Phillips v. Evening Star Newspaper Co.

• Decision Date: 17 November 1980
• Docket Number: No. 13231.,No. 13230.,13230.,13231.
• Parties: John PHILLIPS, Appellant and Cross-Appellee, v. The EVENING STAR NEWSPAPER CO., Appellee and Cross-Appellant.
• Court: D.C. Court of Appeals

424 A.2d 78

John PHILLIPS, Appellant and Cross-Appellee, v. The EVENING STAR NEWSPAPER CO., Appellee and Cross-Appellant.

No. 13230.

No. 13231.

District of Columbia Court of Appeals.

Argued March 15, 1979.

Decided November 17, 1980.

Joseph Zitomer, Silver Spring, Md., for appellant and cross-appellee John Phillips.

Stuart F. Pierson, Washington, D. C., with whom Richard L. Cys and Floyd H. Lewis, Washington, D. C., were on the brief, for appellee and cross-appellant The Evening Star Newspaper Co., Inc. Sidney Dickstein and Leslie J. Ruben, Washington, D. C., filed a brief on behalf of amicus curiae, Ilya Wolston.

Before KERN, HARRIS and FERREN, Associate Judges.

KERN, Associate Judge:

These are cross-appeals from orders the trial court entered in a defamation suit John Phillips brought against the Washington Evening Star (Star) that resulted in the jury finding in his favor with a verdict in the amount of one dollar. Phillips appeals from the court's denial of his motion for a new trial, contending that there was sufficient evidence of punitive damages. We are not persuaded by this argument and conclude the court correctly instructed the jury and properly denied the new trial motion.¹

The Star vigorously challenges on its appeal the court's denial of its pretrial motion for summary judgment and its motion for a directed verdict at trial. It contends that Phillips, a private individual, was involved in an event of public or general concern warranting its report in the newspaper. Hence, Phillips may not recover, according to the Star, for defamation in a news story unless he shows by clear and convincing evidence that the Star published the defamatory material with knowledge that it was false.² Alternatively, the Star argues that its publication concerning Phillips was privileged because it accurately reported an official pronouncement concerning a governmental activity taken in response to action by Phillips.

We conclude that the trial court was correct in ruling that (1) pursuant to the Supreme Court's holding in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), an individual in a defamation action who is neither a public figure nor a public official may recover actual damages if he shows negligence on the part of the media defendant, and (2) no common law privilege was applicable to the instant case. The trial court's opinion reviews the pertinent precedents and states both clearly and correctly the conflicting policy considerations it examined in reaching its conclusions. While we might structure our analysis somewhat differently than did Judge Revercomb, we share his conclusion and adopt his learned opinion as our own.

One aspect of the opinion by Judge Revercomb warrants follow-up comment. He discussed (infra at p. 86) an opinion by Judge Newman, then a Superior Court trial judge, which reached the contrary result. That brief unpublished opinion was issued in Hatter v. The Evening Star Newspaper Co., CA No. 8298-'75 (Mar. 15, 1976). Subsequent to the issuance of Judge Revercomb's opinion, both his opinion in this case and Judge Newman's opinion in the Hatter case were commented upon in footnotes by the United States Court of Appeals for the District of Columbia Circuit and by the Supreme Court. Both references at least implicitly — and arguably explicitly — endorse Judge Revercomb's opinion in this case, and reject the position taken in Hatter. See Wolston v. The Reader's Digest Association, Inc., 188 U.S.App.D.C. 185, 193 n. 3, 578 F.2d 427, 435 n. 3 (1978), rev'd, 443 U.S. 157, 160 n. 2, 99 S.Ct. 2701, 2704, n. 2, 61 L.Ed.2d 450 (1979).

We make one further comment before setting forth Judge Revercomb's careful analysis. We are somewhat puzzled by the extent of our dissenting colleague's reliance upon the philosophy of, and excerpts from, the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). There is no question in our minds but that in Gertz v. Robert Welch, Inc., supra, the Supreme Court rejected the earlier plurality opinion in Rosenbloom (as, indeed, is partially recognized by our colleague). Illustratively, the Court stated in Gertz:

For these reasons we conclude that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual. The extension of the New York Times [v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)] test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. 418 U.S. at 345-46, 94 S.Ct. at 3010.

Thus, our colleague's preference for effectively equating private individuals with public figures for defamation purposes strikes us as not only contradictory to historical common law principles, but to Gertz as well.

