Welch v. American Publishing Co. of Kentucky

3 S.W.3d 724, 1999 Ky. LEXIS 129, 1999 WL 961449

• Court: Kentucky Supreme Court
• Decided: October 21, 1999
• Docket: 98-SC-0010-DG
• Status: Published

Opinions

LAMBERT, Justice.

An indispensable principle of free speech guaranteed by the First Amendment to the United States Constitution is “that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 271, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701 (1964). Accordingly, political speech directed toward public officials is at the pinnacle of protected speech. Since rendition of New York Times in 1964, it has been clear that the constitutional protection of political speech requires public officials who bring defamation lawsuits against critics of their official conduct to meet a higher standard of proof than ordinary citizens if they are to prevail. In this case, we have been called upon to apply this rigorous standard in our review of an adverse judgment in a defamation lawsuit brought by a defeated mayoral candidate against the publishers of a political advertisement opposing the candidate’s election.

In 1993, Troy “Frog” Welch, the two-term mayor of Middlesboro, Kentucky, sought re-election. Ben Hickman, a local businessman, was Welch’s opponent. A few days before the Tuesday, November 2, 1993 election, a full-page paid political advertisement opposing Welch’s re-election was published in The Daily News, a Mid-dlesboro newspaper owned by American Publishing Company of Kentucky. Two supporters of Hickman, Jimmy Pursifal, Jr. and Paul Douglas Hall, paid for the ad, with much of the content being culled from back issues of The Daily News. A newspaper employee, Carla Bennett, helped Pur-sifal prepare the layout. The newspaper publisher, J.T. Hurst, glanced over the ad before it was published. The ad was published twice: on Saturday, October 30, 1993 and on Monday, November 1, 1993. The newspaper had an internal policy of not publishing political ads that raised new issues within the week before an election.

The ad consisted of three distinct sections. The top section contained a checklist of nine short reasons why Welch was not qualified to be mayor. This section included the statements,. “The City is Broke Because of His Management,” “Employees Have Been Paid Almost $100,000 because of Political Firings,” and “Frog Has Squandered Over 1 ½ Million Dollars of Surplus [City] Money.” In the central and largest section were twenty-two headlines and excerpts from the accompanying articles, reprinted from previous issues of The Daily News. This section chronicled the low points of Welch’s administration and was uniformly unflattering. In this section were printed the fines, “Mayor grabs councilman Gandy by the throat,” and “KSP [Kentucky State Police] probing allegations of misconduct.” Dividing the middle and the bottom sections of the ad was a strip of words: “Political Hirings-Political Firings-Harassment-Very Questionable Practices.”

The bottom section of the ad contained a photo of Welch alongside photos of two other men. The caption above the three photos read, “The Welch Slate.” This section also contained editorial text criticizing Welch’s administration, including the following plea for votes: “Think before you vote and wonder why Frog and his cronies are working so hard to get rid of people who have stood in his way and called his hand on illegal activities. FROG WAS SUCCESSFUL IN RUNNING OFF 62 SEPARATE COUNCIL MEMBERS IN DISGUST” (emphasis in published text).

All of the aforementioned statements in the advertisement are alleged to be false and defamatory.

Welch lost the election and subsequently filed suit in the Bell Circuit Court against The Daily News, Pursifal, and Hall for defamation and false fight invasion of privacy. Welch claimed that the ad ruined his reputation in Bell County and cost him the election. The trial court granted summary judgment in favor of all defendants, holding that Welch would be unable at trial to establish that the defendants had acted with “actual malice,” the standard required for proving defamation of a public figure.

