Wright v. Grove Sun Newspaper Co., Inc.

• Decision Date: 12 April 1994
• Docket Number: No. 77169,77169
• Citation: 873 P.2d 983,1994 OK 37
• Parties: 22 Media L. Rep. 1801, 1994 OK 37 Ace N. WRIGHT, Jr., Appellant, v. GROVE SUN NEWSPAPER COMPANY, INC., and State of Oklahoma ex rel. Jon Douthitt, in his individual capacity, Appellee.
• Court: Oklahoma Supreme Court

Page 983

873 P.2d 983

22 Media L. Rep. 1801, 1994 OK 37

Ace N. WRIGHT, Jr., Appellant, v. GROVE SUN NEWSPAPER COMPANY, INC., and State of Oklahoma ex

rel. Jon Douthitt, in his individual capacity, Appellee.

No. 77169.

Supreme Court of Oklahoma.

April 12, 1994.

On Certiorari to the Court of Appeals, Div. I.

Defendant newspaper republished material disseminated by district attorney at a news conference. Plaintiff Wright claimed the republished material was defamatory and caused him emotional distress. The District Court, Delaware County, Larry Oakes, Judge, dismissed the suit upon motion by defendant. The Court of Appeals affirmed. On certiorari previously granted,

THE COURT OF APPEALS' OPINION IS VACATED AND THE TRIAL COURT'S DISMISSAL ORDER IS AFFIRMED.

Carl Hughes, Joe White, Jr., Leo Winters, II, Hughes, White, Adams & Grant, Oklahoma City, for appellant.

Michael Minnis, David McCullough, Michael Minnis & Associates, P.C., Oklahoma City, for appellee.

OPALA, Justice.

The issues presented on certiorari are (1) Was the republication by Grove Sun Newspaper Company, Inc. [Grove Sun, defendant or newspaper] of material, released by the District Attorney of Delaware County [district attorney or prosecutor] at a news conference called by his office and held at the courthouse, privileged and hence not actionable in a libel claim? and (2) If the material was privileged, could Ace N. Wright, Jr. [Wright or plaintiff] maintain an action for intentional infliction of emotional distress? We answer the first question in the affirmative and the second in the negative. We conclude today that (a) the district attorney's news conference was an official function of his office and represents a transaction/occasion to which the common-law fair report privilege will attach; (b) the references to

Wright in the articles published by Grove Sun were accurate republications from materials released by the district attorney at the news conference and bereft of any judgmental newspaper gloss; (c) under circumstances shown by this record the fair report privilege ¹ affords Grove Sun a complete defense to Wright's libel claims; and (d) the district court's order dismissing Wright's tort claims against Grove Sun must be affirmed.

I

THE ANATOMY OF LITIGATION

On May 11, 1990 the district attorney held a news conference at the courthouse in Jay, the county seat of Delaware County, open to the public and the press. At this event the district attorney discussed a drug investigation previously conducted by his office in Delaware County. With his comments concerning the termination of this investigation, the district attorney distributed to those present an affidavit attesting to the authenticity of a transcript [attached to the affidavit] of a conversation between two undercover narcotic agents who had participated in the probe. Grove Sun published articles in two newspapers ² in Delaware County which included a verbatim transcript of the conversation between the two narcotic agents. ³ It is in this transcript that a reference was made to Wright, which he characterized as libelous. Grove Sun did not embellish upon, make any comments regarding, or take editorial license with, the contents of the affidavit furnished by the district attorney. The newspaper asserted below that the material published was a fair and true report of the news conference and was hence privileged. ⁴

Wright filed suit in the Delaware County District Court pressing two causes of action for libel and, as another theory of liability, the intentional infliction of emotional distress. He also advanced a claim against the State of Oklahoma ex rel. Jon Douthitt. The

                district court ordered the claim against the State dismissed for plaintiff's failure to comply with the Oklahoma Governmental Tort Claims Act, 51 O.S.1991 §§ 151 et seq.   This ruling went unchallenged by appeal.  The district court then ordered all remaining claims dismissed. 5  The court of appeals affirmed the nisi prius decision, holding that the neutral reportage privilege 6 provided Grove Sun a complete defense to Wright's claims. 7  We granted certiorari and now affirm the dismissal order
                

II

THE ACCURATE AND TRUE REPORTING OF MATERIAL DISSEMINATED ON

OFFICIAL PUBLIC OCCASIONS IS CRITICAL TO THE

MAINTENANCE OF OUR DEMOCRATIC

INSTITUTIONS OF GOVERNMENT.

