ROY D. NELSON and SUSAN E. RYAN,
Plaintiffs/Appellants,
v.
AMERICAN HOMETOWN PUBLISHING, INC., a foreign
corporation; and AMERICAN HOMETOWN PUBLISHING, INC., a foreign corporation,
d/b/a Guthrie News Leader, Defendants/Appellees.
JANE P. WISEMAN, PRESIDING JUDGE:
¶1 Roy D. Nelson and Susan E. Ryan appeal from a trial court order granting
summary judgment in favor of American Hometown Publishing, Inc., and American
Hometown Publishing, Inc., d/b/a Guthrie News Leader. The issue appealed is
whether the trial court erred in granting Defendants judgment as a matter of
law. This appeal stands submitted pursuant to Supreme Court Rule 1.36, 12
O.S.2011, ch. 15, app.1, without appellate briefing. After de novo review
of the record and applicable law, we affirm in part and reverse in part the
trial court decision and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
¶2 On May 17, 2010, Nelson and Ryan (collectively, Plaintiffs) filed a
lawsuit against Newspaper Holdings, Inc., d/b/a/ Guthrie News Leader, asserting
claims for negligence, libel, and punitive damages arising from publication of
an incorrect listing of Plaintiffs' home address as the address of a registered
sex offender. Plaintiffs filed an amended petition on June 14, 2010, naming as
defendants Newspaper Holdings, Inc., a foreign corporation, d/b/a Guthrie News
Leader, American Hometown Publishing, Inc., a foreign corporation, and American
Hometown Publishing, Inc., a foreign corporation, d/b/a Guthrie News Leader
(collectively, Defendants).
¶3 Stating that they live at 9051 West College Avenue, Guthrie, Oklahoma,
Plaintiffs allege:
That on or about June 14, 2009, the Defendants . . . published a list of
sex offenders registered in Logan County in the local newspaper, Guthrie
News Leader. The list incorrectly listed the Plaintiffs' address as that of
a registered sex offender named Donald Joseph Crown, a middle-aged white
male.
¶4 Plaintiffs state they heard gunfire on their property on the day the News
Leader published the list of offenders and then throughout that day and into the
morning hours of June 15, 2009, they heard cars drive by and people shout things
at them. According to Plaintiffs, they live on a rural dirt road and "[t]he
amount of traffic that [they] experienced in front of their house for the
thirty-six hour period following the publication of the 'Sex Offender Issue,'
was large compared to usual traffic, and the Plaintiffs interpreted it as
threats intended toward a convicted sex offender and they feared for their
safety."
¶5 Plaintiffs allege Ryan brought the mistake to the attention of the
managing editor of the Guthrie News Leader, Belinda Ramsey, on June 15, 2009,
the day after the publication. Plaintiffs state, "Later that same day a person
named Nixie Goff, purporting to be an employee of the newspaper, called Mrs.
Ryan to let her know that it was in fact the newspaper's mistake and not the
mistake of the reporting law enforcement agency." Although Ryan demanded the
newspaper print a conspicuous correction in the following Sunday edition of the
newspaper, the newspaper instead "issued a non-conspicuous correction in the
Obituaries Section of the following Wednesday edition, and refused to publish a
correction in the following Sunday edition." Plaintiffs further claim the
newspaper left the incorrect address on its website until October 31, 2009.
¶6 Plaintiffs assert negligence on the part of Defendants in failing to use
ordinary care when they confirmed, updated, and disseminated information
regarding registered sex offenders in their newspaper and on their website. They
contend Defendants' negligence led to gunshots being fired near their property
and to other harassing and intimidating behavior being directed at them. They
also assert a claim for libel alleging Defendants failed to use ordinary care
when they confirmed, updated, and disseminated registered sex offender
information to the public through the newspaper and on the News Leader's
website, which led to gunshots being fired near Plaintiffs' home and to
harassment and intimidation. Plaintiffs also seek punitive damages, alleging
that, although Defendants "had been given accurate information from the
reporting law enforcement agency," Defendants "failed to engage in the minimal
editing effort to verify the accuracy of the addresses of convicted sex
offenders." Plaintiffs contend that Defendants "intentionally, willfully,
recklessly, and/or exhibiting gross negligence caused the false publication to
be disseminated in their newspaper and on their website."
