John L. Brewer v. Memphis Publishing Company, Inc., Anita W. Brewer v. Memphis Publishing Company, Inc.

lishing in United District Company States GODBOLD, POLITZ, and Before HILL Mississip- Court for Southern District Judges. Circuit 6, 1973, September pi and on June based on di- respectively. Jurisdiction was HILL, Judge: Circuit versity2 and the suits were consolidated. Memphis, The Appeal Commercial the Brew- jury 1974the first found for In following Tennessee item in its included $400,000. plaintiff “People” 1972: and awarded each September column ers notification, article, newspaper requires jury Mississippi if law and the finds that the such correction, published days prior apology bringing least ten civil action a “full fair and notice, op days publication, newspaper retraction” for portunity within ten of such afford a plaintiff prior “only to make to suit. then the damages.” shall recover actual corrections appears provides The if it Ann. 95-1-5. § statute further Miss.Code good trial . at that the article faith, falsity Mississippi to an honest 2. Plaintiffs that its was due residents when pub- facts, the article was filed suit and when mistake of were reasonable there they alleged complaints grounds their believing lished. statements judge The found figure district the amount of the past can private retreat granted unconscionable verdicts a new status and obtain the benefit of the lesser damages trial on alone. jury The second standard proof required for damages $250,000 awarded Anita Brewer and John injury from libel. $150,000; they Brewer accepted a remitti- Co., Brewer v. Memphis Inc., Pub. 538 F.2d $100,000 $50,000, tur to respectively. (5th 1976). Cir. appealed defendant cross- The third also trial resulted in verdicts appealed. This court reversed remand- plaintiffs, $150,000 for the ed, holding that to Anita finding liability Brewer trial, $60,000 the first held before the decision in to John Brewer. appeal On Welch,Inc., Gertz v. Robert (1) defendant asserts: under law 41 L.Ed.2d 789 was in- (a) the article did defame either plain- fected by question several errors: tiff; (b) if defamatory, the article was at were public figures or most per libel quod requiring plaintiffs to private persons directly was never ad- plead prove special and damages par- dressed; (2) jury the was instructed that ticularly did; (c) neither liability and might defendant be liable without fault and permitted was simple negligence for while plaintiffs might that recover without show- state requires proof law of actual malice ing any injury because the article was libe- liability; (2) libel and the first amendment per lous se presumes and because the law (a) requires the trial court to find that both damages publication that flow from written plaintiffs public figures; (b) dic- of such a defamation. In addition to re- tates finding the evidence did not manding for proper damage fault and in- prove “actual convincing malice” with clari- structions, the court stated: ty.3 is, The initial question of Ultimately our holding in this case course, whether Anita Wood Brewer or upon based federal constitutional issues. Brewer, both, John are public figures We reach those constitutional issues after within the context of . Supreme first attempting to decide whether canwe important Court cases. An question rele- dispose of the appeal vant this under state We open by to issue left law. pres- ently decided cases concerns the extent should first seek such a to resolution.4 Here person which a who has required predict been a we are how the Missis- recover; defendant, corporation, permitted (2) foreign princi- the awards here had its pal place impermissible constitutionally of but business Tennessee are are because “doing Mississippi supported by competent business” in where service of not evidence process upon agent. and, instead, of could be its injury presumed obtained actual amount personal any question jur- Defendant waived isdiction of penalty damages. Because our resolution of existed, may have see Brecken- presented, of we need other issues here Time, Inc., ridge v. Miss. So.2d arguments. do not address merits of these Co., Memphis and Lee v. Pub. (1943). Miss. So.2d 351 In its answer it case, Supreme Court 4. In recent libel purposes of admitted these suits that it “dispositive principle issues reiterated doing process Mississippi, business in statutory local law are be treated of there, agent could served its and that be constitutional, reaching in- issues” and before terpreted jurisdiction was vested in the district court. opinion a footnote Court Appellant appeared in that court defend Appeals Columbia that of for the District of these suits. interpretation on” an “cast substantial doubt dispositive Appellant argues as that would have been also article’s local law Ap- damage Court of content did not reputation apparent, of the view of the make substantial an indication peals interpretation was inaccurate that its did not that the contents that, “therefore, reasonably prudent appeal could not be warn a editor of its defama- tory potential Supreme reaching and that Court in the constitutional decided without question.” Assn., Digest dicta has indicated that such cases even a v. Wolston Reader’s individual, e., private Inc., n.2, i. one who neither a figure, might n.2, (1979). defendant nor be 61 L.Ed.2d450 Because official Supreme quite differently decide have Court Supreme Court would decided sippi predictions we make here. from the predictions are that as Our issues. several Mississippi Supreme issue each state State Law appellees, conclude that would After careful consideration of defend- While this had valid claims. each of them conclude, arguments, ant’s we not without necessary is a Mississippi difficulty,5 law excursion into some that both would be permitted to recover some amount6 in reaching the constitutional to our prelude damages from the defendant under Missis- issues, it not we find determinative sippi libel law.7 parties. Of liabilities of the rights and course, development of the further Appellant argues article did not defame, plaintiff. its the state of either of libel in Brewer law Anita favor, that, pretermit points constitu- if correct would ant’s our resolution of state law raises obviate the issues; court to reach the law issues would not need this tional the state questions, “independently address them first. oth- we the cause constitutional determine er questions [here involved.” constitutional] recognize that where local law would We might dispositive, case, law “dispos The state issues but recovery permit is not in a libel impose view, might upon Mis- Supreme not. shall not In our itive.” Court, area, sissippi acceptance our g., first pronouncements e. Wol in this Court’s certify, ston, welcome invitation to such an supra; Commission its Dillard Industrial “iffy” Virginia, issue. (1974); Alma Motor Co. L.Ed.2d 129, 136, Co., Axle Tinken-Detroit 6. Because of our resolution the first amend- (1946); case, Siler 91 L.Ed. 128 we ment issues need not decide 175, 193, Co.,213 U.S. Nashville R. Louisville& whether the awards are excessive. (1909), require S.Ct. L.Ed. argues that Defendant also the verdict and potentially take a look at us at least to dispositive broad judge award erred in stand because the trial law issues to determine state evidence, gave excluding in- certain rule constitutional issues. whether we must Judge part that structions erred in were erroneous in and points up special Godbold’s concurrence overruling its motion for a mistrial futility, peril to state’s some of and during judge’s based on the comments trial. development jurisprudence, in its our excur of we amendment Because find that first The law issues. sion into unresolved state rights permit for in this would not a verdict not, parties it of are and liabilities case, grounds to examine we decline these resolution, out, by largely by turns prediction, affected our favor, which, if in defendant’s could resolved questions of the of state law. Much pointless in a result fourth trial. necessary what find it to in this of we write deciding opinion may be likened unto sitting Mississippi in was 7. The district court not a runner third it is base touched when Mississippi required apply in to choice-of-law plate. clear he was out home that thrown a the event of conflict of laws. Defendant’s principal place of was and business Tennessee arises, difficulty part, 5. This from the fact faulty allegedly that ac- is there defendant’s Mississippi we no where that could locate case complaints plaintiffs occurred. In their tivities did not by a to defamed erroneous claimed be particularize publication the location of reports was or cuckolded not that he divorced by (the place where the statement was received any reported re-evaluating com state decisions hence, and, person injury a where the to third light damage and mon law defamation of the occurred). reputation Anita’s consist- evidence Inc., Welch, fault mandates of Gertz v. Robert 418 witness, testimony five all Tennes- ed of of 41 L.Ed.2d 789 residents; they their own see testified about (1974), August progeny. its On and to the and reactions article their observations argument place, in this case took well after oral effect on in Tennessee. Anita of its others Supreme Mississippi adopted of the rule States Court telephone testified that she received several allowing Supreme the United article, including inquiring one calls about appeals courts of and federal circuit Mississippi heard about from a resident who certify questions propositions of law and state in Tennessee. Both the article a relative Mississippi. Supreme Supreme Court of and John that Anita became rule, Anita and testified certi Court Rule 46. This fication limits article; upset this occurred over the “questions remained in propositions of law of Mississippi. co- testified that several John cause this state which are determinative said (in Mississippi) asked him about independently questions workers involved other this and embarrassed appears article and humiliated in said allow case” and thus telephone he questions that received him. He also stated calls from as certification of the state law here which could raised away only, Two Ar- far as Arkansas. resolved in defend- if complaint article thereby injured claimed in that this and they that suffered se- “shame, intended that she vere convey embarrassment, the defendant humiliation, in a mental and “openly anguish involved rela- emotional was divorced distress strain” Brew- because article. tionship Essentially, a married man.” John then, plaintiffs claim the article defamed er that the defendant intended to claimed stating them both by they that were divorc- he from his convey that was divorced ed, by conveying defamed John he openly that his wife was present wife and cuckolded, been and defamed Anita con- relationship married involved in veying that she was involved in an immoral complaints asserted in their man. Both illegal relationship. so understood the words of the readers reputations article their Mississippi Under common law dence, Tennessee, kansas residents testified that article in that state and read the instead of the law of publisher’s operation. described their reac- (Appellant situs of the Jonesboro, people tions those of in the Mississippi responded raised.) that this had never been area. John Arkansas who lived is a native paper’s managing The editor testified total during several other states Mississippi September circulation in professional football career a time and for 49,000 approximately circu- that total thereafter. Anita is a resided there until her Tennessee native day approxi- lation in the mid-South that John; marriage while 220,000. Record, mately IV, vol. at 919. married she lived in several states mov- before disposi We are mindful that we are to treat ing Mississippi. reaching tive issues law of local before consti Craft, (1968), Mitchell 211 So.2d the referred to the acutely tutional We are issues. also aware Mississippi Court of this case fact that is before this court (Second) Restatement of Conftict of Laws and following trials, the second time three Leflar, Choice-Influencing Considerations propriety raising this court’s sua issue Law, Conflicts N.Y.U.L.Rev.267 sponte (and deciding remanding either it or deciding help question. choice-of-law proceedings might yet further result in presents analyti- latter work the more modern appeal fourth trial and third if law Tennessee approach and cal (Second). criticizes the Restatement conflicted with for law and if the 150(a) Restatement that the § states applied) crystal mer be should less than plaintiff’s usually state of the domicile will Capital clear. In Pierce v. Cities Communica significant relationship with the state most tions, Inc., 495, (3d 1978), F.2d Cir. cert. and, hence, parties, to the occurrence and the the state whose law denied, L.Ed.2d applied should be party question neither had addressed the conflict, defamatory event if statement applicable of whether state law defamation parties to third in than one more gave rise cause of action to a for the broadcast including plaintiffs state the state of domicile. question. argument agreed in At oral both that hand, emphasizes on Section the other Pennsylvania governed; according the law of publication party state where to a oc- third court, position to the that (and domicile) plaintiffs curred not the state of apparently rests on the fact that the business publication when such is one confined to state. activities reporter the television of station and Rose, Future, In Hastings Interstate Libel for the 30 charged based defamation are (1979), argues L.J. 1515 the author and, result, Philadelphia jurisdic- in as a that that the series of first cases amendment libel abiding tion has an interest in the lawsuit. starting Sullivan, with New York Times Co. v. any suggestion of there In the absence that L.Ed.2d is, a true conflict exists here of law—that (1964), have focused on the defendant’s fault Pennsylvania law of differs from that plaintiffs reputation, rather and thus than strong having another interested forum a focusing place call for on the of the defendant’s competing arguably in stake the case out- place publication actions than rather on the Pennsylvania weighed is interest —there no party. to a third diverge posi- parties’ occasion to from the party any raised of the Neither this issue at tion. appellate in trials district court this case or in and the briefs (footnote omitted). apparently Id. at 501-02 did not consider the Here, similarly, suggestion argument, there has been no issue. At oral a member of this Mississippi appellant thought and law would con- any that Tennessee court asked case; any given “single publi- identification been either to flict on issue whether the course, is, step applied (ap- the first a such a conflict cation rule” pellant to this fact situation Further, analysis. no) of our application because answered choice-of-law or to the issues, law, Mississippi such the first amendment when the record all of resolution of showed copies newspaper parties’ about fourteen distributed in the of the a use of the courts’ and resources county necessary. resi- is not this late date Id. language which at 95. printed So.2d Both written or Natchez supra and Henry, were decided after Ma- reputation, injure one’s tends adopts nasco and neither the statute’s limi- hatred, con- him to thereby expose particular tation to sorts of defamation. ridicule, society, degrade him tempt or or lower him esteem lessen him While the cite parties no community is involving person in the confidence case statements that a is cuckold, divorced or is a and we have per se. found actionable none, appear such statements to fit within 34, 158 Collins, So.2d 28 253 Miss. Henry v. defamation, e., the state’s i. definition grounds, 380 U.S. (1963), on other rev’d injure repu such may statements well one’s (1965); Natchez 992, 13 L.Ed.2d thereby expose tation him Dunigan, 221 Miss. Pub. Co. v. Times ridicule, contempt degrade or in socie him Breland, Conroy v. (1954), So.2d esteem, ty, him or lessen while not (1939). We discuss 189 So. Miss. necessarily reflecting integrity on his se of this definition below per aspect character. also moral note other quotation view remainder of have courts sustained defamation actions Mississippi’s definition of libel. comprising on based statements about marital discord. urges that defamation Missis Appellant See, Pearson, g., 207 F.2d 15 Gariepy e. integrity is to attacks on sippi limited (D.C.Cir.1953), Patterson, Thackrey v. reputation), (plus business moral character (D.C.Cir.1946). generally F.2d 614 See An citing passage to that effect in Manasco v. a not., (1934). 9 A.L.R. 1128 Walley, 216 Miss. 63 So.2d Appellant asserts John Brewer person that a argues that a statement may not base his defamation claim what not does reflect is divorced or is cuckolded It is was said about Anita Brewer. said integrity and thus is or moral character is general principle of libel law that Manasco, however, did defamatory. not defamed, person person not involve common law defamation but refers, a cause of whom the article has print requiring newspaper to statute action; his or not.8 It is her relatives do reply of a office when candidate true, however, also that certain defamations story it had reflected printed earlier person of one also defame another who honesty, integrity, on the candidate’s In our view this is such a be named.9 According moral character. Su defamation. John Brewer did not assert his legislature preme Mississippi, the Court of instead, but, claim claimed that wife’s intended limit statute him. statement about her also defamed to cases in which editorial comment escape Clearly, defendant could defamatory, de- story or the news liability printing such statement manner, famatory particular in a defamatory including the additional state- story say, where the editorial news divorced; that John Brewer was such ment honesty integrity or upon reflects the only facially law be rule of would candidate, (em- permit newspa- moral would inequitable character but also per liability its for one phasis added) potential to limit Co., presence g., F.Supp. 325 A calls 8. E. v. Retail Credit 2. B a cuckold Wilson (S.D.Miss.1971); A has B’s 463 Restatement C. defamed wife. (Second) (e); illegitimate Torts 564 & Comment 53 A states B that C § 3. to is an C.J.S. Slander and 145. A §§11 Libel child. has defamed C’s mother. person in The fact that the unnamed both ex- Wilson, recognized the court through amples imputation is defamed point Mississippi that tain; law on was uncer- unchastity, catego- per slander se directly traditional no case addressed the issue. ry, present subsequent John asserts that the Mississippi while Brewer have located no cases cuckold, calling by treating him him a article defamed this issue. affect determination of whether does not Restatement, (e) 9. Comment to § 564 of is a the latter defamation. illustrations; supra, following includes the