Prior to its final judgment, the trial court held a hearing, and the reasoning stated therein was incorporated into the decision. During this hearing, the trial court conducted a thorough review and analysis of many elements of defamation law as they touch upon this case. Among other considerations, the trial court viewed it as significant that the allegedly defamatory statements were made in a political ad, not in an investigative news story. The question of deciding First Amendment cases at the summary judgment stage was also addressed. The trial court considered it significant that many of the complained of statements were figurative and thus subject to varied interpretations. As an example, the trial court discussed the statement, “Mayor grabs councilman Gan-dy by the throat.” In response to this allegedly false statement, Welch maintained that he merely grabbed the councilman by the tie, not the throat. The trial court pointed out that the person on the other end of the tie might have disagreed with Welch’s interpretation of the event. In conclusion, the trial court recognized the value of freedom of the press during elections, stating perceptively that “our courts have concluded that our forefathers wanted the public to have the right to be bold and outspoken, even to the extent of poor taste.”

In a unanimous decision, the Court of Appeals affirmed. In its decision, the court held that the newspaper’s failure to investigate the veracity of the ad coupled with its failure to abide by the October 25 deadline could not support a conclusion that the newspaper acted with actual malice. The court also addressed Welch’s claim that the trial court failed to consider his false light invasion of privacy claim. The court held that since proof of actual malice was also necessary to prevail upon the false light claim, that it likewise must fail.

Pursuant to CR 76.20, this Court granted discretionary review to consider Welch’s contention that the trial court and the Court of Appeals committed reversible error. Welch supports this claim by first arguing that there were genuine issues of material fact as to whether the defendants acted with actual malice, and that summary judgment should not have been granted. See CR 56. The actual malice standard for defamation lawsuits brought by public officials against critics of their official conduct was announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In New York Times, the United States Supreme Court recognized that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.’ “ 376 U.S. at 271-272, 84 S.Ct. at 721-722, 11 L.Ed.2d at 701-702 (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418 (1963)). In light of these considerations, the court held that a defamatory statement about a public figure was actionable only if it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 280, 84 S.Ct. at 726, 11 L.Ed.2d at 706; Warford v. Lexington Herald-Leader Co., Ky., 789 S.W.2d 758, 771 (1990); Sparks v. Boone, Ky.App., 560 S.W.2d 236, 238 (1977).

Actual malice entails more than mere negligence. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968). It requires that the publisher of the defamatory falsehood have “entertained serious doubts” as to the truth of the published matter. Warford at 771 (quoting Harte-Hanks, 491 U.S. 657, 667, 109 S.Ct. 2678, 2685, 105 L.Ed.2d 562, 576 (1989)). This higher proof requirement for public figures is based upon the premise that unfettered political discussion is a necessary and fundamental principle of our constitutional system of government, assuring that political decisions will be made through persuasion rather than power. New York Times, 376 U.S. at 269-270, 84 S.Ct. at 72-721, 11 . The standard of proof is similarly high, as actual malice must be shown by clear and convincing evidence. Warford at 771; New York Times, 376 U.S. at 285-286, 84 S.Ct. at 728-729, 11 L.Ed.2d at 709-710.

Citing Ball v. E.W. Scripps Co., Ky., 801 S.W.2d 684, 688 (1990), Welch correctly maintains that actual malice can be inferred from circumstantial evidence, and he lists numerous factors in the record from which he claims actual malice can be inferred in this case: 1) the newspaper failed to investigate the facts before it published the ad; 2) although the newspaper publisher normally considers whether ads to be published may contain false statements, he was unconcerned about whether the ad in question contained false statements, 3) the publisher was sure that he looked at the ad before it was published; 4) the newspaper employee who helped prepare the ad did not investigate its accuracy, 5) the publisher allowed the statement, “disregarding policy, mayor upholds firings,” to be printed even though the firing had been upheld in a federal civil suit that the publisher knew about, 6) the newspaper ran the ad in violation of its own policy of not accepting ads raising new political issues beyond an October 25 deadline, 7) the newspaper — which was the only newspaper in town and had covered city council meetings for years — must have known that the published statement, “Welch as mayor was successful in running off 62 council members in disgust” was false because there could not have been 62 members of a 12-member council in and out of office during Welch’s 7-year term as mayor.

