Miller v. Argus Pub. Co.

• Decision Date: 04 November 1971
• Docket Number: No. 41264,41264
• Citation: 79 Wn.2d 816,490 P.2d 101
• Parties: Jerauld D. MILLER, Respondent, v. The ARGUS PUBLISHING COMPANY, a Washington corporation, Appellant.
• Court: Washington Supreme Court

Page 816

79 Wn.2d 816

490 P.2d 101

Jerauld D. MILLER, Respondent, v. The ARGUS PUBLISHING COMPANY, a Washington corporation, Appellant.

No. 41264.

Supreme Court of Washington, En Banc.

Nov. 4, 1971.

Ashley, Foster, Pepper & Riviera, Camden M. Hall, Seattle, for appellant.

Allen, DeGarmo & Leedy, Richard M. Stanislaw, Seattle, for respondent.

NEILL, Associate Justice.

Defendant appeals from a verdict and judgment for plaintiff in a libel action. Plaintiff is engaged in the business of public relations and advertising, including presentation of political candidates and issues. In plaintiff's words, his job in a political campaign is 'to try to sell the candidate' to the voting public.

Defendant publishes Argus, a weekly news magazine in tabloid form. Argus declares itself an 'independent journal of comment and opinion,' which focuses on politics, business and the arts, taking strong stands on public issues and candidates and urging its readers to follow its judgment. According to its publisher, 'ARGUS is unique in its field. It presently has some 20,000 readers who comprise the power elite of the area * * * (including) a good segment of the liberal intellectual community. Major political office holders, including the chief executive, senators and congressmen are ARGUS subscribers.' This readership closely coincides with the segment of the public from which plaintiff would draw his political clientele.

In November, 1967, and February, 1968, Argus carried front page articles concerning plaintiff, written by a freelance writer. The November article asserted that plaintiff was 'a big loser' in recent Seattle City Council elections in that 'his candidates' lost despite lavish spending; suggested that the 'Miller-style effort' works best where the people are bored and where plaintiff was best able to use lavish financing and deceptive practices; and concluded that, although plaintiff's candidates lost, he 'probably is crying all the way to the bank.' ¹

Following publication of the November article, plaintiff personally complained to the publisher and demanded that Argus 'refrain from further libeling me.' Some weeks later, the February article was published, in which plaintiff was referred to as one 'whose specialty heretofore has been losing right-wing causes and candidates,' and who had alienated his politically moderate brother by his 'flag-waving slant.' ²

We deem the recent holding of the United States Supreme Court in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), to be determinative, requiring us to reverse and remand this case. In view of this ultimate disposition, some of defendant's assignments of error need not be discussed. However, before examining the impact of Rosenbloom, we will consider those assignments of error involving issues which may arise on a retrial.

We deal first with the contention that, as a matter of law, the articles were not defamatory. The trial court determined that the articles were capable of a defamatory meaning, and submitted to the jury the issue of whether they were in fact defamatory. ³ We have approved this procedure and held that a jury verdict will not be disturbed so long as there was sufficient evidence to support an affirmative finding on the issue. ⁴ Accord: Getchell v. Auto Bar Systems Northwest, Inc., 73 Wash.2d 831, 440 P.2d 843 (1968); Purvis v. Bremer's, Inc., 54 Wash.2d 743, 344 P.2d 705 (1959). We are of the opinion that the evidence is sufficient to support a jury finding that the articles, read as a whole and given their ordinary meaning, were defamatory and libelous per se. See Getchell v. Auto Bar Systems Northwest, Inc., Supra.

Defendant next argues that the articles were substantially true and that it has established the defense of truth as a matter of law. The allusion to 'right wing causes and candidates' is justified by defendant on the basis that some of plaintiff's clients classified themselves as 'conservative democrats' or as otherwise 'conservative,' and on defendant's assertion that the terms 'conservative' and 'right wing' are synonymous. Beyond this, defendant makes no attempt to justify many statements which are capable of being viewed as having defamatory meaning and content: E.g., the statements that plaintiff's 'specialty * * * has been losing right-wing causes and candidates,' and that an ad campaign was 'inspired by a flour product's success and us(ed) the same technique,' that plaintiff's type of work best succeeds in an atmosphere where the public is 'bored,' that his work employs a 'covert' 'bag of tricks,' 'lavishly financed,' and finally that plaintiff was 'crying all the way to the bank.'