1245 adding damages. that a by statement a statement Assuming that plaintiffs did not positively plead prove even it person is divorced when special damages, we must knew that was untrue. determine Mississippi whether law would bar recovery. Appellant vigorously asserts complaint, In her Anita Brewer that the article question is at best libel conveyed that she claimed that the article per quod; appellee responds by arguing at relationship in a with “openly involved length per that it is libel se. Appellant urges she that appeal a married man.” On cites Holliday Maryland Casualty Co., v. meant “unmistakably the article that an Miss. So. 764 and Barton v. Presley affair Elvis and Anita between Barnett, 226 F.Supp. (N.D.Miss.1964), Vegas at the Las Hil Brewer occurred proposition Mississippi law dis- Appellee Ap ton Hotel.” Brief for tinguishes between these types two of libel. argues pellant that the article described an Barton Holliday relies on as the sole source proper” innocent and “entirely reunion of Mississippi proposition. law for such a Appellant Brief two old friends. at 20. Holliday may interpretation, bear such an law, Mississippi the trial Under court must years but three Holliday, after it ruled in initially language determine whether is ac Mississippi clearly stat- tionable, “ambiguous, and if is language ed that all libel per is actionable se: import, susceptible of doubtful two may It generally be stated interpretations, actionability more its must printed written or language which tends ordinarily be jury decided under injure to reputation, one’s and thereby appropriate instructions from the court.” expose hatred, him public contempt, or Posey, Cameron Bros. v. 237 Miss. ridicule, degrade society, him in lessen (1959). is, the So.2d 138 That court must esteem, him public or lower him in the language decide whether the is capable of community, confidence of the is actiona- the defamatory meaning asserted ble per . se so, plaintiff; if decides jury that, Wrought Boltz, Range readers Iron Co. v. understood article mean Miss. Bearing (1920). Subsequent id. in mind that a statement So. 354 cases defamatory Mississippi al have view under law reaffirmed the stated in Boltz. though Rankin, the integrity Liberty it does not attack or Heralds of v. 130 Miss. plaintiff, (1922); Hodges moral character we find So. Cunningham, (1931); Conroy susceptible this article was a defam 160 Miss. So. Breland, atory meaning. Whether or not it indicated 185 Miss. 189 So. 814 having (also citing quoting Brewer was an affair but Anita Restatement argues, (Second) with a man married as she of Torts which states: § susceptible interpretation to the Special Liability Without Proof of Harm- encounter a married man was romant Libel

ic.10 falsely One publishes who matter defam- atory of another in such manner as Appellant Mississippi asserts subject publication make a libel distinguishes per quod defamation law libel although special no liability other per requires from libel se publication; harm results plead special damages par ticularity presum Fidelity in the former case while States Morehead United & Guar- ing damages According Co., (1939); anty in the latter. Miss. So. appellant, special Danigan, 221 under law Natchez Times Pub. Co. v. (1954); damages pecuni material and 72 681 Cameron include Miss. So.2d ary 432, damages, Posey, 115 138 injury, not emotional and Bros. v. 237 Miss. So.2d plaintiffs pled proved special (slander case). neither nor case, Garnett, in of the the statement Interstate v. 154 Miss. the circumstances (1929), orally calling imputed unchastity. So. 373 the court held se; per a woman a “bitch” constituted slander statements, compensation injury. for actual to be actiona-

