Press, Inc. v. Verran

Decision Date31 July 1978
Citation4 MediaL.Rep. 1229,569 S.W.2d 435
Parties4 Media L. Rep. 1229 PRESS, INC. d/b/a the Johnson City Press Chronicle, et al., Petitioners, v. Sherry L. VERRAN, Respondent.
CourtTennessee Supreme Court

C. T. Herndon, III, Herndon, Coleman, Brading & McKee, J. Frank Bryant, Johnson City, for petitioners.

Richard W. Pectol, Johnson City, for respondent.

OPINION

HENRY, Chief Justice.

We granted certiorari in this action of libel to consider the extent of a publisher's constitutional privilege against liability for defamation. We focus on the specific issue of whether plaintiff is a "public official" or a "public figure" under the law of libel as it has developed under recent decisions of the Supreme Court of the United States. 1

The trial judge sustained the motion of petitioner for summary judgment, holding that respondent, a junior social worker in the Washington County office of the State Department of Human Services, was a public official and a public figure within the meaning of the libel laws and that there was no proof of actual malice, nor any "indication of any reckless disregard for the truth or falsity of the matters printed." The Court of Appeals reversed, holding that plaintiff was neither a public official nor a public figure and only a negligence test applied against the publisher. 2

We granted the writ in order to analyze the status of the plaintiff. We conclude that the Court of Appeals reached an erroneous conclusion and, accordingly, reverse.

I.

The defendants to this action are Press, Inc., the publisher of the Johnson City Press Chronicle, a daily newspaper, one of its stockholders (presumably the chief executive or manager), and two of its bureau chiefs.

This action grew out of a series of ten articles appearing in the Chronicle, at periodic intervals from July 2, 1975, through September 3, 1975, all relating to the actions and activities of plaintiff in connection with the performance of her official duties. None related to her conduct as a private citizen.

On April 1, 1975, plaintiff received a telephone call from a school principal suggesting that some of the ten children of Elmer and Mary Tolley were the victims of child abuse. Pursuant to § 37-1206, T.C.A., plaintiff conducted an investigation during the course of which she visited the Tolley residence in a remote rural section, interviewed Mrs. Tolley, observed the children and arranged for them to be examined by a medical doctor.

The medical examination indicated signs of abuse and plaintiff recommended to her supervisor that the children be placed in foster homes pursuant to § 37-1201, et seq., T.C.A. After approval by her supervisor and the legal staff of the Department, she completed the proper documents for submission to the Juvenile Judge, who ordered the children placed in foster homes. Plaintiff accompanied law enforcement officials to the Tolley residence and aided in the removal of the children. Soon thereafter, she met in her office with the Tolleys, who came in an effort to determine how they could get their children back.

According to the newspaper publications, among the requirements for the return of the children was that Mrs. Tolley submit to a bilateral tubal ligation. This condition was reported by the Tolleys to the Chronicle, which, after investigating the matter, ran the series of articles featuring the charge that Mrs. Tolley was "coerced into submitting to sterilization" in order to procure the return of her children.

When the Chronicle declined to make a retraction, this suit was filed.

It should be reiterated that while other issues are framed by the pleadings the only question presented to us for determination is whether plaintiff is a "public official" or "public figure." Nothing in this opinion is to be construed as holding that the complaint states a cause of action, or as resolving any other issue.

II.

An analysis of the issues involved in this controversy must start with the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), wherein the Supreme Court, considering the case "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open," fashioned a new rule of "constitutional privilege":

The constitutional guarantees 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. (Emphasis supplied). 376 U.S. at 279-280, 84 S.Ct. at 726, 11 L.Ed.2d at 706.

The Court bottoms this rule upon the First Amendment guarantee of freedom of speech and of the press, made applicable to the states by the Fourteenth Amendment. While the Court applied the new rule to defamatory publications involving the "official conduct" of a "public official," it did not define the term "public official" nor determine how far down into the lower ranks of government employees the "public official" designation would extend, nor did it determine the boundaries of the "official conduct" concept.

Two years later, however, in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the Court undertook a definition of the term "public official":

(T)he "public official" designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. 383 U.S. at 85, 86 S.Ct. at 676, 15 L.Ed.2d at 605.

In 1967, the case of Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, came before the Supreme Court. When the various opinions by the Court are analyzed, it becomes evident that the constitutional privilege was extended to "public figures" along with "public officials." The plurality opinion suggests that a public figure is one who

may have attained that status by position alone . . . (or) by his purposeful activity amounting to a thrusting of his personality into the "vortex" of an important public controversy, but . . . commanded sufficient continuing public interest and had sufficient access to the means of counterargument to be able "to expose through discussion the falsehood and fallacies" of the defamatory statements. 388 U.S. at 155, 87 S.Ct. at 1991, 18 L.Ed.2d at 1111.

Here, the volition of the injured was a critical consideration.

In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), "(t)he Court was sadly fractionated," 3 and could not agree on an opinion. Justice Brennan wrote for a plurality of three. In effect the plurality held that the status of the individual was not the controlling consideration; instead the test was whether there was involved an issue of "public or general interest." 403 U.S. at 44, 91 S.Ct. at 1820, 29 L.Ed.2d at 312. The effect of this holding was to extend the New York Times "knowledge or reckless disregard" rule to any issue of public interest. The Court said:

If a matter is a subject of Public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not "voluntarily" choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety. (Emphasis supplied.) 403 U.S. at 43, 91 S.Ct. at 1819, 29 L.Ed.2d at 311.

Thus, the Court abandoned the status of the individual test. The fragile foundation of Rosenbloom endured for only three years.

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the

Supreme Court retreated from the plurality position of Rosenbloom and declined to extend the New York Times privilege to defamation of private individuals, even though a matter of public interest was involved. The Court's rationale is evident from this quotation from the opinion:

Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.

Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. 418 U.S. at 344-345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808.

After pointing out that the media may assume that public officials and public figures have "voluntarily exposed themselves to increased risk of injury from defamatory falsehood," the Court further amplified the theme of the protection of private individuals thusly:

No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an "influential role in ordering society." (Citation omitted). He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by...

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