MacGuire v. Harriscope Broadcasting Co.

612 P.2d 830, 6 Media L. Rep. (BNA) 1257, 1980 Wyo. LEXIS 269

Opinions

THOMAS, Justice.

The question presented in this appeal is the application of the actual-malice rule promulgated in New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964), in connection with a motion for summary judgment by the broadcaster of the allegedly defamatory material. The actions of the plaintiffs were premised upon some six editorials broadcast by the defendants over both television and radio in July, August, September and December of 1976. (Transcripts of these editorial comments are appended as Appendices A through F of this opinion.) The district court granted the motions for summary judgment filed by the broadcasting company and the individual defendants. It reached its decision by analyzing the record to determine if there was present, under the appropriate standard, evidence from which the finder of fact might conclude that the allegedly false statements were made with actual knowledge of the falsity or reckless disregard as to the falsity. It concluded that the material presented to the court on the record was not sufficient under the applicable standard to establish a prima facie case. We shall affirm the judgment of the district court.

In processing their joint appeals John MacGuire and Neil McMurry state the issue presented for review as follows:

“Whether the evidence, taken in the light most favorable to Appellants and drawing all reasonable inference therefrom could establish by a preponderance of the evidence that the statements were libelous statements of and concerning the Appellants and could establish with convincing clarity that the statements were published with actual malice.”

The appellees state the question in this appeal as follows:

“Is there any evidence in the record that proves the defendants-appellees in fact entertained serious doubts as to the truth of the facts upon which KTWO editorialized?”

These respective statements of the issue by the parties encompass an appropriate capsu-lization of the applicable rules.

We shall begin with a summary of the pertinent law. The rule promulgated by the Supreme Court of the United States in New York Times Co. v. Sullivan, supra, has been espoused by this Court in Phifer v. Foe, Wyo., 443 P.2d 870 (1968), and Adams v. Frontier Broadcasting Company, Wyo., 555 P.2d 556 (1976). In Adams v. Frontier Broadcasting Company, supra, we recognized and applied the concept that the best procedural protection for freedom of speech, or of the press, the constitutional rights the rule with respect to actual malice was designed to protect, is to be found in the remedy of summary judgment which the courts have utilized freely in such cases. It is said to be the most appropriate remedy in order to minimize the chilling effect of litigation and the associated expense and inconvenience surrounding that litigation upon the exercise of the First Amendment rights. Adams v. Frontier Broadcasting Company, supra, at page 566; Southard v. Forbes, Inc., 588 F.2d 140 (5th Cir. 1979).

For convenience we reiterate the rule set forth in New York Times Co. v. Sullivan, supra:

“The constitutional guarantees require, we think, 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. * * * ”

In Adams v. Frontier Broadcasting Company, supra, we also adopted and applied the definition set forth in St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), of reckless disregard of whether the statement was false or not as follows:

“There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”

This test has been stated in the alternative as the subjective awareness on the part of the publisher of the probable falsity of the published information. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In the period of time since Adams v. Frontier Broadcasting Company, supra, was decided the rule of New York Times Co. v. Sullivan, supra, and its progeny has not changed in any significant way. E. g., Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); Wolston v. Reader’s Digest Association, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir. 1979); Southard v. Forbes, Inc., supra; Manuel v. Fort Collins Newspapers, Inc., Colo.App., 599 P.2d 931 (1979); Bandelin v. Pietsch, 98 Idaho 337, 563 P.2d 395 (1977); Madison v. Yunker, Mont., 589 P.2d 126 (1978).