(Defamatory direct, as ble, charged injury,” to be in a need not define “actual trial do not have open framing manner. Indirect im- experience have wide positive courts may and insinuations suffice putations in tort jury instructions ac- appropriate . . A distinction seems to be made actual say injury tions. Suffice it to imputations and written between oral out-of-pocket not limited to loss. In- is frequently broadly It is stated . . deed, customary types of actual the more words, spoken, are defamatory when by defamatory falsehood harm inflicted per se unless not actionable ordinarily impairment reputation include crime, written or but that they impute community, personal standing hu- when are actionable printed words miliation, anguish and mental and suffer- ridicule, disgrace, person to subject the course, ing. juries must be limited Of contempt in the estimation odium or instructions, and all appropriate awards pub- acquaintances or the friends and by competent supported must be evidence lic, concerning injury, although there 9); AmJur., Libel and Slander quoting § assigns need be no evidence which Collins, 253 Miss. So.2d Henry v. the injury. actual dollar value to (1963), grounds, rev’d on other court in this case In its instructions the trial (1965). Al- 13 L.Ed.2d and the followed the mandates of Gertz Court uses though in some cases the prior opinion of this court. We find that se,” so to it does not do phrase per “libel competent concerning injury to evidence but, per quod distinguish that from libel humiliation, reputation personal mental instead, stating that libel is way anguish, suffering supported an award se, damages pre- are per actionable damages in this case.11 plead need not plaintiff sumed and the Defendant asserts that before Gertz if damages particularity prove special permit recovery Mississippi law would a libel. the statements constitute fact defendant acted defamation if the an article is libel question The of whether malice, presumed though malice we ad- per question se is to the identical argues that Missis libel cases. Defendant above, is defam- dressed whether the article ruling sippi, in Gertz that responding atory. unconstitutional, would presumed fault in the earlier As this court noted choose to retain the malice standard case, Memphis appeal of Brewer v. this malice; the require plaintiff prove (5th Co., 702-03 Publishing F.2d its fault standard to change state would not Welch, Inc., 1976), Cir. v. Robert Gertz negligence. jury Here the was instructed 41 L.Ed.2d 789 which, according negligence on a standard states (1974), held that Court defendant, law. contrary to state recovery presumed dam permit appear shows defendant’s courts to have followed ages unless defamation, disregard falsity general or reckless common law of knowledge of infra, find, plain (We stating gist is the of an action for the truth. that malice showing.) slander, see, e.g., Tipps made such a Tool Co. tiffs have not for libel Holifield, the constitutional elaborated 218 Miss. 67 So.2d in Gertz damages law of overlay presumed on the state where but that malice se, see, per e.g., defamation actions: the words are actionable Hunt, Travis v. 224 Miss. So.2d necessary to restrict defamation It is this court (1955). prior panel knowledge of As plaintiffs do not who held, allow- states from disregard prohibits for the truth Gertz reckless falsity or supported awards in description, supra whether the evidence 11. See note case, supra testimony note 5. and other witnesses. declined, expressly to decide We have