¶7 Defendants sought summary judgment on Plaintiffs' claims. Below are the
material facts Defendants list as undisputed in their motion followed by
Plaintiffs' responses:
1. The Guthrie News Leader (News Leader) published a story on June
14, 2009, titled, "Registered sex offenders on the rise locally" and a list
of 97 registered sex offenders who live in Logan County, Oklahoma, with
their photographs and claimed addresses. The list was provided by the Logan
County Sheriff's office and the City of Guthrie Police Department.
(Disputed. "Defendant published the claimed addresses of 96 of the
registered sex offenders living in Logan County. It published one of the sex
offenders' addresses as that of the Plaintiffs.")
2. Ryan telephoned the News Leader on June 15, 2009, spoke with the
publisher and editor Belinda Ramsey, and advised her that Ryan's address,
9051 West College Avenue, Guthrie, Oklahoma, had appeared in the newspaper
the day before under the photograph of a sex offender. (Disputed. "Mrs. Ryan
specifically requested a conspicuous correction.")
3. "Belinda Ramsey advised plaintiff Ryan she would check with the
Sheriff to see if there had been a mistake and if there had been, the [News
Leader] would get it corrected." (Undisputed.)
4. A staff writer for the newspaper, Nixie Goff, telephoned Ryan on June
15, 2009, and advised her that an error had been made in the use of her
address in the News Leader the day before. Goff told Ryan that a correction
would be published on June 17, 2009, which was the next edition of the News
Leader. (Disputed. Ryan told Goff she wanted the correction to appear in the
next Sunday edition of the News Leader.)
5. A correction was published on June 17 on page three of the newspaper.
The headline read "Correction" and beneath the headline was the following:
"'In a June 14, 2009 published list of registered sex offenders residing in
Logan County, Donald Joseph Crown was mistakenly identified as residing at
9051 West College Avenue. His current actual address is 9051 East College
Avenue in Guthrie.'" (Undisputed.)
6. Nelson's name did not appear in the newspaper on either June 14, 2009,
or June 17, 2009. (Undisputed.)
7. Ryan's name did not appear in the newspaper on either June 14, 2009,
or June 17, 2009. (Undisputed.)
8. "Despite expressing their belief that there are some readers of the
[News Leader] who believe Plaintiffs' residence is the residence of a sex
offender, neither [Nelson nor Ryan] can identify any individual who believed
that either of them was a registered sex offender as a result of having read
the [News Leader]." (Disputed. "Plaintiffs identify Belinda Ramsey as an
individual who believed that either Mr. Nelson or Mrs. Ryan was a registered
sex offender as a result of reading it in the [News Leader], and was not
convinced otherwise until she checked with the Sheriff's Department.")
9. Plaintiffs did not allege any special damages or offer any evidence of
special damages. (Disputed. "Plaintiffs allege special damages in that the
subject publication caused members of the community to target them with
gunfire, vandalism, and harassment, and that in response to this they were
compelled to upgrade their video surveillance
equipment.")
¶8 Defendants argue that the article in question "is
constitutionally-protected speech on a matter of public concern, and is
substantially true and privileged" and Plaintiffs therefore cannot recover under
a theory of libel or negligence. They also assert Plaintiffs, as a matter of
law, cannot maintain a claim for negligence based on this publication and
"cannot maintain a separate cause of action for Punitive Damages."
¶9 In response, Plaintiffs set out their own statement of undisputed material
facts. Plaintiffs state that in the June 14, 2009, edition of the News Leader,
Defendants listed Plaintiffs' address as that of Donald Crown, a registered sex
offender. Defendants do not dispute this fact but dispute the other 16 facts
recited below that Plaintiffs list as undisputed.
¶10 Plaintiffs claim that Defendants admit that the incorrect information was
a result of the News Leader's error and not that of the reporting law
enforcement agencies. According to Plaintiffs, although Ryan spoke to Ramsey on
June 15, 2009, informed her of the error, and asked Ramsey to provide a
conspicuous correction, Defendants left the incorrect sex offender edition of
the newspaper on its website until October 31, 2009. Plaintiffs claim that
someone fired an automatic rifle at or near their residence on the morning of
June 14, 2009, and that between the hours of 7:00 p.m., and midnight that day,
several vehicles drove past Plaintiffs' residence. Plaintiffs have video
evidence of an occupant of a pick-up truck driving past the residence that day
yelling, "Pervert." They provided Defendants with video evidence of a white
pick-up truck driving by the residence on July 22, 2009, "blaring its horn" and
video footage showing a black truck driving by on April 20, 2010, with an
occupant yelling, "Freaks." Additional video footage showed someone firing
gunshots at or near the residence on August 6, 2010, and August 27, 2010, and a
white pick-up blaring its horn on September 17, 2010. Further video footage was
provided showing someone breaking out Plaintiffs' lights at the entrance of
their property on February 10, 2011, the driver of a red pick-up driving by on
July 22, 2011, and extending his middle finger, a black pick-up driving by and
blaring its horn on August 9, 2011, the driver of a white pick-up pointing a
pistol at the residence on July 21, 2011, and the driver of a silver SUV
breaking out the lights at the entrance to Plaintiffs' property on September 15,
2011. Plaintiffs allege they purchased new video surveillance equipment on
January 7, 2011.
