Spence v. Funk

• Decision Date: 14 April 1978
• Citation: 396 A.2d 967
• Parties: 4 Media L. Rep. 1981 William L. SPENCE, Jr., Plaintiff, Appellant, v. Allison J. FUNK and Communications Consultants, Inc., a Delaware Corporation, Defendants, Appellees. . Submitted *
• Court: United States State Supreme Court of Delaware

Page 967

396 A.2d 967

4 Media L. Rep. 1981

William L. SPENCE, Jr., Plaintiff, Appellant, v. Allison J. FUNK and Communications Consultants, Inc., a

Delaware Corporation, Defendants, Appellees.

Supreme Court of Delaware.

Submitted ^* April 14, 1978.

Decided Dec. 21, 1978.

Upon appeal from Superior Court. Reversed and remanded.

Richard S. McCann, Newark, for plaintiff, appellant.

Richard K. Herrmann of Bayard, Brill & Handelman, Wilmington, for defendants, appellees.

Before DUFFY, J., MARVEL, Chancellor, and HARTNETT, Vice Chancellor.

DUFFY, Justice:

The issue in this appeal is whether a complaint alleging libel is sufficient to withstand a motion to dismiss based upon failure to plead special damages. In a broader sense, the appeal requires an examination of the law of defamation in Delaware.

Plaintiff brought suit in Superior Court alleging that he was libeled in an article written by one of the individual defendants, Allison J. Funk, and printed in a magazine published by the corporate defendant, Communications Consultants, Inc. The Court granted defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted, and plaintiff appeals. We reverse.

I

The complaint alleges libel but it is judged by the norm applied to such a pleading in every case, and that is fixed by settled Delaware law.

For the purpose of judging a motion to dismiss a complaint for failure to state a claim, made pursuant to Superior Court Civil Rule 12(b)(6), all well-pleaded allegations must be accepted as true. Laventhol, Krekstein, Horwath & Horwath v. Tuckman, Del.Supr., 372 A.2d 168 (1976). The test for sufficiency is a broad one, that is, whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint. Klein v. Sunbeam Corp., Del.Supr., 8 Terry 526, 94 A.2d 385 (1952). If he may recover, the motion must be denied. With those principles in mind, we look to the pleading in issue, the complaint, for the pertinent facts.

It appears that Funk initiated a telephone interview with plaintiff, who was the Chief of Police of the City of Dover, to obtain material for use in an article which Funk was writing about prostitution in Delaware. Funk's article on the subject was published thereafter in the February 1975 edition of a magazine owned and published by Communications Consultants and known as Opinion Delaware. The article contained the following statement, attributing to plaintiff certain views on the subject of prostitution in Dover:

" . . . In Dover, according to Chief William L. Spence, 'prostitution is practically nonexistent.' 'There's an overabundance of it free from personnel at the airbase, from some wives and daughters of airmen who are overseas for long periods and some girls from college in Dover who provide plenty of it. Prostitution has never really been a problem,' said Chief Spence in a recent interview and it was apparent from his tone of voice and slightly defensive posture that he did not want the press to make it into one."

Plaintiff alleges that the statement is an incorrect quotation, and is defamatory. He says that as a result of the article and the statements attributed to him, respectable residents of the Dover area have demanded that he be removed as Chief of Police, the Commander of the Dover Air Base has suggested that he be relieved of his office, the relations between the City and the Base have been impaired, and he has been ostracized and subjected to hatred, ridicule and contempt by a considerable and respectable class of citizens in his community. And he alleges that publication of the statements was done with actual malice in that defendants recklessly disregarded whether the statements were actually made by him.

Relying upon an unreported Superior Court opinion in Dougherty v. Nelson, Del.Super., 1440 C.A.1975 (May 13, 1976), the Trial Court determined that the writing was not libelous Per se and not actionable without proof of special damages. Finding that special damages were not alleged, the Court granted a motion to dismiss the complaint.

Plaintiff contends that the Superior Court erred in two respects: First, he says that there is no need to refer to extrinsic facts to determine that the statement tends to disgrace him or to subject him to ridicule and contempt; consequently, the statement need not fit into one of the four categories of libel Per se discussed in Dougherty. ¹ Second, assuming the need for reference to extrinsic facts, the statement does fit into one of the four categories, namely, it maligns him in a business, trade or profession. Under either of these premises, plaintiff asserts that he is not required to plead special damages.

