A. S. Abell Co. v. Barnes

• Decision Date: 07 May 1970
• Docket Number: No. 311,311
• Citation: 265 A.2d 207,258 Md. 56
• Parties: The A. S. ABELL COMPANY v. Elizabeth C. BARNES.
• Court: Maryland Court of Appeals

Page 56

258 Md. 56

265 A.2d 207

The A. S. ABELL COMPANY v. Elizabeth C. BARNES.

No. 311.

Court of Appeals of Maryland.

May 7, 1970.

Francis D. Murnaghan, Jr., Baltimore (George Cochran Doub, Jr., Baltimore, on the brief) for appellant.

Alan H. Murrell and William A. Hegarty, Baltimore, for appellee.

Argued before HAMMOND, C. J., FINAN, SINGLEY, SMITH and DIGGES, JJ., and ROBERT C. MURPHY and CHARLES E. ORTH, Jr., Special Judges.

CHARLES E. ORTH, Jr., Special Judge.

On 9 March 1964 the Supreme Court of the United States decided New York Times Company v. Sullivan, 376 U.S. 254, 283, 84 S.Ct. 710, 11 L.Ed.2d 686. New York Times sired Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965); Linn v. United Plant Guard Wkrs. of Amer., Loc. 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Time, Inc. v. Hill, 385 U.S 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967); Curtis Publishing Co. v. Butts and Associated Press v. Walker, reported together in 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); and Pickering v. Board of Education, 88 S.Ct. 1731, 20 L.Ed.2d 811 391 U.S. 563 (1968). One of the things the prolific New York Times and its progeny did was to measure state law, both civil and criminal, with respect to libel, slander and privacy, by constitutional standards, impressing on it the first amendment guarantees of free speech and press. ¹ They did so in such a way as to grant immunity from punishment by way of damages, imprisonment, fine or otherwise to publishers of statements concerning the official conduct of public officials and concerning matters of public interest related to public figures. The immunity is by privilege to the published statements. The privilege extends to true statements and false statements. ² With respect to true statements the privilege is absolute; ³ with respect of false statements it is conditional.

The privilege is removed only from those false statements which are made with 'actual malice.' With regard to libel we consider the rule to be:

The constitutional guarantees prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct or a public figure from recovering damages for a defamatory falsehood relating to a matter of public interest 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.

Our statement of the rule requires explanation and elaboration. It requires explanation as to why we think the reckless-disregard-of-truth standard is applicable equally with respect to public officials and public figures. It requires elaboration as to the meaning of terms used in stating it-'public official', 'public figure' and 'reckless disregard.'

New York Times, ⁴ holding that 'The Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct', ⁵ 376 U.S. at 283, 84 S.Ct. at 727, enunciated a rule applicable to such actions, at 279-280,84 S.Ct. at 726:

'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.'

Although the rule by its terms was limited to 'public officials', it seemed inevitable that the opinion would serve as a basis for expansion so as to affect those other than 'public officials.' This was realized in Butts and Walker, in which the ambit of constitutional concern was extended to 'public figures', but it was done in such a way as to cast doubt on the standard to be applied to 'public figures'. The judgments of the Court, affirming the judgment in favor of Butts and reversing the judgment in favor of Walker, were announced by Mr. Justice Harlan who delivered an opinion in which Justices Clark, Stewart and Fortas joined. The Chief Justice delivered an opinion concurring in the results of both cases. Each of Mr. Justice Black, with whom Mr. Justice Douglas joined, and Mr. Justice Brennan, with whom Mr. Justice White joined, delivered an opinion concurring in the results of Walker and dissenting in Butts. The Harlan opinion noted that the two cases were brought to the Court 'to consider the impact of (New York Times) on libel actions instituted by persons who are not public officials, but who are 'public figures' and involved in issues in which the public has a justified and important interest.' 388 U.S. at 134, 87 S.Ct. 1980. All the members of the Court were in agreement that the basic considerations underlying the First Amendment required that some limitations be placed on the application of state libel laws to 'public figures' as well as 'public officials.' The Harlan opinion stated a rule, at 155, 87 S.Ct. at 1991;

'We consider and would hold that a 'public figure' who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.'

Mr. Chief Justice Warren expressly rejected this test, adhering 'to the New York Times standard in the case of 'public figures' as well as 'public officials." Id. at 164, 87 S.Ct. at 1996. Justices Brennan and White joined the Chief Justice in this. Id. at 172, 87 S.Ct. 1975. Justices Black and Douglas did not adopt either standard. They thought it was time for the Court to abandon New York Times and adopt the rule to the effect that the First Amendment was intended to leave the press free from harassment of libel judgments. Id. at 172, 87 S.Ct. 1975. Thus the opinions did not announce a standard under which limitations were placed on the application of state libel laws as to 'public figures' that had support of a majority of the Court. In these circumstances we are constrained to apply the New York Times standard with respect to public officials equally with respect to public figures. We are not persuaded that the critic of a public figure should be afforded less protection, if that is what the Harlan rule does, than the critic of a public official. We point out the subtle difference between the public figure and the public official found by Chief Justice Warren which moves in the direction of giving more protection, if there must be a distinction, to the critic of the public figure rather than to the critic of the public official. He said in his opinion in Butts, at 164, 87 S.Ct. at 1996, 'The fact that (public figures) are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest (in the conduct of such persons), since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.' And we point out that in Hill the actual malice standard was afforded to the publisher of an article which invaded the privacy of a private individual who was only involuntarily newsworthy. We make one more observation. It would seem that the distinction between proof establishing highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers and proof establishing reckless disregard for truth or falsity is so fine, if indeed there be a real distinction at all, as not to justify a further clouding of law of defamation by the adoption of the separate standard.

In elaboration we first consider when a person is to be deemed a 'public official' or 'public figure.' New York Times, as to 'public official', expressly begged the question. 'We have no occasion here to determine how far down into the lower ranks of government employees the 'public official' designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included.' 376 U.S., note 23, at 283, 84 S.Ct. at 727. Although not defining 'public official', the Court indicated, by referring to 'categories of persons who would or would not be included', that the designation 'public official' was not limited to 'government employees.' In Rosenblatt the Court observed that the question whether the respondent was a 'public official' under New York Times was squarely presented. It first rejected the suggestion that whether or not a person is a 'public official' should be answered by reference to state-law standards. 'States have developed definitions of 'public official' for local administrative purposes, not the purposes of a national constitutional protection.' 383 U.S. at 84, 86 S.Ct. at 675. But it found that no precise lines had to be drawn for the purposes of its decision. Asserting that the motivating force for the New York Times decision was twofold: (1) a strong interest in debate on public issues, and (2) a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues, it said, 'Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or...