1247 fault, and, liability “presum- so, without ing appeared if whether the evidence Brewer, supra fault. ing” 702. The convincing clarity showed with either that overwhelming majority of state re- the courts defendant acted with reckless disregard Gertz have to this of sponding mandate of the article was false or not or negligence the adopted liability. as rule of that the high defendant had a degree of Memphis Nichols, Co. Pub. See probable 569 of its falsity. awareness Respond- (Tenn.1978), ing special and cases cited to interrogatories S.W.2d the jury found to that Note, State Reactions plaintiff therein neither figure was a on Welch, Inc., v. Robert Gertz 29 Vand.L.Rev. that date and that clear and convincing (1976), proof and cases cited We therein. showed that defendant reject appellant’s following contention that knowing article either it to be false or Gertz Mississippi require plaintiff knowledge would a with probable of its falsity. malice; libel agree in a action to we It was for judge, the trial appellee Mississippi adopt that would jury, to determine whether the evidence negligence standard.12 plaintiff showed that either was a figure.13 After a review of the law and the Constitutional Law record, we find for the reasons discussed judge below, The trial submitted to the jury undisputed portions of the evi plaintiff, both, issues whether either or required judge dence the trial to find both public figure was a the time the article Anita public figures and John Brewer for 13. Defendant tion of the constitutional aor quent answers to the tort much, physical injury rule into libel for mental rule physical injury only for malicious or intentional damages on emotional permitted damages pain. Such a remand would enable us to avoid gence sissippi torts. form of an be age no nesses, sentially holding ruling on the constitutional issues in the case (1957). quasi-public figure under privileged crat “fair comment” is limited to criticism in the Appellant required required) reputation injury. Noting future Publishing Co., law purported in the event that another jury. unlikelihood Mississippi interest. This conditional If if also this issue see note plaintiffs’ courts This article because the we were for presumed any, (in jury’s opinion. The district as a reject appellant’s argument also which case objected negligence damages, remand would and thus to be allows verdict would news that while special interrogatories law argues this reputations supra, 230 Miss. malice to jury facts, Edmonds v. Delta Demo- then clearly agree this mental report recover award a matter of contrary Mississippi judge, proof absent issues, submitting pain only, did not testified about yet import after article is jury’s substituting given made statements jury about a that several wit- a fourth trial damages was for mental and the conse- of malice would opinions. be, mental distress law. Gertz the we decline to proof indicate appellant, this privilege verdict based were to our resolu- trial qualifiedly we would legitimate this issue So.2d tort absent stated solely negli- court in its dam- was, how Mis- find law for es- jury that he mit this Cf. minations opinion punish course will both lessen the nize, however, marked not the cases cited therein. In treated this an quired ed. L.Ed.2d 597 Inc., status. clined to decide whether in duty Brewer, supra Clearly Times, judge, generally instance as is show under Defendant In an earlier appellate Speiser 1964), will 580 F.2d Harper 1332, 1341, unpopular jury. interpreted respondent ais question in the first resolve the proper use the cloak of a Restatement trial review of same considerations U.S. at it is for question public figure; case with court the record & Rosanova v. determine whether the that the Randall, entitled to case, judge James, instructions for ideas 2 L.Ed.2d 861-62 liability to be a the trial jury appeal as one to determine whether the constitutional statement majority Rosenblatt panel Torts questions Torts, requiring determination. speakers, Playboy Enterprises, have (5th all 669, 671, 677, general verdict to of this case that for the possibility judge ‘public 1460; § 5.29 of this court de- as cases it was panel § 619. Such Cir. apply damage of courts have at 728. jury, 513, 525, findings him to sub- and assure New York 1978), p. 823 did Court re- court and decisions. official’ Baer, privilege to deter not the panel’s official proofs recog- issues law, first (3d re and that In Anita of this suit14 defend- Wood married Brewer John purposes and, exception possibly with the one tele- knowledge falsity or reckless disre- ant’s newspaper shortly vision and one interview supported by clear truth gard for the thereafter, did not seek media attention convincing evidence. professional continue as a entertainer from showed that Ani- testimony Exhibits and filing that time to the of this suit. was, and sometimes Brewer at various ta relationship with Pres- We note that her times, a known entertainer overlapping well ley entertain- during occurred her active areas), Memphis (in Jackson and locally publications after her ment career mid-South), and national- (in the regionally past relationship marriage referred to her national fame attained ly. She also with him. There is some conflict in the Presley. Elvis relationship with through her arranged ever evidence as to whether she won early to mid 1950’s Anita In the Record, Presley, photographed with Vol. a beauty contests and worked as talent and I, 190; testified, IV, Vol. 1054. Anita at at of Anita” show jockey on the “Antics disc anyone any- “I had don’t think ever to call Jackson, in Tennessee with a station radio automatically body. They [photographers] in Memphis. and the “Anita Wood Show” up.” reporter turned One testified that “Hollywood a Star Hunt” In 1957 she won any- Anita him to write while never asked picture was awarded a motion contest and thing, co-operative “she was and she wasn’t her provided The studio with contract. for me to write stories. She unreluctant appeared in a mo- agent. talent She never Record, ambitious,” Ill, Vol. was did, perform picture. tion She and that most of stories about her were his appearances in New promotional and make relationship her connection with Texas, Chicago cities in plus Orleans and Presley “but matters also often included Ohio, Mississippi. aAs vocalist she herself,” her talent an about as individual recordings made on various labels. several clearly id. in this case at 770. exhibits addition, appeared plays tele- In she coverage demonstrate that of her ca- In Memphis. vision the mid commercials coverage relationship reer was tied to of her television appeared 1950’s she on first fact, Presley. according In Memphis Jackson and then in where she articles, large part due in successwas program approxi- was co-hostess of relationship. mately she year. one From 1962 Brewer member the Ole John was a sang Memphis television weekly on another year it Miss football team the was ranked exposure show. Her nationwide television number one in the nation. He was named appearances two on the “Jack consisted of time still an and at the of trial All-SEC Show,” appearance Paar Tonight played profes- Miss He held an Ole record. Fair,” “Country four Bert Parks’ or five Browns sional football with the Cleveland Show,” appearances “Andy Williams was approximately from 1967 and singer. as a sometimes New Orleans Saints from 1968 with the Anita testified that dated Elvis Pres- she until near the end of the season. ley relationship lasted for quoted say- their he was as interview five years, approximately until 1960 ing six his career had made his football generated very or 1961. relationship enough open This well-known business name life; including opportunities for his publicity, extensive nationwide him for rest of magazines. agreed articles state- in Time and Life Sev- trial he he made the Presley saying retiring professional eral After quoted articles ment. New girlfriend.” she was football he: ran an advertisement in a his “number one Rosenblatt, supra bring Times 14. The re- claim the New York note his outside possibility open noting trial held and the record manded the case that the was rule left Sullivan, proofs so or to before he could have adduced to do New York Times v. “malice,” present jury question there- L.Ed.2d shape presentation fore 86 S.Ct. at 676. did not saying (1) a week or two We must paper for decide Anita, Orleans selling real estate in as an that he entertainer and/or as Elvis Presley’s inviting his New Orleans “friends” to John, girlfriend,” “number one as a foot repeated ref- properties; made view these player husband, ball and/or as Anita’s sports career in his to his successful erences ever for purposes of this literature when he ran for a seat campaign article; so, if whether either plaintiff Representatives of Mississippi House could and did public figure cease to be a for candidates); fourth of four (he placed article, purposes (3) plain and if the prominently displaying a restaurant opened required tiffs were to show malice clear bearing “Johnny words large sign evidence, convincing whether they did. containing House” and Brewer Catfish [sic] argue height Plaintiffs that even at the sports of his ca- pictures and memorabilia they of their careers neither public were (he sought copies of his wife’s reer also figures purposes” any “for all nor for “lim- jukebox); restaurant’s records issues,” range types ited of the two pub- of spoke high banquets school where Gertz, supra figures 351, lic described in organ- appearances; covered his According plaintiffs, S.Ct. sports program ized a school and coached types public figures both of must have “as- team. special prominence in the resolution sume[d] Appellant argues plaintiffs in this them, id. public According questions,” of public figures were who failed to suit and, further, neither ever done so published that the article was with “malice" question article in did not concern a matter defined in New York Times. Appellees public public question, of or a but interest (1) according argue in the alternative that rather, private concerned their lives. De- Welch, to the standards of Gertz v. Robert fendant, focusing on different statements Inc., 2997, 41 L.Ed.2d 418 U.S. 94 S.Ct. Gertz, plaintiffs are argues that both (1974), public Anita were not and John they vigorously and public figures because figures purposes,” for “all even at De- successfully sought public attention. careers; height they of their were not where courts fendant cites several cases figures public purposes of an article sports fig- have found that entertainers and “pub- that dealt lives not private with their re- public figures. ures were We have questions”; (2) lic even if once appellate opin- court viewed several federal figures retreated public had both opinion dealing ions and one state court public spotlight long- from the and were no sports defamation of entertainers or public figures, purposes er at least for of reasons, that, figures various and find supposed article that described events that determining especially helpful none is during occurred bore retirement and that should be lives; whether Anita or John Brewer private on their clear and analysis of public figure.15 Our convincing supports jury find- treated as a evidence ing of New York Times malice. issue, will, therefore, concentrate done,” as confi 15. Three such decided after the he has id. at 419. We are not cases were ruling Publishing would “of Court’s in Curtis Co. dent the Butts definition Butts, the listed 388 U.S. L.Ed.2d course” include all members of opinion groups. dis but decision in does not include before the Court’s The Welch, Inc., V. Robert court reached its conclusion Gertz cussion of how the (1974). Cepeda aid our resolution 41 L.Ed.2d 789 and therefore does not denied, Magazines, analogous raised the Gertz Cowles 392 F.2d cert. somewhat issues (9th (See and discus our identification 21 L.Ed.2d 110 definition. 24-29.) 1968), major league Van top In Cir. held base sion such issues in text at that a Newsweek, (5th player According denburg Cir. figure. 441 F.2d 378 ball was a court, public figure 1971), is no dis stated that “there the Butts definition this court (persons pute plaintiff, Uni at the a track coach “involved issues in which the that” Texas, figure justified interest”) versity but simi important has a would was a artists, athletes, larly point. The “of course . . . include did not discuss dilettantes, people, anyone be referred to relations business who is fa article in that case athletes; possi- it is mous or who he is or what tween the coach and black infamous because of defendant cites instances where the opinions. Su- Supreme Court relevant preme Court courts should connection be- stated that emphasizes newspaper expres- distinguish between cause of Anita’s undertake article and one tween this ideas and other Presley, timely important sions of fame, relationship with Indeed each side printed did not sorts articles. therefore argues the article opin- support position finds some for its Finally, matter. purely private concern a important possibly opinion implies Chuy qualify this. v. Phil- as an ble that this would Time, Club, adelphia Eagles referred. Butts Football 595 F.2d issue to which (4th Johnston, (3d 1979), Cir. 448 F.2d Inc. v. involved an article Cir. en banc court, Cepeda, supra, 1971), citing stated professional player’s discussed football dispute no that” condition, “can be physical dispute, there contractual he was a member when was a noting After that Gertz described retirement. By Philadelphia basketball team. Warriors types public figures, and lim- two ited-issue, all-context paid offering to the as a his services appears opinion use what court, had, according performer as- he (“perva- identifies as the basis for the former publicity good “so far of or bad sumed the risk notoriety”) to determine that sive fame or public performance.” The as it concerned his assumption public figure, plaintiff a was a limited issue appear to rationale does not of risk “public figure, respect at to his abili- least definition. be linked to the Butts analysis ty play to football.” We find this four entertainer also reviewed have Further, Chuy does not somewhat confused. sports figure In after Gertz. cases decided players professional football as such hold that 1024, Newsweek, Vandenburg F.2d 1025 507 public figures purposes of all articles are simply (5th 1975), noted that the court n.1 Cir. but, instead, holding to articles con- limits its Vandenburg, supra, opinion where in its earlier cerning playing ability goes on to note the and trial, it had decided for a it remanded the case surrounding plaintiff’s publicity contractual figure. plaintiff public The court that was a 415, Gannett, dispute. In James v. 40 N.Y.2d testimony supported the deci stated that trial 871, N.E.2d 386 N.Y.S.2d 353 834 public figure, for a “at least sion that he was a public element of court identified figure essential ” issues,’ Gertz, supra, range citing ‘limited of step taking to status as “an affirmative 351, panel did not at 3012. The at specify public at attention.” id 386 N.Y.S.2d attract 876, issues; range that of how it limited quoting portions 353 N.E.2d at 840. After range might to relat have been limited issues definition, citing public figure of the and Gertz coaching ing limited to include to track Cepeda, supra, proposition that the cat- for the program. in the track The court race relations professional egory includes “without doubt” that not address the statements Gertz does athletes, actors, id., singers, and 386 N.Y.S.2d public may require contro the existence of 839, 875, 353 the court concludes N.E.2d figures; versy public on the for limited issue professional belly performed dancer who Vandenburg, such a contro facts of respect public figure with was a cabarets versy probably In v. Allied existed. Carson id., stage performances, 386 of her accounts Co., 206, (7th 1976), News 529 F.2d 209-10 Cir. 876, opin- N.E.2d at 840. The N.Y.S.2d at 353 Johnny and his the court stated that Carson precisely performer state how this ion does not they wife Joanna Holland had admitted categories. either of the two Gertz fits into opinion goes public figures. on to The sum, post-Gertz do not address In cases “all-purpose” public figure. label Carson an fitting problems of what we view as certain according Earlier the court had stated sports figures and into the Gertz entertainer Gertz, positions persons occupy “[s]ome Also, published public figures. definition of they pervasive power and influence that such Vandenburg, Chuy, com- and James articles in purposes public figures for all and are deemed (or ability public performances mented on the contexts,” discussing In in all id at 209. Car sports figure. perform) of the entertainer brief, son, planitiffs’ which the court referred defamatory portions of the article The with an as an entertainer descrioed Carson present in Carson do not. The article case reputation the more and “one of international popular (1) personal life but he admitted concerned his outstanding practitioners of his public figure the court that he was a may profession,” reply brief where and to their reputation his international have found figures. public directly stated that both were power influence were that his indicated opinion’s the wife of such a statement that [The sufficiently qualify pervasive an all- him as automatically public figure be or less “more power public figure. purpose Brewers’ The part-time comes self,” her at least a pervasive. The influence never were as possibly quite would not sur id. at not, have, pre-Gertz Time, Firestone, but did ad- cases could ruling vive 424 Inc. v. aspects are (1976).] Butts definition that dress of the U.S. 47 L.Ed.2d 154 S.Ct. problematic aspects of the Gertz directly similar The court never states Carson’s “power “pervasive,” definition. and influence” was but figures. Bearing dealing public official and where the ions article re- case, present we the facts of Time, ported interest, in mind a matter of public on evolution of immuni- Hill, briefly trace Inc. shall S.Ct. print who without “malice” those ty (1967),17 to public L.Ed.2d figures public figures, that defame to de- articles actions, Publishing Curtis Co. v. in libel this defendant entitled termine Butts, 388 U.S. protection. constitutional to that Hill did not involve (1967).18 L.Ed.2d defamation19 but it does contain in New broad York Times Supreme Court Sullivan, statements the first pro- amendment S.Ct. tects (1964), emphasized reports political more than L.Ed.2d this nation’s issues; important other protects historical profound commitment to robust political issues, especially debate range vast matter which stewardship offi- criticism exposes persons public view, both pri- cials, and found re- constitution vate citizens and Expo- officials. plaintiff quired official sure of the self to others in varying de- in a “malice” libel action order to allow grees ais concomitant of life in a civilized space breathing sufficient such criti- community. exposure The risk of this cism.16 an essential incident life in a society places primary 1967 the value on Court extended the malice freedom speech to an under a right press. standard action state and of statute privacy where at 542.20 result, (1973), opinion concurring majority 16. In his Jus the Court stated that Butts a Goldberg, joined by Douglas, agreed tice Justice stated of the Court New the York Times protect the not constitution would defama apply public figures test should to criticism of tory private statements about the of a conduct public as as well officials. public official as such defamation would have political self-gov this, “little to do with the ends of a opinion specific 19. The makes reference to 301-02, erning society,” 84 731. 390-91, id. at S.Ct. at id. at 87 S.Ct. at 543 the Court in Welch, Inc., see But 323, Gertz v. Robert 418 U.S. opinions opinion later has the stated that in Hill 45, 2997, 3009, 94 41 S.Ct. L.Ed.2d 344 - was limited the consideration of nondefama 789, society’s commenting offi interest Butts, Publishing tory matter. Curtis Co. v. personal cials’ attributes that touch on fitness 130, n.11, n.11, 1975, 388 U.S. 148 87 S.Ct. 1988 for office. Welch, (1967); 18 1094 v. Robert L.Ed.2d Gertz Inc., 323, 6, 2997, 418 U.S. 334 n. 94 S.Ct. 3004 public is the 17. It not clear whether “matters of n.6, (1974). 4 789 L.Ed.2d interest” rationale survived Gertz v. Robert Welch, Inc., 323, 2997, 41 418 may only 20. In this connection it be that not (1974), rejected “public 789 L.Ed.2d which the exposure necessary Metromedia, such a incident of life in 403 issue” test of Rosenbloom society reports a 29, 1811, civilized but that such make (1971). 91 29 L.Ed.2d 296 S.Ct. society valuable contribution and its mem- Butts, plurality opinion 18. In Justice Harlan’s Posner, Right Professor in The bers. Richard New articulated a standard different from the Privacy, (1978), Ga.L.Rev. 395-96 standard; plurality York Times the “malice” argues gossip detailing per- columns public required figures to show people lives of notorious do sonal successful or highly constituting conduct an unreasonable but, merely curiosity” satisfy not instead, readers’ “idle departure of in- extreme the standard genuinely are informational: vestigation reporting ordinarily adhered Gossip personal columns recount lives by responsible publishers. wealthy people whose and successful 388 U.S. at at 1991. Chief Justice S.Ct. is, models—that tastes yield habits offer urged adoption Warren’s concurrence ordinary person information —to the 163-64, New York Times Id. at standard. career, making consumption, and other de- S.Ct. 1995-96. always posi- The cisions. models are stated, however, The Court has since Hughes, story The of Howard tive. example, Butts extended York Times “malice” the New morality play, usually told public figures. Wolston v. Read- standard warning pitfalls of the of success. Tales of 163-64, Digest Assn., Inc., er’s 443 U.S. notorious criminal —of Profu- and the 2705-06, (1979). In S.Ct. L.Ed.2d 450 Leopold a similar func- Welch, Inc., and of mo v. Robert Gertz 418 U.S. —have eyes open people’s n.7, n.7, Gossip columns tion. S.Ct. & 41 L.Ed.2d & who did not opening voluntarily choose to become reported on in Hill The article an incident reported. linked to involved with the matter Three play that was a new had “no Inc., The Court years Welch, involving plaintiff. later in Gertz v. Robert was a subject of the article 323, 345-46, 2997, 3009-10, that” the doubt interest, Winters quoting public matter of expressly 41 L.Ed.2d 789 the Court York, 333 U.S. of New People of State rejected the extension. The Rosenbloom 92 L.Ed. 507, 510, 68 S.Ct. important reasons for shift are Court’s informing (1948): “the line between purposes. for our The Court determined elusive for the is too entertaining general in- “public that the Rosenbloom protection [freedom “inadequately terest” test served both press].” competing legiti- values at stake” the opinion Supreme Court Butts is the compensating interest in individ- mate state figure public status. dealing sports injured (and private uals defamation accusing an article The defendant interest) individual’s and the interests of Director at the Univer- Butts, then-Athletic amendment, press protected by the first fixing game. a football Georgia, of sity of specifically the interests of (the court noted official not a He was publisher of a defamato- or broadcaster by the state but employed that he was error which a court deems unrelated to ry association) but he was by private athletic interest, general an issue of in issues in which “involved public figure Further, such a id. at at 3010. S.Ct. important justified has test interest,” id. 388 U.S. difficulty of would occasion the additional companion case in a judges to decide forcing state and federal by thrust- attained status publications ad hoc basis vortex of an ing personality into the “general inter- address issues of controversy. While important determine, est” and which do not —to that status “Butts have achieved Marshall, ‘what the words of Justice Mr. alone; [plaintiffs] commanded position both self-govern- information is relevant access to the continuing public interest and Metromedia, Inc., ment.’ Rosenbloom Id. at 154- counterargument.” media for 1837. We at 91 S.Ct. at clear, then, It is 87 S.Ct. at 1991. committing this task doubt the wisdom of collegiate with whether Butts’ connection judges. to the conscience of public figure sports for his alone accounted status.21 must, therefore, construe Id. We figures in public of Gertz Metromedia, Inc., Court’s definition

