Straw v. Chase Revel, Inc.

• Decision Date: 27 March 1987
• Docket Number: No. 86-8524,86-8524
• Citation: 813 F.2d 356
• Parties: , 13 Media L. Rep. 2269 J.F. STRAW, d/b/a Business Opportunities Digest, Plaintiff-Appellee, v. CHASE REVEL, INC., d/b/a Entrepreneur Magazine, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 356

813 F.2d 356

55 USLW 2599, 13 Media L. Rep. 2269

J.F. STRAW, d/b/a Business Opportunities Digest, Plaintiff-Appellee, v. CHASE REVEL, INC., d/b/a Entrepreneur Magazine, Defendant-Appellant.

No. 86-8524.

United States Court of Appeals Eleventh Circuit.

March 27, 1987.

Roy E. Barnes, Jerry A. Landers, Jr., Marietta, Ga., for defendant-appellant.

Adele P. Grubbs, Marietta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL and HATCHETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.

HILL, Circuit Judge:

Appellee J.F. Straw publishes a magazine known as the Business Opportunities Digest. The publication serves as a clearing house to put people interested in potential investment opportunities in touch with one another. The magazine also contains small commentaries written by Straw. One such commentary, which appeared in the August 1982 issue, warned that a rival enterprise, American Entrepreneur Association, ("AEA") was in bankruptcy. ¹

AEA, founded by appellant Chase Revel, also published a magazine containing business opportunities. After Straw's comment appeared, appellant Chase Revel published an editorial in his own magazine, Entrepreneur Magazine, which read:

Caveat Emptor

When we started Entrepreneur Magazine about 10 years ago, practically nothing existed in our field. Now there are hundreds of publications. However, most offer very little help to anyone. The majority don't have any value and go out of business very quickly. A few steal our material, but our attorneys stop them.

However, one has somehow survived even though it offers the least of any business publication. It's called Business Opportunity Digest and is published in some town in Tennessee by a man of unknown credentials: Mr. J.F. Straw.

It appears he subscribes to various city newspapers and extracts his 'opportunities' from their classified sections or accepts payment from people to editorialize their business opportunities. Either way, you would be much further ahead to read the classified business opportunities in your newspaper yourself. Especially for the price difference. Straw charges $36 for 12 four-page issues. Buyer beware.

After being notified about this article, Mr. Straw contacted Ron Smith, the editor under whose name the editorial appeared. He requested a retraction. When this was not forthcoming he brought suit. The case was removed to federal court, and originally dismissed for lack of jurisdiction over the defendants. The district court eventually reconsidered its motion to dismiss and ultimately granted only the motion of defendant Ron Smith to dismiss for lack of personal jurisdiction. The court determined that the magazine itself had sufficient minimum contacts with the State of Georgia to allow it to be sued there. The case then went to trial, where the jury awarded Mr. Straw $25,000 in compensatory damages and $100,000 in punitive damages.

I. PERSONAL JURISDICTION

On appeal Chase Revel reasserts his jurisdictional challenge. When the district court originally dismissed the case for lack of jurisdiction, it did not have at its disposal facts about the defendant magazine which it ultimately found met the standard of minimum contacts under International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). Appellant does not offer anything on appeal which disputes the district court's final factual findings. The court found that Entrepreneur Magazine had made deliberate purposeful attempts to establish business contacts in Georgia; received advertising revenues from companies within the state; and had a not insignificant percentage of its circulation directed at Georgia. Given these facts, Revel had sufficient contacts with Georgia to support the district court's exercise of personal jurisdiction.

II. SUFFICIENCY OF THE EVIDENCE

Revel next asserts that the jury's verdict was not supported by the evidence. First, he argues that Mr. Straw never showed that the magazine or its editor was negligent in publishing the offensive editorial. Appellant claims that Mr. Straw's testimony was "replete with references to the fact that the article was published ... [but] there was absolutely no evidence which would tend to demonstrate the standard of care applicable to the facts of this case." He does not cite to the record nor to any case law in support of this proposition.

