KARK-TV v. Simon

SMITH Barry KARK-TV v. Andre SIMON and 83-47 Court of Arkansas

Supreme delivered September Opinion Owens, Calhoun, McHaney if M. by: McHaney, James Hostetler, Jr.; Sr. and M. by: and Baker if McHaney, James Levine, Bruce and Lee W. appellant. Sanford P.A., Brewer, A.

Kaplan, by: if Peter Hollingsworth Miller, for appellees. was case This defamation Hays, Steele Justice. Smith, appellees, and Barry Andre Simon

brought by Rock, the evening On appellant. KARK-TV of Little against 11, 1982, Simon were shopping while Smith of August Center, the police Shopping store at Galleria men. At robbed two being was call that the store received on the scene. converged 8:30 p.m., eight policemen about placed handcuffed and searched They for KARK- Long, a Carolyn reporter them in a car. squad TV, establishment two business another happened her from someone relayed down. Information doors scanner police that there was a listening who the camera crew met robbery Long situation. potential filmed. She had the incident been sent the station and by had comment from them. She no police got but questioned whom she only in the store from got then interviewed a clerk then left scene. At The newsteam vague responses. some after, released when the were shortly appellees or p.m., 9:00 was mistaken and no crime decided that the caller officers broadcast on was making. following report was in the The the ten o’clock news: a Police by tonight stopped action Little Rock

Quick the Galleria Design at Custom at robbery attempt it Details are however sketchy, Center. Shopping their to the store suspects up two backed car appears time, men held a allegedly order rob it. For a the two shaken, The clerk was and wasn’t hostage. store clerk exactly sure what had happened. about named, but the newscast included were not appellees car. It squad police placing appellees scenes 82,0001 house by viewed was the newscast was stipulated on a jury After trial the court entered judgment holds. $12,500 each KARK against awarding appellees verdict we reverse appeal, as On compensatory damages. remand. judgment were entitled

Appellants argue they substantially news was report matter law because the 160,000 people. estimated 1 An

accurate and was While we have privileged. recognized these concepts we cannot that under the generally,2 say facts this case the news as a matter of law was report substantially or accurate that the was In privileged. matter Pritchard v. Times Southwest Broadcasting, 277 642 S.W.2d Prosser,3 (1982), we stated that literal truth was quoting not necessary, that substantial truth will In suffice. Pritch ard, we found that or of the gist “sting” defendant’s true, remarks was in essence there were although some contrast, minor conflicts alleged. what substance of this news contained no truth story at all. There no simply and the robbery attempt were in appellants no way involved in crime. any

Appellants contend that they given common-law Torts, under privilege (h) Restatement of § report the fact of an arrest. we question case, of that applicability section. There was no arrest in this were only detained brief during a investigation. And this whether action police would be considered “official action” within 611 (h) to be a new and appears § unsettled question. See Time, Medico v. F. Supp. (E.D. Pa. 1980). But privilege granted 611 is § qualified and will be lost if abused by failure to an give accurate and fair report under (f). need not report § correct, be precisely as long it substantially correct. Appellant WCAU-TV, cites Williams v. 555 F. Supp. 198 (1983), where the broadcaster was granted summary judg- ment on the grounds the broadcast was a fair and accurate report official action police and the reports were substantially correct. There a bank neighborhood had been Williams, held and the up police arrested believing he was one of the three individuals involved. (The sub- police established, sequently newscast, before the that the plaintiff was not It involved.) was undisputed however that all of the

facts in the broadcast were accurately reported. Here there was no robbery attempt, had not appellees backed up Broadcasting, 2Pritchard v. Times Southwest Ark. Co., Publishing truth; Brandon v. Gazette (1982), S.W.2d 877 substantial (1961), Ark. privilege. 352 S.W.2d 92 Torts, 3Prosser, 1971). Handbook the Law (4th p. ed. 798-799 into had backed merely car to the store to rob (they their Under these hostage. The clerk never held as a was space). circumstances, we would have privilege, if there was a find that it was lost. instructions negligence also

Appellants urge case, the were not any appellants were and that in improper negli on jury ordinary The court instructed negligent. instructions that the proper contend gence appellants careful reasonably have been the standard should Dodrill broadcaster indicated community. We Co., 628, 590 Arkansas Democrat (1979) Welch, in Gertz v. Robert that within latitude accorded individual, (1974) the case of a private 418 U.S. 323 would measure the publish standard ordinary negligence here that jury er’s The court instructed liability. care a reasonably was held to the standard of defendant similar would exercise under circumstances careful person the evidence. that the Nothing suggests to those shown what the standard from appellant prevented showing is and such would be evidence the proof jury the industry their determination of whether there could use making was a breach of the owed.4 duty was not

