Welch v. American Publishing Co. of Kentucky

• Court: Supreme Court of Kentucky
• Writing for the Court: Lambert
• Citation: Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724 (Ky. 1999)
• Decision Date: 21 October 1999
• Docket Number: No. 98-SC-0010-DG.,98-SC-0010-DG.
• Parties: Troy WELCH, Appellant, v. AMERICAN PUBLISHING COMPANY OF KENTUCKY, a/b/a The Daily News, Paul Douglas Hall, and Jimmy Pursiful, Jr., Appellees.

3 S.W.3d 724

Troy WELCH, Appellant, v. AMERICAN PUBLISHING COMPANY OF KENTUCKY, a/b/a The Daily News, Paul Douglas Hall, and Jimmy Pursiful, Jr., Appellees.

No. 98-SC-0010-DG.

Supreme Court of Kentucky.

October 21, 1999.

Michael Dean, London, Stella B. House, Manchester, for Appellant.

Jon L. Fleischaker, R. Kenyon Meyer, Cheryl R. Winn, Dinsmore & Shohl, LLP, Louisville, Cynthia Blevins Doll, Wyatt, Tarrant & Combs, Louisville, Bridget Leigh Dunaway, Taylor, Keller & Dunaway, London, W. Patrick Hauser, Barbourville, for Appellees.

LAMBERT, Justice.

An indispensable principle of free speech guaranteed by the First Amendment to the United States Constitution is "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 Co. v. Sullivan, 376 U.S. 254, 271, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701 (1964). Accordingly, political speech directed toward public officials is at the pinnacle of protected speech. Since rendition of New York Times in 1964, it has been clear that the constitutional protection of political speech requires public officials who bring defamation lawsuits against critics of their official conduct to meet a higher standard of proof than ordinary citizens if they are to prevail. In this case, we have been called upon to apply this rigorous standard in our review of an adverse judgment in a defamation lawsuit brought by a defeated mayoral candidate against the publishers of a political advertisement opposing the candidate's election.

In 1993, Troy "Frog" Welch, the two-term mayor of Middlesboro, Kentucky, sought re-election. Ben Hickman, a local businessman, was Welch's opponent. A few days before the Tuesday, November 2, 1993 election, a full-page paid political advertisement opposing Welch's re-election was published in The Daily News, a Middlesboro newspaper owned by American Publishing Company of Kentucky. Two supporters of Hickman, Jimmy Pursifal, Jr. and Paul Douglas Hall, paid for the ad, with much of the content being culled from back issues of The Daily News. A newspaper employee, Carla Bennett, helped Pursifal prepare the layout. The newspaper publisher, J.T. Hurst, glanced over the ad before it was published. The ad was published twice: on Saturday, October 30, 1993 and on Monday, November 1, 1993. The newspaper had an internal policy of not publishing political ads that raised new issues within the week before an election.

The ad consisted of three distinct sections. The top section contained a checklist of nine short reasons why Welch was not qualified to be mayor. This section included the statements, "The City is Broke Because of His Management," "Employees Have Been Paid Almost $100,000 because of Political Firings," and "Frog Has Squandered Over 1½ Million Dollars of Surplus [City] Money." In the central and largest section were twenty-two headlines and excerpts from the accompanying articles, reprinted from previous issues of The Daily News. This section chronicled the low points of Welch's administration and was uniformly unflattering. In this section were printed the lines, "Mayor grabs councilman Gandy by the throat," and "KSP [Kentucky State Police] probing allegations of misconduct." Dividing the middle and the bottom sections of the ad was a strip of words: "Political Hirings-Political Firings-Harassment-Very Questionable Practices."

The bottom section of the ad contained a photo of Welch alongside photos of two other men. The caption above the three photos read, "The Welch Slate." This section also contained editorial text criticizing Welch's administration, including the following plea for votes: "Think before you vote and wonder why Frog and his cronies are working so hard to get rid of people who have stood in his way and called his hand on illegal activities. FROG WAS SUCCESSFUL IN RUNNING OFF 62 SEPARATE COUNCIL MEMBERS IN DISGUST" (emphasis in published text).

All of the aforementioned statements in the advertisement are alleged to be false and defamatory.