The testimony given at trial was sufficient to demonstrate that the appellant was at least negligent. Mr. Ron Gershen, who also publishes a financial information newsletter, testified that he always checks out the sources of financial ads appearing in his newsletter. Testimony by Ron Smith, the editor over whose name the article appeared, indicated that he failed to verify any of the contents of the article disparaging Mr. Straw. Instead, Mr. Smith maintained that the article was handed to him in completed form by Revel, and that the piece was an editorial opinion, not subject to factual verification. This argument is not persuasive; the editorial reads like a recitation of fact, not a pure opinion. The jury was entitled to find that Mr. Smith's failure to verify the assertions contained in it amounted to a failure to exercise that degree of care exercised under the same or similar circumstances by ordinarily prudent persons, and that this negligence was imputable to Mr. Revel. See O.C.G.A. Sec. 51-1-2 (1982).

Appellant also contends that Straw never showed that the statements in the article were false. This assertion is similarly unelaborated by explanation, citations to the record, or citations to applicable authority, except to reference 28 pages of testimony by Ron Smith. He also claims that Mr. Straw did not demonstrate any evidence of damages, only that he was "mad and upset." Appellant alleges that evidence at trial demonstrated that the circulation of Straw's magazine has increased 400 per cent since the alleged libel, proving that he was not damaged.

An examination of the record shows that Mr. Straw denied ever having stolen any articles or information from Entrepreneur Magazine. He also denied the accusation that he culls his information from the classified ads in other newspapers. Moreover, he denied that people pay him to editorialize their business opportunities. This testimony contradicts those things reported as facts in the challenged editorial. The jury could therefore conclude that the article was false and defamatory.

Under Georgia law the measure for compensatory damages in an action for defamation is left to the enlightened conscience of the jury. Franklin v. Evans, 55 Ga.App. 177, 189 S.E. 722 (1937); Williamson v. Lucas, 171 Ga.App. 695, 320 S.E.2d 800 (1984). The relatively slow-paced growth of Mr. Straw's company, coupled with Mr. Straw's own testimony that he suffered ridicule from some of his colleagues, adequately shows that his reputation was damaged.

A new trial may not be granted unless the trial judge concludes that the jury's verdict is against the great weight of the evidence. J & H Auto Trim Co. v. Bellefonte Insurance Co., 677 F.2d 1365, 1368 (11th Cir.1982). After studying the record we find no reason to overturn the court's decision to deny a new trial. On all of the above issues, the evidence sufficiently supported the jury's verdict.

III. PRIVILEGE

Next appellant alleges that the editorial by Mr. Smith was privileged under Georgia law, and not subject to a defamation suit. He cites no case law in support of this proposition. The specific areas in which such a privilege operates are enumerated in O.C.G.A. Sec. 51-5-7. ² None of these enumerated circumstances are even remotely applicable, and the district court properly refused the instruction.

IV. PRIVATE OR PUBLIC FIGURE

Under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), a public figure cannot prevail in an action for media libel unless he can prove actual malice. A private figure can obtain compensatory damages absent a showing of actual malice. Gertz v. Robert Welch, 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789 (1974). ³ Here appellant asserts that Mr. Straw was a public figure and that he did not make the requisite showing of actual malice.

In the Gertz case the Supreme Court said:

[A person's] designation [as a public figure] may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

Id., 418 U.S. at 351, 94 S.Ct. at 3012. The Court went on to hold that although the particular individual in that case was "well known in some circles, he had achieved no general fame or notoriety in the community." Nor did he "thrust himself into the vortex" of a particular public controversy. He was therefore a private figure. Id., 418 U.S. at 352, 94 S.Ct. at 3013.

Appellant concedes that Mr. Straw does not have any general notoriety. ⁴ However, he asserts that Mr. Straw is a "public figure" in the business community by virtue of his being the publisher of a business newsletter.

We conclude that Mr. Straw is much more like the petitioner in Gertz. He is well known in some circles, and publishes in a particular field; but not every publisher is automatically a public figure by virtue of his access to a printing press. At the time that the offensive editorial appeared, Mr. Straw's magazine had a limited circulation of 750 among a small sector of the business community. This does not make him a public figure in the general sense. Nor can it be said...