Nor can we as a matter of law that say appellant satisfied there was a sufficient We negligent. thoroughly basis to submit that issue to the The initial information jury. hostage about a situation robbery progress possible station heard relayed by way reports television with on a scanner. information was police put together That reporter’s eyewitness police taking account into could no informa- custody. reporter get tion from the officers at the scene nor could the producer the news information verified head- get any by police was written shown a little over an quarters. story hour later. say We cannot that a news with its sources report apparent majority jurisdictions note that an also have 4We negligence “private Miami adopted the standard individual” suits. See: Ane, 376, Publishing (Fla. App. n. Co. v. 385 3 Dist. Ct. Herald 423 So.2d 1983); Living A Practical Look at Constitutional Libel with Gertz: Standards, (1981); Virginia Review n. Mathis v. Law 13 Inc., (E.D. 1978). Philadelphia Newspapers, Supp. F. n. Pa. scanner, of information consisting from a uncor- police scene, roborated on the by police conjunction with an account eyewitness by a news who did not know the reporter observed, circumstances of what she will be surrounding found to be due care as a matter of law. We think the issue of submitted to the negligence properly jury. further it is entitled

Appellant argues that to reversal as a matter of law because the failed to demonstrate appellees sustained a they legally as a compensable injury result of the proximate news makes report. appellant first, Gertz, two that under points: the court erred not instructing jury that the awarded be for damages must actual incurred. injury Gertz does not require such an instruction. The Court out it Supreme pointed would not define “actual but said it was not limited injury,” to out-of-pocket expenses and could include personal humiliation and mental Gertz does eliminate anguish. presumed damages holds that must be damages proved by competent evidence. In the this instructions was told jury did have the burden proving they sustained Such instructions damages. clearly indicate that could not damages second presumed. Appellant’s point, sustained, that no legally compensable we cannot injury uphold. Addressing question of constitutional limita- tions on the recovery general damages, posed by the Gertz decision, Rest. of Torts (b), 2d states: §

The court has not defined actual specifically injury, but it has explained that the term is not confined to out-of-pocket loss. It includes “impairment reputa- tion and standing but this must be community,” supported by competent evidence and cannot be pre- sumed in the absence of the harm is proof. Unless nature, pecuniary the evidence need not “assign an actual dollar value” to it. “Actual is also held to injury” humiliation, include “personal anguish mental and suffering,” provided to have been they proved sustained. The Constitution does not require proof impairment reputation damages before for emo- tional distress can be recovered.

234 witnesses,

Here, of testimony giving presented the appellees broadcast, own well as the appellees’ to the response their competent think there was the broadcast. We to reactions question. on this jury evidence presented that award last point, appellants argue As their a new trial must be vacated and damages compensatory award of punitive it was held that an ordered. Gertz with proven be made where it was only could damages story broadcast that the defendant clarity convincing Dodrill, holding malice”. We reiterated that with “actual showing for the are damages precluded except that punitive the truth. for disregard or a reckless knowledge falsity of a clear find the record devoid of evidence Because we with “actual nature that the defendant acted convincing recklessness, malice,” therefore error or with sufficient it was The the jury. the issue of punitive damages to submit ordinarily refusal to award would punitive damages jury’s harmless, but were permitted the error render held worth. We have net appellant’s evidence of present the issue of punitive number of that where on a occasions with the jury, together submitted to erroneously damages condition, an award of compen- defendant’s financial v. Dalrymple stand. is tainted and cannot satory damages Fields, (1982); Ark. Life Padgett, Insurance Co. 407 S.W.2d Casualty further The is reversed and remanded for case consistent with this opinion. proceedings Dudley, J., concurs.

Purtle, J., dissents. plaintiffs, Dudley, concurring. Justice, H.

