Williams v. Trust Co. of Georgia, 52695

• Decision Date: 04 October 1976
• Docket Number: No. 3,No. 52695,52695,3
• Citation: 230 S.E.2d 45,140 Ga.App. 49
• Parties: Hosea WILLIAMS v. TRUST COMPANY OF GEORGIA, Executor
• Court: Georgia Court of Appeals

Page 45

230 S.E.2d 45

140 Ga.App. 49

Hosea WILLIAMS v. TRUST COMPANY OF GEORGIA, Executor.

No. 52695.

Court of Appeals of Georgia, Division No. 3.

Oct. 4, 1976.

Rehearing Denied Oct. 20, 1976.

Al M. Horn, Bensonetta Tipton, Atlanta, for appellant.

King & Spalding, Kirk M. McAlpin, C. David Vaughan, Atlanta, for appellee.

WEBB, Judge.

On April 19, 1973 the late Richard H. Rich delivered a speech to some granduate students at Emory University School of Business. The subject of his speech, made from a prepared text, was the organization and operation of a large department store. Although formerly chief executive officer of Rich's, Inc. to which he had devoted most of his business life, Rich, at the time of his speech was semi-retired, serving the corporation as chairman of and consultant to its executive committee. At the close of his prepared remarks, one student inquired, 'Tell me about your problems downtown,' referring to a strike at Rich's, Inc. department store. Rich responded: 'It's not a strike. It's a handful of a few hundred people out of ten thousand, who I think were misled by a man named Hosea Williams, who I think is a charlatan and a drunkard and an extortionist.'

Four days after these remarks Williams filed his complaint demanding an oral apology and redress of six million dollars as 'damages for his mental pain and suffering.' Rich's answer admitted the reference to Williams in substantially the terms alleged, but pleaded that he believed in good faith that the statement was true, that he made the statement in good faith and without malice or intent to cause Williams injury, and that the statement was constitutionally privileged. Substantial discovery was made by depositions and interrogatories, together with affidavit for defendant, after which motion was made on behalf of Rich for summary judgment. ¹ From the grant of this motion for summary judgment Williams has appealed to this court.

I. SLANDER

Georgia law defines slander, or oral defamation, to consist, 'first, in imputing to another a crime punishable by law; or, second, charging him with having some contagious disorder, or being guilty of some debasing act which may exclude him from society; or, third, in charges made against another in reference to his trade, office, or profession, calculated to injure him therein; or, fourth, any disparaging words productive of special damage flowing naturally therefrom. In the last case, the special damage is essential to support the action; in the first three, damage is inferred.' Code Ann. § 105-702. To be actionable the statement must be both false and malicious. Mathews v. Atlanta Newspapers, Inc., 116 Ga.App. 337, 340, 157 S.E.2d 300 (1967). Malice is inferred from the character of the defamation, but its existence may be rebutted by proof, which shall go in mitigation of damages save in the case of privileged communications to which its absence shall be a bar to recovery. Code Ann. § 105-706. Truth may always be proved in justification. Id. § 105-708. Comments upon the acts of public men in their public capacity and with reference thereto is a privileged communication. Id. § 105-709, 6.

Beginning in 1964 with its decision in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412, the Supreme Court of the United States has become increasingly involved in state libel and slander law in its attempt to reconcile state law, as to an individual's right to vindicate in civil courts his good name and reputation, with a competing interest grounded in the constitutional command of the First Amendment. ² The court held that the First Amendment limits a state's power to award damages in a libel action brought by a public official against critics of his official conduct. The First Amendment protection was conditioned on a lack of actual malice, i.e., knowledge that a statement false or reckless disregard of whether or not it is false. 'The constitutional guarantees (of freedom of speech and press) require . . . a federal rule that prohibits a public official from recovering damages for a 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.' New York Times, supra, 376 U.S. at 279, 84 S.Ct. at 726, 11 L.Ed.2d at 706 (1964). That same proscription was extended to 'public figures' as well. Curtis Publishing Co. v. Butts, supra, 388 U.S. at 155, 87 S.Ct. at 1991, 18 L.Ed.2d at 1111 (1967); Greenbelt Cooperative Publishing Assn. v. Bresler, supra, 398 U.S. at 11, 90 S.Ct. at 1540, 26 L.Ed.2d at 13 (1970).