The validity of these statements was strenuously contested at trial. The record contains substantial countervailing evidence from which the jury could have found, and obviously did, that the articles in question were not even substantially true. The record shows that plaintiff's partisan political clientele constituted only about one-fourth of his business volume, that a major portion of the political work consisted of school funding campaigns, that his clientele in partisan political campaigns represented many hues of the political spectrum, and that the quality of his efforts in political campaigns was well regarded by others involved in the process who could hardly be labeled 'right wing.' In the face of such evidence, defendant's contention that it had, as a matter of law, established the substantial truth of the articles is not well taken. See Jolly v. Fossum,59 Wash.2d 20, 365 P.2d 780 (1961); Spangler v. Glover, 50 Wash.2d 473, 313 P.2d 354 (1957).

Defendant suggests the instructions were inadequate in failing to place the term 'substantial' before the word 'truth' in each instance. The court's instruction as to the defense of truth explicitly states that the jury is to find for defendant if it finds that the statements and inferences in the articles were substantially true. The instruction clearly permitted defendant to argue its theory of this defense to the jury. In fact, defendant did just that, pointing out to the jury that the court's instruction only required a finding of substantial truth. Thus, although it would have been preferable to be more explicit, the failure to qualify the word 'truth' each time it appears in the instruction was not error. Hartman v. Port of Seattle, 63 Wash.2d 879, 389 P.2d 669 (1964).

Defendant also contends that it has established the traditional common law defense of fair comment as a matter of law. This contention is advanced with the claim that the articles were substantially true as a matter of law. As we have noted, that claim is not supported by the record. Since a comment cannot be 'fair,' in the common law sense, if based upon a false statement of fact, defendant's contention on this point fails. See Cohen v. Cowles Publishing Co., 45 Wash.2d 262, 273 P.2d 893 (1954).

Defendant attacks the trial court's instruction on fair comment and assigns error to the rejection of its proposed instruction. We have reviewed both instructions, and conclude that the instruction given adequately states the law and presents defendant's theory on the issue. E.g., see, Samuelson v. Freeman, 75 Wash.2d 894, 454 P.2d 406 (1969); Rickert v. Geppert, 72 Wash.2d 1040, 432 P.2d 645 (1967).

Defendant asserts that certain collateral evidence was erroneously excluded at trial. Since defendant made no offer of proof, the record contains nothing from which we can determine the merit of this contention and we will not further consider it. E.g., Mason v. Bon Marche Corp., 64 Wash.2d 177, 390 P.2d 997 (1964).

Having reviewed the record in light of defendant's assertion of traditional common law defenses, we proceed to the principal thrust of the defense--the claim that defendant is protected from the consequences of any defamation in these articles by reason of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny. The rule stated in New York Times at 279, 84 S.Ct. at 720 is:

The constitutional guarantees (of freedom of speech and press) require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

This rule was subsequently extended to cover 'public figures' seeking recovery for defamatory falsehoods relating to their public conduct. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). We have recognized and applied the New York Times rule on three prior occasions, each of which involved an assertion that the plaintiff was a 'public figure.' Tilton v. Cowles Publishing Co., 76 Wash.2d 707, 459 P.2d 8 (1969); Amsbury v. Cowles Publishing Co., 76 Wash.2d 733, 458 P.2d 882 (1969); Grayson v. Curtis Publishing Co., 72 Wash.2d 999, 436 P.2d 756 (1967).

These precedents establish three requisites to constitutional shelter against liability for defamatory falsehoods in 'public figure' cases: (1) The plaintiff must be a 'public figure' within the contemplation of the Supreme Court precedents; (2) The defamatory falsehoods must pertain to that which makes the plaintiff a 'public figure'; (3) The statements must have been published without 'actual malice,' in the constitutional sense of that term. However, as we shall discuss, these factors have been altered by Rosenbloom v. Metromedia, Inc., Supra.

The trial court submitted to the jury the 'public figure' and 'actual malice' issues of New York Times, Inc. v. Sullivan, Supra. Under the instructions, the jury was permitted to render a verdict for the plaintiff if it found defamatory falsehood and that either (1) pla...