Robert individuals, the defendant proved two private who in the redaction care ordinary did not exercise and, as a videofilm editing statement broadcast. result, the false by were defamed they actual with acted not that the defendant did prove plaintiffs liable the defendant them. Consequently, toward malice actual, the plain- suffered damages or compensatory, for punishment, or liable punitive, was not tiffs but so, ground proof punitive Even on the damages. prove defamed allowed were damages, plaintiffs million had a net worth of five and one-half broadcaster a net worth under such journalist’s Proof of a dollars. for the to punish journalist rationale invites jury to compen- rather than unpopular opinion of publication the by for sustained injury sate the defamed the person of the falsehood. publishing in issue case is the antithesis meaningful this of speech the law of defamation the freedoms

between and After self-governing society. analyzing and in a press concerns, sub- it is that our my conclusion competing Within stantive law is established. constitutionally may result. It law there can be an undesirable substantive of of occur when the at the time publisher, publication statement, or not no what was knowledge had of event of to himself from liability sufficient care protect then, is trial, falsity and at of statement error the ultimate in the time self-censorship at that and proven. Liability self- are the result. Unwanted by future of threat of censorship expression unpopular constitutes a that, I upon being write opinion. separately suggest case, rule of exclusionary we an presented proper adopt evidence law safeguard which will provide procedural against threat. foregoing subject

In our dual of we are system government two for the law of Both governmental regimes. provide for injury by freedoms and redress speech press. has no federal defamation is law. It provided only state by counterpart.

The Constitution for redress Arkansas provides and, to one’s our law of injury reputation prior not defamation was held to with the protections conflict First Amendment Certain federal constitution. se were regarded defamatory per classes falsehoods act to the victim was the mere presumed from damage Dunagan Upham, 214 S.W.2d publication. or liability, common law providing Our for strict fault, by regard without was modified liability federal when the Court of the United States regime Supreme ruled that the state laws of defamation could be exercised only concert with the freedoms of federally guaranteed decision, In New York Times Co. v. speech press. Sullivan, U.S. addressed (1964), Supreme Court the need for a vigorous uninhibited balanced press by interest of legitimate redressing wrongful injury defamation. The conclusion was that a rule of strict liability inhibited the unduly press when to defamation suits applied officials. A by public fault standard of actual malice was required place strict liability. accordance with that journalist decision a state any is now from protected event a false statement is made about a public official unless the journalist of actual malice. The guilty two factors principal considered in New York Times were the need to protect free of ideas so that exchange political and social change desired could self-governing public be brought about and the fear that the law of libel as applied states, ours, by many such as lead to self-censorship. would sense, “Self-censorship” has two In its meanings. descriptive occurs “self-censorship” whenever a refrains from journalist Anderson, publishing material for reasons. See legal Libel 422, and Press Self-Censorship, 53 Tex. L. Rev. 430-31 Sometimes (1975). it is intended to curtail injurious speech values, other to such as standards. This obscenity type However, self-censorship may be if it refers to a acceptable. needless restraint on the freedom of name expression value, some and is more than is competing inhibitory Roth, it necessary, is unconstitutional. See In Defense of Law, Fault in 88 Yale Law (1979). 1735 Defamation Journal decision, In the years the New York Times following the term “public official” was extended to “public figure.” Butts, Curtis Co. v. Publishing (1967) 388 U.S. 130 Walker, Associated Press v. 388 U.S. 130 (1967). of these none cases established a mandated constitutionally standard of fault in event the false is about a statement individual. private

A short-lived deviation in doctrine six years occurred Court, later when a three-member of the plurality Supreme with five opinions eight jurists, among participating

237 of the defamed person from the status away shifted focus had in which the defamation the nature of the event and to Metromedia, (1971). 403 U.S. Rosenbloom v. occurred. should extend held that the press protection The plurality if the private persons defamatory falsehoods relating interest. of general public statements concerned matters months to Rosen prior down three case handed bloom, federal court had extended but a time when a lower at in private to encompass the New York Times doctrine concern, of important public dividuals matters involved philosophy. the Rosenbloom this court refused apply Co., Ark. Printing v. Commercial Jones that we hold we stated “must” After Rosenbloom (1971). were within the press matters of concern public but, independent Amendment the First protection dictates, philo we did not Rosenbloom adopt federal Carnes, Gallman S.W.2d 47 sophy. (1973). Court Rosenbloom Supreme rejected