Welch lost the election and subsequently filed suit in the Bell Circuit Court against The Daily News, Pursifal, and Hall for defamation and false light invasion of privacy. Welch claimed that the ad ruined his reputation in Bell County and cost him the election. The trial court granted summary judgment in favor of all defendants, holding that Welch would be unable at trial to establish that the defendants had acted with "actual malice," the standard required for proving defamation of a public figure.

Prior to its final judgment, the trial court held a hearing, and the reasoning stated therein was incorporated into the decision. During this hearing, the trial court conducted a thorough review and analysis of many elements of defamation law as they touch upon this case. Among other considerations, the trial court viewed it as significant that the allegedly defamatory statements were made in a political ad, not in an investigative news story. The question of deciding First Amendment cases at the summary judgment stage was also addressed. The trial court considered it significant that many of the complained of statements were figurative and thus subject to varied interpretations. As an example, the trial court discussed the statement, "Mayor grabs councilman Gandy by the throat." In response to this allegedly false statement, Welch maintained that he merely grabbed the councilman by the tie, not the throat. The trial court pointed out that the person on the other end of the tie might have disagreed with Welch's interpretation of the event. In conclusion, the trial court recognized the value of freedom of the press during elections, stating perceptively that "our courts have concluded that our forefathers wanted the public to have the right to be bold and outspoken, even to the extent of poor taste."

In a unanimous decision, the Court of Appeals affirmed. In its decision, the court held that the newspaper's failure to investigate the veracity of the ad coupled with its failure to abide by the October 25 deadline could not support a conclusion that the newspaper acted with actual malice. The court also addressed Welch's claim that the trial court failed to consider his false light invasion of privacy claim. The court held that since proof of actual malice was also necessary to prevail upon the false light claim, that it likewise must fail.

Pursuant to CR 76.20, this Court granted discretionary review to consider Welch's contention that the trial court and the Court of Appeals committed reversible error. Welch supports this claim by first arguing that there were genuine issues of material fact as to whether the defendants acted with actual malice, and that summary judgment should not have been granted. See CR 56. The actual malice standard for defamation lawsuits brought by public officials against critics of their official conduct was announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In New York Times, the United States Supreme Court recognized that "erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the `breathing space' that they `need to survive.'" 376 U.S. at 271-272, 84 S.Ct. at 721-722, 11 L.Ed.2d at 701-702 (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418 (1963)). In light of these considerations, the court held that a defamatory statement about a public figure was actionable only if it was made "with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 280, 84 S.Ct. at 726, 11 L.Ed.2d at 706; Warford v. Lexington Herald-Leader Co., Ky., 789 S.W.2d 758, 771 (1990); Sparks v. Boone, Ky.App., 560 S.W.2d 236, 238 (1977).

Actual malice entails more than mere negligence. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968). It requires that the publisher of the defamatory falsehood have "entertained serious doubts" as to the truth of the published matter. Warford at 771 (quoting Harte-Hanks, 491 U.S. 657, 667, 109 S.Ct. 2678, 2685, 105 L.Ed.2d 562, 576 (1989)). This higher proof requirement for public figures is based upon the premise that unfettered political discussion is a necessary and fundamental principle of our constitutional system of government, assuring that political decisions will be made through persuasion rather than power. New York Times, 376 U.S. at 269-270, 84 S.Ct. at 72-721, 11 L.Ed.2d at 700-701. The standard of proof is similarly high, as actual malice must be shown by clear and convincing evidence. Warford at 771; New York Times, 376 U.S. at 285-286, 84 S.Ct. at 728-729, 11 L.Ed.2d at 709-710.

Citing Ball v. E.W. Scripps Co., Ky., 801 S.W.2d 684, 688 (1990), Welch correctly maintains that actual malice can be inferred from circumstantial evidence, and he lists numerous factors in the record from which he claims actual malice can be inferred in this case: 1) the newspaper failed to investigate the facts before it published the ad; 2) although the newspaper publisher normally considers whether ads to be published may contain false statements, he was unconcerned about whether the ad in question contained false statements, 3) the publisher was sure that he looked at the ad before it was published; 4) the newspaper employee who helped prepare the ad did not investigate its accuracy, 5) the publisher allowed the statement, "disregarding policy, mayor upholds firings," to be printed even though the firing had been upheld in a federal civil suit that the publisher knew about, 6) the newspaper ran the ad in violation of its own policy of not accepting ads raising new political issues beyond an October 25 deadline, 7) the newspaper — which was the only newspaper in town and had covered city council...