These are the legal standards relating to actual malice which are applicable to the right of either MacGuire or McMurry to recover judgment against the defendants, the appellees in our court. It is with respect to the application of these standards that the parties have joined issue in this appeal. The application of these concepts when a motion for summary judgment is presented to the court leads to an analytical method which is somewhat different from that in the usual case. The court must, of course, analyze the record to determine if there are any issues of material fact. Weaver v. Blue Cross-Blue Shield of Wyoming, Wyo., 609 P.2d 984 (1980); Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). It then should examine the facts in the light most favorable to the plaintiff, and give the plaintiff the benefit of any inferences that reasonably may be drawn from those facts. Weaver v. Blue Cross-Blue Shield of Wyoming, supra; Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970); Buchanan v. Associated Press, 398 F.Supp. 1196 (D.D.C.1975). The court then must arrive at a conclusion as to whether the facts as so analyzed would justify a conclusion in a trial to a jury, or by the court sitting without a jury, that the plaintiff had established a prima facie case of actual malice. More directly the question is whether on the basis of the evidence included in the record for purposes of the motion for summary judgment the finder of fact, under a standard of convincing clarity, could conclude that the “defamatory” information had been published with knowledge that it was false or that the defendant in fact entertained serious doubts as to the truth of the publication. Adams v. Frontier Broadcasting Company, supra; United Medical Laboratories v. Columbia Broadcasting System, Inc., 404 F.2d 706 (9th Cir. 1968), cert. den. 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454 (1969); Buchanan v. Associated Press, supra; Manuel v. Fort Collins Newspapers, Inc., Colo.App., 599 P.2d 931 (1979); Kidder v. Anderson, La., 354 So.2d 1306 (1978); Chase v. Daily Record, Inc., 83 Wash.2d 37, 515 P.2d 154 (1973). We believe the trial court was on sound ground when it indicated that the failure of the appellants to produce information which would establish such a prima facie case if presented in a trial led to the granting of a motion for summary judgment by the court. It follows in a case such as this, that even though there may be issues of fact disclosed by the record, if the version claimed by the plaintiff does not satisfy the standard of convincing clarity that precludes any such issue of fact from being an issue of a material fact, and the court still would grant the motion for summary judgment. Bandelin v. Pietsch, supra. See Adams v. Frontier Broadcasting Company, supra; United Medical Laboratories v. Columbia Broadcasting System, Inc., supra; Buchanan v. Associated Press, supra; Tagawa v. Maui Publishing Company, 50 Hawaii 648, 448 P.2d 337 (1968); Chase v. Daily Record, Inc., supra.

Of course, as the case comes before us, as we have said many times, we have substantially the same task as the trial court. We must analyze the information in the record to determine whether there are any issues of material fact which require a trial. In reaching that determination we must decide whether the information which is either undisputed or with respect to which we adopt the plaintiff’s version together with the reasonable inferences to be drawn therefrom would permit a trial judge to submit this case to a jury pursuant to an instruction that actual malice must be established with convincing clarity. Adams v. Frontier Broadcasting Company, supra. We now shall review the information upon which our conclusion to affirm the district court is based.

Both MacGuire and McMurry admit that they are public officials for purposes of invoking the rule of New York Times Co. v. Sullivan, supra. MacGuire served as a member of the Natrona County Airport Board from July 1,1971, through the period covered by the accused editorials. He was president of the board from about 1973 to July 1,1976. McMurry served as a member of the Natrona County Airport Board from 1974 through the period of the accused editorials.

The primary focus of the editorials which led to the filing of these defamation cases is upon the lease of a hangar at Natrona County Airport by MacGuire. MacGuire actually signed the lease as President of Natrona Service, Inc., which is a corporation controlled by MacGuire and his wife. MacGuire testified in his deposition that he and his wife were partners in the operation of the corporation. The lease is dated April 12,1976, to become effective April 15,1976, and the premises covered are designated as Hangar No. 1 plus some space around that hangar. The hangar is described as comprising 9,760 square feet for which the lessee was to pay 3 cents per square foot per month, or $292.80. The lease provided:

“The leased premises shall be utilized as a facility for storage of aircraft, office space and a maintenance facility.”

In addition to storing aircraft there, MacGuire used the hangar in connection with the operation of the uranium claim-staking business of Natrona Service, Inc.