In Rosenbloom v. warning in the same light in of the Court’s 1811, L.Ed.2d 296 91 S.Ct. press adequately is not opinion that New York extended plurality opinion court to protected by a rule that allows a involv- publications all protection Times to interest,” article is determine whether a ing general or public matters “of general private public individual relevant to an issue of even those that defame Gertz, they supra dangers; gen- opportunities at 337 S.Ct. at [418 U.S.] [94 are to uinely and 3006], quoted surely And as a class this]. informational. “public figures” ready these have as access opinion, concurring Chief Justice In his public of commu- as to mass media officials” are often as con- Warren stated that citizens nication, policy and to both to influence public figures’ “views and actions cerned with of their views and activi- counter criticism respect public with issues and events” as citizenry legitimate and sub- ties. Our has officials, public id. at those of per- such stantial interest in the conduct of sons, view, govern- persons at 1995. In his outside engage in and freedom of the increasingly ment were in involvement uninhibited debate about their intimately resolution of im- involved in the public as it and events is as crucial issues or, portant public questions reasons of “public in the case of officials.” fame, shape their in of concern events areas Id. at 87 S.Ct. at 1996. society large in at . . . Court [the id. ought application, interest, judges not make at 94 S.Ct. at stated, such ad hoc determinations. Even if foregoing generalities do the New York Times Gertz held instance, not obtain every commu- applies public officials and