¶11 The trial court granted summary judgment in favor of Defendants by
holding that the alleged trespasses, vandalism, and harassment were not caused
by errors or omissions of Defendants and that Plaintiffs' damages were the
result of intervening causes. It further found that Plaintiffs were not
mentioned in the newspaper article and that there was only a mistake of address.
The court held "[t]hat as a matter of law the Defendant newspaper getting the
address wrong and then issuing a correction in the next publication is not libel
per se." The court stated, "That we need matters like this published in
the paper." The court further held that "the standard for the Plaintiffs to
properly state a claim for punitive damages against the Defendant newspaper is
actual malice, and that Plaintiffs did not meet this burden."
¶12 Plaintiffs appeal.
STANDARD OF REVIEW
¶13 Summary judgment is properly granted "when the pleadings, affidavits,
depositions, admissions or other evidentiary materials establish that there is
no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." Davis v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924. When reviewing a grant
of summary judgment, we must view all inferences and conclusions to be drawn
from the evidentiary materials in a light most favorable to the party opposing
the motion. Id.
¶14 An appeal from an order granting summary judgment is subject to de
novo review. Shull v. Reid, 2011 OK 72, ¶ 3, 258 P.3d 521. "In its
re-examination of the trial tribunal's legal rulings an appellate court
exercises plenary, independent and nondeferential authority." Bronson
Trailers & Trucks v. Newman, 2006 OK 46, ¶ 5, 139 P.3d 885.
ANALYSIS
¶15 Plaintiffs list the following issues to be addressed on appeal: (1)
whether the record supported summary judgment, (2) whether summary judgment was
premature, (3) whether the trial court erred in finding that Defendants' actions
were not libel per se, (4) whether the trial court's conclusion regarding
intervening cause was reversible error because that issue was not raised or
briefed by either party, (5) whether the trial court's holding regarding the
standard for punitive damages was reversible error, and (6) whether the trial
court made a statement that indicated bias in favor of the news media. With the
exception of the sixth issue, all of the issues raised are comprised within the
fundamental question of whether summary judgment was properly granted in
Defendants' favor.
I. Negligence Claim
¶16 Plaintiffs assert claims against Defendants for negligence, libel, and
punitive damages. In their negligence claim, they assert Defendants "failed to
use ordinary care in confirming, updating, and disseminating registered sex
offender information to the public through both their newspaper . . . and their
website."
¶17 After review of the record and pertinent authority, we conclude as a
matter of law that Plaintiffs cannot state a separate claim of negligence
against Defendants. We agree with Defendants, as stated in their motion for
summary judgment and supporting brief, that "'[n]egligence' is the standard of
fault that a private figure plaintiff must ultimately prove in a libel case that
goes to trial, but 'negligence' is not an independent tort theory based on
publication of a newspaper article."
¶18 In support of their argument, Defendants cite Jordan v. World
Publishing Company, 1994 OK CIV
APP 30, 872 P.2d 946, in
which the principal of a public school brought suit against a newspaper for
negligence after the newspaper printed a letter to the editor that the plaintiff
claimed the newspaper falsely attributed to the principal. The principal, a
public figure, sought to recover against the newspaper for negligence in
publishing the letter with its false attribution and for negligent infliction of
emotional distress; he did not plead actual malice after being given an
opportunity to amend his petition. The newspaper argued that the nature of the
action was for libel, or false light invasion of privacy, both of which require
a finding of malice before liability could attach against a newspaper for
damages to a public figure. Id. ¶ 8. The trial court agreed and dismissed
the action. Id. ¶ 4.