Hangar No. 1 had earlier been leased to Sealy Flying Service. That lease agreement became effective on February 1,1967, although it was executed on April 5, 1967. The consideration for that lease was 1¾ cents per square foot per month, and in it 12,570 square feet of floor space was ascribed to Hangar No. 1. The Sealy Flying Service lease also covered Hangar No. 5. Beginning about 1972 MacGuire occupied space in Hangar No. 5, and he later arranged with a sublessee from Sealy Flying Service to move to Hangar No. 1 and to give up the space he was using in Hangar No. 5. The rental paid to Natrona County Airport for Hangar No. 1 up until the time of the lease with Natrona Service, Inc., was computed on the basis of the lease to Sealy Flying Service, Inc. That lease, however, was terminated during the intervening period, and from that point until the execution of the April 1976 lease with Natrona Service, Inc., MacGuire occupied Hangar No. 1 on a month-to-month basis pursuant to what was described as an oral lease. The record also discloses that the rental for other leases which served as establishments for public aviation included a requirement that they pay 4 cents per gallon for aviation fuel sold to others or loaded on their own aircraft. This requirement was not a part of the lease to MacGuire.

With respect to some other aspects of the case, minutes of the meetings of the airport board reflect that the board decided that the airport would no longer provide labor for improvements to their tenant businesses on a basis of materials being furnished by the tenant and labor being furnished by the airport. The policy was not conclusive, however, permitting exceptions in special circumstances. Other minutes of the airport board disclose that Mr. MacGuire stated a concern about wiring in the hangars, and at that meeting there were presented two light fixtures that were apparently worn out and beyond repair. There was dialogue about re-wiring the hangars because they were unsafe, and a survey by an electrical engineer was authorized. That survey resulted in an estimate of $179,000, and at that juncture the matter was tabled pending information about whether the Occupational Safety and Health Administration could require such action.

The minutes of the airport board also disclose an executive session following which a motion was made, seconded and adopted that “Doc” Stuckenhoff be awarded the farming concession for one year. That was apparently the subject of the discussion in executive session, and the decision was reaffirmed at the board meeting the month following. As a product of the controversy generated by the television and radio editorials and other publicity, a grand jury was convened in Natrona County, and its report included, among other things, a reference to the haying contract and a comment that it should not have been awarded in executive session.

The grand jury report also discussed the sale of water to Dr. Stuckenhoff for domestic purposes. It concluded that there was no impropriety on the part of the airport with regard to the sale of water. The same report noted that there were instances in the past of improper use of gasoline and borrowing of equipment on the part of airport employees. The conclusion of the grand jury was that those practices had been satisfactorily corrected. The grand jury also found that there had been work performed on the Stuckenhoff water line by airport employees but that he had offered to pay for that work and had never been billed. It further found that there had been no recent violations of the agreement on the water line which required Dr. Stuck-enhoff to maintain it at his own expense. In addition the grand jury minutes did consider the matter of the hangar leases by John MacGuire and found that they were approved in executive session, which was remedied by the ratification of the motions at subsequent open meetings. The comments of the defendants-appellees with respect to these matters are reflected in Appendices A through F.

The amended complaints of MacGuire and McMurry are essentially identical in many respects. In the respective amended complaints the plaintiffs did specify particular language from the texts of the several editorials upon which they based particular counts of alleged defamation. McMurry included in his complaint some 17 counts of alleged defamation, and MacGuire included in his complaint 27 such counts. The accused language in these several counts reads as follows:

“Even after it became known to the Airport Board and the Natrona County Commissioners that K-2 was investigating an apparent conflict of interest, a new ten-year lease was granted MacGuire’s personal corporation, though his previous lease would not have expired until January 31,1977.” (See Appendix A)

“If what Mr. MacGuire and others are doing at the airport in mixing their personal business with that of the public is not against the law, it ought to be.” (See Appendix A)

COUNT I, MacGUIRE AMENDED COMPLAINT

COUNT I, McMURRY AMENDED COMPLAINT

COUNT II, MacGUIRE AMENDED COMPLAINT

COUNT II, McMURRY AMENDED COMPLAINT

“On July 13, KTWO charged in an editorial, that COUNT III, MacGUIRE

a member of the County Airport Board, John AMENDED COMPLAINT MacGuire, was mixing his personal business with that of the public by leasing a 12,000 square foot hangar from his own board at rates far below the local market.” (See Appendix B)