We agree with the observation of Chief Judge Lawrence in Rosanova v. Playboy Enterprises, Inc. (S.D.Ga., 1976), 411 F.Supp. 440, 446 (appeal pending), that this 'federalization of state law and the resulting restriction on recovery for libel requires major adjustments in the law of defemation as codified and interpreted in Georgia in relation to press, periodicals and broadcasting. Common law libel (and slander) wears a very different aspect in the light of laterday constitutional doctrine.' Defamed public officials and public figures can recover only upon a showing of actual malice, i.e., 'only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.' States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. Gertz v. Robert Welch, Inc., supra, 418 U.S. at 342, 349, 94 S.Ct. at 3008, 3011, 41 L.Ed.2d at 807.

II. PUBLIC FIGURE

One may attain the status of 'public figure' by position alone, or by commanding a substantial amount of public interest. Or, as was said of Edwin A. Walker, who had pursued a long and honorable career in the United States Army before resigning to engage in political activity, he may attain the status of 'public figure' by 'his purposeful activity amounting to a thrusting of his personality into the 'vortex' of an important public controversy . . ..' Associated Press v. Walker, supra, 388 U.S. at 155, 87 S.Ct. at 1991, 18 L.Ed.2d at 1111.

'Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures . . .' Further, '(t)hat designation (public figure) may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.' Gertz v. Robert Welch, Inc., supra, 418 U.S. at 342, 351, 94 S.Ct. at 3008, 3013, 41 L.Ed.2d at 807.

"Public figures,' within the contemplation of the rule in New York Times (376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, supra), as enlarged by subsequent cases, are 'those persons who, though not public officials, are 'involved in issues in which the public has a justified and important interest'' and "include artists, athletes, business people, dilettantes, anyone who is famous or infamous because of who he is or what he has done." Cepeda v. Cowles Magazines and Broadcasting, Inc. (9th Cir. 1968), 392 F.2d 417, 419, cert. denied 393 U.S. 840, 89 S.Ct. 117, 21 L.Ed.2d 110. Consonant with this definition, a college athletic director, a basketball coach, a professional boxer and a professional baseball player, among others, have all been held to be 'public figures'.' Time, Inc. v. Johnston (CA 4, 1971), 448 F.2d 378, 380(1) (professional basketball player). The term has been applied also to one who injected himself into an election campaign of a small foreign country. Time, Inc. v. McLaney (CA 5, 1969), 406 F.2d 565, 573, cert. denied 395 U.S. 922, 89 S.Ct. 1776, 23 L.Ed.2d 239 (1969). But the Supreme Court held that the wife of a scion of a wealthy industrial family who may have held a few press conferences during divorce proceedings in an attempt to safisfy inquiring reporters was not a 'public figure.' Time, Inc. v. Firestone, supra, 424 U.S. at 455, 96 S.Ct. at 965, 47 L.Ed.2d 163.

'(I)t is for the trial judge in the first instance to determine whether the proofs show (plaintiff) to be a 'public official. " Rosenblatt v. Baer, supra, 383 U.S. at 88, 86 S.Ct. at 677, 15 L.Ed.2d at 606. Likewise, '(a)lthough the issue of whether a plaintiff in a defamation action is a public figure poses a mixed question of law and fact, it is nevertheless one for the Court, not the jury, to determine.' Hotchner v. Castillo-Puche, D.C., 404 F.Supp. 1041, 1045(5) (1975); Rosanova v. Plaintiff Enterprises, Inc., supra, 411 F.Supp. at 444. In Montandon v. Triangle Publications, Inc., 45 Cal.App.3d 938, 120 Cal.Rptr. 186, cert. denied, 423 U.S. 893, 96 S.Ct. 193, 46 L.Ed.2d 126 (1975), the Court held an author who made promotional appearances on radio and television to be 'a public figure,' finding it unnecessary to detail the evidence which supported this conclusion. That court adopted the definition of a public figure pronounced, and heretofore quoted in Cepeda v. Cowles Magazines and Broadcasting, Inc., supra, 392 F.2d at 419. See also Dacey v. Florida Bar, Inc., 427 F.2d 1292, 1295 (CA 5, 1970).

In this case Hosea Williams' own testimony by deposition shows that he received widespread publicity ³ for his civil rights and labor activities, for several arrests, and for his participation in politics and efforts to be elected to public office; ⁴ that he at one time had his own radio program, had held many press conferences and made numerous public appearances; that he led well publicized...