Renwick v. News and Observer Pub. Co.

• Decision Date: 05 July 1983
• Docket Number: No. 8215SC432,8215SC432
• Citation: 304 S.E.2d 593,63 N.C.App. 200
• Parties: Hayden B. RENWICK v. The NEWS AND OBSERVER PUBLISHING COMPANY, d/b/a the Raleigh Times. Hayden B. RENWICK v. GREENSBORO NEWS COMPANY, d/b/a the Greensboro Daily News and Record.
• Court: North Carolina Court of Appeals

Page 593

304 S.E.2d 593

63 N.C.App. 200

Hayden B. RENWICK v. The NEWS AND OBSERVER PUBLISHING COMPANY, d/b/a the Raleigh Times.

Hayden B. RENWICK v. GREENSBORO NEWS COMPANY, d/b/a the Greensboro Daily News and Record.

No. 8215SC432.

Court of Appeals of North Carolina.

July 5, 1983.

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

Sanford, Adams, McCullough & Beard by H. Hugh Stevens and Nancy Bentson Essex, Raleigh, for defendant-appellee, The News and Observer Pub. Co.

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

JOHNSON, Judge.

The two cases in this libel and invasion of privacy action have been consolidated for purposes of appeal. The common questions presented for review are whether plaintiff's complaint (1) states a claim for relief for defamation and (2) states a claim for relief for invasion of privacy. Defendant Greensboro News raises an additional issue in its brief concerning a newspaper's liability for republication of the allegedly defamatory writings of another newspaper. For the reasons set forth below, we reverse the judgment dismissing plaintiff's complaints.

A copy of the editorial as it appeared in each defendant's newspaper is incorporated by reference into each complaint. The two complaints present substantially identical allegations and, where appropriate, they will be treated as a single complaint. The record on appeal contains no indication that pleadings responsive to the complaints were filed, and consists solely of the two complaints and two motions to dismiss, phrased exclusively in the language of Rule 12(b)(6) of the Rules of Civil Procedure. ¹ The judgment dismissing the complaint fails to state the grounds upon which dismissal was considered appropriate.

A complaint is deemed sufficient to withstand a motion to dismiss under Rule 12(b)(6) where no insurmountable bar to recovery appears on the face of the complaint and the complaint's allegations give adequate notice of the nature and extent of the claim. Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611 (1979); Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). A claim for relief should not suffer dismissal unless it affirmatively appears that plaintiff is entitled to no relief under any state of facts which could be presented in support of the claim. Presnell v. Pell, supra; Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976). The function of a motion to dismiss is to test the law of a claim, not the facts which support it. 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, supra. With these rules in mind, we must determine if the facts pleaded, together with reasonable inferences to be drawn therefrom, involve substantive principles of law which entitle plaintiff to relief.

The plaintiff in this action was, at the time of the publications, and is presently, the Associate Dean of the College of Arts and Sciences at the University of North Carolina at Chapel Hill. He had been an employee of the University of North Carolina (UNC) since 1969. Sometime prior to 1978, plaintiff Renwick was in charge of the University's minority admissions program at the Chapel Hill campus. The Raleigh Times editorial discusses and comments upon an issue of great public interest involving UNC's minority admissions policies, charges from Washington of racial discrimination against minority applicants, and plaintiff's role in the controversy surrounding the adequacy of the University's minority admissions efforts.

As a preliminary matter, we note that in order to recover for defamation it is plaintiff's burden to allege and prove that defendants made false and defamatory statements of or concerning plaintiff, which were published to a third person causing injury to plaintiff's reputation and, if the plaintiff is a public official or public figure, plaintiff must allege and prove actual malice on the part of defendants. See generally Hall v. Publishing Co., 46 N.C.App. 760, 266 S.E.2d 397 (1980) and Restatement (Second) of Torts §§ 558, 580A (1977). With regard to fault, the complaint alleges that the statements at issue were published negligently, with knowledge of their falsity or with reckless disregard for the truth, and with actual malice. Plaintiff seeks both actual and punitive damages and the complaint further alleges that the statements were willful and wanton, published in bad faith, maliciously, and in total disregard of the truth. Similar allegations of reckless disregard for the truth, malice, and bad faith accompany the claim for invasion of privacy.

Plaintiff neither contests nor expressly concedes that he is a "public figure" for purposes of the constitutional limitation on state libel actions established in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and its progeny. Inasmuch as the pleading adequately alleges the standard of liability appropriate for a publisher of defamatory falsehood injurious to a public official or figure, we will treat the plaintiff as a public figure for purposes of this appellate review. We note only that Dean Renwick appears to fit under either of the two characterizations of a "public figure" stated in Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789, 808 (1974). ² See also Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) and Hall v. Publishing Co., supra.

The editorial appeared in The Raleigh Times on 22 April 1981 as follows: ³

And He Calls It Bias?

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 that 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 predicted 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 admissions will tolerate this reverse discrimination without taking the University to court is undoubtedly affected by irresponsible charges such as this one.

With regard to defamation, plaintiff's first cause of action alleges inter alia:

That in said Article (Exhibit A) plaintiff is reported as having said in a 1978 newspaper article "that between 1975 and 1978 about 800 black students had been denied admission." ⁴ That said statement is false. That the entire Article (Exhibit A) gives the impression that the plaintiff is an extremist, a liar and is irresponsible in his profession. That said article has exposed plaintiff to public hatred, contempt and ridicule causing him embarrassment and humiliation.

* * *

* * *

That the publication of false and libelous statements set forth in Paragraph V herein, constitutes libel per se. In the alternative, such statements have a special meaning or innuendo in that they held the plaintiff out to the public to be an extremist, liar and irresponsible in his profession, and thereby constitute libel per se.

The second cause of action for invasion of privacy alleges:

That the publication of the foregoing statements set forth in Paragraph IV herein, placed the plaintiff in a false light before the public and constituted an invasion of plaintiff's privacy. That said statements were published with knowledge of their falsity or with reckless disregard for their truth.

That by reason of the defendant placing the plaintiff in a false light and thereby invading his privacy, the plaintiff has been injured in his good name, and in his profession, and brought into public disgrace, contempt and infamy in his community ...

On appeal, plaintiff contends that the complaint states a claim for libel per se under the theory that the words concerning plaintiff were in themselves libelous, or that the editorial read as a whole libelously imputes dishonesty and...