¶19 On appeal, this Court held that because the substance of the plaintiff's
claim was a false publication and he was without dispute a public figure, the
plaintiff was constitutionally required in a libel action like this to plead and
prove actual malice. Id. ¶ 14. The Court further noted that, pursuant to
Colbert v. World Publishing Co., 1987 OK 116, 747 P.2d 286, "a plaintiff in false
light privacy cases must plead and prove actual malice." Id. ¶ 9. The
Jordan Court found its case very similar to "Decker v. Princeton
Packet, 116 N.J. 418, 561 A.2d 1122 (1989)" in which the New Jersey Court
held that "'the first amendment requires that plaintiff establish at least the
same level of intent to recover for the infliction of emotional harm as is
necessary to find defamation.'" Jordan, 1994 OK CIV APP 30, ¶ 11.
¶20 We decline to follow Jordan in all aspects because Plaintiffs here
are clearly private persons and not subject to the same strictures of pleading
and proof as a public figure like Jordan. But we concur with the underlying
premise in Jordan that when the nature of the action is a libel claim,
the importance of protecting newspapers' First Amendment rights requires
adherence to the standards for defamation claims. To apply any lesser standard,
such as that for a negligence claim, would, to restate Decker as quoted
in Jordan, allow the use of the tort of negligence to circumvent defenses
to defamation actions, including shorter statute of limitations provisions, and
to overcome "'judicial barriers to punitive damages'" applicable in defamation
cases. Id. ¶ 11.
¶21 Other cases have concluded that a plaintiff could not recast a defamation
claim as a different tort claim. See e.g., Grogan v. KOKH, LLC, 2011 OK CIV APP 34, ¶ 33, 256 P.3d 1021 (agreeing with
Jordan "that one cannot circumvent the First Amendment by the label with
which the suit is described") and Stewart v. KFOR-TV, 2006 WL 517656
(W.D. Okla. 2006)(citing Jordan and concluding the plaintiff could not
rely on the same set of facts to recast a defamation claim as a negligence
claim).
¶22 Because Plaintiffs' allegations of wrongdoing under any theory of
recovery involve the gathering and dissemination of information in Defendants'
newspaper and on their website, Plaintiffs' negligence claim is not viable as a
separate claim. The entry of summary judgment on this question is affirmed.
However, this does not preclude Plaintiffs' defamation claim arising from the
same allegations of fact.
II. Libel Claim
A. Defamatory Statement
¶23 In their claim for libel, Plaintiffs assert that Defendants "failed to
use ordinary care of those similarly engaged in print and electronic media in
confirming, updating, and disseminating registered sex offender information to
the public through both their newspaper . . . and their website." They allege
Defendants "disseminated a false claim that the Plaintiffs' address was that of
a registered sex offender."
¶24 For a private figure to state a claim for defamation, he or she must
show:
"(1) A false and defamatory statement, (2) an unprivileged publication to
a third party, (3) fault amounting at least to negligence on the part of the
publisher; and (4) either the actionability of the statement irrespective of
special damage [per se], or the existence of special damage [per
quod]."
White v. City of Del City, 2012 OK CIV APP 5, ¶ 21, 270 P.3d 205 (quoting Tanique,
Inc. v. State ex rel. Okla. Bureau of Narcotics and Dangerous Drugs, 2004 OK CIV APP 73, ¶ 29, 99 P.3d 1209). It is undisputed
that the statement in question was false and that it was published to third
parties. Whether it was defamatory to Plaintiffs, whether it was privileged, and
what standard of conduct applies to Defendants in this situation remain
questions requiring discussion.
¶25 "A communication is defamatory if it tends to so harm the reputation of
another as to lower him in the estimation of the community or to deter third
persons from associating or dealing with him." Herbert v. Oklahoma Christian
Coal., 1999 OK 90, n. 4, 992 P.2d 322. Plaintiffs submitted
evidence that they suffered harassment, abuse, and property damage from the
public after the publication of their address as that of a sex offender. They
allege that the harassment and damage were the result of the perpetrators
believing that a sex offender lived in their home. Whether the harassment and
vandalism resulted from the publication of their address as that of a sex
offender is a question of fact.
¶26 "In order for a false statement to be defamatory, it must concern the
plaintiff." Gonzalez v. Sessom, 2006 OK CIV APP 61, ¶ 12, 137 P.3d 1245. "A defamatory
communication concerns the plaintiff if the recipient either correctly, or
mistakenly but reasonably, understands that it was intended to refer to the
plaintiff." Id. (citing Restatement (Second) of Torts § 564 (1977)).
