Yetman v. English

• Decision Date: 18 April 1991
• Docket Number: No. CV-89-0363-PR,CV-89-0363-PR
• Citation: 168 Ariz. 71,811 P.2d 323
• Parties: David YETMAN, Plaintiff/Appellant/Cross-Appellee, v. William ENGLISH, Defendant/Appellee/Cross-Appellant.
• Court: Arizona Supreme Court

Page 323

811 P.2d 323

168 Ariz. 71

David YETMAN, Plaintiff/Appellant/Cross-Appellee, v. William ENGLISH, Defendant/Appellee/Cross-Appellant.

No. CV-89-0363-PR.

Supreme Court of Arizona, In Banc.

April 18, 1991.

[168 Ariz. 73] Law Offices of William J. Risner by William J. Risner, Tucson, for plaintiff/appellant/cross-appellee.

O'Dowd, Burke & Lundquist by Erik M. O'Dowd, Robert E. Lundquist, Tucson, for defendant/appellee/cross-appellant.

OPINION

FELDMAN, Vice Chief Justice.

David Yetman petitioned us to review a court of appeals opinion affirming the trial court's refusal to instruct the jury on the issue of punitive damages in his defamation action against William English. English filed a cross-petition for review, claiming his remarks were absolutely protected expression under the first amendment to the United States Constitution and article 2, § 6 of the Arizona Constitution. Given the importance of the issues, we granted review only of the cross-petition to address the interplay between the constitutional protections of speech and the traditional law of defamation. See Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

The facts set forth in the court of appeals' opinion are essentially undisputed. See Yetman v. English, 163 Ariz. 73, 74, 786 P.2d 403, 404 (Ct.App.1989).

In August 1985, Yetman, a Democrat, was an elected member of the Pima County Board of Supervisors, and English, a Republican, was an elected member of the Arizona House of Representatives. English was the invited speaker at a luncheon meeting of the Pima County Republican Club. At the end of his speech, English responded to questions from the audience. A member of a rural property owners' association asked English his opinion of a proposed rural down-zoning change and whether he believed Yetman was behind the proposal. English responded with a lengthy answer, during the course of which he specifically referred to Yetman's alleged refusal to consider input from property owners and asked, "What kind of communist do we have up there that thinks it's improper to protect your interests?"

Yetman sued English for defamation. The trial court refused to instruct the jury on the issue of punitive damages but found that English's remark was libelous per se. The jury awarded Yetman $5,000 in damages.

Yetman appealed the trial court's refusal to give the requested punitive damages instruction. English cross-appealed the trial court's ruling that his remarks constituted libel per se. A divided court of appeals affirmed both rulings. In dissent, Judge Livermore viewed the comment as a "vigorous epithet" used to describe and "denigrate" Yetman's opposition to the property owners. Id. at 76, 786 P.2d at 406. He characterized English's remarks as non-actionable "rhetorical hyperbole," common to, and essential for, "robust" political discourse. Id.

In his cross-petition for review, English urges us to adopt Judge Livermore's dissent. We granted review to determine the extent to which the policies embodied in the state and federal constitutional protections of speech may limit recovery for injury to reputation otherwise actionable at common law.

DISCUSSION

The common law of defamation recognized no distinction between statements of fact on the one hand and opinion or hyperbole on the other. Milkovich v. Lorain Journal Co., 497 U.S. 1, ----, 110 S.Ct. 2695, 2702, 111 L.Ed.2d 1 (1990). But the common law did recognize the importance of uninhibited discussion in social, political economic, artistic, and literary matters. The privilege of "fair comment," therefore, protected the honest expression of defamatory statements of opinion so long as they were drawn from a true or privileged statement of facts. 1 F. HARPER & F. JAMES, THE LAW OF TORTS § 5.28, at 456 (1956). However, the privilege was defeasible on a showing that the comment was motivated by some purpose inconsistent with the social policy supporting the privilege of fair comment, or was motivated solely by malice, in the common law sense of ill will or spite. PROSSER & KEETON ON THE LAW OF TORTS § 115, at 833-34 (5th ed.1984) (hereafter PROSSER & KEETON); 2 F. HARPER, F. JAMES, & O. GRAY, THE LAW OF TORTS § 5.27 (1986). In this manner, the common law attempted to reconcile society's interest in unfettered discussion in matters of public concern with the individual's interest in redressing injury to reputation and good name. These principles, however, have been largely absorbed into recent developments in the law of defamation.

