Ellerbee v. Mills

422 S.E.2d 539, 262 Ga. 516, 20 Media L. Rep. (BNA) 2095, 1992 Ga. LEXIS 941

• Court: Supreme Court of Georgia
• Decided: November 16, 1992
• Docket: S92A0595, S92A0597
• Status: Published

Opinions

Hunt, Justice.

Dexter Mills, a high school principal, sued Dexter Ellerbee, a former teacher, for libel and slander. Mills contends that Ellerbee made false allegations, orally and in writing, concerning Mills’ performance as principal. The trial court found that Mills was a private figure who had to prove by a preponderance of the evidence that Ellerbee failed to use ordinary care to determine the truth or falsity of his statements. The jury returned a verdict in favor of Mills. The trial court entered a judgment on that verdict, and permanently enjoined Ellerbee from making 27 statements about Mills. Ellerbee appeals. We affirm the judgment based on the jury verdict, but reverse the grant of the injunction.

1. We agree with the trial court that a high school principal is not a public official under the standard of New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (84 SC 710, 11 LE2d 686) (1964). The Court in New York Times declined “to determine how far down into the lower ranks of government employees the ‘public official’ designation would extend.” 376 U. S. at 283, n. 23. The category does not “include all public employees.” Hutchinson v. Proxmire, 443 U. S. 111, 119, n. 8 (99 SC 2675, 61 LE2d 411) (1979). Rather,

the “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.

Rosenblatt v. Baer, 383 U. S. 75, 85 (86 SC 669, 15 LE2d 597) (1966).

Our courts have not yet determined which persons holding positions of responsibility in the public educational system are “public officials.” While we recognize that a few states have extended the New York Times privilege to high school principals,¹ we believe the better view is that principals are not public officials. This is because, implicit in the reasoning of New York Times is the concept that the people should be free to question and criticize those who govern them. See McCutcheon v. Moran, 425 NE2d 1130, 1133 (Ill. 1981). Further, as noted in Gertz v. Robert Welch, Inc., 418 U. S. 323, 344 (94 SC 2997, 41 LE2d 789) (1974), public officials and figures have greater access to media and other channels of effective communication, and, therefore, a better opportunity to rebut false statements than do private individuals. Also, as noted in Gertz, an individual who decides to seek or accept government office must accept the consequences of that involvement in public affairs, and

runs the risk of closer public scrutiny than might otherwise be the case. And society’s interest in the officers of government is not strictly limited to the formal discharge of official duties . . . the public’s interest extends to “anything which might touch on an official’s fitness for office. . . . Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s privaté character.”

Id. at 418 U. S. 344-345. In our view, under normal circumstances, a principal simply does not have the relationship with government to warrant “public official” status under New York Times. Principals, in general, are removed from the general conduct of government, and are not policymakers at the level intended by the New York Times designation of public official.

We also agree with the trial court that under the facts of this case, Mills is not a public figure as defined by Gertz, supra, 418 U. S. at 345.² Because Mills is neither a public official nor a public figure, we affirm the judgment based on the jury’s verdict for damages and attorney fees.

2. The trial court’s order of a permanent injunction enjoined Ellerbee from making 27 statements. We reverse the injunction because the jury did not find all of those statements defamatory in its verdict and because the order sweeps more broadly than necessary. See Ga. Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 715 (363 SE2d 140) (1987); Retail Credit Co. v. Russell, 234 Ga. 765, 777 (218 SE2d 54) (1975) (upholding narrowly drawn injunction that restrained commercial investigative company from making two statements about an individual).

Judgment reversed in Case No. S92A0595.

Clarke, C. J., Bell, P. J., Benham, Fletcher and Sears-Collins, JJ., concur.

Judgment affirmed in Case No. S92A0597.

Clarke, C. J., Bell, P. J., Benham and Sear-Collins, JJ., concur; Fletcher, J., concurs specially.

1 To our knowledge, only three states have specifically addressed this issue. Compare Kapiloff v. Dunn, 343 A2d 251, 258 (Md. 1975) (holding a high school principal is within the public figure, public official classification), cert. denied, 426 U. S. 907 (1976) and Reaves v. Foster, 200 S2d 453, 456 (Miss. 1967) (treating a high school principal as a public official) with McCutcheon v. Moran, 425 NE2d 1130 (Ill. 1981).

2 This is not to say that, in some instances, principals might not be public figures, under New York Times, by, for example, inviting attention and comment by thrusting themselves into a controversy. See Gertz, supra at 418 U. S. 345.