standard nications to act media are entitled on the of notoriety who reason [t]hose assumption pub- officials and public vigor or the suc- their achievements ' figures lie voluntarily exposed have they public’s cess seek the themselves injury to increased risk of attention, public classed properly are from defamatory concerning falsehood figures, them . Id. groups at 3008. Both private whereas a individual “has relin- (1) “usu- must “malice” because quished part protec- no of his interest of access to channels ally enjoy greater id. name,” tion of his own In good deciding and hence have a effective communication figure, public was not a to counteract opportunity more realistic the Court restated the definition: private individuals false statements than designation That on either may rest of they are vul- normally enjoy;” because less two alternative In some bases. instances state’s injury, nerable interest per- an such individual achieve less; more protecting them is notoriety, suasive fame that he be- important those normative consideration: purposes comes a for all figure must accept who seek office certain commonly, in all contexts. More indi- necessary consequences involvement injects vidual himself or voluntarily affairs, specifically risk of closer into particular public drawn controver- public scrutiny including public interest sy thereby becomes personal ought his or attributes for a range limited of issues. either Similarly public touch on fitness for office. persons special promi- case such assume figures, act part, voluntarily. for the most public ques- nence in the resolution of figures classed as stand in Those Id. tions. at 3012. position. Hypothetically, may similar of the descriptions Some or definitions of possible pub- for someone become a in Gertz public figure category clearly through purposeful lic figure no action in this case indicate that own, truly the instances of but invol- fame, at the their height least untary public figures exceeding- must be formulations, especial- category; other ly part, rare. For the most those who influence, ly referring power, those have roles of attain this status assumed controver- society,” “affairs especial prominence in the affairs of soci- sies, questions raise about enter- ety. occupy per- positions such Some entertainers, tainers, “girlfriends” they are power suasive and influence that figures so classified. sports properly are figures purposes. for all public deemed shows that both The evidence in this case public classed commonly, those as More vigorously one time or another figures have thrust themselves to sought public’s atten- successfully particular forefront of controver- gained for their own notoriety tion or sies to influence resolution of in order “pervasive Both achieved achievements. event, they In either issues involved. regionally; least notoriety,” fame Id. invite and comment. attention fame was “such pervasive it 94 S.Ct. at 3009. figure notoriety that he becomes Having already determined that a case- (em- purposes for all in all contexts” by-case approach unpredicta- added) question. would lead more difficult phasis is a in Gertz expectations, and delineated two ble results and uncertain all-pur- categories, general possible devise rules of must broad limited; second, however, kept press. out of the This pose22 relationship terms of her portion described in involvement coincided with a career as an the Court sports A or enter- appears during in controversies. entertainer and it necessarily clearly does not press coverage, tainment career time she invited at least of controversy, nor would any public Further, above, involve her career. as discussed relationship categorize a romantic relationship we so Presley with advanced her view, entertainer. In our with a famous career and it is clear from the exhibits that not define in Gertz did the Court press coverage much focused both on the figure classi- subcategories of the all career, relationship and on her some items Rather, determining that after fication. detailing purported connection between all-pur- was not an that case plaintiff in aspects these two of her life. the Court set forth the public figure, pose special The dual rationale for treatment might arguably basis that more limited Gertz, public figures articulated in access plaintiff, attorney applied have to that voluntary to the media for rebuttal and in a local contro- who had become involved risk, assumption of was first set forth in police and mi- versy over relations between Butts, supra, where Justice Harlan turned describing in two norities. We note guidance setting pub- a standard for for used words like subcategories that Court figures lic in libel actions to the considera- “some,” commonly,” “for the most “more devising tions involved in the common law describing whole class of part.” particular, general of torts and libel court included those who public figures the noting determining degree seek or whose achieve- attention subject will fault that a defendant liabili- and commented that gain notoriety, ments ty, importance the common law looks to the public figures all “invite attention and com- as well as to defendant’s activities and, later, special “assume ment” plaintiff’s prior activities and his means prominence public ques- resolution of avoiding damages: mitigating harm or plaintiffs’ tions.” To status determine today In the cases none of we decide formulation, however, based on the latter particular involved in considerations require would to decide what us. present. New York These ac- Times is public question, not a a task the Court has prosecutions analogized tions cannot be judges, inappropriate stated is Neither has seditious libel. when, make ac- an ad hoc determination position government which would Court, cording to the such determinations permit recovery by him to be viewed as provides protection too little for freedom governmental policy. a vindication of press. We therefore focus instead special privilege Neither was entitled to plaintiffs’ seeking publicity or actions in protecting against his utterances account- in activities that nec- voluntarily engaging ability prompted, in libel. We are there- expo- essarily involve the risk of increased fore, guidance to seek from the rules of reputation. Both en- injury sure and liability prevail society in our re- professions tered their nature respect compensation persons in- quire public appearances press and invite jured by improper performance of a relationship Presley Anita’s attention. been, not, legitimate activity by could not have another. Under probably Appeals 22. The Court of for the District noted that well-known entertainers and ath- recently category frequently products Columbia described this letes endorse and candi- celebrities, dates, including thereby whose names are indicating those the breadth of their nationwide, appropriateness “household if not at least influence and word[s]” of broad scrutiny, where are defamed. Waldbaum v. Fair id. at 1294 & n.15. The Court 1292, Inc., Publications, on, however, child at say 627 F.2d went that the test for all According purpose public figures strict, 1980). (D.C.Cir. & n.22 and found that court, anonymity to the tolerance of the renouncement publicity there was a because unavoidably carries with public he had thrust himself into the controver- talent, investigation concerning issues, it character, the risk of media sies certain business id. at motives, 1294. The court id. at 1299-1300. rules, Presley’s “girlfriend.” John departure portrayed from the kind of these expect from a reasona- society may campaign care in his literature as one who had activity such leaves performing ble man worked to become successful in hard foot- judicial shifting open actor ball and would work hard if elected. As rules, defining espe- these In loss. Appeals the Court of for the District of formulating the standards cially in stated, recently public figures Columbia ex- degree of care to be determining the prove must malice in defamation actions in circumstances, courts have pected in the give “breathing space order to the media given much attention consistently fulfilling reporting, . in its role of activities. importance of defendants’ analyzing, commenting on well-known 31, at 151. Prosser, of Torts § The Law persons” who have attention and “invit[ed] also, especially in libel The courts have comment.” Waldbaum v. Fairchild Publica- plaintiff’s position cases, investigated the tions, Inc., 627 F.2d at 1291-1292 legitimate whether he has to determine (D.C.Cir. 1980). light in protection court for upon call self- and means of prior of his activities Gertz, then, plaintiffs indicates that these Brewer v. Hearst Publish- defense. See public figures classified as at least could be 846; Cir., Flanagan v. Co., 185 F.2d ing at least for height of their fame and at Co., 588, 68 Publishing 137 La. Nicholson We must still purposes of some articles. L.R.A.1917E, 510. We note that So. any later determine whether in the circulation of public interest determination, this opinion modifies involved, pub- and the here the materials in this case is and whether the defendant them, circulating in is not lisher’s interest Times, pro- New York “malice” entitled to in New York than that involved less published when Ani- tection for this article Butts and Walker com- Times. And both longer professional entertainer ta was no indepen- a substantial amount manded Presley and romantically involved with at the time of the dent interest profes- longer playing when John was no both, opinion, would in our publications; sional football. figures” under “public have been labeled ordinary rules. tort Time, Firestone, 424 In Inc. v. view, Butts, plain- supra 154. In our at 47 L.Ed.2d 96 S.Ct. were, some time case at least at