In 1974 and, injured once again, emphasized doctrine Welch, Inc., than event v. Robert rather Gertz reported. reasons for the There were two principal 418 U.S. 323 First, is felt that repudiation. majority unpopular speech deter- the statement threatened when content of is content- factor First Amendment mining liability. and, the standard was neutral content-based accordingly, it the of “what rejected danger determining because involved Secondly, is relevant to self-government.” information virtually it eliminate felt that was undesirable majority of victims. ability protect the states defamation Gertz, alternative adopted In Court Supreme definitions The first branch “public figure.” of of such positions definition includes those “who occupy that are deemed power public and influence persuasive they those encompasses for The second figures purposes.” all the forefront of particular who “have thrust themselves on controversies in order to influence the resolution public See individuals. private the issues resolved.” All others are Inc., Association, U.S. v. 443 Digest Wolston Readers Proxmire, Hutchinson v. 443 U.S. 111 (1979), (1979) and Time, Firestone, Inc. v. (1976). U.S. 448

The Supreme Gertz held Court First satisfied, Amendment protection was the case of a private individual, so as is not long liability imposed without fault. Thus, must set the standard states of fault for of a with defamation journalist charged private persons. Gertz,

Since majority of states adopting standard of negligence for cases where a private person is defamed have adopted the “ordinary negligence” standard. Collins & Drushal, The Reaction Courts State to Gertz v. Robert Welch, Inc., 306, 313-314 Case Res. L. Rev. W. rationales standard adopting ordinary fall into four first, common theme, themes. The and most common is that “reputational interests command constitutional protec tion.” The second is the state law nothing requires stricter standard. The third line of is that reasoning private person who had been defamed should be allowed recovery as easily constitutionally permissible. The fourth theme is that can be press demagogic not ought states, five, additional given A power. have minority reached contra holdings. court, us,

This the case now before has no leeway the standard In Dodrill setting of fault for Arkansas. Co., Arkansas Democrat 628, 590 840 (1979), cert. denied 444 U.S. followed Gertz we (1980), the Rosenbloom content- acknowledged repudiation based doctrine. reversing case we remanding that, retrial, instructed the trial court upon the standard of fault was as follows: a libelous article shall be liable to the

defamed private individual for failure to exercise ordinary care. not

Although expressed, for the reasoning ruling that, states, like the of the majority the Constitution of Arkansas commands protection of the interest. reputational It the “inherent and inalienable of recognizes rights” and and “acquiring, property reputa- possessing protecting Const, II, It tion ...” Ark. art. also mandates that an 2.§ is individual entitled to “for all or remedy injuries wrongs he or may receive in his character.” Ark. person, property Const, II, art. has 13. Each of our constitutions contained a § for freedom and each has provision expression of also of specifically the interest in the recognized of The protection his constitution reputation. present II, provides art. 6:§ of the shall forever remain liberty press inviolate. of communication is one thoughts opinions man;

of the invaluable and all rights persons may write freely their sentiments on publish all sub- the abuse being responsible such right. jects, [Emphasis added.] Our four constitutions also contained prior the phrase Const, for the abuse of “being responsible such Ark. right.” Const, II, 1864, 1861, 1836; I, 2,

art. Ark. art. 1868. § § Thus, state, from the outset of this the constitutionally recognized right individual to his is reputation not to be limited as a means of freedom of the protecting press. constitution,

Unlike our state the First Amendment of Constitution the United no States contains defama- tion clause but the Supreme Court the United States has determined that a standard of less protective than that of actual press malice will not impermissibly the First Amendment abridge freedoms cases involving individuals. The private federal is determinative of ruling the freedom of expression of both provisions constitutions but not the responsibility of our state constitu- provision tion. See Wilson Pine City Bluff, Thus, our state constitution mandates and the federal constitution accommodates standard fault being ordinary negligence event the person defamed a private individual. that,

In the case at bar it is even if the standard is argued “ordinary negligence,” it should be measured what a or would community careful broadcaster

reasonably uncertainty would cause not Such a measure publish. would First, the con- self-censorship. induce more ultimately and broadcaster, of a measure for the legal negligence of one cept and another for an yet another for a newspaperman, of our constitu- is ordinary spirit individual contra distinction can be made be- tional No provision. logical a written statement. Of tween a statement and spoken course, careful reasonably person what determining do, is admissible as to the or would not proof would of professional journalistic standard generally áccepted is not in of a local standard Secondly, concept conduct. the state. one constitution for all of with spirit concept would leave a concepts publisher Most these importantly, freedom from ensuring without definitive means any to meet a his conduct by tailoring particular be the inevit- would self-censoring Unwanted requirement. able result. the stand- determining there is no

