Walker v. Pulitzer Publishing Company

• Decision Date: 19 June 1968
• Docket Number: No. 18994.,18994.
• Citation: 394 F.2d 800
• Parties: Edwin A. WALKER, Appellant, v. The PULITZER PUBLISHING COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

394 F.2d 800 (1968)

Edwin A. WALKER, Appellant, v. The PULITZER PUBLISHING COMPANY, Appellee.

No. 18994.

United States Court of Appeals Eighth Circuit.

May 15, 1968.

As Modified on Denial of Rehearing June 19, 1968.

Emerson Baetz, Alton, Ill., for appellant.

Robert B. Hoemeke, of Evans & Hoemeke, St. Louis, Mo., for appellee; Robert D. Evans was with him on the brief.

Before VAN OOSTERHOUT, Chief Judge, BLACKMUN, Circuit Judge, and VAN PELT, District Judge.

BLACKMUN, Circuit Judge.

In this diversity defamation case, instituted by Major General (retired) Edwin A. Walker against The Pulitzer Publishing Company, publisher of the St. Louis Post-Dispatch and owner of television station KSD-TV at Saint Louis, Chief Judge Harper granted Pulitzer's Civil Rule 56 motion for summary judgment. Plaintiff Walker appeals.

The litigation is yet another of many defamation cases which General Walker has instituted (see Appendix, infra) and which arise out of the disturbances of September 30 and October 1, 1962, which took place on the campus of the University of Mississippi at Oxford in connection with the University's admission of its first Negro, James Meredith.

By the pleadings it is admitted:

1. The Post-Dispatch has a daily circulation of approximately 360,000, concentrated in Saint Louis and the surrounding area but with some extension elsewhere. Station KSD-TV broadcasts are received generally in eastern Missouri and southwestern Illinois.

2. In the Post-Dispatch issue of October 1, 1962, the defendant printed an editorial relating to the Oxford disturbances and saying in part:

"As for Edwin Walker, once a major general, who is reported to have led the student rioters, he ought to be quite unceremoniously clapped into jail. He was entitled to make all the incoherent speeches he cared to about the Mississippi situation, but when he incites to violence he becomes an ordinary criminal and should be dealt with as such."

3. In the Post-Dispatch issues of October 1 and 2, 1962, the defendant printed news items with statements that "Walker, who resigned his army commission under fire for his rightist viewpoints, was seen in the rioting congratulating the students"; that General Walker "led college youths last night in one charge that fell back a hundred yards from the marshals"; that although the General had expressed a hope that there would be no violence "there was violence and Walker was among the leaders of the rioters"; that the General "led one student charge against federal marshals Sunday night on the university campus and later appeared in the midst of rioting yesterday in downtown Oxford"; and that "In his fashion, he had been something of a rallying point for young men from elsewhere in Mississippi and over the South who had come here, or wanted to come here, to make trouble. With his arrest, the military authorities made it quite clear to his following that no such trouble would be tolerated".

4. A photograph of General Walker, with the captain "Arrested for Rioting", was in the newspaper's issue of October 1.

5. On September 30 and on October 1 and 2, 1962, the defendant caused to be broadcast over KSD-TV statements that "One group of brick-throwing students was led by former Major General Edwin A. Walker"; that "One hundred fifty persons have been arrested, including former Major General Edwin A. Walker who is charged with inciting a rebellion"; that General Walker "was checked in tonight at the United States medical center for federal prisoners at Springfield, Mo. He was arrested during the day on four counts of insurrection against the United States. Walker had led a charge of students against United States marshals. * * * The center is maintained to treat prisoners with physical and mental ills"; and that "The controversial Texan got into trouble for inflammatory remarks on the campus of the University of Mississippi and for leading a charge of students against United States marshals there".

6. Prior to September 30, 1962, General Walker was "a person of political prominence" who had made "public announcements".

