S & W Seafoods Co. v. Jacor Broadcasting of Atlanta

• Decision Date: 20 December 1989
• Docket Number: No. A89A1173,A89A1173
• Citation: 390 S.E.2d 228,194 Ga.App. 233
• Court: Georgia Court of Appeals
• Parties: , 17 Media L. Rep. 1340 S & W SEAFOODS COMPANY, et al. v. JACOR BROADCASTING OF ATLANTA, et al.

Page 228

390 S.E.2d 228

194 Ga.App. 233, 17 Media L. Rep. 1340

S & W SEAFOODS COMPANY, et al. v. JACOR BROADCASTING OF ATLANTA, et al.

No. A89A1173.

Court of Appeals of Georgia.

Dec. 20, 1989.

Rehearing Denied Jan. 17, 1990.

Certiorari Denied Feb. 15, 1990.

Carr, Tabb & Pope, W. Pitts Carr, and Eric E. Huber, Atlanta, for appellants.

Powell, Goldstein, Frazer & Murphy, James C. Rawls, Frank Love, Jr., Jennifer F. Weiss, and Steven J. Labovitz, Atlanta, for appellees.

BANKE, Presiding Judge.

This action arises out of comments broadcast by WGST Radio talk-show host Tom Houck on a restaurant review segment of his listener call-in show broadcast on November 6, 1987. A discussion of the restaurant owned by plaintiff S & W Seafoods Company commenced when a listener telephoned Houck to report, over the air, that he had received unsatisfactory service at the restaurant. Defendant Houck directed his program producer, Marcy Rubin, to telephone S & W and invite a representative to respond to the listener's complaint over the air. Rubin spoke with the restaurant manager, plaintiff Robert Weinberg, who declined to participate in the radio broadcast. Although plaintiff Weinberg disputes Rubin's account of the conversation, Rubin reported to defendant Houck that plaintiff Weinberg had been rude to her and insulted her over the telephone. During a news and commercial break, Houck telephoned Weinberg; and, again, the content of that conversation is disputed. However, when Houck returned to the air, he commenced a series of critical and unflattering comments about the restaurant and Weinberg. On the basis of these comments, ¹ Weinberg and S & W sued to recover damages based on theories of defamation, intentional infliction of emotional distress, negligence, invasion of privacy, and tortious interference with business relations. The trial court granted the defendants' motion for summary judgment in the action, concluding that each comment was either (1) an expression of opinion and therefore constitutionally protected speech; (2) hyperbole which could not reasonably have been interpreted by the listeners as a statement of fact; or (3) a statement of fact which was not proved by the plaintiffs to be false. Held:

1. The trial court did not err in granting summary judgment on plaintiffs' defamation claims. Defamation by broadcast includes elements of both libel (OCGA § 51-5-1) and slander (OCGA § 51-5-4). See Montgomery v. Pacific & Southern Co., 131 Ga.App. 712(2), 206 S.E.2d 631 (1974). We agree with the lower court that the statements at issue in this case were not actionable under these statutes, either because they were shown not to have been false or because they fell within the ambit of protected speech.

"[T]here is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3006, 41 L.Ed.2d 789 (1974). In regard to the comments made about the food and service at plaintiffs' restaurant, the case is similar to Bergen v. Martindale-Hubbell, 176 Ga.App. 745, 337 S.E.2d 770 (1985), in which a lawyer took offense at the professional ability rating he had received. We upheld the lower court's grant of judgment on the pleadings to the defendant in that case, stating that "[t]he expression of opinion on 'matters with respect to which reasonable men might entertain differing opinions' [cit.] is not libelous." Id. at 747, 337 S.E.2d 770.

Some of Houck's comments referred to statements which had been made to him by call-in listeners to the effect that Weinberg had had cars towed from the restaurant parking lot. The burden is on the plaintiffs to prove the falsity of an allegedly libelous statement, see Philadelphia Newspapers v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). Houck testified in his deposition that he believed this information to be accurate because of the consistency of the remarks made on the subject by several different callers, and Weinberg himself implicitly confirmed the truth of these statements in his deposition. As the record contains no contrary evidence suggesting that the comments concerning car-towing were false, the trial court correctly concluded that they could not be considered defamatory.