Section 564 of the Restatement (Second) of Torts provides, "A defamatory
communication is made concerning the person to whom its recipient correctly, or
mistakenly but reasonably, understands that it was intended to refer." Comment
b. to § 564 provides, in part, the following:
Person mistakenly but reasonably believed to be intended. If the
communication is reasonably understood by the person to whom it is made as
intended to refer to the plaintiff, it is not decisive that the defamer did
not intend to refer to him. (But see Comment f). It is not enough
however, that the defamatory matter is actually understood as intended to
refer to the plaintiff; the interpretation must be reasonable in the light
of all the circumstances. It is not necessary that the plaintiff be
designated by name; it is enough that there is such a description of or
reference to him that those who hear or read reasonably understand the
plaintiff to be the person intended.
(Emphasis added.)
¶27 Comment f. provides:
Nature of defamer's conduct. As indicated in § 580B the defamer is
subject to liability if he knew that the communication would be understood
by the recipient to refer to the plaintiff or was negligent in failing to
recognize that this might happen. If the recipient reasonably understood the
communication to be made concerning the plaintiff, it may be inferred that
the defamer was negligent in failing to realize that the communication would
be so understood.
The common law position was that if the recipient reasonably understood
the communication to be made concerning the plaintiff, the defamer was
subject to liability even though he was not at fault either because he
intended the reference to the plaintiff or because he was negligent in
failing to realize that his communication would be so understood by the
recipient. This position is now held to be in violation of the First
Amendment to the Constitution. The Supreme Court holds that there must be
intent, recklessness or negligence on the part of the defamer. (See § 580B).
It is therefore necessary for the plaintiff to prove that a reasonable
understanding on the part of the recipient that the communication referred
to the plaintiff was one that the defamer was negligent in failing to
anticipate. This is particularly important when the recipient knew of
extrinsic facts that make the communication defamatory of the plaintiff but
these facts were not known to the defamer.1
(Emphasis added).
¶28 Here, Defendants printed Plaintiffs' address as the address of a sex
offender, and they contend that publication of Plaintiffs' address was a
typographical error.2 No one maintains that a sex offender actually lives
at the address listed by the News Leader. However, a reader of the News Leader
could have understood the sex offender listing to refer to Roy Nelson, because
he was a male living at the address listed in the News Leader as housing a sex
offender. And, Plaintiffs allege that the picture of the sex offender, Donald
Crown, published in the newspaper "was distorted so that it could be mistaken
for Mr. Nelson." Similarly, a reader could have understood that Susan Ryan, as a
resident at the address listed, was sharing the residence with a sex
offender.
¶29 We conclude that Plaintiffs have shown that the communication in the
newspaper that a sex offender lived at Plaintiffs' address could reasonably be
understood by a recipient to refer to Plaintiffs, either as the sex offender
himself in the case of Nelson or as someone housing or residing with a sex
offender in the case of Ryan, and further that Defendants could reasonably be
regarded as negligent in failing to recognize that this might happen when they
published the addresses of sex offenders in the county. See Restatement
(Second) of Torts § 564, cmt. b. (1977).
¶30 The News Leader's reference to Plaintiffs' home could also reasonably be
regarded as a defamatory statement "concerning" Plaintiffs. For example, in
Michaels v. Gannett Co., 199 N.Y.S.2d 778 (N.Y. App. Div. 1960), a
newspaper article identified the plaintiff as living at his correct address but
incorrectly stated that he owed $133,239.88 in unpaid taxes. Id. at
779-80. The court stated, "A jury would have been justified in finding that the
article tended to expose the person to whom it referred to 'hatred, contempt or
aversion,' or that it tended 'to induce an evil or unsavory opinion of him in
the minds of a substantial number of the community.'" Id. at 780. The
court found that it was immaterial that the newspaper did not intend to refer to
the plaintiff or that the newspaper's publication of the plaintiff's address was
a mistake. Id. at 780.
¶31 In Fitzpatrick v. Age-Herald Publishing Company, 63 So. 980, 980
(Ala. 1913), the Supreme Court of Alabama addressed whether the following
statement in a newspaper constituted libel: "'The shooting occurred on Avenue E,
between Eleventh and Twelfth streets, in a house which bears a bad reputation
with the police.'" The plaintiff, who lived in the house identified by the
article, alleged that he was greatly humiliated by the article and that his
reputation was greatly impaired. Id. One question before the Court was
whether the statement constituted libel of the plaintiff or of the house where
he resided. Id. The Court answered this question with the following:
The house acquires whatever reputation it has from the occupants thereof;
it can make or earn none for itself; it can and does reflect only the
reputation of its occupants, or those who frequent it. We know of no way by
which a house can, of its own act, acquire a reputation. This being true,
when we speak of a certain house as being disorderly, we must necessarily be
understood as referring to the conduct of those who live in, or who
frequent, the same by and with the permission of the occupants. When,
therefore, it is said of a house, "It has a bad reputation with the police,"
we refer to the head of that house, and, in fact, we reflect upon each
member of the same. The language of the publication is, "The shooting
occurred on Avenue E, between Eleventh and Twelfth streets, in a house which
bears a bad reputation with the police." This charges that, at the present
time, the house bears a bad reputation with the police; and, under the
plaintiff's averment, it was at that moment of time, and had been for a long
while prior thereto, the place where he and his family resided. This
reflected upon the plaintiff, for he and his family must be held to be the
ones who gave to the house, and continued to give to it, that reputation,
for the house is void of life and could not make for itself a bad
reputation.
