Washington v. World Pub. Co.

• Decision Date: 26 December 1972
• Docket Number: No. 44715,44715
• Citation: 506 P.2d 913,1972 OK 166
• Parties: George WASHINGTON, Appellant, v. WORLD PUBLISHING COMPANY, Appellee.
• Court: Oklahoma Supreme Court

Page 913

506 P.2d 913

George WASHINGTON, Appellant, v. WORLD PUBLISHING COMPANY, Appellee.

No. 44715.

Supreme Court of Oklahoma.

Dec. 26, 1972.

As Amended Feb. 14, 1973.

As Amended on Denial of Rehearing Feb. 20, 1973.

George Washington, Jr., Tulsa, for appellant.

Boone, Ellison & Smith, Tulsa, for appellee.

BERRY, Chief Justice:

This case is before us on appellee's, World Publishing Company, petition for certiorari from the Court of Appeals, Division No. 1. The appellate court reversed a grant of summary judgment in favor of World Publishing Company and remanded for trial.

The issue here is whether, under 12 O.S.1971, Ch. 2., App., Rule No. 13, World Publishing Company, defendant below, was entitled, as a matter of law, to summary judgment granted by the trial court. Rule No. 13, provides, in pertinent part:

'A party may move for judgment in his favor where the deposition, admission, answers to interrogatories and affidavits on file show that there is no substantial controversy as to any material fact. The adverse party may file affidavits or other materials in opposition to the motion. The affidavits which are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein and shall set forth facts that would be admissible in evidence. The court shall render judgment if it appears that there is no substantial controversy as to any material fact and that any party is entitled to judgment as a matter of law. * * *'

The parties will be referred to as Washington or plaintiff and World or defendant. This is a libel action. Washington, the then American Party candidate for United States Senator became involved in a controversy with Clarence Thomas, the Tulsa County Chairman of the party. Prior to publication of the complained of libelous statement Chuck Ervin, a reporter for Tulsa World, assigned to news coverage of the Tulsa County, Oklahoma, Courthouse and the 1968 political campaigns discovered, in a routine examination of new litigation filed, that Washington had initiated a breach of contract action against Thomas. Ervin's subsequent inquiry included telephone interviews with both Washington and Thomas and with Reuel Little, state chairman for the American Party. The following day defendant, under Ervin's by-line, published a story concerning the controversy within the American Party. The foregoing facts are all contained in Ervin's affidavit filed in support of defendant's motion for summary judgment. They are uncontroverted by reply, affidavit of plaintiff or otherwise in the record. The following was a part of the published article:

'Thomas accused Washington of soliciting funds for former Alabama Governor George Wallace without authorization, then using the money for Washington's senatorial campaign, Wallace is the American Party candidate for President.'

Based upon the above accusation, which plaintiff claims was false, this libel action was filed. In plaintiff's affidavit filed in response to defendant's affidavit plaintiff does not deny that Thomas made the above accusation. He denied only that he was advised by Ervin, the defendant's reporter, of the specific accusation. It is significant that Ervin's article, Exhibit 'A' to the original petition, in referring to his contact with Reuel Little, the party's state chairman, contained the following:

'Little said he did talk to Washington about Thomas' charge that the senatorial candidate is using Wallace funds in his own campaign. 'However, nothing has been done,' Little said.'

Plaintiff did not deny having a conversation with Little about Thomas' specific accusation. This obviously occurred prior to publication of the article. In his amended petition he alleges that reporter only asked him for his general comment on internal problems of the American Party. In response to this plaintiff claims, as reflected in Ervin's article, he said, 'I'd rather not comment.'

Defendant, asserting the qualified privilege for publication of libelous statements about either 'public officials' or 'public figures' enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412, and Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, filed its motion for summary judgment under Rule 13 supported by Ervin's affidavit and the deposition of plaintiff.

Our consideration is upon the assumption that the complained of published accusation was libelous per se. On this (the trial court assumed for purposes of argument only that it was libelous per se) there seems to be no disagreement at any point in the proceedings.