“. . . Rentals charged to that corporation are far below what would be asked for comparable space elsewhere in the community. The hangar is being used primarily for a mineral claim staking business rather than as a public aircraft flying service, the intended purpose of the building, and the latest lease acknowledges this.” (See Appendix A)

“As the result of further investigation, K-2 now is prepared to state that the new ten year lease the Airport Board granted in April to its then President MacGuire would seem to be depriving the taxpayers of Natrona County of a least $12 thousand dollars a year in potential income, or a total of $120 thousand dollars if conditions remain unchanged.

“. . . Elsewhere in the Casper area, the going rate even for dead storage space is more in the area of 20 cents per square foot. That is more than 600 percent higher than MacGuire is paying on his sweetheart deal. The Airport Board will never know precisely how much it is giving away. . . ” (See Appendix B)

“The problem here goes well beyond that of a county board member engineering himself a good deal at the public’s expense.” (See Appendix B)

“The big bone of contention is the conflict of interest involving the hangar lease of Airport Board member John MacGuire. . . . ” (See Appendix C)

“A previous K — 2 editorial pointed out that MacGuire’s ‘sweetheart deal’ would cost the taxpayers of Natrona County at least one hundred thousand dollars in lost potential income based upon the going rate for such space in Casper.” (See Appendix C)

“The Airport Board has tried to save face for its 3 cents per square foot giveaway to MacGuire by saying the price is in line with what some other airports in the region are charging . Anything less than that is a breach of public trust on the part of the Airport Board. If there is any question in their minds, let them go out and try to lease space and find out on an open competitive basis what the Casper rental market is like.” (See Appendix C)

“Then there’s the matter of MacGuire’s space being 12,570 square feet rather then 9,760 square feet for rent computing purposes

COUNT III, McMURRY AMENDED COMPLAINT

COUNT IV, MacGUIRE AMENDED COMPLAINT

COUNT IV, McMURRY AMENDED COMPLAINT

COUNT V, MacGUIRE AMENDED COMPLAINT

COUNT VI, MacGUIRE AMENDED COMPLAINT

COUNT VII, MacGUIRE AMENDED COMPLAINT

COUNT V, McMURRY AMENDED COMPLAINT

COUNT VIII, MacGUIRE AMENDED COMPLAINT

COUNT VI, McMURRY AMENDED COMPLAINT

COUNT IX, MacGUIRE AMENDED COMPLAINT

However, K-2 learned that MacGuire’s payment was a mere token since he has been receiving the benefit of the free space not just for three months, but actually for a number of years. As of last week, the bulk of his rent underpayment had not been collected by the Airport Board.” (See Appendix C)

“This leads us back to the matter of mixing one’s personal business with that of the public and the conflict of interest that results. As for the miscalculated rent, one can see how terribly, awfully awkward it must be for Airport Manager George to put the arm on the man who signs his paycheck. When serving two masters, it’s usually the public master which gets the short end of the stick.” (See Appendix C)

“K-2 is determined to see that the property is operated in the best interests of the general public, not just for a special few. We hope there are enough men of conscience serving on the Airport Board Tuesday to outvote those whose shameful disregard of ethical conduct has evoked the public’s indignation. Airport leases must be granted openly and cleanly with an equal opportunity for all.” (See Appendix C)

“Any remaining doubt as to whether the public was being ripped-off as the result of hangar rental irregularities by the Natrona County Airport Board should have been settled by last week’s meeting.” (See Appendix D)

“. . . Airport Board member John MacGuire will receive more than $100 thousand dollars in taxpayer subsidy for his private business. . .” (See Appendix D)

“It means some of the extra 1% tax you pay on groceries may be going directly into the Airport Board member’s personal pocket.” (See Appendix D)

