State v. Powell, 13398

• Citation: 114 N.M. 395,1992 NMCA 86,839 P.2d 139
• Decision Date: 27 July 1992
• Docket Number: No. 13398,13398
• Parties: , 78 Ed. Law Rep. 1057, 20 Media L. Rep. 1841 STATE of New Mexico, Plaintiff-Appellant, v. David William POWELL, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 139

839 P.2d 139

114 N.M. 395, 78 Ed. Law Rep. 1057,

20 Media L. Rep. 1841

STATE of New Mexico, Plaintiff-Appellant, v. David William POWELL, Defendant-Appellee.

No. 13398.

Court of Appeals of New Mexico.

July 27, 1992.

[114 N.M. 396] Tom Udall, Atty. Gen., Joel K. Jacobsen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

Thomas R. Figart, Law Systems of Las Cruces, P.A., Las Cruces, for defendant-appellee.

Hal Simmons, Albuquerque, for amicus curiae New Mexico Press Ass'n & New Mexico Broadcasters Ass'n.

OPINION

HARTZ, Judge.

Defendant, a teacher at Western New Mexico University, was convicted of criminal libel in magistrate court because of accusations he had made against the university's acting vice-president for academic affairs. He then exercised his statutory right to appeal to district court, where he was entitled to a trial de novo. NMSA 1978, Secs. 35-13-1, -2(A) (Repl.Pamp.1988). Defendant moved the district court to dismiss the complaint against him on the grounds that New Mexico's criminal libel statute is unconstitutional on its face and is unconstitutional as applied to the charge against him. The district court granted the motion; the court's judgment held that (1) the statute is unconstitutional on its face, (2) the statute is unconstitutional as it applies to libel of public officials or public figures, and (3) the crime alleged against Defendant was libel of a public figure.

We do not decide whether our criminal libel statute is unconstitutional on its face, nor do we decide whether the alleged victim of the libel was a public figure or public official. We rely on a separate ground alluded to in the letter opinion by the district court and addressed in the parties' appellate briefs.¹ Cf. Naranjo v. Paull, 111 N.M. 165, 170, 803 P.2d 254, 259 (Ct.App.1990) (appellate court can affirm judgment on ground not relied upon by lower court). We hold that the statute is unconstitutional insofar as it applies to a public statement involving a matter of public concern and that the alleged public libel in this case involved a matter of public concern. We therefore affirm the district court's dismissal. We first discuss the applicable law and then apply it to this case.

APPLICABLE LAW

The New Mexico criminal libel statute, NMSA 1978, Section 30-11-1 (Repl.Pamp.1984), reads in its entirety:

Libel consists of making, writing, publishing, selling or circulating without good motives and justifiable ends, any false and malicious statement affecting the reputation, business or occupation of another, or which exposes another to hatred, contempt, ridicule, degradation or disgrace.

Whoever commits libel is guilty of a misdemeanor.

The word "malicious," as used in this article, signifies an act done with evil or mischievous design and it is not necessary to prove any special facts showing ill-feeling on the part of the person who is concerned in making, printing, publishing or circulating a libelous statement against the person injured thereby.

A. A person is the maker of a libel who originally contrived and either executed it himself by writing, printing, engraving or painting, or dictated, caused or procured it to be done by others.

B. A person is the publisher of a libel who either of his own will or by the persuasion or dictation, or at the solicitation or employment for hire of another, executes the same in any of the modes pointed out as constituting a libel; but if anyone by force or threats is compelled to execute such libel he is guilty of no crime.

C. A person is guilty of circulating a libel who, knowing its contents, either sells, distributes or gives, or who, with malicious design, reads or exhibits it to others.

D. The written, printed or published statement to come within the definition of libel must falsely convey the idea either:

(1) that the person to whom it refers has been guilty of some penal offenses;

(2) that he has been guilty of some act or omission which, though not a penal offense, is disgraceful to him as a member of society, and the natural consequence of which is to bring him into contempt among honorable persons;

(3) that he has some moral vice or physical defect or disease which renders him unfit for intercourse with respectable society, and as such should cause him to be generally avoided;

(4) that he is notoriously of bad or infamous character; or

(5) that any person in office or a candidate therefor is dishonest and therefore unworthy of such office, or that while in office he has been guilty of some malfeasance rendering him unworthy of the place.

E. It shall be sufficient to constitute the crime of libel if the natural consequence of the publication of the same is to injure the person defamed although no actual injury to his reputation need be proven.

F. No statement made in the course of a legislative or judicial proceeding, whether true or false, although made with intent to injure and for malicious purposes, comes within the definition of libel.

Although the statute was enacted in 1963, 1963 N.M.Laws, ch. 303, Sec. 11-1, the statutory language is taken almost verbatim from a statute enacted by the territorial legislature in 1889. 1889 N.M.Laws, ch. 11 (codified as amended at NMSA 1953, Rev.Stat. Secs. 40-27-1 to -24). Some provisions in the 1889 law are not included in the 1963 version. The only substantive additions to the early statute are the insertion of the first paragraph of Section 30-11-1 and the insertion of the word "falsely" in paragraph D (so that the libelous statement must now falsely convey one of the five ideas listed in that paragraph).

Section 30-11-1 was enacted one year before the United States Supreme Court's seminal decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In that opinion the Supreme Court created a qualified privilege to make defamatory statements relating to the official conduct of a public official. The Court ruled that the Constitution "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." Id. at 279-80, 84 S.Ct. at 725-26; see Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 511 n. 30, 104 S.Ct. 1949, 1965 n. 30, 80 L.Ed.2d 502 (1984) (Plaintiff must demonstrate "that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement."). Three years after New York Times the qualified privilege was extended to defamatory criticism of "public figures." Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

In adopting the qualified privilege, the Supreme Court recognized "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times, 376 U.S. at 270, 84 S.Ct. at 720. Hustler Magazine v. Falwell, 485 U.S. 46, 52, 108 S.Ct. 876, 880, 99 L.Ed.2d 41 (1988), explains:

[E]ven though falsehoods have little value in and of themselves, they are "nevertheless inevitable in free debate," [Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974),] and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted "chilling" effect on speech relating to public figures that does have constitutional value. "Freedoms of expression require 'breathing space.' " Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 772, [106 S.Ct. 1558, 1561, 89 L.Ed.2d 783] (1986) (quoting New York Times, supra, at 272, ). This breathing space is provided by a constitutional rule that allows public figures to recover for libel or defamation only when they can prove both that the statement was false and that the statement was made with the requisite level of culpability.

On the other hand, defamation that does not come within the New York Times privilege is hardly entitled to protection. As the Supreme Court stated in Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964):

Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity.... [T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality * * * * " Chaplinsky v. New Hampshire, 315 U.S. 568, 572, [62 S.Ct. 766, 769, 86 L.Ed. 1031]. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.

The qualified privilege established by New York Times has not been limited to defamation actions brought by public officials and public figures. The Supreme Court has also required that a private person--that is, one who is neither a public official nor a public figure--must, at least in some circumstances, prove actual malice to recover presumed or punitive damages for defamation. Although the Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), rejected the view that a private person must prove actual malice to recover compensatory damages for false defamatory statements concerning an issue of...