Wilson v. Birmingham Post Co.

• Decision Date: 17 January 1986
• Docket Number: No. 84-565,84-565
• Parties: 12 Media L. Rep. 1668 Andrew WILSON v. BIRMINGHAM POST COMPANY, Angus McEachran and Katharine Biele.
• Court: Alabama Supreme Court

Page 1209

482 So.2d 1209

12 Media L. Rep. 1668

Andrew WILSON v. BIRMINGHAM POST COMPANY, Angus McEachran and Katharine Biele.

No. 84-565.

Supreme Court of Alabama.

Jan. 17, 1986.

Albert G. Lewis, and S. Shay Samples, for Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.

John H. Morrow, William B. Lightfoot, and M. Williams Goodwyn, Jr., for Bradley, Arant, Rose & White, Birmingham, and Baker & Hostetler, Washington, D.C., for appellees.

HOUSTON, Justice.

This is an appeal from a summary judgment granted in favor of the defendants, Birmingham Post Company (the Company); Angus McEachran, editor of the Birmingham Post-Herald (Post-Herald); and Katharine Biele, a reporter for the Post-Herald.

Plaintiff, Andrew Wilson, brought an action for defamation against the Company, McEachran, and Biele because of a front-page article which appeared in the Saturday, September 27, 1980, edition of the Post-Herald, under the headline, "Cuban refugee couple tell of mistreatment by Alabama sponsor." This article was published in the midst of the massive 1980 exodus of refugees from Cuba to the United States, when the efforts of the refugees boatlifted from Cuba to settle in this country were the subject of great concern and controversy. Incidents involving treatment of Cuban refugees had been reported previously in the Post-Herald.

Plaintiff Wilson describes himself as a missionary operating through the Apostolic Church in his Hale County, Alabama, community. As a part of his mission work, Wilson had sponsored between ten and twenty other Latin immigrants prior to his sponsoring Jose and Elena Torres. The Torreses arrived at Eglin Air Force Base in August 1980, and then went to Wilson's community. On September 26, 1980, the Torreses arrived in Birmingham in a "disoriented" state. They were taken to the Birmingham Police Department for assistance. The Torreses spoke only Spanish. Alton Morgado, a community services officer in the police department, who spoke fluent Spanish, was in charge of the Torreses' case. Morgado translated the police department interview with the Torreses into English for the benefit of the others present during Morgado's interrogation. Among those present during Morgado's questioning of the Torreses was reporter Biele, whose regular assignment for the Post-Herald was covering the police department.

As a result of the questioning, Morgado translated the Torreses' answers to the police officers as follows: Wilson had forced the Torreses to work in his restaurant for almost no compensation, had given them inadequate food, had not fulfilled his promise to take them to English classes, had housed them in facilities lacking running water and other necessities, and had told them that he was sending them back to Florida, where he had found them, but instead put them on a bus to Birmingham. Following the questioning, Morgado prepared a police incident report, which was assigned a complaint number. This report was dated and filed on September 29, two days after the article appeared in the Post-Herald. The incident report listed "Wilson, Andrew" as a "Suspect" and contained the following narrative:

"A-1 [Jose Torres] & his wife Elena are Cuban refugees; both were sponsered [sic] by E-1 [unknown] out of Eglin Air Base in Fla. A-1 states that D-1 [Wilson] housed them in a shack with no plumming [sic] facilities, worked both of them in this restaurant without pay, and provided little of the necessities of life for their comfort. (A-1 & wife state that they had to bathe under a garden hose in the yard.) D-1 told A-1 & wife that he was returning them to Eglin A.F.B. Fla., but only bought a ticket to B'ham. A-1 came to the police for assistance. C.S.O. contacted various organizations working with Cuban refugees--Int. Rescue Committee; Barbara Nagoski, 212-679-0010, which made arrangements for A-1 & wife to be sponsored in Houston, Tx. A-1 & wife will leave B'ham 9-29-80, 11:30 a.m. In the meanwhile, A-1 & wife will be staying as guests of the Econo Lodge Motel, curtisy [sic] of the manager--Mr. Vance."

Biele attempted to contact Wilson before the story was published, but was unable to do so.

Wilson contends that summary judgment was not appropriate because three key issues of genuine fact were presented: (1) whether or not the article published by the defendants was libelous; (2) whether or not the defendants were negligent in making the publication; and (3) whether or not the article was published with actual malice.