“By refusing to collect the years of back rent owed the county by Mr. MacGuire and refusing to charge prevailing rates for space in the face of conflict of interest questions, the Airport Board is burning the public’s money in the streets. If they insisted upon a fair price for Mr. Mac-Guire’ s building rental, it might not be necessary to ask the taxpayers to pony up that amount.” (See Appendix D)

“. . . Mr. MacGuire’s abuse of an appointed position for his own personal gain, . . (See Appendix D)

“Two of the three County Commissioners will be appearing on the General Election Ballot this year. County Commissioner Chairman John

COUNT VII, McMURRY AMENDED COMPLAINT

COUNT X, MacGUIRE AMENDED COMPLAINT

COUNT XI, MacGUIRE AMENDED COMPLAINT

COUNT VIII, McMURRY AMENDED COMPLAINT

COUNT XII, MacGUIRE AMENDED COMPLAINT

COUNT IX, McMURRY AMENDED COMPLAINT

COUNT XIII, MacGUIRE AMENDED COMPLAINT

COUNT X, McMURRY AMENDED COMPLAINT

COUNT XIV, MacGUIRE AMENDED COMPLAINT

COUNT XI, McMURRY AMENDED COMPLAINT

COUNT XV, MacGUIRE AMENDED COMPLAINT

COUNT XII, McMURRY AMENDED COMPLAINT

COUNT XVI, MacGUIRE AMENDED COMPLAINT

COUNT XVII, MacGUIRE AMENDED COMPLAINT

Burke, Mr. MacGuire’s staunchest ally, is seeking another four year terra. Commissioner Vern Rissler, without giving up his present commissioner’s position, has decided to make his talents available to the State Senate. Both of these candidacies can serve as a referendum as to whether the people of Natrona County want public officials to intermingle their personal pocketbooks with the public cash drawer.

“K-2 has presented hard, cold evidence to prove that this is exactly what has happened. Not a single fact that we have presented to the public has been refuted. Repeatedly, we have offered freetime to those involved, but to no avail.

“The situation must be cleaned up and it’s up to the people.” (See Appendix D)

“. . . there has been self-dealing practiced by a member of the Airport Board.” (See Appendix E)

. . those who have used their public position for personal gain. . . ” (See Appendix E)

“A reporter asked Mr. MacGuire a question regarding his accountability to the public. The response of this public servant was ‘screw ’em.’ Well indeed he has, and the answer merely confirmed an attitude that hardly is in keeping with open and clean government.” (See Appendix D)

“Member MacGuire in a June meeting of the Board participated in and actually led a discussion which could result in the expenditure of $179 M in taxpayer funds for the improvement of his and other airport hangars, even though his lease says that such improvements are his private responsibility. If the Airport Board were to spend $179 M on the five hangars proportionately, the cost of the work of the MacGuire hangar would be $36,000. Under those circumstances, the $3,500 per year rental fee MacGuire pays would barely cover the interest, and would not pay off the investment. Therefore, if the taxpayers were to invest further into the board member’s private business through the improvement of his leased hangar, it would be the same as giving him free rent at the taxpayer’s expense.” (See Appendix A)

“An examination of the lease also reveals that Mr. MacGuire is not required to pay the Airport Board the same additional rental of 4 cents per gallon for aviation fuel as do the lessees of the other four hangars.” (See Appendix A)

“Although Mr. MacGuire and his buddies on the County Airport Board made it so difficult to gain

COUNT XVIII, MacGUIRE AMENDED COMPLAINT

COUNT XIX, MacGUIRE AMENDED COMPLAINT

COUNT XX, MacGUIRE AMENDED COMPLAINT

COUNT XXI, MacGUIRE AMENDED COMPLAINT

COUNT XXII, MacGUIRE AMENDED COMPLAINT

COUNT XIII, McMURRY AMENDED COMPLAINT

COUNT XXIII, MacGUIRE AMENDED COMPLAINT

access to the public records in their possession, that our attorneys had to threaten suit under the Wyoming Open Records Law, K-2 has enough information now to conclude that the operation of the Airport Board is shabby and disgraceful and must be cleaned up.” (See Appendix A)