Id. at 981 (emphasis added). The Court concluded "that the publication
in question was 'of and concerning' the plaintiff, who resided in the house in
question." Id. The Court also stated:
The published words did not, it is true, charge the plaintiff, or any
member of his family, with an indictable offense; but, giving to the
publication the meaning that the words employed generally and fairly import,
it tended to subject the plaintiff, the head of the house, to public hatred,
contempt, or ridicule, and tended to reflect shame upon him, and to put him
without the pale of social intercourse. This being true, the words were
libelous per se.
Id. at 982.
¶32 Although these cases from other jurisdictions are not controlling, they
offer insight into how reference to an address can reflect negatively on the
owner or occupant of that address. We are persuaded that Plaintiffs have raised
sufficient questions of fact on which "reasonable persons might reach different
inferences or conclusions," Buck's Sporting Goods, Inc. of Tulsa v. First
National Bank & Trust Co. of Tulsa, 1994 OK 14, ¶ 11, 868 P.2d 693, as to whether the
statement was of and concerning Plaintiffs and therefore defamatory.
B. Privilege
1. Fair Comment
¶33 Defendants next assert that the publication was protected by both
statutory and common law privilege. The trial court found "[t]hat we need
matters like this published in the paper," a statement appearing to invoke the
concept of privilege afforded to published statements involving matters of
legitimate public interest.
¶34 "Fair comment is a common law defense to a defamation action. The
principle affords legal immunity for comment by any and all members of the
public and extends to virtually all matters of legitimate public
interest. Its purpose is to promote the free and open exchange of ideas."
Magnusson v. New York Times Co., 2004 OK 53, ¶ 9, 98 P.3d 1070. In Magnusson,
the Oklahoma Supreme Court said:
The common law fair comment privilege extends to fair expressions on
matters of public interest. It differs from both: 1) the common law fair
report privilege--which affords a qualified or conditional privilege to the
media when they republish defamatory material in an account of a public or
official proceeding, i.e., judicial proceedings, legislative
sessions, judicial hearings, or official news conferences; and 2) its
statutory counterpart, 12 O.S.
2001 §1443.1--which embodies a similar statutory privilege as a complete
defense to libel. Although all three concepts overlap, the scope of the
common law fair comment privilege, encompassing expressions of opinion on
all matters of public opinion, is broader than either the common law fair
report doctrine or the terms of the statute--both of which have their roots
in political speech concepts and encompass public interest reports of
official actions or proceedings.
Id. ¶ 10. The Court applied the common law defense of fair comment to
a statement representing "the actual opinion of the speaker" on a matter of
public concern. Id. ¶ 11. If a statement about an individual can be
proven true or false, it is not an opinion. Id. ¶ 13. The sex offender
information published by the News Leader here was not a statement or expression
of opinion, and cannot be reasonably construed as such, and the fair comment
privilege therefore does not apply.
2. Fair Report
¶35 As to the common law fair report privilege, the Oklahoma Supreme Court in
Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, ¶ 8, 873 P.2d 983, explained as
follows:
The elements of the common-law fair report privilege, drawn from
the seventeenth and eighteenth century English developments, are defined in
the RESTATEMENT (SECOND) OF TORTS § 611. The text of that section is:
The publication of defamatory matter concerning another in a report of an
official action or proceeding or of a meeting open to the
public that deals with a matter of public concern is privileged if the
report is accurate and complete or a fair abridgement of the occurrence
reported. [Emphasis added.]
The privilege is not conditioned upon the truth or falsity of the
reported material, the character of the defamed person, nor on the
newsworthiness of the event; rather, its applicability is determined by the
nature of the occasion at which the republished material was secured
for news coverage. The critical occasion here is the district attorney's
news conference--a legitimate activity of his office, open to the public and
held for the purpose of addressing a matter of general concern to the
community. As the privilege is qualified, its abuse and loss would
occur if the newspaper does not accurately and fairly
republish that which was gathered from a public meeting, or if the
republished material is not of general public
interest.
