Turner v. Devlin

• Decision Date: 02 March 1993
• Docket Number: No. CV-91-0365-PR,CV-91-0365-PR
• Citation: 174 Ariz. 201,848 P.2d 286
• Parties: , 21 Media L. Rep. 1588 Thomas N. TURNER, Plaintiff-Appellant, v. Barbara DEVLIN, Defendant-Appellee.
• Court: Arizona Supreme Court

Page 286

848 P.2d 286

174 Ariz. 201, 21 Media L. Rep. 1588

Thomas N. TURNER, Plaintiff-Appellant, v. Barbara DEVLIN, Defendant-Appellee.

No. CV-91-0365-PR.

Supreme Court of Arizona, In Banc.

March 2, 1993.

[174 Ariz. 202] Doherty, Alex & Tadano by Andrew R. Alex, Phoenix, for plaintiff-appellant.

Teilborg, Sanders & Parks by David J. Damron, R. Corey Hill, Phoenix, for defendant-appellee.

OPINION

FELDMAN, Chief Justice.

Barbara Devlin petitions this court to review the court of appeals' decision in a defamation action brought against her by Thomas N. Turner. She argues that the First Amendment protects the speech in question. In light of the importance of the issues and the "enhanced appellate review" required to avoid "forbidden intrusion of the field of free expression," we granted review. Yetman v. English, 168 Ariz. 71, 76, 811 P.2d 323, 328 (1991) (citing Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); and quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1 (1990)). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and Ariz.R.Civ.App. 23.

FACTS AND PROCEDURAL HISTORY

On the morning of April 14, 1988, Phoenix police officer Turner was dispatched to Desert Sky Junior High School to investigate a possible case of child abuse. Turner learned that a student had reported to school nurse Devlin complaining that his stepfather had beaten him the night before. Upon arrival, Turner and the student went into a private office to talk. The exact manner in which Turner conducted his investigation is disputed. The following day Devlin wrote a letter complaining that Turner's behavior was "rude and disrespectful" and asserting that "his manner bordered on police brutality." ¹

Investigating Devlin's complaint, Sergeant Jan Marshall of the Phoenix Police Department interviewed Devlin and Turner, as well as others who witnessed the April 14 incident. See Memorandum to Shift Commander, Apr. 27, 1988 ("April 27 Memo"). According to Marshall, Turner's conduct did not justify Devlin's assertion that he was rude or that his manner bordered on police brutality. ² Id. at 6. Nevertheless, Marshall "partially sustained" Devlin's complaint, noting that Turner's choice of words "reflect[ed] disrespect" and "created an atmosphere where [Devlin] felt that the officer was accusing the victim of wrong doing." Id. at 6, 7. Marshall concluded that a "more professional approach should have been utilized." Id. at 7.

Marshall also related that Devlin's purpose in writing the letter was not solely to criticize Turner's handling of the incident. Id. at 5. Marshall reported that Devlin hoped her complaint would motivate the Phoenix Police Department to properly train its officers in juvenile interrogation techniques. Id. According to Marshall, Devlin reported that Turner "did a very good job with the entire investigation and was very efficient in accomplishing it." Id. Although Turner argues that Devlin's statements to Marshall amounted to an "uncontroverted and complete recantation" of the accusations contained in her letter, the record supports both parties' depiction of the events. ³

Turner filed a defamation claim against Devlin in November 1988. Devlin moved for summary judgment and Turner for partial summary judgment. The trial court granted Devlin's motion and denied Turner's. ⁴ The court held that the record could not support by clear and convincing evidence a finding of actual malice and, relying on Glaze v. Marcus, 151 Ariz. 538, 729 P.2d 342 (Ct.App.1986), that Devlin's statements were nonactionable opinions. Id.

The court of appeals reversed. Turner v. Devlin, No. 1 CA-CV 90-113 (Aug. 8, 1991) (mem. dec.) (2-1 decision). The majority, relying on Milkovich, 497 U.S. 1, 110 S.Ct. 2695, held that Devlin's recantation to Marshall demonstrated that Devlin's statements were both false and provable as false. Turner, mem. dec. at 6. Relying on Yetman, 168 Ariz. 71, 811 P.2d 323, the majority also held that Devlin's statements could be interpreted as stating actual facts--presenting a question for the jury. Turner, mem. dec. at 7-8. Finally, the majority held that there was sufficient evidence of actual malice for jury consideration. Id. at 9-10. Judge McGregor dissented. She found that Devlin's comments were incapable of being proven true or false and thus were constitutionally protected. Id. at 12-14 (McGregor, J., dissenting).

