352 A.2d 810 (1976), does Maryland law continue to recognize any distinction between libel Per se and libel Per quod ?

(2) If such a distinction is recognized, does Maryland law continue to require the pleading and proof of special damages in cases where extrinsic facts are necessary to show the libelous nature of the statement made by the defendant, that is, in cases of libel Per quod ?

We observe that by reason of Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976), much of the distinction or difference between libel per se and libel per quod has in fact disappeared. Under Maryland principles of pleading the same rules continue to apply as to the nature of the libel. That is, if the libel is readily apparent as in the situation where one is called a thief, no explanation is necessary, but in the instances which previously would have been a libel per quod, the nature of the libel must be pleaded with the same particularity as formerly. Since nominal or presumed damages no longer exist, in all libel actions Maryland pleading principles require the same type of pleading as to damages as was formerly necessary in libel per quod.

To answer the certified questions it is not necessary in this instance to allude to the facts before the certifying court. It will be sufficient to say that Metromedia, Inc., etc., has been sued for libel by David H. Hillman et al., as a result of a television broadcast.

As we see it, for the purpose of answering the certified questions we have no need to involve ourselves in the controversy that has raged between certain scholars relative to libel per se and libel per quod. See, e. g., Eldredge, Variation on Libel Per Quod, 25 Vand.L.Rev. 79 (1972); Eldredge, The Spurious Rule of Libel Per Quod, 79 Harv.L.Rev. 733 (1966); Murnaghan, Ave Defamation, Atque Vale Libel and Slander, 6 U. of Balt.L.Rev. 27 (1976); Murnaghan, From Figment to Fiction to Philosophy The Requirement of Proof of Damages in Libel Actions, 22 Cath.U.L.Rev. 1 (1972); Prosser, More Libel Per Quod, 79 Harv.L.Rev. 1629 (1966); and Prosser, Libel Per Quod, 46 Va.L.Rev. 839 (1960).

In M & S Furniture v. DeBartolo Corp., 249 Md. 540, 241 A.2d 126 (1968), Judge Horney explained for the Court the difference between libel per se and libel per quod:

The distinction is based on a rule of evidence and the difference between them lies in the proof of the resulting injury. In the case of words or conduct actionable Per se, their injurious character is a self-evident fact of common knowledge of which the court takes judicial notice and need not be pleaded or proved. In the case of words or conduct actionable only Per quod, the injurious effect must be established by allegations and proof of special damage and in such cases it is not only necessary to plead and show that the words or actions were defamatory, but it must also appear that such words or conduct caused actual damage. The cases in this state are collected in 14 M.L.E., Libel and Slander, § 11 ((1961)). See also 33 Am.Jur., Libel and Slander, § 5 ((1941)); 53 C.J.S., Libel and Slander § 170 b., c. ((1948)). (Id. at 544, 241 A.2d at 128.)

The origin of the distinction was explained by Judge Horney for the Court in American Stores Co. v. Byrd, 229 Md. 5, 181 A.2d 333 (1962), although in that instance the reference was to slander and not libel:

The historical distinction between slander Per se and slander Per quod is undoubtedly based on the theory that in words actionable Per se, their injurious character is a fact of common notoriety, and necessarily import damages not requiring proof of special damages (cf. Foley v. Hoffman, 188 Md. 273 (, 52 A.2d 476 (1947))); while, if the words used are not defamatory Per se, they must be explained by innuendo and colloquium (cf. Walker v. D'Alesandro, 212 Md. 163 (, 129 A.2d 148 (1957))). See Odgers on Libel and Slander (Am.Ed. by Bigelow), p. * * * 309.

Consistently this Court has held that words which falsely charge a person with or impute to him the commission of a crime for which he is liable to be prosecuted and punished are actionable Per se. See, for example, the early case of Dorsey v. Whipps, 8 Gill 457, 462 (1849), where, in quoting 1 Starkie on Slander, p. 43, it was said: " 'To impute any crime or misdemeanor, for which corporal punishment is to be inflicted, is actionable without proof of special damage.' " And see Haines v. Campbell, 74 Md. 158, 21 A. 702 (1891), where it was stated that if spoken words convey an implication of crime, they are actionable in whatever mode their meaning may be expressed, that is, whether by way of interrogation, insinuation, ironic praise or any other form of speech understood by the hearers. See also Wheatley v. Wallis, 3 H. & J. 1 (1810); Bonner v. Boyd, 3 H. & J. 278 (1811); Long v. Eakle, 4 Md. 454 (1853); Shockey v. McCauley, 101 Md. 461, 61 A. 583 (1905). Other cases in this area are collected in 14 M.L.E., Libel and Slander, § 14 (Commission of Crime). (Id. at 12 and 13, 181 A.2d at 337.)

For discussion of special damages see Shafer v. Ahalt, 48 Md. 171, 174 (1878); Cheek v. J. B. G. Properties, Inc., 28 Md.App. 29, 32-33, 344 A.2d 180 (1975); 1 J. Poe, Pleading and Practice § 174 (5th ed. Tiffany 1925); and 1 J. Chitty, Treatise on Pleading

Page 411

(16th Am. ed. Perkins 1876).

In Jacron, supra, Judge Levine reviewed for the Court the changes brought in the law of libel and slander by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). 1 He said of those opinions:

At common law, the only defenses available to a publisher of defamatory material were truth and the common law privileges. Then, in its landmark decision in New York Times, the Supreme Court held that in a state libel trial, a public official must establish "malice," defined as a knowing falsity or a reckless disregard for the truth, on the part of the publisher to recover damages for defamatory statements concerning the plaintiff's official conduct. The traditional defense of truth, the Court held, did not provide adequate protection to the First Amendment rights of the press.

Three years later, in Curtis Publishing Co. v. Butts, supra, another unanimous Court expanded the class of plaintiffs subject to the New York Times test to include "public figures." Although Mr. Justice Harlan wrote the opinion for the Court, a majority agreed with Mr. Chief Justice Warren's definition of a public figure, which included not only public officials but also those individuals who are "nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." 388 U.S. at 164, 87 S.Ct. 1975. The Chief Justice assumed that involvement in public issues or events itself guaranteed access to the means by which defamatory criticism might be controverted.

In Rosenbloom v. Metromedia, supra, in an opinion joined by only two other members of the Court, Mr. Justice Brennan appeared to extend the constitutional privilege enunciated in New York Times yet another step further by applying it to defamatory falsehoods if the statements concern matters of public or general interest, regardless of the status of the person defamed. The essence of the opinion is this:

"If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety. . . ." 403 U.S. at 43, 91 S.Ct. 1811. (Id. 276 Md. 584-86, 350 A.2d at 691 (footnotes omitted).)

Judge Levine went on to say for this Court:

Thus was the stage set for Gertz. There, the plaintiff was a Chicago attorney prosecuting a civil action for the family of a youth who had been shot and killed by a police officer. The officer had previously been convicted of second degree murder in the incident, but the plaintiff had neither participated in the criminal proceeding nor discussed the officer with media representatives. Nevertheless, the defendant published an article characterizing the plaintiff as the "architect of the criminal pro...

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