Proffitt v. Greensboro News & Record, Inc.

• Decision Date: 06 September 1988
• Docket Number: No. 8718SC792,8718SC792
• Citation: 371 S.E.2d 292,91 N.C.App. 218
• Court: North Carolina Court of Appeals
• Parties: James L. PROFFITT v. GREENSBORO NEWS & RECORD, INC., and John R. Alexander.

Page 292

371 S.E.2d 292

91 N.C.App. 218

James L. PROFFITT v. GREENSBORO NEWS & RECORD, INC., and John R. Alexander.

No. 8718SC792.

Court of Appeals of North Carolina.

Sept. 6, 1988.

Robert S. Cahoon, Cahoon & Swisher and Charles A. Lloyd, Carrington, Lloyd & Campbell, Greensboro, for plaintiff-appellant.

Smith Helms Mulliss & Moore by Richard W. Ellis and Alan W. Duncan, Greensboro, for defendants-appellees.

COZORT, Judge.

Plaintiff, a former Sheriff of Guilford County, filed an action alleging libel in an editorial published in the defendant Greensboro News and Record (hereinafter "the newspaper"). The editorial stated that "Sheriff Proffitt openly lied to the public last year when he initially denied either having sex with the woman or performing favors for the inmate." The trial court granted summary judgment for defendants. We affirm.

Plaintiff was elected Sheriff of Guilford County in 1982, narrowly defeating the incumbent officeholder. In October of 1985, the defendant newspaper learned of an ongoing State Bureau of Investigation (S.B.I.) probe into charges that plaintiff and former Guilford County Assistant District Attorney Robert Johnston had in 1983 agreed to do certain favors for a Guilford County inmate, Ronnie Douglas, in exchange for sex with Ronnie's then girlfriend, Carmen Jobe. (Ronnie Douglas and Carmen Jobe had married by October of 1985, and Carmen Jobe will hereinafter be referred to as Carmen Douglas.)

Three of the newspaper's reporters interviewed plaintiff. The newspaper published a news story on 20 October 1985 stating that plaintiff "denied having sex with the woman." In the news article Johnston admitted the sexual encounter but denied he bestowed favoritism to Ronnie Douglas. Over the next month, the newspaper published several more articles repeating the statement that plaintiff denied having sex with Carmen Douglas.

In late November of 1985, plaintiff called a press conference at which he released a lengthy statement. In that statement, plaintiff did not specifically deny having sex with Carmen Douglas; however, he denied he did favors for Ronnie Douglas in exchange for sex with Carmen Douglas. On 7 December 1985, the newspaper published a news article stating that plaintiff had admitted to S.B.I. investigators that he had sex with Carmen Douglas. On 7 January 1986, plaintiff was indicted for bribery.

Plaintiff testified during his criminal trial in March of 1986. He admitted that he had sex with Carmen Douglas, but he denied the sex was in exchange for favors to Ronnie Douglas. Plaintiff was found not guilty of bribery on 26 March 1986.

On 27 March 1986, the newspaper published an editorial entitled "Remove the Sheriff," which was written by John R. Alexander, also a named defendant in this action. This editorial calling for the removal of plaintiff as sheriff contained the following statements:

It is their elected sheriff, after all, who has abused and sullied his office. We submit that Sheriff Proffitt has violated the trust voters placed in him....

... Incidentally, Sheriff Proffitt openly lied to the public last year when he initially denied either having sex with the woman or performing favors for the inmate.

* * *

* * *

... How can they be sure he won't compromise his office again?

On 28 March 1986, counsel for plaintiff wrote to the newspaper, claiming that the language from the 27 March editorial quoted above were false, and requesting a "full and fair correction, apology and retraction." In a letter to plaintiff's counsel dated 1 April 1986, defendant Alexander denied "that there are any grounds to retract the editorial of March 27." Plaintiff then filed suit, alleging that the statements quoted above were false and defamatory. After defendants filed an answer denying any defamation, defendants moved for summary judgment. Defendants filed several affidavits and a copy of all the newspaper articles related to the allegations concerning plaintiff. Plaintiff filed an affidavit, and the 828-page transcript from plaintiff's bribery trial was filed with the trial court. The trial court granted summary judgment for defendants on 8 May 1987. Plaintiff appeals.