2. While the expressions of opinion made during the broadcast were constitutionally protected, we cannot conclude as a matter of law that such protection extends to Houck's exhortations to his listeners to "[g]o by and see this guy Weinberg at S & W on Roswell Road [and] [t]ell him he stinks," to "go by and spit in his face for me," and to "[g]o by there today and give a little five fingers in the face ... to [him]." An "utterance is not protected if it 'is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' " Walt Disney Productions v. Shannon, 247 Ga. 402, 404, fn. 2, 276 S.E.2d 580 (1981) quoting from Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). Accord Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (holding that the First Amendment does not protect utterances which "tend to excite an immediate breach of the peace").

Although it appears from the record that none of Houck's listeners actually followed his advice to go to the restaurant and spit on Weinberg or confront him with insulting words and gestures, it does not follow that Weinberg had no reason to fear such a response. When Houck made the statement, "Go by there today and give a little five fingers in the face there to Bob Weinberg," he was speaking to a specific call-in listener, who responded by stating: "Yeah, I might do that, for sure...." Weinberg testified that numerous profane telephone calls were in fact directed to him following the broadcast, both at the restaurant and at his home, causing him to become "real nervous and shaky for about ... a week or ten days." Construing the evidence most strongly against the appellees as movants on motion for summary judgment, and considering the fact that the remarks in question were made to the public at large over a commercial radio station in an apparent spirit of animosity, we believe a factfinder might reasonably conclude that they were likely to provoke an imminent breach of the peace.

For the same reasons, we further conclude that a factfinder might reasonably consider the statements sufficiently outrageous and egregious to support an award of damages for intentional infliction of emotional distress. A defendant may be held liable for the tort of intentional infliction of emotional distress where his conduct is "of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress." Moses v. Prudential Ins. Co. of America, 187 Ga.App. 222, 225, 369 S.E.2d 541 (1988). (Emphasis from original.) The plaintiff in Moses had received a threatening message from his former boss on his telephone answering machine advising him to quit soliciting his former employer's customers "or you are going to find your butt in court or your neck broken somewhere." We held that, "[c]onsidering the totality of the circumstances ..., including the language used in the offensive message, the means by which the message was delivered to plaintiff and the relationship of the parties, ... the threatening and offensive language used in this instance could not have reasonably and foreseeably resulted in the mental distress of which [the plaintiff complained] because the offending message did not, as a matter of law, rise to the requisite level of outrageousness and egregiousness." Id. at 225-6, 369 S.E.2d 541. Compare Greer v. Medders, 176 Ga.App. 408, 336 S.E.2d 328 (1985).

In contrast to the statements in Moses, supra, the statements at issue here were not mere warnings left on an answering machine by an individual with whom the plaintiff had an existing personal or business relationship. Taken at face value, they were instead exhortations to the public at large to go to Weinberg's place of business and confront him in a hostile and insulting, if not assaultive, manner. Of course, reasonable men and women might differ as to whether these exhortations were meant literally and whether they were reasonably likely to be acted upon by members of the listening public. However, "[w]here reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability." Restatement of Torts (Second), § 46, Comment b. Accordingly, we hold that the trial court erred in granting summary judgment to the defendants on plaintiff Weinberg's claim for actual and punitive damages for intentional infliction of emotional distress.

3. Since there was no physical injury involved in this case, and since this state recognizes no cause of action for negligent infliction of emotional distress, see Hamilton v. Powell, Goldstein, Frazer, & Murphy, 252 Ga. 149, 311 S.E.2d 818 (1984), summary judgment was properly granted to defendants on plaintiffs' negligence claim.

4. The defendants were also entitled to summary judgment on the plaintiff's invasion of privacy claims. "[A] constitutionally privileged statement of opinion cannot form the basis of a claim for invasion of privacy by placing a person in a false light." Ault v. Hustler Magazine, 860 F.2d 877, 880 (9th Cir.), cert. den., 489 U.S. 1080, 109 S.Ct. 1532, 103 L.Ed.2d 837 (1988). Moreover, the plaintiffs waived their right to be "let alone" in regard to the operation of their restaurant by inviting and advertising for public patronage. See Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905).

5. The plaintiffs'...