Defendants rely on Dougherty. They contend that to be actionable in the absence of special damages, a statement must either be defamatory on its face (that is, without reference to extrinsic facts), or must fit into one of the four categories of libel Per se. They deny that the statement in question is defamatory on its face and they say that it is not within any of the prohibited categories. Indeed, defendants argue that the statement is not defamatory at all.

II

The law of defamation is a reflection of society's attempt to accommodate two important but often conflicting policies: on one hand, the policy of protecting a person in the enjoyment of his good name and reputation and, on the other, the policy of encouraging freedom of expression. See, Short v. News-Journal Co., Del.Supr., 212 A.2d 718 (1965).

In this general context, "defamation" is, according to Prosser :

" . . . that which tends to injure 'reputation' in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him."

Prosser Law of Torts (1971) § 111 p. 739. The Restatement of the Law Torts § 559 has adopted a similar but somewhat shorter definition:

"A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."

The Courts have long struggled to accommodate the right to express one's views Vis-a-vis the right of another not to be damaged by that expression. The results have not always been consistent nor logical indeed, arbitrary pleading and proof requirements have been the norm in the law of defamation. But to these guideposts we must now turn for guidance in judging the sufficiency of the complaint.

As Prosser states, defamation consists of the "twin torts" of libel and slander. That may be somewhat misleading because, although they may be twins, they are not identical. In shortest terms, libel is written defamation and slander is oral defamation. The two have vastly different historical bases and have been treated differently by the common law courts but, in general, the scope of liability is greater for libel, and the pleading requirements for libel are less strict. For an extended discussion of the difference between libel and slander and the reasons therefor, see Prosser, supra, §§ 111, 112.

A.

Preliminarily, we note that, for pleading purposes, slander is treated the same way by almost all American jurisdictions. Briefly, the general rule is that oral defamation is not actionable without special damages. 50 Am.Jur. 2d Libel and Slander §§ 9, 10; 53 C.J.S. Libel and Slander § 170; Prosser, supra, § 112, p. 754. But there are four categories of defamation, commonly called slander Per se, which are actionable without proof of special damages. In broad terms, these are statements which: (1) malign one in a trade, business or profession, (2) impute a crime, (3) imply that one has a loathsome disease, or (4) impute unchastity to a woman: Prosser, supra, § 112, pp. 754-760; Restatement, supra, § 570.

The precise reason why the law presumes damages in these four categories is unclear, but each seems to involve circumstances to which it would be difficult to trace specific financial loss. Cf. 50 Am.Jur.2d, supra, § 9. And the unifying characteristic of the categories is the tendency of the slander to isolate the object of the defamation from society. One who is defamed in one of these ways might never know the extent of a lost opportunity to relate to and associate with others, because he could be avoided without knowing the reason and without having a chance to rebut the defamation.

The statement alleged in the case at bar (printed words published in a magazine) falls within the traditional ambit of libel, not slander, so we must now consider the law governing that tort.

B.

As we have observed, the scope of liability for libel is generally broader than for slander. This is to say, that while all slanderous statements would be libelous if written, not all libelous statements would be slanderous if spoken. See Rice v. Simmons, Del.Ct. of Err. and Apps., 2 Harr. 417, 422 (1836). This general rule of greater liability is almost universally followed.

In Rice, the Court noted three significant reasons why the protection against libel is usually broader than it is against slander: (1) the written word leaves a more permanent blot on one's reputation; (2) the written word is capable of wider circulation than that which is communicated orally; (3) reducing a defamation to writing evidences greater deliberation and intention on the part of one who records it. While that analysis was made long ago by our highest Court, it remains generally valid today. ² 53 C.J.S., supra, § 8.

The general rule is that any publication which is libelous on its face is actionable without pleading or proof of special damages. That is a basic way in which libel differs from slander. See 50 Am.Jur.2d, Supra, § 11; 53 C.J.S., supra, § 239; Prosser, supra, § 112, p. 762; Restatement, supra, § 569. In other words, proof of damage proximately caused...