Miskovsky v. Oklahoma Pub. Co.

• Decision Date: 12 January 1982
• Docket Number: No. 55326,55326
• Parties: 7 Media L. Rep. 2607, 1982 OK 8 George MISKOVSKY, Appellee, v. The OKLAHOMA PUBLISHING COMPANY, a corporation, Appellant.
• Court: Oklahoma Supreme Court

Page 587

654 P.2d 587

7 Media L. Rep. 2607, 1982 OK 8

George MISKOVSKY, Appellee, v. The OKLAHOMA PUBLISHING COMPANY, a corporation, Appellant.

No. 55326.

Supreme Court of Oklahoma.

Jan. 12, 1982.

Rehearing Denied April 6, 1982.

Certiorari Denied Oct. 12, 1982.

See 103 S.Ct. 235.

Appeal from the District Court of Cleveland County; Preston A. Trimble, Judge.

Appeal from a jury verdict awarding compensatory and punitive damages in a libel case to appellee. We find that the evidence of defamation, falsehood and malice presented by appellee was insufficient to permit the submission of the cause to a jury.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Everett J. Sweeney and E. Joe Lankford, Norman, and Carroll E. Gregg, Oklahoma City, for appellee; David A. Anderson, Austin, Tex., of counsel.

David Machanic, Michael Minnis, Pierson, Ball & Dowd, Oklahoma City, and Tom A. Lucas, Lucas & Cate, Norman, for appellant.

BARNES, Vice Chief Justice:

The dispositive issue in this cause is whether the evidence presented by a candidate for the United States Senate, George Miskovsky, in a libel action against a local publisher, Oklahoma Publishing Company (OPUBCO), was sufficient to permit the submission of the cause to a jury. We hold that it was not.

The facts of the cause before us are as follows: In August of 1978, eight Oklahomans had become candidates for the Democratic nomination for the office of the United States Senate. Among the candidates were, then Governor, David Boren, former State Senator and Representative, George Miskovsky, and Anthony Points, a newcomer to the political arena. During the campaign, Mr. Miskovsky, along with other candidates, was invited to attend a candidates' forum conducted by the Women's Democratic Club of Canadian County in El Reno, Oklahoma. Although Mr. Miskovsky, Mr. Points, and another candidate, Mr. Bridges, accepted the invitation, other Democratic candidates did not attend the forum, which was held at the Ponderosa Restaurant. During the forum, each candidate was invited to make a brief statement. While addressing the group, candidate Points read from a political flyer, copies of which he had distributed to the audience. In part the flyer read:

"I am against homosexuals or bisexuals in office or government. They are threats to our national security. They are subject to being blackmailed and will give out a favor or leak information from the government in return for having their homosexual identity kept secret.

"There is a side to David Boren that is a known fact in legal and political circles. And that's the fact that David Boren frequents with homosexuals and I'm putting it lightly.

"I don't think that is what you want for a U.S. Senator."

In addition to reading these remarks, candidate Points categorically stated that "Governor David Boren is a homosexual."

Mr. Miskovsky, on the following day, August 10, 1978, delivered a letter to the office of Governor Boren in which he set forth Mr. Points' charges against Boren, asking the Governor to answer several questions. That letter read as follows:

"The Honorable David Boren

Governor State of Oklahoma

State Capitol

Oklahoma City, Oklahoma

Dear Gov. Boren:

Yesterday I attended a noon meeting of the Canadian County Democratic Women's Club at the Ponderosa Restaurant in El Reno. About three dozen members of the club were present as well as club vice president, Mrs. Donald J. (Floretta) Cholston of El Reno, and two other Democratic candidates for the U.S. Senate, Dean Bridges and Anthony Points.

I was called upon to address the group about issues and I did, as did Mr. Bridges.

Mr. Points addressed the group and distributed a campaign flyer (a copy of which is enclosed herewith) containing the following verbatim transcript:

'I am against homosexuals in the school system. They are a threat to our children. They are like vultures 'preying' on our young.'

