Gibson v. KINCAID

221 N.E.2d 834, 140 Ind. App. 186, 1966 Ind. App. LEXIS 417

• Court: Indiana Court of Appeals
• Decided: December 13, 1966
• Docket: 20,251
• Status: Published

Opinions

Prime, J.

— The action below was brought by appellant, who is a steelworker, member of the United Steel Workers of America, and part-time radio announcer, alleging defamation of character in one instance by appellees Kincaid and Smith via the radio transmitting facilities of appellee South Shore Broadcasting Company, now Colby Broadcasting Corporation, and in another by an unnamed newscaster over the same facilities.

Appellant’s amended complaint proceeds on two theories, contained in three legal paragraphs. The trial court sustained demurrers to all three paragraphs submitted by appellees Kincaid and Smith individually, and jointly as representatives of the United Steel Workers of America, and by appellee South Shore Broadcasting Company. Appellant refused to plead over, and judgment was accordingly rendered in favor of appellees.

Appellant’s assignment of errors presents his contention that the several demurrers should have been overruled.

The first two legal paragraphs of appellant-plaintiff’s amended complaint are founded on the following words, resulting from conversation between appellees Kincaid and Smith, broadcast over the South Shore Broadcasting Company station during time purchased by the union.

“Charles Smith: We want to touch briefly on this matter of this man Hoot Gibson who as we understand it is a member of the National Rights to Work Committee is going to bring up an argument that he has going we consider fairly petty.

“Orval Kincaid: Yes, Charlie it is my understanding that this gentleman you mentioned has been attempting to sell himself to a number of anti-labor organizations throughout the country and in fact he told us himself in a local union meeting, Charlie, that he made some tours all over the country during the last steel strike and driving around in someone’s big Cadillac and visiting all of the steel centers and then it is our understanding that when he came back he turned in his bill for his expense to the United States Steel Corporation and of course it is ... he told us himself in a local union meeting the company refused to pay it and he couldn’t understand why the company refused to pay it because he was working for them all the way around. That is a sample, Charlie, of some of the things we are confronted with. There has been a case filed, it is going through the regular channels. It has been appealed by him or his associates and it will be heard by the Board on Monday.”

Legal paragraph I proceeds against Kincaid and Smith individually, and jointly as representatives of the United Steel Workers of America, for uttering the words, and legal paragraph II against the South Shore Broadcasting Company for publishing same. An identical discussion may be made of both paragraphs in reaching a determination of the sufficiency of either to withstand demurrer, since they are grounded on the same issue: The defamatory nature, if any, of the words complained of. In our opinion, the dialogue between Kincaid and Smith was not defamatory per se. It imputed to appellant Gibson nothing more than labor agitation, which has been held to be not libelous per se. Wabash Railroad Co. v. Young (1904), 162 Ind. 102, 69 N. E. 1003; Montgomery Ward v. McGraw Hill, 146 F. 2d 171 (7th Circ. 1944). The same rule would apply to an action based on slander.

If the subject matter of an alleged defamation is not defamatory per se, special damages must be alleged in the complaint. Patton v. Jacobs (1948), 118 Ind. App. 358, 78 N. E. 2d 789, reh. den. 1948, trans. den. 1948. The doctrine therein enunciated related to allegedly libelous collection letters, but we see no reason to limit it to that factual situation. See also Rose v. Indianapolis Newspapers, 213 F. 2d 227 (7th Circ. 1954).

The only averment of specific injury contained in legal paragraphs I and II is appellant Gibson’s present inability to attain a high union office. No allegations appear that he suffered any impairment of present employment. Recovery should lie under this set of circumstances only for injury to one’s present trade, business, or occupation. Damages would be a matter of pure speculation if the rule were otherwise. Thus, we are of the opinion that this portion of the complaint is within the limitation that words which are possibly injurious to some vague new future employment will not give rise to a cause of action under either branch of defamation.

