Westby v. Madison Newspapers, Inc.

• Decision Date: 30 November 1977
• Docket Number: No. 75-771,75-771
• Citation: Westby v. Madison Newspapers, Inc., 81 Wis.2d 1, 259 N.W.2d 691 (Wis. 1977)
• Parties: Patricia A. WESTBY and William A. Westby, Respondents, v. MADISON NEWSPAPERS, INC., a Wisconsin Business Corporation, the Capital Times Company, a Wisconsin Business Corporation, Miles McMillin, Elliott Maraniss, David Zweifel and Bruce Fritz, Appellants, Michael Dorgan, Defendant.
• Court: Wisconsin Supreme Court

Page 691

259 N.W.2d 691

81 Wis.2d 1

Patricia A. WESTBY and William A. Westby, Respondents, v.MADISON NEWSPAPERS, INC., a Wisconsin Business Corporation the Capital Times Company, a Wisconsin Business Corporation, Miles McMillin, Elliott Maraniss, David Zweifel and Bruce Fritz, AppellantsMichael Dorgan, Defendant.

No. 75-771.

Supreme Court of Wisconsin.

Argued Nov. 2, 1977.

Decided Nov. 30, 1977.

Syllabus by the Court

The order appealed from overruled a demurrer to a complaint alleging libel.

Bradway A. Liddle, Jr., and Boardman, Suhr, Curry & Field, Madison, for appellantMadison Newspapers, Inc.

Earl Munson, Jr.(argued) and La Follette, Sinykin, Anderson & Abrahamson, Madison, for appellantsThe Capital Times Company, Miles McMillin, Elliott Maraniss, David Zweifel and Bruce Fritz.

Thomas J. Rostad(argued) and Smith & Schultz, Madison, for respondents.

BEILFUSS, Chief Justice.

On February 15, 1975, an article"How Many Spies in Madison" was published in The Capital Times, a daily newspaper of general circulation.The article was accompanied by a photograph of one of the plaintiffs looking out a door toward an adjacent apartment that she was allegedly spying on.

The plaintiffs-respondents are Patricia A. Westby, a laborer and housewife, and William Westby her husband, a railroad engineer.The defendants-appellants are Madison Newspapers, Inc., The Capital Times, Miles McMillin, Elliott Maraniss, David Zweifel, supervisory officers, and Michael Dorgan¹ an employee, and Bruce Fritz a photographer, all of The Capital Times.

After the publication of the article and photograph the Westbys served a demand for retraction on The Capital Times as required by sec. 895.05(2), Stats., a prerequisite to the libel action.They demanded that certain statements and the photograph, together with the printed statement of what it depicted, be retracted.In substance they demanded retraction of statements that they were paid government informers; that they were paid and instructed to spy on their neighbors, that they had told neighbors they were spies for a government agency and that they would neither confirm nor deny they were informants when asked by a reporter.

The amended complaint alleges in pertinent part:

"That on February 15, 1975, The Capital Times Company negligently and maliciously composed and supplied to Madison Newspapers, Inc., for publication in The Capital Times, a false and defamatory front page article of and concerning the plaintiffs entitled 'How Many Spies in Madison?', . . . said article consisting of a written story, a title and subtitle, and an 81/2 X 33/4" photograph of the plaintiffPatricia A. Westby. . . .

". . . that the photograph of plaintiffPatricia A. Westby was taken and submitted to The Capital Times Company as a part of said article by defendantBruce Fritz. . . ."

It further alleges that the article was written by defendantMichael Dorgan, and that it was reviewed and approved for publication by defendantsMiles McMillin, Elliott Maraniss and David Zweifel.

The article is alleged to be false and defamatory as a whole, and specifically for referring to the Westbys as "spies" and "paid informants," for accepting pay to "spy on their neighbors," and for being described as leading "secret spy lives."The Westbys contend that the article

". . . carries a connotation and strongly implies that the plaintiffs are deceitful and dishonest, that they betray their neighbors and friends and cannot be trusted or confided in, that they lack integrity, and that they are stool pigeons. . . ."

The amended complaint further states that the claim that Patricia refused to answer a reporter's questions is defamatory because it implies that she did not deny the alleged activities.It also alleges the statement that the Westbys maintained "close relationships with the unsuspecting activists" on the basis that this indicates that the Westbys did in fact spy on their neighbors and that they are contemptible, dishonest and double-crossers.

The article allegedly resulted in

". . . maliciously, negligently, and inexcusably exposing plaintiffs to public hatred, contempt, and ridicule, and impeaching plaintiffs' honesty, integrity virtue, and reputations as members of the community."

The issues are (1) whether the newspaper article and photograph are capable of being defamatory as a matter of law; and (2) whether the complaint states a cause of action against the photographer.

The rule of law is that at the demurrer stage complaints should be given a liberal construction and the court should recognize any reasonable and favorable inferences which support a cause of action.²

In Schaefer v. State Bar, 77 Wis.2d 120, 122-23, 252 N.W.2d 343, 345(1977), this court outlined the basic law of libel:

"Initially, the court has the obligation of deciding whether a communication is capable of a defamatory meaning. . . .

"In Lathan v. Journal Co., 30 Wis.2d 146, 152-53, 140 N.W.2d 417(1966), we stated:

" 'Defamation has been defined as:

" ' ". . . that which tends to injure 'reputation' in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him. "Prosser, supra, page 756.

" 'In Scofield v. Milwaukee Free Press Co.(1905), 126 Wis. 81, 85, 105 N.W. 227, we held that for a newspaper article to be libelous it ". . . need only tend to degrade or disgrace the plaintiff generally, or to subject him to public distrust, ridicule, or contempt in the community. . . ."

" 'The Restatement, supra, page 140, sec. 559, provides that:

" ' "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." ' "

In Schaefer v. State Bar, supra, at 124, 252 N.W.2d at 346, we stated:

" 'If the alleged communication is capable of a defamatory meaning, the demurrer must be overruled; and if the language is of such a character that it is capable of a nondefamatory meaning as well as a defamatory meaning, then a jury question is presented whether such communication was understood in fact in a defamatory sense by the persons to whom it was published.Martin v. Outboard Marine Corp., supra(15 Wis.2d 452, 113 N.W.2d 135).If the communication cannot reasonably be considered defamatory or to be so understood, the demurrer must be sustained.'Frinzi v. Hanson, 30 Wis.2d 271, 275-76, 140 N.W.2d 259(1966)."

The issue before this court then is whether The Capital Times' article was capable of being understood in a defamatory sense in the community by reasonable persons.In resolving this issue, words or elements of the article may not be viewed in isolation, but must be considered in context in relation to the whole.³

The article can be given the innocuous interpretation asserted by appellants: Namely that it sets out nothing more than a report that the Westbys were cooperating with responsible officials performing a lawful function; that the key words "spy" and "paid informants" are consistent with the unobjectionable, indeed laudable efforts of the Westbys, or any other citizens, to aid the police.

The question is not whether the article could have been read as the newspaper contends it should be.Rather the question is whether the article could have been understood in a defamatory sense by members of the community where it was published.

Viewing the article as a whole, as we must, we are of the opinion that a jury could find it did excite adverse, derogatory feelings or opinions against the Westbys and lower them in the estimation of the community.

The article begins with references to congressional probes of federal "snooping."Thus it has at least a hint of investigative excesses on the part of federal authorities.It follows with the statements that the Westbys were asked to spy and in fact did so.These statements taken together could well be understood to mean that the Westbys...