'I am against homosexuals or bisexuals in office or government. They are a threat to our national security. They are subject to being blackmailed and will give out a favor or leak information from the government in return for having their homosexual identity kept secret.'

'There is a side to David Boren that is a known fact in legal and political circles. And that's the fact that David Boren frequents with homosexuals and I'm putting it lightly.'

'I don't think that is what you want for a U.S. Senator.'

In addition to distributing the above written bulletin, Mr. Points added, among other things, the oral categorical statement, 'David Boren is a homosexual.'

After the meeting one of the ladies said she had not heard of this before, and others said they had heard rumors about the charge.

It is the first time I have heard this direct, categorical statement made in public by a candidate for the U.S. Senate.

For this reason I am asking you to respond to the following questions:

Do you know what a homosexual or bisexual is?

Are you a homosexual or bisexual?

Have you ever been a homosexual or bisexual?

Have you ever engaged in homosexual or bisexual activity?

I believe it is the right of every citizen, if it can be ascertained, to know if a candidate for U.S. Senator is afflicted with this kind of abnormal behavior.

A U.S. Senator has access to highly sensitive information vital to the defense of this country and our NATO allies.

I believe it is the right of every citizen to know if a candidate is afflicted with any physical, mental or philosophical weakness that might be dangerous to our national security or which might jeopardize the best interests of the majority of the people.

If a candidate is a homosexual, a person who is mentally deranged or a person of bizarre philosophical demeanor, then, the people have a right to know it.

And the candidate should disclose it in order to protect his effectiveness as the representative of the majority and free himself from any politically motivated intrigue, blackmail, extortion or compromise to prevent disclosure of his true identity.

The people are entitled to an immediate response. Such response should be subscribed by you under oath.

Sincerely,

George Miskovsky"

The letter was delivered to the Governor's office approximately ten minutes prior to a press conference held by Mr. Miskovsky. At the press conference, Mr. Miskovsky told members of the press and the media of Mr. Points' statement and of his letter to the Governor.

In preparation for the press conference, Mr. Miskovsky's press agent personally called various members of the media, telling them that this was going to be a "hot" press conference that would be worthy of their attention.

Governor Boren, who was out on the campaign trail, and away from the Capitol, upon hearing of Miskovsky's press conference, flew back to Oklahoma City and held a make-shift press conference at Wiley Post Airport, categorically denying the charges against him.

The next day, August 11, 1978, the Oklahoma Publishing Company (OPUBCO), publisher of The Daily Oklahoman, a morning paper, and The Oklahoma City Times, an evening paper, published three news articles and an editorial dealing with Mr. Points' charges, Mr. Miskovsky's press conference, and the Governor's response to these events. A few days later, OPUBCO also published an editorial cartoon lampooning Miskovsky's actions. These five publications--three news articles, an editorial, and an editorial cartoon--are the publications which Mr. Miskovsky claims libeled him.

I.

Before addressing the issues presented, we will first discuss the burden which Mr. Miskovsky was required to meet in order to have his case presented to a jury. Because Mr. Miskovsky admits that for the purposes of this libel action, he is a "public figure", there is no question that the New York Times v. Sullivan standards are applicable in this cause. In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), in considering a libel action brought by an elected Commissioner of the City of Montgomery, Alabama--a public official--the United States Supreme Court, in discussing the right of free speech and free press guaranteed by the First Amendment to the United States Constitution, noted that cases such as the one before us are considered against "... a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." The Court then went on to note that an "... erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have 'breathing space' ..."

The Court later quoted with approval language of Justice Burch of the Supreme Court of Kansas in Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908), stating:

" 'It is of the utmost consequence that the public should discuss the character and qualifications of candidates for their suffrages. The importance to the State and to society of such discussion is so vast, and the advantages derived are so great, that they more than counter-balance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character is so small, that such discussion must be privileged.' " (78 Kan. at 725, 98 P. at 286.) [Emphasis added]

Based upon our "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open," and the "breathing space" needed to protect the freedoms of expression, the United States Supreme Court held that the constitutional guarantees required a Federal rule which prohibited public officials from recovering damages in libel actions, unless certain prerequisites were met. The Court stated:

"The...