Under N.C.Gen.Stat. § 1A-1, Rule 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." After reviewing the affidavits and trial transcript filed with the trial court, and after reviewing the applicable law, we find the trial court was correct in ruling that defendants were entitled to judgment as a matter of law.

In actions for defamation, the nature or status of the parties involved is a significant factor in determining the applicable legal standards. The parties do not dispute that the plaintiff, a former Sheriff of Guilford County, is a public official for the purposes of this action; and there is no dispute that the defendants, the Greensboro News and Record and its Editorial Page Editor, are members of the press. Thus the basic legal standard is the rule clearly established by the United States Supreme Court more than 20 years ago:

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.

New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964).

When a libel action brought by a public figure is at the summary judgment stage, the appropriate question for the trial judge is whether the evidence in the record would allow a reasonable finder of fact to find either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2515, 91 L.Ed.2d 202, 217 (1986).

Plaintiff contends that this statement in the 27 March 1986 editorial is defamatory: "Incidentally, Sheriff Proffitt openly lied to the public last year when he initially denied either having sex with the woman or performing favors for the inmate." Thus, to prevent summary judgment for defendants, plaintiff must forecast clear and convincing evidence that the statement in question was false, and that defendants either knew it was false or acted with reckless disregard as to the statement's truth or falsity. Upon reviewing the forecast of evidence, we find plaintiff has failed to offer clear and convincing evidence of either knowledge of falsity or careless disregard of truth or falsity.

In his brief, plaintiff contends that defendants made a false statement when they stated in the 27 March article that plaintiff "openly lied to the public last year when he denied either having sex with the woman or performing favors for the inmate." [sic ] Plaintiff contends that the statement is false because plaintiff contends he did not deny having sex with Carmen Douglas. Instead, he argues, he had denied that he had sex with her in exchange for favors for Ronnie Douglas. In support of his argument that defendants knew it was false to say plaintiff had lied by denying he had sex with Carmen Douglas, plaintiff points to a 4 January 1986 editorial in the newspaper which stated: "Proffitt has consistently denied exchanging favors for sex, though he has not specifically denied having sex with the woman." This statement, plaintiff contends, is evidence that defendants knew it was false to state that plaintiff denied having sex with Carmen Douglas. We find plaintiff's argument unpersuasive.

We first note that plaintiff has failed to accurately quote the passage he claims is defamatory. The allegedly libelous statement, as originally published by the defendants on 27 March 1987, reads:

Incidentally, Sheriff Proffitt openly lied to the public last year when he initially denied either having sex with the woman or performing favors for the inmate. (Emphasis added.)

Plaintiff failed to include the word "initially" when he quoted the statement in his complaint, and he failed to include the word "initially" in the statement in his brief. Whether inadvertent or intentional, the omission of the word "initially" is significant, because the statement takes on a slightly different meaning when "initially" is omitted. It is important to a complete understanding of the facts that the allegedly defamatory statement be considered exactly as written.

To prevent summary judgment from being entered against him, plaintiff must forecast clear and convincing evidence that the newspaper printed a false statement when it stated that plaintiff "openly lied to the public last year when he initially denied ... having sex with the woman...." If plaintiff can forecast evidence of that statement's falsity, he must then forecast clear and convincing evidence that defendants knew the statement was false, or acted with reckless disregard as to its truth or falsity.

The first newspaper article concerning the sex-for-favor allegations appeared on 20 October 1985. It contained the following statements:

Proffitt denied having sex with the woman....

* * *

* * *

Proffitt ... says he knows Carmen Douglas but adamantly denies having sex with her. He said he gave Ronnie Douglas no special treatment in the jail.

The newspaper repeated plaintiff's denials in an editorial published 23 October 1985. The newspaper published additional news articles repeating plaintiff's denials on 24 October and on 15 November. On 18 November 1985, the newspaper published an article stating:

Proffitt has emphatically denied having sex with Carmen Douglas. He says he provided minimal favors to Douglas in the Guilford County Jail because...