tiffs wife of plaintiff, the former Court held that articles, public purposes of some and for America’s wealthier scion of one of “the who, such, must defend- figures at families,” id. at industrial “malice,” they are to be not because ant’s had not figure. She was not a press attention punished having sought prominence special role of “assume[d] but, rather, because the first amendment perhaps other than society, in the affairs of pro- press afforded the requires that the “thrust had not society” Beach Palm vis-a-vis of the “malice” standard tection any particular forefront of herself to the coverage, either sought who have its those the resolu- influence public controversy to by participating through direct invitation it,” id. the issues involved tion of depends large in activities whose success pro- divorce 964, (her celebrated its role performing part publicity. “pub- the sort ceeding not constitute did only political events covers not referred, id., controversy” to which Gertz lic controversies, sports but also have dis- 965). As we 96 S.Ct. at (and sports Entertainers entertainment. plaintiffs cussed, figure status entertainers) more typically put figures as rest on present case does public view than their of themselves in the but, in- of Gertz controversy prong particular performances; both Fire- stead, The Court their fame. Anita was in the certainly this case did. the fame of further discuss stone did not of her entertain- spotlight because proceedings the divorce plaintiff before who was ing as the entertainer but also Both district and subject appellate of the Evi- article.23 courts that were plaintiffs’ plaintiff had held that was public case of ex- Wolston present dence in the argument figure rejected that, and had his coverage exposure media public tensive was, if he passage even once a case of time plain- where a distinguish this had restored him to the status of prominence private to limited may tiff’s fame purposes. person first amendment He community. a local in the argument abandoned this Assoc., Digest Reader's Wolston Court. For that reason because the 61 L.Ed.2d 450 99 S.Ct. public Court he was never a figure, found plaintiff that the had (1979), held the Court specifically decide did not “whether or himself into the con- voluntarily not thrust when an once public who was individual espionage activities troversy over figure by the may passage lose that status failing 1950’s in the Soviet Union time,” n.7, id. at 166 99 S.Ct. at 2707 jury subpoena and respond grand to a joined opinion n.7.24 Six Justices in the contempt charge. Nei- to a pleading guilty Court; dissented; Justice Brennan appellate nor ther court the district opinion Justice wrote an Blackmun concur Columbia, nor the the District court for ring result, Justice in the in which Marshall defendant, claim that the had relied joined, assuming arguendo stating that figure pur- plaintiff public for all was plaintiff was a in 1958 when poses. noted he had led a The Court espionage he became involved contro existence” before the “thoroughly private versy, he clearly had lost that distinction posi- grand inquiry and “returned to a jury published the time the article was in 1974. obscurity” tion after his sentenc- of relative Blackmun, According the passage to Justice ing, that he of time will often be relevant determin general notoriety fame achieved no ing plaintiff’s access to means of special promi- assumed no role of argument public counter the risk of society nence in the affairs of as a result scrutiny may fairly he be said have as his contempt his citation or because of sumed, figure the bases for treat investigation involvement in the of Soviet ment Justice Blac articulated Gertz. espionage in 1958. plaintiff’s ef focused on the conscious kmun above, plaintiffs As detailed in this case during forts to regain anonymity the ensu “thoroughly certainly private” ing year period; sixteen these efforts “ne Wolston, then, “relatively people. obscure” gated” he had any inference that invited basically position the Gertz restated ignoring a commentary by subpoena 170-71, overruled the Rosenbloomrationale and in 1958. Id. at 99 S.Ct. at 2709. present opportu- facts Finally, in Wolstondid Justice Blackmun stated that first nity for much further comment on not be amendment values would violated if historians, figures opportunities thrust themselves into greater who have not who have reflect, investigate reso- to influence their and time to are held controversies higher to a of care than those lution. standard did, prior lie 23. in dissent and would interest Justice Marshall administration’s man- part figure, agement particular she project because find her a aof continued group strong article, of a a member “whose plain- chose to become if it and the referred attention,” constant media id. at all, lives receive performance tiff at referred to his as a at 980. stated in commissioner. Court dicta: sure, To be there be cases where a Baer, In Rosenblatt v. person posi- from a so far removed former where the Court 15 L.Ed.2d authority tion of man- that comment proceedings case for further remanded the responsibilities performed ner in which hi plaintiff determine whether cial, offi- longer necessary justify no has the interest not, noted that rule, n.14, the New id. at 87 York Times have, seriously and could not contended that n.14, S.Ct. at 677 discharged the fact that he had been from his but that a case. this was not such position as a commissioner six before months significant; pub- the article was events. Id. tus and contemporaneous purported which to describe an reporting retreat, were to Even if we event that after their occurred analysis, public spotlight. it would while were in the We Blackmun’s follow Justice determined, however, present case have the first apply to necessarily figure requires status is not amendment that this defendant be plaintiffs’ where: protected by the New York Times standard controversy; Ani- particular tied to a publishing this article whose content sought anonymity may have ta Brewer Presley’s relates to Anita’s fame as “num- publication but her eight years before girlfriend.” might ber one It be that dur- in articles appear name continued ing public figure period the “active” Presley; and the article was books about articles, range including wider those newspaper but a reflection not an historical peripherally pub- related to the basis of the contempo- to relate a purported article fame, figure’s protected by lic are the mal- event.25 raneous passage ice standard and that the of time or Time, Inc. Circuit v. John- The Fourth range intentional retreat narrows the (4th 1971), ston, Cir. held that 448 F.2d protected directly articles so to those relat- plaintiff remained ed to the basis for fame. Even under such events of an article that described purposes rule, viewing and even Anita as one who years twelve earlier dur- had occurred years had retreated several before this arti- basketball ing professional career as a his cle, required prove she would be malice professional player. He had retired from in her suit based on this article. The article publication but years ball nine before fame does not relate to John’s as a football organized ball until two had remained in might player. To hold that he therefore appeared. article At the years before the would, showing negligence recover on a publication college he was a coach. time of however, strip required protection from spectacular debut The article described press story to write such a about Anita. Russell, phe- Bill whose career was still summarize, find that Anita Wood To we publication, at the time of nomenal exposure gained Brewer who had media psychologically had de- stated that Russell and her ro- through and fame her career playing. The court stroyed plaintiff’s Presley, an ex- relationship with mantic majority of courts stated that the vast entertainer, whose tremely well-known in invasion rejected arguments by plaintiffs appear in stories about name continued to or the privacy cases that withdrawal retirement, required Presley after her them from the passage of time insulated on an in this suit based malice figures. New York Times rule ro- with that primarily that dealt article similarly present case The article in the relationship incidentally mantic phe- Since, view, career was still related to one whose our status. her marital nomenal, it did not describe Presley. protec- While “malice” requires amendment first its period, active during plaintiffs’ press, repeatedly an event tion for the has of Anita’s subject aspects to one cause of her life there- did relate covered both these career, fame, Presley. publishing Plain- relationship by advancing her applied must be to hold that this de- standard urge story, tiffs this court the same where the de- New York Even by the John Brewer’s suit. protected fendant is not relate do not famatory portions an article of an article publishing Times standard for fame, he public figure’s who had the basis for one people private about the affairs figure, not, marrying another figure sta- effectively retreated subject 1978), mat analysis on the fact that focused of this issue 25. The district court’s article, Ass’n, Inc., espionage Digest Soviet ter of the Wolston v. Reader’s legitimate topic of debate F.Supp. continued to be a need to focused on the appeared particularly because apply pub when the article the malice standard to authors security. Nei newspaper report national the matter concerned lishers of books well as then, analysis of the our Appeals discussion aids v. Read ther ers. The Court of in Wolston Ass’n, Inc., (D.C.Cir. Digest in this case. issues er’s 578 F.2d 427 previous protection during the constitutional afford- weekend been reduce she had shop about dress of the Hilton International publish stories ed the Hotel where a salesclerk told her that “a spouse. girl” shop, had been in the saying she hold that both were re- Anita Wood from the Memphis area and present evidence that showed quired that she was there to Presley see Elvis degree convincing clarity high a of with show. testified that her Otis the clerk was defendant of the article’s awareness friend and that she had no reason doubt This court falsity, probable falsity.26 or person of truth the information this of independent make an examination must presented. provided Otis had infor- reliable whether whole record to determine reporter mation to her brother and to for a showing.27 made such a plaintiffs publication another which the ba- had been articles; this article sis of she had done so The record shows that or compensation. without solicitation through efforts prepared was the combined and the reporter, Kingsley, James of a had been with the Commercial Kingsley writer, On Hope column Pectol.28 “People” Appeal Memphis its office 1960. since 7,1972, telephoned Kingsley September Mr. acquaintance He childhood Elvis was a of Vegas Las his sister Ann Otis who lived in specialized had Presley and in entertain- inquire During family coverage, Presley about a matter. especially ment of conversation, coverage Hope told her brother that including this Otis of Anita Wood. Sullivan, investigate New 26. In York Times Co. v. does not in itself mal- establish 280-81, 726, 732-33, 254, 710, 11 L.Ed.2d 686 ice. Id. at S.Ct. S.Ct. at 1326. Welch, Inc., 323, (1964), v. In Gertz Robert the Court held that a official 418 U.S. 332, 2997, 3003, (1974), basing relating 94 S.Ct. 41 L.Ed.2d a libel action on falsehood his Court, Amant, quoting emphasized St. prove that conduct must such statement official degree “high must act with the defendant made probable falsity,” . . awareness repeated is, knowledge ‘actual malice’—that with proof investigate, that of failure to disregard it was false or with that reckless more, without cannot establish New York it was false or not. whether Times recklessness. Court stan- The stated that the constitutional Lando, 153, In v. Herbert 441 U.S. 99 S.Ct. required proof actual dard that show malice 1635, (1979), 60 L.Ed.2d 115 stated the Court 285-86, “convincing clarity,” id. at plaintiff that a defend- defamation must 728-29, proof at ad- S.Ct. found that “knowing falsehood,” or ant’s reckless id. at falsity duced failed to show an awareness at liable a S.Ct. and that to be regard, recklessness in that S.Ct. id. at “must to 160, defendant pect know or have reason sus- Failure to discover misstatements false,” publication that his id. at might negligence show show actual but did Court, however, S.Ct. at 1641. The did not malice; even own files did failure to check its but, instead, any change in announce standard required not show that for the state of mind standard, interpret cited the Gertz so we do not “brought malice to” those actual home departure marking the latter statement as responsible publishing for the advertisement. from St. Amant or Gertz. 287-88, Id. at 729-30. 727, 731, Thompson, St. Amant Newsweek, Inc., g., Vandenburg 27. See e. 20 L.Ed.2d 262 (5th 1975), 507 F.2d 1027 & n.3 Cir. held that malice must New York Times therein. cases cited be shown permit sufficient conclusion evidence to testimony 28. The evidence included detailed that the serious defendant in fact entertained processes paper, about the editorial testi- publication. doubts as to the truth of his mony reporter up from both the and writer showing Evidence had no printing they the defendant to the time of article believed the activities, personal knowledge true, testimony by Kingsley’s Pectol’s to be reputation reliable, record’s silence as superiors to the source’s both and testimo- veracity, verify ny Kingsley reporter defendant’s failure and a another from might publication information with have known those who source. Otis was a reliable facts, Pectol, Kingsley, superiors, and his failure to consider their testi- and Otis subjected the statement defamed estab- did fied and were to cross examination. recently requirements lish malice. Id. at 1325. No described in Herbert S.Ct. Lando, evidence showed was aware that the defendant falsity probable have been meet. of the statement’s and failure L.Ed.2d 115 encouraged then, recently been appear, to ex- It does not Pectol had that Kingsley, regional Pectol, of local and who coverage figures those reviewed the pand story rely doubt, column and to “People” less on after them entertained serious information; have, reasonably she should about the story’s had relayed service wire accuracy. belief Kingsley’s that the Brew- Kingsley. Kingsley told her interest ers were was not story totally divorced unfound- might that she he had want ed, though could not he later recall the bring She asked him to her column. upon did, specific communication which this be- he the paper’s When she located notes. fact, lief was based. In Anita Brewer had Wood Presley on Anita con- files separate brought twice actions mainte- articles about the entertainment ca- tained nance from her husband Louisiana and relationship.. each and their reers of about granted had once separa- been decree of reported Kingsley She noted ground tion there on the abandonment. difficulties, Presley’s marital asked him Kingsley testify that did not he had direct this, he Presley and confirmed that about knowledge legal of this action it is but recently filed for a divorce. Based on had certainly likely that he obtained informa- composed “Flickering she the clippings the on which to base his through tion belief caption. wrote the “reunion” Flame” She Anita, covering working superior with a notes. portion Kingsley’s based on Pectol who had written two books about John knew Kingsley asked if he then college team, having Brewer’s football He Anita had ever been married. told recurring person with a was contacts who Brewer Anita had married John but that Further, John Brewer’s friend. the fact he were they far as knew divorced that as two in the Kingsley questioned people that on that he would check further this and and office, John, one with connected one with back. She also asked him to call his report Anita, belief, and neither about his verify original the information. sister (and notion con- disabused him of this one sister; while he Kingsley called his wait- had does couple separated), firmed that the ed, telephoned clerk on she the another not originally not indicate that he did be- phone and then confirmed the statement to lieve that were In- the Brewers divorced. Kingsley people in him. asked two his of- stead, it he honest shows that made an the marital status. fice about Brewers’ effort to his belief. test One, who had on John Brew- written a book had source in proven Otis to be reliable Miss, he er’s coach at Ole told him did not salesclerk, not past. the that the It is true Another, photographer know. Otis, source original was information paper pictures who had taken several piece for the that she not earlier and had Anita, Kingsley told that he had heard that Otis, provided paper with information. Brewers were At trial separated. and the knew and believed her thought Kingsley testified that he had disbelief; she record no reason indicates Although the Brewers were he divorced. not, paper contact di- example, did identify not of this infor- could the source ap- provide rectly information mation, one of his business regular grind” the mat- parently no “axe to had acquaintances that she social testified ought require certainly ter. We John when he spoken with Brewer was must reliability that we degree separated from his John had told wife and informer require of when several police he was from his wife separated her that provide links them information they getting and that were divorced. Edi- they search warrant. seek a paper piece tors at the reviewed the who publication, before did fails to testified whole therefore The record as a “convincing clari- suspect They all, not then false. that it was alone show let Pectol, who Kingsley’s past relied on Pectol’s relia- or those ty,” Kingsley, written, adding seen Pectol after was bility, piece one that he had reviewed the disregarded recklessly checking asking questions during files and knew it false or whether it false. preparation. in this case re- 2. A person