We granted review to answer the following two questions:

1. Were the statements contained in Nurse Devlin's letter purely personal impressions, or rather factual assertions, capable of being proven true or false?

2. Did Nurse Devlin act with actual malice in writing the letter?

DISCUSSION

A. Actionability

"To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, or reputation." Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989). A complaint that falsely charges a law enforcement officer with misconduct may be defamatory and actionable, so long as constitutional requirements are fulfilled. See, e.g., Selby v. Savard, 134 Ariz. 222, 224-25, 655 P.2d 342, 344-45 (1982). Devlin claims that Arizona law and the First Amendment protect her criticism of Turner's conduct. ⁵ In this case, therefore, we must examine the interplay between the constitutional protection of free speech and the common law action of defamation. See Yetman, 168 Ariz. at 73, 811 P.2d at 325. Specifically, we are asked to address how the "fact-opinion" differentiation affects the constitutional protection of free speech. We first turn to the present state of the law on the question.

B. Legal Principles

In Milkovich, the United States Supreme Court rejected the contention that the First Amendment demands distinct constitutional protection for speech that is "opinion." 497 U.S. at 18, 21, 110 S.Ct. at 2705, 2707. Instead, the Court held that existing constitutional doctrine sufficiently protects such speech. Id. at 21, 110 S.Ct. at 2707. In Yetman, we outlined the protections discussed by the Court in Milkovich:

First, ... "a statement on matters of public concern must be provable as false before there can be liability under state defamation law."

Second, ... "[t]he [Supreme Court cases] provide protection for statements that cannot 'reasonably [be] interpreted as stating actual facts' about an individual...."

Third, ... the malice requirements ... provide additional protection for statements of "opinion" on matters of public concern that reasonably imply false and defamatory facts about public figures or officials.

Finally, ... enhanced appellate review ... in cases raising first amendment issues "provides assurance that the foregoing determinations will be made in a manner so as not to 'constitute a forbidden intrusion of the field of free expression.' "

Yetman, 168 Ariz. at 75-76, 811 P.2d at 327-28 (quoting Milkovich, 497 U.S. at 19-21, 110 S.Ct. at 2706-07) (citations omitted).

In the present case, we must determine whether the doctrines outlined in Milkovich protect Devlin's criticism. First, we examine two related questions: (1) if the criticism involves matters of public concern, whether it is provable as false, and (2) whether the criticism reasonably could be interpreted as stating actual facts about Turner. If so, because Turner is a "public official," see Godbehere, 162 Ariz. at 343-44, 783 P.2d at 789-90 (citing cases); Selby, 134 Ariz. at 224-25, 655 P.2d at 344-45, we also must determine whether the record supports, by clear and convincing evidence, that Devlin acted with the malice required by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710. Because we dispose of the case on the first issue, we do not reach the malice question.

ANALYSIS

In reaching our decision, we recognize that Devlin related a sequence of events, the basis of which is indisputably factual. Whether the stepfather beat the child, whether school officials called the police, and whether Turner requested that the student stand against a wall are unquestionably capable of being proven true or false. It is, however, Devlin's unflattering characterization of Turner's conduct that gives her letter defamatory color. Therefore, it is on those comments that we must concentrate.

Devlin's letter stated that (1) Turner "demanded that the student stand against the wall"; (2) "[t]he student was interrogated as if he, the victim, had committed an illegal act"; (3) "[t]he officer was rude and disrespectful, and his manner bordered on police brutality"; and (4) "[t]here is no excuse for this outdated, uneducated behavior on the part of so important a group as our Police Department." See Appendix. We now apply the principles set out in Milkovich to these statements.

A. Are Devlin's Statements a Matter of Public Concern?

A statement regarding matters of public concern must be provable as false before a defamation action can lie. Milkovich, 497 U.S. at 16, 19-20 & n. 6, 110 S.Ct at 2704, 2706 & n. 6. Because truth is an affirmative defense, the burden of proving falsity lies only on those plaintiffs who are defamed by speech that is a matter of public concern. As a threshold, therefore, we must determine whether Devlin's speech falls within this category. " 'Whether ... speech addresses a matter of public concern must be determined by [the expression's] content, form, and context ... as revealed by the whole record.' " Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 105 S.Ct. 2939, 2946, 86 L.Ed.2d 593 (1985) (plurality opinion) (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983)).

Devlin's letter criticizes a police officer acting in his official capacity. ⁶...