It is not plead in plaintiff's amended petition that he was or was not a 'public figure' as that term is defined in Curtis Publishing Company v. Butts, supra. But the admission by Washington that he was, at the time of publication of the news article in question, in fact, such a figure seems tacitly implied from the language in the first sentence in the last paragraph of the amended petition just preceding the prayer which reads:

'That defendant published said article with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not.'

The quoted language beginning with the words 'actual malice' are the exact words used by Mr. Justice Harlan in Curtis, supra, when he stated at p. 133 of 388 U.S., at p. 1980, of 87 S.Ct., at p. 1098 and 1099 of 18 L.Ed.2d:

'In New York Times Co. v. Sullivan, 376 U.S. 254, 279--280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (706, 95 A.L.R.2d 1412,) this Court held that '(t)he constitutional guarantees (of freedom of speech and press) require . . . a federal rule that prohibits a public official from recovering damages for 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.' We brought these two cases here, 385 U.S. 811, 87 S.Ct. 30, 17 L.Ed.2d 52, 385 U.S. 812, 86 S.Ct. 40, 17 L.Ed.2d 52, to consider the impact of that decision on libel actions instituted by persons who are not public officials, but who are 'public figures' and involved in issues in which the public has a justified and important interest. * * *' (emphasis added)

The Curtis opinion held that both Wally Butts, the then athletic director of the University of Georgia, and retired General Walker, who had been in command of federal troops in 1957 during school segregation confrontations at Little Rock, Arkansas, were 'public figures.' As such the court held that publications concerning them were entitled to the qualified privilege announced in New York Times Co. v Sullivan, cited in Curtis, which applied the 'actual malice' test. Further, George Washington's own testimony, in his deposition filed in the trial court in response to World Publishing Company's motion for summary judgment, reveals he had been active in the organization and formation in Oklahoma of the American Party which was, at the time, attempting seriously to field candidates for national and state offices in Oklahoma.

Plaintiff's deposition shows the following: he had permitted the use of his law office as the unofficial Tulsa County headquarters of the American Party; he had permitted the use of his office address and telephone number in a newspaper ad soliciting funds for the American Party's presidential candidate, George Wallace; plaintiff was the party's nominee for United States Senator from Oklahoma. In our opinion the trial court did not err, in finding for the purposes of motion for summary judgment, that Washington was a 'public figure.' Moreover, the public posture of the American Party both then and now on issues of great public interest could hardly be said to be non-controversial. That being true, and though there were no volatile or potentially volatile and imminent confrontations involved here as was the situation on the University of Mississippi campus when General Walker appeared there, nonetheless, it might be said here as was argued in the Walker case that Washington had thrust himself into the 'vortex' of controversy and hs protection under the libel laws was, therefore, limited.

Assuming the article was libelous per se and false, and Washington was a 'public figure', did there remain for the determination of a jury a substantial controversy as to any material fact? If so, that court's sustaining Tulsa World Publishing Company's motion for summary judgment was improper.

The trial court had before it the deposition of George Washington, the affidavit of Chuck Ervin, the Tulsa World reporter who submitted the story which included the accusation the contents of which were allegedly false, the complete news article and the affidavit of Washington denying part of Ervin's affidavit. The determinative question is, was there a substantial controversy as to any material fact under the 'actual malice' test as defined by the Supreme Court of the United States? We find the record lacking in this regard. The Only act or omission to act, urged by plaintiff, that bears on the question of 'actual malice' under New York Times, cited in Curtis, supra, or the 'highly unreasonable conduct constituting an extreme departure' from reporting standards test in Curtis, is the alleged failure of the reporter to advise plaintiff, prior to publication, of the specific accusation complained of. Ervin's claim that he did so advise plaintiff is the Only statement in his sworn affidavit that is denied by plaintiff in his affidavit in response. The court in Curtis Publishing Company v. Butts, supra, set out most clearly the kind of proof required for a 'public figure' to recover damages for a defamatory falsehood when it said at 388 U.S. p. 155, at 87 S.Ct. p. 1991, at 18 L.Ed.2d, p. 1111:

'* * * We consider and would hold that a 'public...