“K-2 believes that the County Commissioners, by reappointing Mr. MacGuire, in any capacity have contributed to a situation which is nothing short of self-dealing and conflict of interests. (See Appendix A)

“K-2 believes that by issuing a blanket endorsement of MacGuire’s actions, the County Commissioners have set an ethical standard that is too low for the people of Natrona County to accept.” (See Appendix B)

“Coupled with the news of the illegal award of haying contracts and the grant of special water privileges to members of ‘The Airport Club’ . . . ” (See Appendix A)

“K-2 also has learned that the Airport Board in the past has permitted the use of county employees labor for the repair of buildings under lease at no charge to the lessees, and that the CPA firm which examined the airport books last year said that the Board’s bookkeeping was at variance with generally accepted accounting principles.” (See Appendix A)

“The people of Natrona County are entitled to county boards that are operated in an open and clean manner. They should not be packed with buddies and business associates of the County Commissioners.” (See Appendix A)

COUNT XIV, McMURRY AMENDED COMPLAINT

COUNT XXIV, MacGUIRE AMENDED COMPLAINT

COUNT XXV, MacGUIRE AMENDED COMPLAINT

COUNT XV, McMURRY AMENDED COMPLAINT

COUNT XXVI, MacGUIRE AMENDED COMPLAINT

COUNT XVI, McMURRY AMENDED COMPLAINT

COUNT XXVII, MacGUIRE AMENDED COMPLAINT

COUNT XVII, McMURRY AMENDED COMPLAINT

We treat with the appeal under New York Times Co. v. Sullivan, supra, since this is the context in which the parties framed the issues. Our examination of the record in this case confirms the judgment of the district court that there is not presented by either MacGuire or McMurry evidence, under the standard of convincing clarity, that the appellees knew the information they published was false or that they published the information while entertaining serious doubts as to the truth of the published information, that is with subjective awareness of its probable falsity. We have no quarrel with the statement of the district court that, “there is a series of truths underlying the statements; many of the alleged defamations fall within the categories of honest intention, fair comment, reasonable belief, honest mistake (if in fact upon trial it should be demonstrated there were error), reliance on ostensibly reliable person’s accounts, rhetorical hyperbole, etc.” As the parties have framed the issues, however, no other issues are material if there is not evidence in the record which would tend to establish actual malice with convincing clarity.

Pursuing the case under the doctrines of New York Times Co. v. Sullivan, supra, encompasses an assumption that defamatory material was published and that it was false. The appellants then wish to rely upon an inference of knowledge of falsity or publication with awareness of probable falsity. We hold that the standard of convincing clarity requires the plaintiffs to structure the issue of material fact by conflicting evidence. They may not rely simply on conflicting inference. We agree with the comment of the Supreme Court of Idaho that:

“Although it is conceivable that the character and content of a publication could be so patently defamatory that a jury could infer a knowing state of mind on this basis alone, no case has so held.” Bandelin v. Pietsch, supra, 563 P.2d 400.

Our examination of the record in this case does not persuade us that a jury could infer actual malice from the content of these publications. The position of MacGuire and McMurry as we understand it is that the publications were defamatory and false as they choose to construe them. We note in passing that neither the district court nor this court nor the jury would be bound by the construction they seek to attach. They then argue very earnestly that as so construed the statements are so patently defamatory that application of the favorable-inference concept prevents the entry of the summary judgment for the publishers. We need not hold that such an inference never would be permissible because in this case as the record stands such an inference could not be drawn under a standard of convincing clarity. We have no doubt that the publishers intended that this debate should be “uninhibited, robust and wide open” and that they did encompass “vehement, caustic and unpleasantly sharp attacks” in their editorials. The rules that we are applying, however, are designed to support “a profound national commitment to the principle that debate on public issues” may be so conducted, New York Times Co. v. Sullivan, supra, at 376 U.S. 270, 84 S.Ct. at 721.

