Wright v. Haas

• Decision Date: 18 July 1978
• Docket Number: No. 49914,49914
• Citation: 586 P.2d 1093
• Parties: Michael WRIGHT, Appellant, v. Fielding HAAS, Appellee.
• Court: Oklahoma Supreme Court

Page 1093

586 P.2d 1093

Michael WRIGHT, Appellant, v. Fielding HAAS, Appellee.

No. 49914.

Supreme Court of Oklahoma.

July 18, 1978.

Rehearing Denied Dec. 4, 1978.

Appeal from the District Court, Cleveland County; Elvin J. Brown, trial judge.

Action brought for defamation of character based on libel contained in a letter addressed to the editor of, and published in, a newspaper. Trial court granted summary judgment to defendant letter writer, determined plaintiff to be a public figure, and applied a qualified privilege. Plaintiff appeals.

REVERSED AND REMANDED.

Peter Clinton Moore, Norman, for appellant.

Robert L. Bailey, Sam F. Whitlock, Norman, for appellee.

LAVENDER, Vice Chief Justice:

Michael Wright (Wright), a Norman, Oklahoma, resident, brought a libel suit against Fielding Haas (Haas), a former Norman city attorney. The alleged defamatory statements were contained in a letter ¹ written by Haas that was addressed to the editor of, and published, in The Oklahoma Daily, the University of Oklahoma newspaper. The Haas letter was in response to a letter ² written by Wright similarly addressed and published in the same newspaper a few days before the Haas response. These letters were preceded by a background of controversy involving a local issue concerning utility rates of the municipally owned utility and swirling around the city council, an organization called Norman Citizens for Civic Responsibility (NCCR), the city attorney, his voluntary resignation, and subsequent rehiring.

Here, in seeking to determine the characterization of Wright, the defamed party, as either a public or private personality, we follow the understanding of Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) as expressed by this court in Martin v. Griffin Television, Inc., Okl., 549 P.2d 85 (1976). Gertz, supra, allowed the designation of the defamed party as a "public figure" to rest on either of two alternative bases. First, one may become a public figure for all purposes and in all contexts. This may be achieved through pervasive fame or notoriety. Second, and more commonly, an individual becomes a public figure for a limited range of issues. This is achieved by an individual voluntarily injecting himself into a particular public controversy. Both Gertz and Martin were determined to be private individuals. Neither had voluntarily injected himself into a particular public controversy; neither had thrust himself into the vortex of a public issue, nor had either attempted to engage the public's attention to influence the outcome of a public issue.

We find present case to be a corollary to Martin, supra. Wright voluntarily injected himself into the vortex of the public controversy by writing his letter addressed to the editor with the intent it be published. Wright's letter sought to engage the public's attention to influence public issues. He defended the NCCR. He made an issue of its composition. He makes himself an issue through his own labeling of himself as "an individual having radical opinions on a number of contemporary social issues." Other issues easily identifiable in the Wright letter include, but are not limited to, Haas for his opposition to the NCCR, and his rehiring by the city council.

Though the lack of rebuttal opportunities may be considered in seeking to distinguish between public and private defamation plaintiffs, there are more important distinctions. Gertz, supra. Here, both Wright and Haas had established a likelihood of rebuttal through their letter writing to the editor and the publishing of both their letters. Wright is a public defamation plaintiff for the limited range of issues encompassed within his letter. Martin, supra; Gertz, supra.

With Wright determined to be a public defamation plaintiff, the New York Times standard must be applied. Martin, supra, p. 87; Weaver v. Pryor Jeffersonian, Okl., 569 P.2d 967, 973 (1977). That standard requires actual malice to be an essential element of libel as applied to a public figure. Actual malice is defined as "with knowledge that it was false or with reckless disregard of whether it was false or not."

In granting summary judgment to Haas, the trial court applied a "qualified privilege." It has been suggested that common law imposes strict liability for the publishing of a false and defamatory statement about another, but also allows a "conditional privilege" to protect certain defined interest if that privilege was not abused. ³ Libel and slander case law in this jurisdiction appears to recognize two bases for a "qualified privilege." One base stems from statutory law. ⁴ German-American Ins. Co v. Huntley, 62 Okl. 39, 161 P. 815 (1916); Bland v. Lawyer-Cuff Co., 72 Okl. 128, 178 P. 885 (1918); Reininger v. Prickett, 192 Okl. 486, 137 P.2d 595 (1943). The other base accepts a "conditional privilege" without reference to statute. Beshiers v. Allen, 46 Okl. 331, 148 P. 141 (1915); Johnson v. Inglis, 190 Okl. 316, 123 P.2d 272 (1942). See also Fawcett Publications, Inc. v. Morris, Okl., 377 P.2d 42, 52 (1962).

