Demman v. Star Broadcasting Co.

497 P.2d 1378, 28 Utah 2d 50, 1972 Utah LEXIS 790

• Court: Utah Supreme Court
• Decided: June 5, 1972
• Docket: 12729
• Status: Published

Opinions

HENRIOD, Justice:

Appeal from a summary judgment dismissing a defámation action. Affirmed with costs to defendants.

Plaintiff, at the time of the alleged defamation, was a candidate for election as a Salt Lake County Commissioner.

Defendant KSXX is a local radio station featuring a two-way gabfest where anonymous persons call what appears to be a suspiciously deliberate controversial com-municaster, whose forte seems designed to increase the crescendo of debate to a lively repartee sometimes bordering on mutually belligerent rhetoric. The station’s plug is sung by a somewhat twangy, nasal, cowboy contralto, fortunately also anonymous, who either peddles the station’s advertising advantages or represents a mortician’s come-on by sweet, syrupy lyrics set to a catchy counterpoint that pierces the airwaves with “Kaysicks Radio, is the smilin’ way to go [obbligato], on KSXX, in Salt Lake City.”

On the day of the colloquy defendants allegedly “damaged plaintiff’s reputation and caused him embarrassment, humiliation, emotional distress and mental suffering,” to the tune of a half-million dollars, plus a bonus of $100,000 for defendants’ “intentional and malicious” actions on their “reckless disregard of the truth.” This kind of damage means punitive or slap-on-wrist damages.

.The. alleged slanderous dialogue took place at 2:30 p. m. on election day —about five and one-half hours before the polls closed, when an unknown male phono-maniac called in and began berating plaintiff’s qualifications for office, vaguely attributing such imperfection to some sort of deficiency in business acumen. At this juncture he asked the defendant communi-caster, Wilcox, “What kind of outfit does that man run down there?” In responding, Mr. Wilcox gave a soul-searching answer in the form of a question, which we think suggested an appropriate defense to a slander or libel suit against a news media, and in this case its employee. Mr. Wilcox’s answer: "I don’t know. Is he a business man?” The caller, by some sort of innuendo, without much specificity as to time or place, cast in Demman’s direction what we concede were rather unfair op-probriums in describing plaintiff’s character. Another anonymous but female person almost immediately called and in a heart-warming manner defended the plaintiff in a most praiseworthy fashion. Plaintiff received another assist when a vice-president of KSXX blew a bubbly ad lib into the air by way of apologia and praise for the high standards of his station, that sounded quite sincere and quite, quite persuasive, to a Federal Communications Commissioner had he been listening to the tense, critical, political contest for seats on the Salt Lake County Commission.

Denman’s chief urgences for establishing remorse allegedly were Wilcox’s infectious laugh when the caller, by innuendo, suggested Demman’s low-key credentials, his failure in pressing the panic button to cut off the air and still forever the obnoxious voice funneling in and out of the station, allegedly to the delight, and probative of the malice of Wilcox, who didn’t even know Demman. The latter, in his deposition, emphatically said Wilcox was malicious, — -not that he simply thought he was. Plaintiff’s counsel assigns such apo-diction as gospel that destroyed any possibility for summary judgment. We disagree, as did the trial court.

All pertinent persons recited their vows and depositions. The judgment stated that the parties stipulated the court could decide the case on the merits, to which recitation no one objected. It is therefore with some degree of surprise that plaintiff suggested on appeal that he was entitled to a jury trial.

Only other point is whether the dialogue was mouthed with malice, — a condition precedent to compensability.¹ There is no evidence whatever to reflect any malice on the part of any of the station’s officials. The believable evidence would justify the conclusion that there was none on the part of Wilcox. On the contrary, the evidence displays a most quixotic empathy for the candidate on the part of the station, with a bit of understandable protective braggadocio indulged by the station’s vice-president.

The station also is protected under Title 4S-2-5, Utah Code Annotated 1953, against any defamatory statement made for or on behalf of a candidate for public office, as defined in the legislation, and hence, under the facts here, is immune from liability. As to Wilcox, however unthinking he may have been in failing to chop the anonymous one off the air, and no matter to what degree his risibility may have roiled the plaintiff, nonetheless, the record points up an absence of malice on his part as that term ordinarily connotes.

There is a distinguished and legitimate segment contending that we in public office or who seek it, toss our respective lives and reputations on the auction block of political slavery, to be weighed, pinched, praised or sent packing, to a greater extent than others; that the superficial criticisms of aspirants for office who say that but for their many friends they would perish the thought- of running, neither can dim their role in the public eye, nor the spotlight of public canvass, and that contrariwise, they must hazard the calculated risk of becoming an unblushing member of a naked cult, — perhaps resentfully, to expose themselves so all may see their all. To weather such nudity, they say, one needs a heavy hide, and an asbestos anti-macasser as his raiment. If lawsuits were permissible in every instance where one candidate suggests that his opponent is a fugitive from the truth, or enjoys a questionable role in the animal kingdom, there would evolve a benevolent monarchy come November, resulting from dearth of candidates, — with no enlightening press releases to tell the serfs about the event.

Malice absent, plaintiff is the victim of the election, and damnum absque injuria,— or its beneficiary, — depending on one’s point of view.

CALLISTER, C. J., concurs.

1 . New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964).