With respect to the standard of convincing clarity, it may be helpful to recognize in this case that that standard is a stringent one. It is greater than a mere preponderance of the evidence. It requires proof that is clear, precise and indubitable or unmistakable and free from serious and substantial doubt. It is that kind of proof which would persuade a trier of fact that the truth of the contention is highly probable. Manuel v. Fort Collins Newspapers, Inc., supra, 599 P.2d at 933. These definitions do not, in our judgment, substantially differ from a definition of clear and convincing evidence adopted by this court with approval from the Supreme Court of Iowa. In a case in which there was a requirement that a mistake be proved by evidence that was clear and convincing, this court, in Continental Sheep Co. v. Woodhouse, 71 Wyo. 194, 202, 256 P.2d 97 (1953), adopted the following language from Good Milking Mach. Co. v. Galloway, 168 Iowa 550, 150 N.W. 710, 712:

“ * * * When the evidence is such that the mind readily reaches a satisfactory conclusion as to the existence or nonexistence of a fact in dispute, then the evidence is, of necessity, clear and satisfactory.”

Applying that proposition to this record discloses that what was offered by MacGuire and McMurry as evidence of actual malice is far short of the style of evidence from which any mind could readily reach a satisfactory conclusion as to the existence of actual malice.

We recognize that in Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), in the ninth footnote, the Supreme Court mentioned that proof of “actual malice” calls into question the defendant’s state of mind and that question does not readily lend itself to summary disposition. The use of the motion for summary judgment, however, is not foreclosed, and a plaintiff to avoid the summary judgment still must demonstrate for the district court evidence upon which could be premised a finding under the standard of convincing clarity that the publisher knew the information was false or published the information with a subjective awareness of probable falsity. We have examined the evidentiary material in the record before us, and like the trial court, we find the record to be devoid of evidence of knowledge by these appellees of the falsity of the information published even giving to that material the interpretation urged by the appellants. Indeed we do not find the appellants seriously arguing actual knowledge of falsity. Similarly even relying upon favorable inference we have been unable to discern in this record evidentiary material which could lead to a finding with the requisite convincing clarity that the appellees were aware of the probable falsity of any information which was published.

The only instance in this record which suggests awareness of probable falsity on the part of the publishers is set forth in the affidavit of the Manager of Natrona County International Airport during the time the editorials were published. In his affidavit he states as follows:

“9. I was personally present when Mr. MacGuire purportedly responded to a reporter’s question about his responsibilities to the public by saying ‘Screw ’em’, and I know that Mr. MacGuire was responding to Mr. Wilkings’ suggestion that Mr. McAuley and Mr. Partridge wished to ask him some questions. Mr. MaeGuire’s comment was in response to Mr. Wilk-ings’ suggestion and was directed at Mr. McAuley and Mr. Partridge, not to the public, or his accountability to the public, or his responsibilities to the Board. I discussed these facts with Don Britton and Pete Williams immediately after the article appeared in the Casper Star Tribune, alleging that Mr. MacGuire had responded to a reporter’s question about his responsibilities to the public, and at least Mr. Britton listened to the tape recording of that portion of the meeting and agreed that there was no question but that Mr. MacGuire had directed his comment to Mr. McAuley and Mr. Partridge in response to Mr. Wilkings’ suggestion. Pete Williams was then News Director at KTWO and Don Britton was a KTWO reporter assigned to cover the Airport Board.”

Mr. George’s affidavit does not reflect the communication of the information by either Mr. Williams or Mr. Britton to the parties who actually published the editorials. Neither is there other evidence that this information was communicated to them. While the testimony of the publishers is not to be regarded as controlling with respect to their knowledge or state of mind, neither can that testimony be ignored when it is not refuted. Where, as here, the plaintiffs have not succeeded in producing direct or circumstantial evidence which would conflict with the testimony of the publishers, they have failed to meet their obligation of showing an issue of material fact. That failure in this case is dispositive.

The plaintiffs having failed to meet their burden at the summary judgment stage of demonstrating evidence of actual malice, the record encompasses no genuine issue of material fact, and the judgment of the district court must be affirmed.