The plaintiff pleaded falsity of the statements published and broadcast and, specifically, that "Defendant's false statements against plaintiff and its suppression of truthful reports in plaintiff's favor were motivated by malice and a desire to hurt and harm him in his reputation and blacken his good name. * * *" The complaint also contained a paragraph 9, reproduced in the margin,¹ and another paragraph, numbered 11, which alleged that the defendant suppressed a United Press dispatch that the plaintiff had pleaded with the students to cease their violence and that they had responded to this "with a massive jeer". Actual damages of $1,000,000 and punitive damages of like amount were prayed for.

The defendant, prior to filing its answer, moved to strike the complaint's paragraphs 9 and 11 on the ground that they violated Civil Rule 8(a) and (e) (1) and its requirements that pleadings contain "a short and plain statement of the claim" and be "simple, concise, and direct". This motion was sustained by Judge Harper as to paragraph 9 but overruled as to paragraph 11.

The defendant then filed its answer asserting various defenses and, among other things, denying the allegations of falsity and of malice. Later, with supporting affidavits, depositions and exhibits, the defendant filed its motion for summary judgment.

A counter-affidavit was filed by General Walker asserting that at no time or place did he "lead or participate in a charge, movement or attack of any kind against United States marshals or United States troops or any other forces"; that on September 30, 1962, he did go upon the campus of the University of Mississippi and "address students at the university who were protesting the action of the central government of the United States * * * and in such address pleaded with such students to cease and desist from violence in their protests"; that at no time or place did he "violate any statute, regulation, law decree or ukase of the central government of the United States of America or of the State of Mississippi or any other governmental unit, body, or division"; that he has "never been convicted of any crime by any lawful court"; and that he is "not a criminal".

The fact issues of falsity and of malice, raised by the positive allegations of the complaint and by the equally positive denials of the answer, were thus recast by the unopposed material supportive of and in opposition to the motion for summary judgment.²

By agreement of counsel, ruling on the motion was withheld by the trial court pending the forthcoming decision by the Supreme Court of the United States on its review of Associated Press v. Walker, 393 S.W.2d 671 (Tex.Civ.App.1965), as to which certiorari had been granted, 385 U.S. 812, 87 S.Ct. 40, 17 L.Ed.2d 52 (1966). When that decision was issued on June 12, 1967, Judge Harper made his ruling forthwith.

Recent decisions in the public official-public figure-defamation area must be cited for they are, we think, indicative and controlling here:

1. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), is the landmark decision to the effect that, under the First and Fourteenth Amendments, a state cannot award damages to a public official for defamatory falsehoods which relate to his official conduct unless the plaintiff "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". Pp. 279-280, 84 S.Ct. p. 726. The "background" for the case and its rule is "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement caustic, and sometimes unpleasantly sharp attacks on government and public officials". P. 270, 84 S.Ct. p. 721.

2. It was soon held that the Times rule also limits state power to impose criminal sanctions for criticism of official conduct of public officials to situations of similarly defined malice, that is, to statements made with knowledge of their falsity or with reckless disregard of whether they were false or not. Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Moity v. State of Louisiana, 379 U.S. 201, 85 S.Ct. 323, 13 L.Ed.2d 339 (1964); Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965).

3. The rule was next extended to the government employee having or appearing to have substantial responsibility for, or control over, the conduct of governmental affairs. Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966).

4. With these decisions on the books, our own court, two years ago, was itself confronted with a case strikingly similar to the one now before us. Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188 (8 Cir. 1966). The plaintiff there was a professor of international prominence. The defendant was the present defendant's competitor newspaper in Saint Louis. We concluded that plaintiff Pauling was one who, by his statements and actions, had projected himself into the arena of public policy and controversy and into the "vortex of the discussion of a question of pressing public concern", within the language which the Supreme Court had used in a footnote to Rosenblatt v. Baer, supra, p. 86 of 383 U.S. p. 676 of 86 S.Ct. but as to which that Court had specifically stated, "We intimate no view whatever". We were impressed, pp. 195-196 of 362 F.2d, by the facts that Dr. Pauling was attempting to influence the resolution of an issue which was important, of profound effect, public, and controversial; that he was in a position of some influence on the problem's resolution; that he deemed himself influential and was undertaking to provide leadership among certain groups and to bring forces to bear upon the problem; and that the record sufficiently...