With the holding in Martin, supra, of presumed malice under Oklahoma libel and slander statutes ⁵ being unconstitutional, there can be no presumption for rebuttal to act upon as a statutorially carved out "conditional privilege."

As already indicated, a "conditional privilege" created at common law is lost through abuse. One such identified abuse is knowing the defamatory matter to be false, or acting in reckless disregard as to its truth or falsity. ⁶ That is the same standard as imposed upon Wright as a "public figure." With the required proof of actual malice, then the abuse, and resulting loss, of any common law "conditional privilege" is also proven.

We hold there is no longer a "conditional privilege" available, either by statute or common law, as a defense to a public defamation plaintiff.

The Haas letter must be viewed as measured by the Times standard. The trial court granted summary judgment and found no evidence that Haas in fact entertained serious doubts as to the truth contained in the Haas letter, or that the letter was written by Haas with reckless disregard for the truth or falseness of the statements therein contained.

Weaver, supra, p. 973, discusses the application of Rule 13 ⁷ authorizing summary judgment to libel cases requiring actual malice, saying:

" * * * on motion for summary judgment all inferences and conclusions to be drawn from underlying facts contained in such materials as affidavits, admissions, depositions, pleadings, exhibits and the like, must be viewed in a light most favorable to party opposing the motion. Northrip v. Montgomery Ward & Co., Okl., 529 P.2d 489 (1974).

"While ordinarily the burden of proving actual malice is upon the official who complains of defamation, it was held in Tagawa v. Maui Publishing Co., 49 Haw. 675, 427 P.2d 79 (1967), that on a motion by defendant for summary judgment in a libel action, the defendant has the burden of showing there is no issue of actual malice in the case.

"Motion for summary judgment should be denied if the facts concerning any issue raised by the pleadings and affidavits thereinafter filed in the case are conflicting, or if reasonable men, in exercise of fair and impartial judgment, might reach different conclusions from undisputed facts concerning any issue as set forth in such instruments. Northrip v. Montgomery Ward & Co., supra."

The Haas deposition given in present case indicates the sources, kinds of knowledge he acquired about Wright and his interpretation of that knowledge. Included were conversations with various security officials and much reliance on contents of an "intelligence log" with references to Wright. These, along with other information in affidavits, were the principal bases for many of the statements made in Haas's letter. Viewing that evidence in the light most favorable to Wright, the party opposing the motion for summary judgment, we find reasonable men might reach a different conclusion as to whether Haas wrote his letter with actual malice, as heretofore defined in this opinion. We cannot find that there is no substantial controversy as to any material facts so as to sustain the summary judgment.

The trial court is reversed in granting summary judgment to Haas and cause is remanded. The trial court was correct in, and this cause requires, the application of the "Times standard," for Wright is a public defamation plaintiff.

Reversed and remanded.

1 Text of Haas letter follows:

"To the editor:

A letter appeared in the issue of September 16, 1975, from Mike Wright, claiming to be a member of the Norman Citizens for Civic Responsibility (NCCR). Since he apparently desires to continue the attack on behalf of himself, his cohorts in the NCCR and the other radicals who run that organization, perhaps you will accomodate my reply thereto.

First, let me state that my advice to the city council was based upon what I, and others, consider to be sound legal grounds. The releasing of the tapes to the council, thence to the media, thence to the public, would have been a serious breach of the city charter. I have never permitted vilification from radical or revolutionary quarters to deter me in the practice of my profession. If I did, I would voluntarily relinquish my license to practice law. I would also like to add, in this regard, that I do not relish answering people such as Wright, but the public should be aware for whom he speaks.

Wright, it is true, is one of the organizers and principle leaders of the so-called NCCR. He, along with people named * * * and others created the organization using the issue of the increase in utility rates in July, 1974. Of course, no organization was needed to create that issue; it was, as subsequently proven, a universal issue. Wright admits in his letter that has 'radical' views. He, at least in 1969 and 1970, had more than radical views; he effectuated those views by participating...