At issue here is the need in a free, self-governing society for dissemination of information of fundamental importance to the people. Without accurate media coverage of official public events, it is highly doubtful that the general public would be able to make informed decisions and participate intelligently in their governance; nor would representatives of government be able to perform their assigned tasks effectively. ⁸ It is hence against the backdrop of public interest in information concerning public and official activities of government that this case juxtaposes the interest of an individual in protecting his reputation from harm. The tension between the right of the press to disseminate information to the public and the law of defamation is not new. It is mirrored in the eighteenth-century common law of England, ⁹ which developed the fair report privilege--the doctrine we invoke today for application to this case. Without this privilege the media would be compelled to engage in acts of self-censorship ¹⁰ whenever republishing

information released by governmental officials to the public at official functions. The damage by reputational harm which goes unredressed because of the fair report privilege defense must be subordinated to the larger societal interests in the values which the privilege protects.

III

EXCEPT AS ALTERED BY OUR CONSTITUTION AND STATUTES, THE

COMMON LAW REMAINS IN FULL FORCE.

By the mandate of 12 O.S.1991 § 2 ¹¹ the common law remains in full force unless a statute explicitly provides to the contrary. The common law's legislative abrogation may not be effected by mere implication. ¹² It must be clearly and plainly expressed. ¹³ A presumption favors the preservation of common-law rights. ¹⁴ In this State's legal system the common law forms "a dynamic and growing" body of rules that changes with the conditions of society. ¹⁵

The provisions of 12 O.S.1991 § 1443.1 ¹⁶ embody the statutory privilege that affords to the media a complete defense to libel. While in some respects the statutory privilege overlaps the common-law fair report privilege, it does not provide the media with identical protection. The scope of the fair report privilege is broader than the terms of the statute; since the latter does not abrogate the other, ¹⁷ the former remains a viable defense to libel. ¹⁸

IV

SINCE THE DISTRICT ATTORNEY'S COMMENTS AT THE CRITICAL

PUBLIC NEWS CONFERENCE DEALT WITH ACTIVITIES OF

HIS OFFICE AND WERE OF GENERAL PUBLIC

INTEREST, THEY MUST BE TREATED

AS OFFICIAL.

The critical district attorney's news conference, called at the Delaware County courthouse, is to be treated as an official function of that office. A district attorney's participation in and conduct of criminal investigations is explicitly contemplated by Oklahoma statutes. ¹⁹ The official nature of public activities within a particular office may be divined from its settled practices--regardless of whether these practices are completely defined by written rules or statutes--by resort to the common-law sources reflecting upon that office. ²⁰ District attorneys in Oklahoma have historically used press conferences to distribute information about the activities of their offices to the citizenry they represent. Disseminating information to the public ²¹ enhances, within the communities served by the prosecutor's office, confidence in and understanding of his governmental mission. ²² After an objective assessment of the critical occasion at which the comments under scrutiny were made, ²³ we conclude that the news conference covered by Grove Sun's publications was an activity conducted within the penumbra of the official duties of the Delaware County District Attorney's office. His comments, together with the materials disseminated, which were of general public interest, must be treated as official because they concern the investigative function of the office. ²⁴

V

UNDER THE FACTS REVEALED BY THE RECORD IN THIS CASE THE

COMMON-LAW FAIR REPORT PRIVILEGE IS A COMPLETE

DEFENSE TO LIBEL.

The elements of the common-law fair report privilege, drawn from the seventeenth and eighteenth century English developments, are defined in the RESTATEMENT (SECOND) OF TORTS § 611. The text of that section is:

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 abridgement of the occurrence reported. ²⁵ [Emphasis added.]

The privilege ²⁶ is not conditioned upon the truth or falsity of the reported material, the character of the defamed person, nor on the newsworthiness of the event; rather, its applicability is determined by the nature of the occasion at which the republished material was secured for news coverage. ²⁷ The critical occasion here is the district attorney's news conference--a legitimate activity of his office, open to the public and held for the purpose of addressing a matter of general concern to the community. As the privilege is qualified, its abuse and loss would occur if the newspaper does not accurately and fairly republish that which was gathered from a public meeting, or if the republished material is not of general public interest. ²⁸

The court of appeals rested its opinion on the neutral reportage privilege. ²⁹

While the impetus for invoking the constitutional neutral reportage privilege and the common-law fair report privilege may in some instances be the same, the former rests on fundamental-law underpinnings. It mandates a different allocation of the pleading's burden...