With this conclusion in mind, we turn to appellant Gibson’s theory that the mechanical reproduction and subsequent republication over appellee’s radio station of the conversation gave it sufficient permanence to render the words actionable within the tort of libel. Assuming the validity of appellant’s contention, the requirement still exists that allegations of special damages be contained in the complaint. If it is not valid and the remarks were instead slanderous, appellant Gibson, observing the well settled law of slander, concedes that his complaint is fatally defective without a finding that he has sufficiently pleaded special damages therein. As set out above, special damages were inadequately pleaded, and the words were not defamatory per se. The trial court was therefore justified in sustaining the demurrers to legal paragraphs I and II.

The third legal paragraph of appellant’s amended complaint proceeds solely against appellee South Shore Broadcasting Company, springing from the following words uttered by a newscaster and conveyed over appellee’s facilities:

“The executive board of the United Steelworkers Union (USW) upheld misconduct charges against a member of its Gary, Ind. Local 2697. The board met in closed session to hear the charges against A. B. Gibson that he ‘slandered’ several members of the local. (Our emphasis)

“The slander charge against him was upheld during a trial at the local level. Gibson appealed to the executive board which turned him down today.”

Appellant’s contention is that the crime of slander was thereby imputed to him. This crime is defined by Burns’ Indiana Statutes, § 10-3202.

“Criminal slander. — It shall be unlawful and a misdemeanor for any person to make any false, defamatory or slanderous statement regarding any other person, or to make or repeat any false statement regarding any person, which, if true, would subject such person to prosecution for a criminal offense, or to make or repeat any false statement regarding any person which injures or tends to injure such person either in name, character, general reputation or the pursuit and earning of a livelihood, Provided, That the person uttering such statements shall have had no good, sufficient and reasonable grounds for believing and considering the same to have been true, and on conviction shall be fined not less than twenty-five dollars ($25.00), nor more than five hundred dollars ($500.00), to which may be added imprisonment in the .county jail or Indiana State Farm for any period not to exceed sixty (60) days. (Our emphasis)

If appellant’s theory is followed, the statutory “any other person” would refer to the broadcast language “several members of the local.” Assuming the falsity of the transmission, which we must for the purpose of determining the sufficiency of the complaint, we fail to see how “several members of the local,” otherwise unamed, would suffer criminal sanctions. While the false imputation of criminal activity clearly gives rise to a cause of action for defamation, the imputation must bear some reasonably close relation to the legislative definition of the crime. This paragraph of appellant’s complaint fails to draw or suggest the requisite .clarity. Similarly, the unidentified “several members of the local” would hardly have their “name, character, general reputation, or the pursuit and earning of a livelihood” endangered by appellant Gibson’s allegedly slanderous remarks.

It is unnecessary to decide what radio transmission should be included in the libel category, or comment on appellant’s argument that the member of a labor union should be allowed to bring an action in tort against that organization, since the complaint was clearly insufficient on the grounds previously discussed.

The Supreme Court of the United States has recently decided two important cases which have relevance to the case before us here. We think it apropos to consider the reasoning embraced by our highest court on the general proposition before us.

The case of Ashton v. Kentucky, 384 U. S. 195, 16 L. Ed. 2d 469, 86 S. Ct. 1407, decided May 16, 1966, arose from circumstances concerning the publication and distribution of certain pamphlets in Hazard, Kentucky, during a strike of coal miners in 1963. The pamphlets were .critical of the Chief of Police, the County Sheriff and the owner of the local newspaper, accusing them of favoring the mine operators and of being strongly opposed to the miners. The opinion of the Court is quoted in part:

“The indictment charged ‘the offense of criminal libel’ committed ‘by publishing a false and malicious publication which tends to degrade or injure’ the three named persons. The trial court charged that ‘criminal libel is defined as any writing calculated to create disturbances of the peace, corrupt the public morals, or lead to any act, which, when done, is indictable.’

“The court also charged that malice is ‘an essential element of this offense’ and falsity as well.