¶36 Although the information in the present article apparently came from law
enforcement sources, it is not clear whether this publication constitutes a
report of an official action, proceeding or meeting. As stated above in
Wright, the applicability of the fair report privilege depends on "the
nature of the occasion at which the republished material was secured for
news coverage." Id. ¶ 8. This cannot be ascertained from the record
before us and remains to be determined.
¶37 If we assume the published information is of public concern and could be
said to have resulted from judicial or other official proceedings and therefore
constitutes "a report" subject to the fair report privilege, the question of
whether the report was fair, accurate and complete remains a fact question to be
determined. Stewart v. NYT Broadcast Holdings, LLC, 2010 OK CIV APP 89, ¶ 19, 240 P.3d 722 ("Whether the reports
were substantially accurate presented a question for the jury to
determine.").
3. Title 12, Section 1443.1
¶38 Defendants also argue that the publication is protected by either the
statutory "fair report" or the "fair comment" privilege provided by 12 O.S. § 1443.1.3 The News Leader states that
the sex offender information that it published was given to it by the Logan
County Sheriff's office and the City of Guthrie Police Department. As discussed
above, the published material complained of is not an expression of opinion, and
the statutory fair comment privilege, like its common law counterpart, does not
apply. Whether the statutory fair report privilege in § 1443.1, like its common
law counterpart discussed above, applies in this instance cannot be resolved as
a matter of law and remains to be determined.
C. Defendants' Conduct
¶39 As to the element of Defendants' conduct, Plaintiffs, to establish their
claim for defamation as private persons, must also prove fault on the part of
the publisher at least amounting to negligence. In Malson v. Palmer
Broadcasting Group, 1997 OK
42, ¶ 9, 936 P.2d 940,
the Oklahoma Supreme Court reiterated "that the news media must exercise
ordinary care in reporting news stories concerning private individuals."
Ordinary care is "'that degree of care which ordinarily prudent persons engaged
in the same kind of business usually exercise under similar circumstances.'"
Id. (quoting Martin v. Griffin Television, Inc., 1976 OK 13, ¶ 23, 549 P.2d 85). A "'failure to
exercise such ordinary care would be negligence.'" Id.
¶40 It is not disputed that the News Leader made an error in the publication
of the sex offender information as it pertains to Plaintiffs. But whether the
News Leader exercised ordinary care in its publication of this information
cannot be settled as a matter of law. "[T]he best evidence of ordinary []
care is the degree of care which ordinarily prudent persons, engaged in the same
kind of business, customarily have exercised and commonly do exercise under
similar circumstances." Malson, 1997 OK 42, ¶ 10. Plaintiffs are
entitled to present evidence on this question to the trier of fact to show that
the News Leader failed to exercise ordinary care in these circumstances. The
exercise of ordinary care may be established by evidence of the custom and
practice in the print media or newspaper business. Id. "The degree of
care that an ordinary person should exercise in a given situation normally
presents an issue for the jury." Id. ¶ 12. Because facts remain in
dispute about whether ordinary care was exercised under the circumstances, we
conclude the trial court's grant of summary judgment in favor of Defendants on
Plaintiffs' defamation claim cannot be sustained.
D. Libel Per Se
¶41 There are several remaining issues raised by Plaintiffs on appeal
regarding their libel claim. Libel is defined by statute as:
a false or malicious unprivileged publication by writing, printing,
picture, or effigy or other fixed representation to the eye, which exposes
any person to public hatred, contempt, ridicule or obloquy, or which tends
to deprive him of public confidence, or to injure him in his occupation, or
any malicious publication as aforesaid, designed to blacken or vilify the
memory of one who is dead, and tending to scandalize his surviving relatives
or friends.
12 O.S.2011 § 1441. "A
publication is libelous per se (when the defamatory impact is apparent on
its face) if it 'exposes any person to public hatred, contempt, ridicule or
obloquy, or which tends to deprive him of public confidence, or to injure him in
his occupation. . . .'" Gaylord Entm't Co. v. Thompson, 1998 OK 30, ¶ 35, 958 P.2d 128 (quoting 12 O.S.1991 § 1441). "To determine
whether a publication is libelous per se, the writing must be measured by
its natural and probable effect upon the mind of the average lay reader." Id.
¶ 35.