A summary judgment may be granted only when there is no genuine issue as to a material fact and the movant is entitled to judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

The scintilla rule requires the court to admit the truthfulness of all evidence favorable to the plaintiff and thereby to remove all issues of credibility from the case and then determine if there are facts from which the trier of facts could reasonably and logically infer the ultimate facts upon which the claim depends; if so, the case must be decided by the trier of facts. Allstate Enterprises, Inc. v. Alexander, 484 So.2d 375 (Ala.1985). The scintilla rule must be applied to determine whether there is a genuine issue as to a material fact. Loveless v. Graddick, supra; Fulton v. Advertiser Co., 388 So.2d 533 (Ala.1980), Cert. denied, 449 U.S. 1131, 101 S.Ct. 954, 67 L.Ed.2d 119 (Ala.1981).

There was no issue of genuine fact as to whether or not the article was libelous.

Alabama has enacted an explicit statutory privilege protecting fair and accurate reports of criminal charges and official investigations such as that described in the Post-Herald news report at issue. Section 13A-11-161, Code of Alabama 1975, provides:

"The publication of a fair and impartial report ... of any charge of crime made to any judicial officer or body ... or of any investigation made by any legislative committee, or other public body or officer, shall be privileged, unless it be proved that the same was published with actual malice...."

This statute has not been construed by this Court. This statute is a codification of the common law as reflected in the Restatement (Second) of Torts, § 611 (1977): "The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported."

Numerous cases protecting reports such as the one at issue in the instant case have been decided on the basis of this privilege. See Porter v. Guam Publications, Inc., 643 F.2d 615, 616 (9th Cir.), cert. denied, 454 U.S. 940, 102 S.Ct. 475, 70 L.Ed.2d 247 (1981) (the accurate report of a police investigation as reflected in a "daily police bulletin" of criminal complaints and arrest reports has been held privileged, even when the "police bulletin" was based on false charges made by the complainant); Mark v. Seattle Times, Inc., 96 Wash.2d 473, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed.2d 1339 (1982) (the privilege has also been extended to press reports of investigations summarized in the form of allegations contained in a prosecutor's affidavit of probable cause); Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. 406 (E.D.Pa.1978) (police arrest reports); Piracci v. Hearst Corp., 263 F.Supp. 511, 515 (D.Md.1966), aff'd, 371 F.2d 1016 (4th Cir.1967) (privilege applies to article based on police department records kept "as part of ... daily routine" and as "the only official record of arrests" in the city); Francois v. Capital City Press, 166 So.2d 84 (La.Ct.App.1964) (state police log book is "public record" within meaning of Louisiana statute, upon which press may rely).

The policy behind the privilege is that the public has a strong interest in receiving information in order to "monitor the conduct of its government" and its personnel, such as law enforcement officers, see Medico v. Time, Inc., 643 F.2d 134, 141 (3d Cir.1981), cert. denied, 454 U.S. 836, 102 S.Ct. 139, 70 L.Ed.2d 116 (1981), and in order to be informed about matters involving the violation of laws, see Seymour v. A.S. Abell Co., 557 F.Supp. 951, 955 (D.Md.1983). In construing the Maryland privilege, the Abell court stated:

"[M]ost, if not all, police activity concerns matters involving the violation of the law. Simply put, police business is legal business.... Narrowly interpreting the phrase 'matters involving violation of the law' to connote only formal criminal charges would be inconsistent with the policy underlying the Maryland privilege and unduly restrict the flow of valuable information to the public." Id. at 956.

In Stice v. Beacon Newspaper Corp., 185 Kan. 61, at 65, 340 P.2d 396, at 400-01 (1959), the court recognized that the privilege applied to "news stories based upon interviews of police officials and reports of the police department." In Turnbull v. Herald Co., 459 S.W.2d 516, at 520-21 (Mo.App.1970), a privilege was recognized for an article based on "the actions and activities of police officers."

Courts have also applied the privilege to articles based solely upon the oral comments of law enforcement officials. See Bell v. Associated Press, 584 F.Supp. 128 (D.D.C.1984) (Pennsylvania law) (privilege applies to report based on contacts with police investigator who had "pulled the file," court clerk, court administrator, and manager of facility where alleged misconduct occurred); Grund v. Bethlehem Globe Publishing Co., 9 Media L.Rep. (BNA) 1320 (Pa.Ct.Comm.Pls.1982) (article based on statements of official police sources privileged); Gawel v. Chicago Am. Publishing Co., 1 Ill.App.3d 481, 274 N.E.2d 628 (1971) (publication based on information obtained from jail authorities); Turnbull v. Herald Co., 459 S.W.2d 516 (Mo.1970) (policeman's opinion to reporter); ...