Pearson v. Fairbanks Pub. Co.
| Decision Date | 28 April 1966 |
| Docket Number | No. 585,585 |
| Citation | 413 P.2d 711 |
| Parties | Drew PEARSON, Appellant, v. FAIRBANKS PUBLISHING CO., Inc., and C. W. Snedden, Appellees. |
| Court | Alaska Supreme Court |
Robert A. Parrish and Warren A. Taylor, Fairbanks, for appellant.
Robert J. McNealy of McNealy & Merdes and Henry J. Camarot, Fairbanks, for appellees.
Before DIMOND, Justice, and MOODY and DAVIS, Judges.
This is a libel action brought by appellant against appellees. The case was tried by the court without a jury. Judgment was entered in favor of appellees and appellant brought this appeal.
Appellant is a newspaper columnist and author of a widely circulated, syndicated and copyrighted daily column entitled 'Washington Merry-Go-Round'. Prior to August 1, 1958 appellant's column was published in appellee's newspaper, the Fairbanks Daily News-Miner.
On July 7, 1958 appellant's column dealt with Alaska's effort to achieve statehood. 1 It described the then Governor of Alaska, Mike Stepovich, as a 'Johnny-come-lately' to the statehood cause, and attributed the success of the statehood movement to Ernest Gruening. 2 On the following day, July 8, 1958, appellees published an editorial criticising the accuracy of appellant's column. The editorial was entitled 'The Garbage Man of the Fourth Estate'. It defended Governor Stepovich's position and efforts as an advocate for statehood, stated that one of appellant's colleagues in Washington, D. C. had discribed appellant as the 'Garbage Man of the Fourth Estate', raised the question of why appellee should give space in its newspaper to the printing of garbage, and ended with the comment:
For the time being well's get a clothespin for out editorial nose while we decide what to do about this free-wheeling garbage man of the fourth estate.
On August 15, 1958 appellee published another editorial entitled 'Exit Drew Pearson'. This editorial referred again to the alleged comment of a member of the working press in Washington, D. C. to the effect that appellant was 'the garbage man of the fourth estate', and stated that appellant's column was being dropped because appellee did not wish to distribute garbage with its newspaper. 3
The trial court held that the editorials were qualifiedly privileged, that they constituted fair comment, and that they were not made with malice. Appellant claims that the trial court was in error.
To refer in appellee's editorial to appellant as a garbage man and to his writings as garbage was to infer that appellant was inaccurate as a journalist, and that his writings were literary trash-that they were worthless. Such publications were defamatory in themselves because they had a natural tendency to injury appellant's reputation and to result in a lack of confidence in his competency as a responsible and accurate newspaper journalist. The language of the editorials was not susceptible of an interpretation that would not have detracted from appellant's reputation. 4
A publication that is defamatory in itself is itself an injury entitling the injured one to recover damages, unless it is shown to the satisfaction of the trier of fact that the defamatory matter is true or that the one who published the defamatory matter was privileged to publish it. 5 The trial court found that the defamatory matter contained in appellee's editorials was false. The accuracy of such finding is not questioned by appellee. We accept it. The remaining question, then, is whether appellee was privileged to publish the false and defamatory matter that appeared in the two editorials.
In Fairbanks Publishing Co. v. Francisco 6 we stated:
The law of defamation embodies the important public policy that individuals should generally be free to enjoy their reputations unimpaired by false and defamatory attacks. But there is a well established counter policy that in certain situations there is a paramount public interest permitting persons to speak or write freely without being restrained by the possibility of a defamation action. In such situations the person writing or speaking is said to enjoy a privilege.
A privilege exists here. The subject of Alasks Statehood was of public interest and concern. When, in speaking out on that subject, appellant belittled the efforts toward achieving statehood of the then governor, Mike Stepovich, and praised the efforts of a former governor and then Territorial Plan Senator, 7 Ernest Gruening, both being men of prominence in Alaska, appellant invited public judgment, comment and criticism of the stand he took. As to how far such judgment, comment and criticism should go involves a balancing of interests. On the one hand there is the interest in safeguarding the right to one's reputation. On the other hand there is the interest in allowing freedom of debate and expression on public questions and issues. We believe that a fair balance of these competing interests is achieved where the law of defamation permits one, without liability for damages, to comment, criticize and pass judgment on statements made by another on an issue or matter of public interest, even if such comment, criticism and judgment involves misstatements of fact-so long as such misstatements are relevant to the subject matter spoken or written about by the one claiming to be defamed and are not shown by him to have been made with actual malice.
The rule which we adopt here is a logical extension of the rule which accords a privilege to one who passes judgment and comments on those things which are submitted to the public for its approval, such as books, articles, advertisements, works of art, and others. 8 The situation here is not dissimilar. Appellant purported to give facts to the public on a matter of public concern and interest. He was attempting to influence public opinion; he was seeking to have the public accept as true or to approve of his views on the subject about which he wrote. He should be in no position to complain if the judgment, opinion, comment or criticism is adverse. 9
We are aware of the fact that where matters of public concern are involved the majority of the courts hold that the privilege of public discussion does not extend to misstatements of fact but is limited to opinion, comment or criticism based upon a true statement of fact. 10 We do not follow the majority rule, but hold that the privilege extends to non-malicious misstatements of fact. 11 The distinction between a fact statement and an opinion or comment is so tenuous in most instances, that any attempt to distinguish between the two will lead to needless confusion. 12 The basis for the privilege is that it is in the public interest that there be reasonable freedom of debate and discussion on public issues. One should not be detered from speaking out through the fear that what he gives as his opinion will be construed by a court as inferring, if not actually amounting to, a misstatement of fact.
Appellees ask us to construe the United States Supreme Court's decision in New York Times Co. v. Sullivan 13 as extending to appellees a defense to this action for defamation brought by appellant. In the Sullivan case the Court held that the first amendment to the federal constitution requires 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. 14 In view of the result that we have reached here-that appellees are not liable to appellant in the absence of a showing of actual malice-it is unnecessary for us to speculate as to whether the United States Supreme Court would extend the protection of the first amendment so as to encompass situations other than those which involve defamatory falsehoods relating to the official conduct of public officials. 15
'Actual malice' must be defined. In Fairbanks Publishing Co. v. Francisco 16 we said with reference to the earlier case of Fairbanks Publishing Co. v. Pitka 17 that we had '' The fact of the matter is that we had not defined 'actual malice' in the sense of formulating a meaning of the term for future cases, but had merely accepted the definition of 'actual malice' as given by the trial court in its instruction to the jury for the purpose of our determination in the Pitka case as to whether there had been any evidence of actual malice.
We believe that it is not conducive to desirable outspokenness in debate and discussion upon public questions and issues to hold that the privilege of non-liability in a defamation action is conditioned upon the speaker or publisher who claims the privilege being free from subjective motives of ill will, enmity, hatred, spite or desire to injure. As the United States Supreme Court said in Garrison v. State of Louisiana: 18
Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.
We adopt for this jurisdiction the meaning of 'actual malice' as given by the United States Supreme Court in the case of New York Times Co. v. Sullivan. 19 Actual malice exists when it is proved that the defamatory statement was made with knowledge that it was false or with a reckless disregard of whether it was false or not. Under this meaning of the term, the use of the knowingly false statement or the false statement made with reckless disregard of the truth will abuse-thus destroying-the privilege that otherwise would be enjoyed in discussion and debate on public questions and issues. 20
The trial court found that...
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