¶42 Unlike libel per se where the publication is susceptible only to a
defamatory meaning, a "publication is deemed libelous per quod if the
words are reasonably susceptible of both a defamatory and an innocent meaning,"
meaning that extrinsic facts are required to show a defamatory meaning.
Id. ¶ 35. "Whether a writing is libelous per se presents an issue
of law for the trial court's resolution." Id. "A fact determination, if
necessary to decide whether a publication is libelous per quod, is for
the jury." Id.
¶43 The trial court here held that "as a matter of law the Defendant
newspaper getting the address wrong and then issuing a correction in the next
publication is not libel per se." Based on the nature of the publication
here and the standard to be applied in ascertaining whether it is libelous
per se, this conclusion cannot as a matter of law be upheld. One could
reasonably conclude that the impact of the publication of Plaintiffs' address as
that of a convicted sex offender is apparent on its face and susceptible of but
one opprobrious meaning, can be "measured by its natural and probable effect
upon the mind of the average lay reader," Id. ¶ 35, and could expose
Plaintiffs to public hatred or contempt. Whether it is susceptible of a
different, innocent meaning is an issue for the trial court. If otherwise found
actionable after consideration of the elements discussed above4, whether the publication of
Plaintiffs' address constitutes libel per se or libel per quod
must be addressed on remand.5
III. Punitive Damages
¶44 On the question of punitive damages, Plaintiffs stated in their response
and objection to the motion for summary judgment, "if there is no finding of
liability against the Defendant, then punitive damages will not stand as a
separate cause of action." Plaintiffs are correct that punitive damages do not
constitute a separate cause of action, but not for the reason argued--this
conclusion is not dependent on a finding of "no liability." Punitive damages,
like compensatory damages, do not stand alone as a separate cause of action;
they constitute an element of damage subject to proof in connection with
Plaintiffs' cause of action for libel.
¶45 Although punitive damages do not constitute a separate cause of action,
this does not preclude Plaintiffs from seeking their recovery subject to
appropriate supporting evidence and proper instructions. The issue of punitive
damages must be addressed if Plaintiffs present sufficient evidence to meet the
standard for their recovery, and the entry of summary judgment on this issue was
premature.
¶46 It is conceded that Plaintiffs are not public figures but private
persons. Pursuant to Martin v. Griffin Television, Inc., 1976 OK 13, ¶ 28, 549 P.2d 85, the standard of actual
malice is to be applied for the recovery of punitive damages where the defamed
party is a private person. The actual malice standard requires the defendant to
have acted with knowledge that the publication was false, or with reckless
disregard for whether it was false. 6 Id.
¶47 Because we reverse the summary judgment entered on Plaintiffs' libel
claim, the issue of punitive damages with its requisite burden of proof in
regard to a libel claim by private persons must be revisited on remand.
IV. Code of Judicial Conduct
¶48 Finally, Plaintiffs cite two provisions of the Code of Judicial Conduct
which they contend the trial court violated. Rule 2.2 of the Code of Judicial
Conduct, 5 O.S.2011, ch. 1, app. 4, provides, "A judge shall uphold and apply
the law, and shall perform all duties of judicial office fairly and
impartially." Rule 2.4 of the Code of Judicial Conduct, 5 O.S.2011, ch. 1, app.
4, provides:
(A) A judge shall not be swayed by public clamor or fear of
criticism.
(B) A judge shall not permit family, social, political, financial, or
other interests or relationships to influence the judge's judicial conduct
or judgment.
(C) A judge shall not convey or permit others to convey the impression
that any person or organization is in a position to influence the
judge.
Plaintiffs ask this Court to resolve the issue of "[w]hether the District
Judge's statement that both he and his son were Journalism Majors prior to the
initiation of the proceedings . . . was an indication or manifestation of bias
in favor of the news media" in violation of the Code of Judicial Conduct. We
decline to find that this statement alone regarding a college major indicates
bias in favor of the news media.
CONCLUSION
¶49 Although we conclude that Plaintiffs cannot assert a separate cause of
action for negligence arising from this publication, we further conclude that
material issues of fact remain that preclude the entry of judgment as a matter
law in favor of Defendants on Plaintiffs' libel claim. Accordingly, we affirm in
part and reverse in part the order of the trial court granting summary judgment
and remand the case for further proceedings on Plaintiffs' libel claim
consistent with this Opinion.
¶50 AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER
PROCEEDINGS.
BARNES, C.J., and THORNBRUGH J. (sitting by designation), concur.