Because relative of a to whom a libelous may and failed to show defend- statement refers have a cause quired although of action for libel printing “malice” in cited acted with ant (from court) case a federal district article, judgments says the must be the verdict Mississippi question. law is uncertain on this here for judgment entered set aside No other Mississippi state cases can be defendant. majority opinion, found. See n.7. REVERSED. dispute 3. A over whether the material in this case per per quod was libel se libel GODBOLD, Judge, specially Circuit con- holding Mississippi resolved curring: does recognize plain- the distinction — Law section I concur in the Constitutional required plead tiffs were not and prove opinion and in the result. I cannot special damages because under join We usually Law section. State per law whether a statement is libelous se is questions potentially dispositive address question the same it is as whether defama- reaching consti- state and local law before tory at all.1 issues because this make con- tutional 4. After the decision in Gertz v. Robert unnecessary. stitutional decision Welch, Inc., unnecessary avoidance of decisions on con- (1974) Mississippi permit L.Ed.2d 789 would grounds policy, not an iron- stitutional is a libel, recovery negligent although for a be- requires bound rule of decision that district Mississippi required (or fore Gertz malice jump through appellate courts to state presumed malice). authority giv- No case hoops nicety. Applica- law the sake of support en to this conclusion. principle tion of the in this case elevates This through Mississippi excursion form over substance. law is hypothetical. little more do than deciding I would assume without not know whether the choice of correct law under state in this case plaintiffs law the is that of Mississippi. Tennessee or of This recover, would be entitled and I then length is discussed in footnote 6 to the would directly address the constitutional is- majority opinion. is inconsistent with It which, agree, sue we all bars go through federalism to a mere ritual of recovery. orderly, This be an sensi- would vindicating principle addressing state solution, saving judicial ble and direct first, predicating upon law the formal rite doing injury time and effort and no an assumption that the law to be examined majority law of Mississippi. The eschew particular is that of a state. The courts of jugular they this direct route to the because right primary state have the estab- immutably consider that are bound to body lish and of law. More- construe its consider state law to determine wheth- first over, pronouncements unnecessarily made required. er constitutional decision is may adversely rights in this case affect the aim, pursuit acknowledging of this litigants of future parties to this suit difficulties, majority their decide by Mississippi who find themselves bound following questions Mississippi least the by law and faced citation of this decision as law: majority recog- precedent. Ironically, the 1. A person statement that a is divorced nize that if we had decided that the action or is capable Amendment, a cuckold is of law as a matter was not barred the First of a defamatory meaning. majority might necessary “explore then have been question. find no Mississippi applica- cases on this further” to find out if the assumed majority sissippi logical way 1. The cases \ to resolve the discussed do not cases. clearly confusing per quod, decide that libel in which case law would be to hold lan- special damages proved, guage susceptible must be does not exist of both innocent and defama- See, Mississippi. Walley, tory meanings language g., in this e. Manasco v. was the —as (1953). per 216 Miss. actionable se. 63 So.2d 91 I cannot case—is actionable but not The majority with assurance find answer in the Mis- have not chosen this route. a clear justified. law had tion of been opinion, n.6. majority

See This stands on principle deciding

its head the issues of

state law first. KINGERY, Coe

Francia Goodwin

Plaintiff-Appellee, COMPANY, OIL

CONTINENTAL

Defendant-Appellant. Phillip

Lillian Blanche BRENT and

Thompson, Individually Trustees, and as

Etc., al., Plaintiffs-Appellants, et

NATURAL GAS PIPELINE COMPANY AMERICA, Defendant-Appellee.

OF HAWLEY, Independent

J. M. Executor Tay

and Trustee of the Estate of W. H.

lor, deceased, Plaintiff-Appellant, NATURAL GAS PIPELINE COMPANY Browder, Jr., Midland, Tex., W. B. Fred AMERICA, Defendant-Appellee. OF Hull, Houston, Tex., O. for Continental Oil 78-1015, Nos. 78-3245 and 78-3246. Co.

United Appeals, States Court of Brown, Jr., Earl A. curiae. pro se amicus

Fifth Circuit. Harmon, Botts, Frank Baker & G. Ste- Hackerman, Houston, Tex., phen M. Leo Oct. Hoffman, Dallas, Tex., Hudspeth, M. C. Houston, Tex., Harlan, Amarillo, Tex., Joe Norwood, Tex., Liberty, E. R. Charles L. Tex., Houston, Aycock, Black for LaGloria Assn., Inc. Royalty Owners & Mounce, Sims, Hardie, Grambling, Galat- Birkelbach, Harris, William zan & John S. Tex., Mounce, Paso, Kingery. El J. Saunders, Nickum, Ronald D. Howard F. Tex., et Amarillo, Thompson, for Brent Hawley. al. and Antonio, Bobbitt, Jr., Robert Lee San Tex., Foundation Sealy and Smith Hospital. Sealy the John

Case Details

Case Name: John L. Brewer v. Memphis Publishing Company, Inc., Anita W. Brewer v. Memphis Publishing Company, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 2, 1980

Citation: 626 F.2d 1238

Docket Number: 77-2254

Court Abbreviation: 5th Cir.