Renwick v. News and Observer Pub. Co., 412A83

Citation310 N.C. 312,312 S.E.2d 405
Decision Date06 March 1984
Docket NumberNo. 412A83,412A83
Parties, 57 A.L.R.4th 1, 10 Media L. Rep. 1443 Hayden B. RENWICK v. The NEWS AND OBSERVER PUBLISHING COMPANY, d/b/a The Raleigh Times. Hayden B. RENWICK v. GREENSBORO DAILY NEWS COMPANY, d/b/a The Greensboro Daily News and Record.
CourtUnited States State Supreme Court of North Carolina

Kennedy, Kennedy, Kennedy & Kennedy by Annie Brown Kennedy, Harvey L. Kennedy and Harold L. Kennedy, III, Winston-Salem, for plaintiff-appellee.

Sanford, Adams, McCullough & Beard by H. Hugh Stevens, Jr., Raleigh, for defendant-appellant, The News and Observer Pub. Co.

Smith, Moore, Smith, Schell & Hunter by Richard W. Ellis and Alan W. Duncan, Greensboro, for defendant-appellant, Greensboro News Co.

MITCHELL, Justice.

The question before us for review in this consolidated appeal is whether the plaintiff's complaints state a claim upon which relief can be granted against either or both defendants for either libel or invasion of privacy. We hold that the plaintiff's complaints fail to state a claim against either defendant on either theory.

The plaintiff, Hayden B. Renwick, is Associate Dean of the College of Arts and Sciences at the University of North Carolina at Chapel Hill. He has been employed by the University since 1969. On April 22, 1981, The Raleigh Times published an editorial entitled "And He Calls It Bias?". The same editorial was reprinted on April 26, 1981, in The Greensboro Daily News and Record in a commentary section entitled "Around The State" under the title "Discrimination?". The complete text of the editorial as printed in both instances was as follows:

Some of the continuing deluge of charges from Washington against the University of North Carolina at Chapel Hill--many obviously unfounded--are so ridiculous they only widen the gulf between reason and resentment as the state seeks to create better racial relations.

The latest barrage is based on allegations by Hayden Renwick, Associate Dean of the College of Arts and Sciences at Chapel Hill, in a 1978 newspaper article. Renwick, formerly in charge of minority admissions, said between 1975 and 1978 about 800 black students had been denied admission.

Yet Collin Rustin, the minority admissions director since 1975, flatly denies the charge. Furthermore, the special admission concessions in effect for blacks also give the lie to charges of unfair discrimination against minorities.

According to Rustin, every black student who meets the minimum standard combined score of 800 on the Scholastic Aptitude Test and has a 1.6 predicated grade point average is AUTOMATICALLY admitted. The exception would be if the applicant had not taken high school subjects required for admission.

That's discrimination? When the 800 required is only half the maximum possible score of 1,600? When the average SAT score for other, competitive students admitted to last fall's freshman class at Carolina was between 1,070 and 1,080? When those competitive students admitted were in the top five percent of their high school graduating classes? When only 4,800 of 11,500 applicants clamoring to get in were admitted?

It has taken North Carolinians years to adjust to the necessity to grant some minority applicants, because of their disenfranchised background, special concessions in admissions. This gives them a chance to prove that their academic deficiencies are only temporary, not permanent.

But extremists who belittle and criticize these concessions--which, indeed seem here so excessive they do nothing for the student or the quality of education--should be publicly rebuffed.

The fact that, according to a 1979 faculty committee report, only 36 blacks have been denied access to UNC between 1975 and 1979--compared to 6,700 competitive students turned away in one season--attests to UNC's yeoman efforts to make minorities welcome on campus. How long highly qualified whites denied admission will tolerate this reverse discrimination without taking the university to court is undoubtedly affected by irresponsible charges such as this one.

After requesting in writing a retraction of the editorials by the defendants and having received no retraction, the plaintiff filed separate complaints against each defendant alleging libel per se and invasion of privacy. The defendants, The News and Observer Publishing Company, which publishes The Raleigh Times, and Greensboro News Company, which publishes The Greensboro Daily News and Record, each filed a motion to dismiss under Rule 12(b)(6) of the Rules of Civil Procedure for failure to state a claim upon which relief could be granted. The trial court entered judgments on March 3, 1982, granting each defendant's motion and dismissing the plaintiff's actions for failure to state a claim. The cases were consolidated for purposes of appeal. A divided panel of the Court of Appeals held that the trial court had erred and reversed. We reverse the holding of the Court of Appeals.