For the reasons set forth herein and in the following opinion by Judge Revercomb which we adopt, the rulings and judgment appealed from are affirmed.

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION

C.A. No. 9999-75

JOHN PHILLIPS, PLAINTIFF,

v.

THE EVENING STAR NEWSPAPER COMPANY, DEFENDANT.

OPINION AND ORDER

This case comes before the Court on Motion for Summary Judgment filed by the Defendant, The Evening Star Newspaper Co. ("Star").¹ Plaintiff John Phillips has sued the Star for defamation in connection with a newspaper article it published on November 29, 1974, which in reporting what in fact was an accidental shooting stated falsely that Phillips had shot his wife "during a quarrel." The Star claims its source of the defamatory report was a recorded police "hot line" dispatch received over the telephone. The Star's Motion raises important questions concerning the constitutional and common law privilege of the news media to publish "news" articles in the District of Columbia defamatory to private citizens.

UNDISPUTED FACTS

The facts in this case which do not appear in genuine dispute are as follows.²

On November 28, 1978, in the late evening hours, Fannie Lou Phillips' life ended abruptly in the basement of her home as a result of a gunshot wound to her neck. John Phillips, her husband, who was the only person at the scene of the shooting and who called the police, was arrested that evening for the homicide despite his statement that he had "accidentally shot (his) wife" when his pistol accidentally fell from its holster and discharged on contact with the floor. John Phillips, incidentally, was not a public official nor, in any sense of the word, a public personality; he was a private citizen at the scene of the shooting incident.

Acting on information received by telephone from a police public information officer over a recorded one-way "hot line"³ dispatch and supplemented by his own telephone inquiries, Charles McAleer, a reporter employed by the Star, composed a "hot" news article concerning the Phillips shooting incident. He combined this incident with another death and arrest incident for a news story carried in the second edition of the November 29, 1974, The Washington Star News (now known as The Washington Star). The pertinent part of the article read as follows:

D.C. WOMAN, MAN SHOT DEAD

D.C. police said a 49-year-old Northeast woman and a 32-year-old Southeast man were killed in separate shooting incidents within a two hour period last night.

Fannie Lou Phillips of the 2600 block of Randolph Street NE was shot once in the head with an automatic pistol during a quarrel in her home, police said. She was pronounced dead at 1:45 a. m. at the Washington Hospital Center, according to police.

Mrs. Phillips' husband, John, 56, who called the police, has been arrested and charged with homicide, police said.

The "hot line" log which is supposed to reflect verbatim the messages transmitted orally by telephone to the news media contains this entry in respect to the Phillips incident:⁴

At about 11 o'clock last night Fannie L. Phillips 49, of 2911 Randolph Street N.E. was shot once during an argument with her husband, John Phillips 56, inside their apartment. Mrs. Phillips was taken to the Washington Hospital Center where she was pronounced nead (sic) at 1:45 this morning. Her husband has been arrested and charged with Homicide.

On November 30, 1974, the Washington Post published an article on the shooting incident using the "during an argument" statement. The Washington Post is also a subscriber to the "hot line".

The Phillips case was later reclassified by police from a homicide to an accidental shooting, the police, after investigation, determining that no homicide had taken place. The arrest book was corrected, court papers dissolved, office files changed and other notifications made, as reflected in the Supplemental Police Report of December 19, 1974. (Attachment M, Greene affidavit filed August 2, 1976).

There is question as to the actual source and factual basis for the "during a quarrel" assertion in the article, based upon the "hot-line" "during an argument" statement — there is no basis in the present record for such an assertion. None of the official police reports, including the PD 251, PD 255, PD 163, PD 123, PD 668, PD 119, and John Phillips' formal statement to Police, as reflected in Detective Greene's affidavit (the homicide detective on the Phillips case) filed August 2, 1976, reflect any such quarrel or domestic unrest in connection with the shooting; nor did the press release issued on November 29, 1974, by the Homicide Branch (attachment H, Greene affidavit filed August 2, 1976) mention any quarrel or marital discord in reporting the incident. Nor does it appear from the numerous affidavits filed by members of the Homicide Branch that any of them were the source of such "quarrel" information. It should be noted that PD 251 is treated for purposes of D.C.Code 1973, §§ 4-134(4), 4-135, as equivalent to the arrest book information available to the public;...