Welch contends that the Court of Appeals erred because it based its conclusion on a consideration of only two of the aforementioned factors, stating in its opinion, ‘We believe that the newspaper’s mere failure to investigate the veracity of the political ads coupled with its failure to abide by the October 25 deadline cannot, alone, support a conclusion that the newspaper published the ads with knowledge of their falsity or reckless disregard thereof.” Slip. Op. p. 3-4. Although Welch has compiled a list of more factors than the two explicitly relied upon by the Court of Appeals, it is clear that this list is embraced by the two factors addressed by the Court of Appeals. Likewise, Welch’s other complaints all turn upon an alleged failure to accurately investigate the facts asserted. Thus, we agree with the Court of Appeals’ implicit characterization of the evidence of actual malice as twofold, entailing a failure to investigate and an alleged violation of an internal publishing deadline. We shall next consider whether these two factors create a genuine issue of material fact as to actual malice sufficient to survive the summary judgment motion.

It was established in New York Times that a newspaper’s failure to investigate the accuracy of statements in a political ad prior to publication will not support a finding of actual malice. 376 U.S. at 287, 84 S.Ct. at 730, 11 L.Ed.2d at 710. The United States Supreme Court reached this conclusion despite the fact that material from the newspaper’s own archives would have contradicted several statements in the ad at issue there. The United States Supreme Court speculated that the newspaper employees’ failure to investigate the ad’s accuracy might support a finding of negligence, but it was “constitutionally insufficient to show the recklessness that is required for a finding of actual malice.” Id. at 288, 84 S.Ct. at 730, 11 L.Ed.2d at 711.

Welch argues, however, that Warford v. Lexington Herald-Leader, Ky., 789 S.W.2d 758, 772 (1990), supports the proposition that the failure to investigate an ad’s veracity prior to publication alone is probative of actual malice. Warford involved an investigative news story that alleged that Warford, an assistant coach at the University of Pittsburgh, offered a high school basketball player money in an effort to induce him to attend the University of Pittsburgh. 789 S.W.2d at 760. Although the high school recruit later retracted the allegation, the retraction was not mentioned when the story was reprinted. Id. Moreover, despite knowledge of other sources that might have verified or contradicted the recruit’s initial allegations, the reporter failed to contact the other sources. Id. at 772. This Court held that the failure to investigate before publishing was not alone sufficient to establish reckless disregard, but could be probative of whether there was actual malice when viewed cumulatively with other evidence. Id. However, Warford is distinguishable from the case at bar as well as from New York Times because it involved an investigative news story rather than a political ad. This distinction is far from insignificant, because an investigative news story is the creation of newspaper employees, and it bears the newspaper’s imprimatur. Thus, we view New York Times rather than Warford as decisive in deciding the instant case.

The newspaper’s alleged failure to abide by its October 25 deadline likewise does not support a conclusion that the newspaper had actual knowledge of the ad’s falsity or acted with reckless disregard thereof. The newspaper’s policy was to publish no political ads that raised new issues after the prescribed date. The evidence of record, however, indicates that the newspaper did not violate this policy. The publisher, J.T. Hurst, stated in his deposition that there were no new issues in the ad. In another deposition, the newspaper employee who helped prepare the ad’s layout, Carla Bennett, stated that “old headlines were not new issues.”

It is further contended by Welch that the trial court erroneously held that the media have special protection from libel actions, effectively demanding a higher standard of proof to survive the summary judgment motion since a newspaper defendant was involved. He bases his argument on comments made at the hearing by the trial court:

[T]his is not just your normal summary judgment case ... there are Constitutional hues and colors placed upon the Court, when it is dealing with this type of case, because of the potential impact that it could have upon the First Amendment Rights of the press.

This does not represent imposition of a higher standard of proof upon Welch. Moreover, it is a correct assessment of the importance of summary judgment in litigation involving First Amendment issues. Courts should take precautions to avoid the chilling effect on free speech that defamation lawsuits create. As stated in Maressa v. New Jersey Monthly, 89 N.J. 176, 445 A.2d 376, 387 (1982):

Courts should resolve free speech litigation more expeditiously whenever possible. The perpetuation of meritless actions, with their attendant costs, chills the exercise of press freedom. To avoid this, trial courts should not hesitate to use summary judgment procedures where appropriate to bring such actions to a speedy end.