“The Court of Appeals in affirming the judgment of conviction adopted a different definition of the offense of criminal libel from that given the jury by the trial court. It ruled that the element of breach of the peace was no longer a constitutional basis for imposing criminal liability. It held that the common-law crime of criminal libel in Kentucky is ‘the publication of a defamatory statement about another which is false, with malice.’

“We indicated in Shuttlesworth v. Birmingham, 382 U. S. 87, that where an accused is tried and convicted under a broad construction of an Act which would make it unconstitutional, the conviction cannot be sustained on appeal by a limiting construction which eliminates the unconstitutional features of the Act as the trial took place under the unconstitutional construction of the Act. We think that principle applies here. Petitioner was tried and convicted according to the trial court’s understanding of Kentucky law, which defined the offense as ‘any writing calculated to create disturbances of the peace. . . .’

“We agree with the dissenters in the Court of Appeals who stated that: ‘. . . since the English common law of criminal libel is inconsistent with constitutional provisions, and since no Kentucky case has redefined the crime in understandable terms, and since the law must be made on a case to case basis, the elements of the crime are so indefinite and uncertain that it should not be enforced as a penal offense in Kentucky.’

“The case is close to Cantwell v. Connecticut, 310 U. S. 296, involving a conviction of the common-law crime of inciting a breach of the peace. The accused was charged with having played in the hearing of Catholics in a public place a phonograph record attacking their religion and church. In reversing we said: ‘The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. . . . Here we have a situation analogous to a conviction under a statute sweeping in a great variety of .conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.’ Id., at 308.

“In Terminiello v. Chicago, 337 U. S. 1, we held unconstitutional an ordinance which as construed punished an utterance as a breach of the peace ‘if it stirs the public to anger, incites dispute, brings about a condition of unrest, or creates a disturbance.’ Id., at 3. We set aside the .conviction saying:

“ ‘The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U. S. 353, 365, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.’

“ ‘Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profund unsettling effects as it presses for acceptance of an idea.’ (Id., at 4.)”

In the case of Mills v. State of Alabama, 384 U. S. 214, 16 L. Ed. 2d 484, 86 S. Ct. 1434, decided May 23, 1966, the Supreme Court of the United States reiterated its position in favor of free speech. This case arose out of the publishing of an editoral in the Birmingham Post-Herald, a daily newspaper, written by its editor, James E. Mills, which urged the people to adopt the mayor-council form of government. Mills was later arrested on a complaint charging that by publishing the editorial on election day he had violated a section of the Alabama Code which makes it a crime “to do any electioneering or to solicit any votes ... in support of or in opposition to any proposition that is being voted on on the day on which the election ... is being held.” The trial court sustained demurrers to the complaint on the ground that the statute abridged freedom of speech and press in violation of the First and Fourteenth Amendments to the Constitution of the United States. The Alabama Supreme Couxd; reversed the trial court saying, the press “restriction, everything considered, is within the field of reasonableness,” and “not an unreasonable limitation upon free speech, which includes free press.”

In reversing the Alabama Supreme Court, the Supreme Court of the United States said in part:

“The First Amendment, which applies to the States through the Fourteenth, prohibits laws ‘abridging the freedom of speech, or of the press.’ The question here is whether it abridges freedom of the press for a State to punish a newspaper editor for doing no more than publishing an editorial on election day urging people to vote a particular way in the election. We should point out at once that this question in no way involves the extent of a State’s power to regulate conduct in and around the polls in order to maintain peace, order and decorum there. The sole reason for the charge that Mills violated the law is that he wrote and published an editorial on election day which urged Birmingham voters to cast their votes in favor of changing their form of government.

“Whenever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically-selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see Lovell v. Griffin, 303 U. S. 444, to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.”

The right to freely discuss and comment upon topics of general interest and importance is not to be lightly regarded. Freedom of expression, will be curtailed only when a clear infringement upon another’s rights occurs. Such infringement is not present here.

For the reasons set out herein, we find that the trial court committed no error in sustaining all demurrers to appellant-plaintiff’s amended complaint, and its judgment is therefore affirmed.

Carson, J., concurs, Wickens, C. J., and Faulconer, J., concur with opinions.