Nodar v. Galbreath

• Citation: 462 So.2d 803
• Decision Date: 13 December 1984
• Docket Number: No. 63724,63724
• Parties: 23 Ed. Law Rep. 406, 11 Media L. Rep. 1521 Joseph J. NODAR, Petitioner, v. Patricia GALBREATH, Respondent.
• Court: United States State Supreme Court of Florida

Page 803

462 So.2d 803

23 Ed. Law Rep. 406, 11 Media L. Rep. 1521

Joseph J. NODAR, Petitioner, v. Patricia GALBREATH, Respondent.

No. 63724.

Supreme Court of Florida.

Dec. 13, 1984.

Rehearing Denied Feb. 26, 1985.

James Cary Jacobson, Scott Richard Gill and Michael Eliot Rehr of Jacobson & Gottlieb, Hollywood, for petitioner.

Ronald P. Gossett of Hodges, Gossett, McDonald, Gossett & Crawford, Hollywood, for respondent.

Talbot D'Alemberte, L. Martin Reeder, Jr. and Thomas R. Julin of Steel, Hector & Davis, and Richard J. Ovelmen, Gen. Counsel, Miami, amicus curiae, for The Miami Herald Pub. Co.

George Rahdert of Rahdert, Anderson & Richardson, St. Petersburg, amicus curiae, for Times Pub. Co.

BOYD, Chief Justice.

This cause is before the Court on petition for review of the decision of the district court of appeal in Nodar v. Galbreath, 429 So.2d 715 (Fla. 4th DCA 1983). The district court affirmed a judgment for compensatory and punitive damages for the tort of defamation. The district court's decision conflicts with past decisions of this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We hold that the statements found to be defamatory by the jury were conditionally privileged under Florida law and that the plaintiff failed to prove express malice. We therefore quash the district court decision and order reversal of the judgment.

The complaint alleged that defendant/petitioner Joseph J. Nodar committed a slander of the plaintiff/respondent Patricia Galbreath by making certain remarks, heard by others, impugning her professional ability. The plaintiff is a public high school teacher. Prior to and at the time of the communication charged as defamatory, the son of the defendant was a student in a class taught by the plaintiff. The class was a special tenth-grade English class for gifted students. The publication alleged as having been defamatory was made at a meeting of the governing board of the Broward County school district, specifically a portion of the school board meeting specially set aside for receiving the comments of members of the public. Attached to the complaint was a transcript of petitioner's statement to the school board, the most pertinent parts of which are set out in the footnote. ¹

The record shows that the defendant was dissatisfied with the instruction his son was receiving in the class and believed that it was not in accord with the established curriculum for the tenth-grade gifted English class. The theory of the complaint was that the publication was a false and defamatory statement tending to impugn plaintiff's abilities in connection with her business or profession and thus was slander per se. A second count alleged that the statements were made with express malice and sought punitive damages. The jury found the remarks defamatory and maliciously made and returned verdicts for $5,000 compensatory damages and $5,000 punitive damages.

By motion to dismiss and by answer to the complaint the defense raised issues of qualified privilege, the lack of sufficient allegations of malice, the so-called "constitutional privilege" relating to public officials, public figures, and public concerns, and the lack of defamatory meaning in the communication. Another issue which was argued by the parties at trial was whether the statements made by the defendant at the school board meeting were statements of fact or expressions of opinion. Through special verdict interrogatories the trial court submitted to the jury the questions of (1) whether the statements were fact or opinion; (2) whether the defendant had a qualified privilege; and (3) whether he abused or lost the privilege due to express malice. The jury found that the statements were matters of fact, that the defendant when he spoke had a qualified privilege, but that he exceeded the bounds of the privilege because of his malice toward the teacher.

On appeal the district court affirmed. The court held that (1) it was not necessary to decide whether plaintiff was a public official for purposes of the "constitutional privilege" of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), because defendant as a parent addressing a school board on behalf of his son had a qualified privilege and received the benefit of that privilege at trial--the court reasoned that regardless of whether the "constitutional privilege" or the common-law qualified privilege applied, the plaintiff in order to recover would in either case have to prove malice--(2) that the trial court was wrong to submit to the jury the question of whether the defendant's statements were assertions of fact or expressions of opinion, but found the error obviated since the jury found them to be assertions of fact, the correct determination in the district court's view; (3) that there was no reason to disturb the jury's determination not only that the defendant made defamatory statements, but that he made them maliciously so as to forfeit the privilege attaching to the occasion of his remarks.

Petitioner does not argue to this Court that his statements were non-defamatory as a matter of law. Petitioner first argues that the trial court should have held respondent to be a "public official" under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and thus should have dismissed the lawsuit or granted summary judgment or a directed verdict on the ground of the failure of the plaintiff to plead or prove that the defendant made the statements knowing them to be false or with reckless disregard of whether or not they were true. As was stated above, the district court of appeal found that there was no need to decide whether the trial court had erred in not declaring the plaintiff to be a public official because the plaintiff had to prove "malice" in either case.

Petitioner correctly points out that the district court failed to recognize that the "actual malice" necessary to overcome the "constitutional privilege" of New York Times Co. v. Sullivan is different from the express malice necessary to avoid the common-law qualified privilege. The elements of "actual malice," and the standard of proof, differ from those of express malice. "Actual malice," which under federal constitutional law must be shown before a public official or public figure may recover for defamation relating to a matter of his official conduct or of public concern, consists of knowledge of falsity or reckless disregard of truth or falsity, and must be shown by clear and convincing evidence. Express malice under the common law of Florida, necessary to overcome the common-law qualified privilege, is present where the primary motive for the statement is shown to have been an intention to injure the plaintiff. See Loeb v. Geronemus, 66 So.2d 241 (Fla.1953); Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887). The plaintiff need only show this fact by a preponderance of the evidence, the ordinary standard of proof in civil cases. Thus the district court erred in concluding that the trial court's ruling on the "public official" question made no difference to the defendant's claim of privilege.

Petitioner argues that respondent is a public official and that the case is governed by the "actual malice" standard of New York Times Co. v. Sullivan. ² Where this defense is raised in a defamation case, the judicial characterization of the plaintiff as a public official or public figure has far-reaching consequences. The New York Times rule places a very heavy burden of proof upon the public official or public figure who seeks redress for defamation from one who criticizes or discusses the official or public conduct of the plaintiff. In New York Times the Court held that "constitutional guarantees require ... 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." 376 U.S. at 279-80, 84 S.Ct. at 725-26. It has been said of the New York Times rule: "What the New York Times rule ultimately protects is defamatory falsehood. No matter how gross the untruth, the New York Times rule deprives a defamed public official of any hope for legal redress without proof that the lie was a knowing one, or uttered in reckless disregard of the truth." Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (Stewart, J., concurring).

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court rejected the argument that the New York Times rule must apply not only to public officials and public figures but also to private persons defamed in the course of media publications or broadcasts reporting or commenting on or discussing matters of public interest. The Court observed that the purpose of the New York Times rule was to remedy the chilling effect which the common-law rule of strict liability for libel and slander might have on the uninhibited vigor of a free press. The Court then noted: "And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test." 418 U.S. at 342, 94 S.Ct. at 3008.

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the Court discussed the meaning of "public official" for purposes of the New York Times constitutional privilege as follows:

The motivating force for the decision in New York Times was twofold. We expressed "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that [such debate] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public...