See also New York Times, 376 U.S. at 279, 84 S.Ct. at 725, 11 L.Ed.2d at 706 (“A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable ‘self-censorship’ ”).

Welch contends that the Court of Appeals erroneously applied the summary judgment standard. Since rendition of our decision in Steelvest v. Scansteel, Ky., 807 S.W.2d 476 (1991), on the question of the proper standard for deciding summary judgment motions, much attention has been given to the use of the word “impossible.” Summary judgment is improper unless it would be “impossible for the respondent to produce evidence at trial warranting a judgment in his favor and against the movant.” Id. at 483. Steelvest did not repeal CR 56. See CR 56.03 (summary judgment shall be granted if “there is no genuine issue as to any material fact”). It merely stated forcefully that trial judges are to refrain from weighing evidence at the summary judgment stage; that they are to review the record after discovery has been completed to determine whether the trier of fact could find a verdict for the non-moving party. Steelvest at 482-483. The inquiry should be whether, from the evidence of record, facts exist which would make it possible for the non-moving party to prevail. In the analysis, the focus should be on what is of record rather than what might be presented at trial.

The record in this case is devoid of any hint that the defendants entertained any doubts, much less serious doubts, about the truth of the statements published in the ad. In fact, the record suggests entirely the opposite conclusion. Apparently there were conflicts and disagreements between the mayor and city council during Welch’s mayoral administration, and this was well-known and frequently reported in The Daily News. In such an environment, minor mistakes, exaggerations, or mixed assertions of fact and opinion which may have been in the ad could not form the basis for a finding of actual malice.

Since this case has been resolved on the basis of the plaintiffs inability to prove the required state of mind, it is unnecessary to determine which, if any, of the allegedly false statements were indeed false. It should be noted that although many of the allegedly defamatory statements that Welch complains of are disparaging, they are not so definite or precise as to be branded as false. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20, 110 S.Ct. 2695, 2705-2706, 111 L.Ed.2d 1, 18-19 (1990) (only provable false assertions of fact can provide the basis for a defamation action). Many of the phrases are figurative, and they employ rhetorical exaggeration to accomplish their intended purpose, which was to cast a political candidate in a negative light. For example, “The City is Broke Because of His Management” and “Frog Has Squandered 1 ½ Million Dollars of Surplus Money” both contain language that defies precise definition. “Broke” has no specific meaning in accounting terms, although the fact that city bills were months overdue would tend to support use of such a term. “Squandered” connotes waste, but whether money was wasted or spent for desirable city purposes is a matter of opinion. This type of generalized rhetoric bandied about in a political campaign is not the language upon which a defamation lawsuit should be based, but instead is political opinion solidly protected by the First Amendment. See e.g., Greenbelt Cooperative Pub. Ass’n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1542, 26 L.Ed.2d 6, 15 (1970) (‘blackmail’ used to describe an extremely unreasonable position was held to be rhetorical hyperbole, not an accusation of committing the crime of blackmail); Old Dominion Branch No. 496, National Ass’n of Letter Camers v. Austin, 418 U.S. 264, 285, 94 S.Ct. 2770, 2782, 41 L.Ed.2d 745, 762 (1974) (‘scab’ and ‘traitor’ were part of rhetorical hyperbole that must be tolerated in union organizing campaigns).

This opinion should not be interpreted as condoning political advertising which appears to have no purpose other than to sully the reputation of a candidate. Neither should this opinion be seen as a shield for those who remain deliberately ignorant when the circumstances call for inquiry into the veracity of the content of an ad. We simply say that the evidence of record here, when applied to the prevailing legal principles, was insufficient to create a issue for a jury to consider.

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

JOHNSTONE, STUMBO, and WINTERSHEIMER, JJ., concur. KELLER, J., files a separate opinion concurring in part and dissenting in part. COOPER, J., dissents by separate opinion in which GRAVES, J., joins.