The function of a motion to dismiss under Rule 12(b)(6) is to test the law of a claim and not the facts which support the claim. Snyder v. Freeman, 300 N.C. 204, 266 S.E.2d 593 (1980). The allegations of the complaint are taken as true for the limited purpose of testing its sufficiency. Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611 (1979). A claim for relief should not be dismissed unless it affirmatively appears that the plaintiff is entitled to no relief under any state of facts which could be presented in support of the claim. Id. Bearing these principles in mind, we turn to a determination of whether the plaintiff's complaints in these two cases state claims entitling the plaintiff to relief.

I. Libel

Three classes of libel are recognized under North Carolina law.

They are: (1) publications obviously defamatory which are called libel per se; (2) publications susceptible of two interpretations one of which is defamatory and the other not; and (3) publications not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances become libelous, which are termed libels per quod.

Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d 452, 455 (1979). As we have previously stated:

When an unauthorized publication is libelous per se, malice and damage are presumed from the fact of publication and no proof is required as to any resulting injury. The law presumes that general damages actually, proximately and necessarily result from an unauthorized publication which is libelous per se and they are not required to be proved by evidence since they arise by inference of law, and are allowed whenever the immediate tendency of the publication is to impair plaintiff's reputation, although no actual pecuniary loss has in fact resulted.

In an action upon a publication coming within the second class, that is, a publication which is susceptible of two interpretations, one of which is defamatory, it is for the jury to determine under the circumstances whether the publication is defamatory and was so understood by those who saw it.

In publications which are libelous per quod the innuendo and special damages must be alleged and proved.

Flake v. Greensboro News Co., 212 N.C. 780, 785, 195 S.E. 55, 59 (1938) (citations omitted).

The plaintiff's complaints in these cases failed to bring the editorial complained of within the second class of libel, since it was not alleged that the editorial is susceptible of two meanings, one defamatory, and that the defamatory meaning was intended and was so understood by those to whom the publication was made. Id.; Wright v. Commercial Credit Company, Inc., 212 N.C. 87, 89, 192 S.E. 844, 845 (1937). The complaints failed to bring the editorial within the third class--libel per quod --since it was not alleged that the plaintiff suffered special damages. Flake v. Greensboro News Co., 212 N.C. at 785, 195 S.E. at 59. In fact, the plaintiff's counsel stated with commendable candor and accuracy during oral arguments before this Court that these were actions for libel per se or not actions for libel at all. Therefore, we are concerned here only with the law relative to libel per se. We must determine whether the editorial is defamatory per se. If it is not, the defendants were entitled to judgments ordering dismissal of the plaintiff's claims for relief for libel. Id.

Under the well established common law 1 of North Carolina, a libel per se is a publication by writing, printing, signs or pictures which, when considered alone without innuendo, colloquium or explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace. Flake v. Greensboro News Co., 212 N.C. at 787, 195 S.E. at 60. It is not always necessary that the publication involve an imputation of crime, moral turpitude or immoral conduct. Arnold v. Sharpe, 296 N.C. at 537, 251 S.E.2d at 455. "But defamatory words to be libelous per se must be susceptible of but one meaning and of such nature that the court can presume as a matter of law that they tend to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule, or cause him to be shunned and avoided." Flake v. Greensboro News Co., 212 N.C. at 786, 195 S.E. at 60 (emphasis added).

The initial question for the court in reviewing a claim for libel per se is whether the publication is such as to be subject to only one interpretation. Oates v. Wachovia Bank & Trust Co., 205 N.C. 14, 16, 169 S.E. 869, 871 (1933). If the court determines that the publication is subject to only one interpretation, it then "is for the court to say whether that signification is defamatory." Id. It is only after the court has decided that the answer to both of these questions is affirmative that such cases should be submitted to the jury on a theory of libel per se.

We...

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