A. Rhetorical Hyperbole, Free Expression and the First Amendment

English bases his claim for absolute protection on the decisions of the United States Supreme Court. In New York Times Co. v. Sullivan, the Court addressed the concern that the common law rule requiring a speaker to "guarantee the truth of his factual assertions" would impair criticism of government conduct and deter speech protected by the first and fourteenth amendments. 376 U.S. 254, 279, 84 S.Ct. 710, 725, 11 L.Ed.2d 686 (1964). The Court adopted 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." Id. at 279-80, 84 S.Ct. at 726. Under proper instructions, the jury in the present case found "actual malice."

English argues that, despite the finding of actual malice, his comment is entitled to absolute protection under subsequent opinions extending constitutional protection to certain types of speech. For instance, he relies on Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler, which involved a real estate developer who requested zoning variances from the city council for one parcel of land while holding a separate parcel the council wished to purchase. 398 U.S. 6, 7, 90 S.Ct. 1537, 1538, 26 L.Ed.2d 6 (1970). A local newspaper reported that at public meetings concerning the transactions some people had characterized the developer's negotiating position as "blackmail." Id. Bresler brought a defamation action, contending that the use of the word "blackmail" implied that he had committed the actual crime of blackmail. Id. at 13, 90 S.Ct. at 1541.

The United States Supreme Court rejected the contention, stating that "the imposition of liability on such a basis was constitutionally impermissible--that as a matter of constitutional law, the word 'blackmail' in these circumstances was not slander when spoken, and not libel when reported in the [newspaper]." Id. The Court stated that no reader could have interpreted the articles to charge Bresler with committing a criminal offense; "even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable." Id. at 14, 90 S.Ct. at 1542.

The Court reached similar results in two other cases. In Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, it held that the use of the word "traitor" in trade union literature defining a "scab" ¹ could not be the basis of a defamation action under federal labor law because the term was used "in a loose, figurative sense" and was "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members toward those who refuse to join." 418 U.S. 264, 284-86, 94 S.Ct. 2770, 2781-82, 41 L.Ed.2d 745 (1974). Finally, in Hustler Magazine, Inc. v. Falwell, the Court held that the first amendment precluded recovery, even under the theory of intentional infliction of emotional distress, for an ad parody alleging that a religious figure's first sexual encounter was with his mother in an outhouse because it "could not reasonably have been interpreted as stating actual facts about the public figure involved." 485 U.S. 46, 50, 108 S.Ct. 876, 879, 99 L.Ed.2d 41 (1988).

English's claim for absolute protection under the federal constitution is based on a considerable body of federal law holding that the expression of opinion is absolutely privileged under the first amendment. This view emanated from dictum in Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). See, e.g., Ollman v. Evans, 750 F.2d 970, 974 (D.C.Cir.1984), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985); Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1194 (9th Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 59, 107 L.Ed.2d 26 (1989); MacConnell v. Mitten, 131 Ariz. 22, 25, 638 P.2d 689, 692 (1981) (applying federal law). ² But English's position has been weakened; last year in Milkovich, the United States Supreme Court reviewed the constitutional protections it had grafted onto defamation law and explicitly rejected the contention that Gertz and its progeny were "intended to create a wholesale defamation exception for [everything] that might be labeled 'opinion.' " 497 U.S. at ----, 110 S.Ct. at 2705. The Court rejected the idea that "an additional separate constitutional privilege for 'opinion' is required to ensure the freedom of expression guaranteed by the First Amendment." Id. at ----, 110 S.Ct. at 2707.

In rejecting an absolute privilege and the need for "an artificial dichotomy between 'opinion' and fact," the Court listed the following protections as adequate to ensure that debate on public issues remains "uninhibited, robust, and wide open." Id. at ----, 110 S.Ct. at 2706 (quoting New York Times, 376 U.S. at 270, 84 S.Ct. at 720). First, the Court stated that "a statement on matters of public concern must be provable as false before there can be liability under state defamation law...." Id. at ----, and n. 6, 110 S.Ct. at 2706 and n. 6 (relying on New York Times and Philadelphia Newspapers,...