Similarly, leeway Rosenbloom, In ard for the degree proof negligence. malice must be made held of actual plurality proof standard more protective “with convincing clarity,” than the usual press “preponderance freedoms of speech Gertz leaves it to the states to set of the evidence.” and, the standard the state constitution mandates again, answer. has a or state summary, publisher privilege print as it is not done

a falsehood about a so public figure, long if with actual malice. That same does not privilege apply There, defamed is a individual. person private liability may standards states so imposed by long set imposed as the standard is not strict The standard liability. in Arkansas is of the evidence of proof by a preponderance tends, Such a standard ordinary negligence. practice, his control hold a liable for factors outside that, he cannot be when an article is whereby certain erroneous, accuracy his efforts to insure ultimately proven will be deemed lack of control is sufficient. publisher’s A due to two factors: standard of due care. (1) nebulous fence, he even speaker stays “steers clear of a barbed wire but if he is not fence is.” farther sure where the away exactly To Defamation, Right Public’s Wright, Privacy, A National Problem Tex. L. Know: and a New Approach, Rev. of ultimate (1968), (2) fact proof which cause an inordinate influence falsity permitted may on the evaluation of whether due care was exercised. As a result, unwarranted will still take self-censorship place that, turn, in is a threat to unpopular expression. Roth, A first mentioned in Fault proposal Defense of Law, in 88 Yale L. (1978) 1747-49 Defamation Jour. the The speech.

would alleviate threat to help unpopular would limit the of evidence a proposal admissibility to that of the defamation suit which was within the reach when the journalist defamatory prepared. statement The limitation be exclusionary would an accomplished by rule of evidence. The is proposal as follows:

The rules in a defamation governing admissibility should exclude all evidence that a proceeding plaintiff refused to to disclose the defendant response detailed and that not otherwise defamatory charges reasonably available at the time of Under publication. rule, this a would be for con- journalist responsible all sidering reasonably information obtainable when he the article. But the rule would shield him prepared from for information that the accountability subject an journalist article refused to disclose and that could not have elsewhere. reasonably acquired of this rule should

Application exclusionary First, be on two conditions. it should depend triggered if only has journalist presented subject contents of relevant injurious an charge requested The information within the exclusive control. subject’s that, be if fails to subject put would thus on notice he be cooperate, might his remedies for defamation legal Second, impaired. subject required should with no factual than respond greater specificity with which the charges journalist were presented. would rule to thus be from prevented exploiting conduct a The rule would function fishing expedition. if accusations were only original

meaningfully factual Assuming detail. such made considerable accusations, a neither the journalist’s specificity broad, conclusory comment” nor “no statement introduce right would reserve subject’s denials facts at a defamation underlying proceeding. [Empha- sis added.[ would action rule accommodate proposed It on free with minimum restriction speech.

defamation follow, with choices to would clear provide First, if from liability. each of which would result freedom statement, of the the individual after content seeing there is freedom acknowledges truth statement Second, if do more. from no need to anything comment,” “no the evidence simply gives his which statement within falsity peculiarly trial, would be excluded at a and to avoid knowledge a the be to show that only would liability publisher required careful effort was made to the informa- reasonably acquire Third, if a tion elsewhere. the individual private gave denial, know he must the would meaningful publisher make a meticulous and and thorough investigation falsity certain of the truth of his statement the absolutely im- denial attach. Most of the or else would tailor work the would how to his portantly, know to meet specific requirement. rule that it

Other beneficial aspects proposed would a provide method self-help When many lead to the resolution of statements. defamatory facts, set of I to vote in favor presented proper intend rule. exclusionary the proposed Purtle, to me the I. It seems Justice, dissenting. John that a firm or corporation holds majority opinion person, be held for libel first proved cannot liable unless it is with the specific or broadcast was not done publication intent of victim. I with such injuring agree cannot All of the that when a matter cited have held holding. cases “reckless disregard was with “actual malice” or published truth” allowable. In my for the were punitive damages long majority opinion established has now overruled impossible to recover principle punitive and made it almost of law damages suit. a libel majority opinion, facts, show stated in the as by appellant

conclusively story presented was that the robbery attempt; was no was no there of truth. There devoid prevent police hostage; arrests; did not no and the there were Everything report robbery. and unveri- was untrue by appellant. a reckless If not amount to fied disregard this does imagine a case truth then it is difficult to

for the would exist. where this standard opinion there were were ones where

Cases cited only defendant; one defendant. more than one here there is any prejudice such as other defendants There was no Casualty Padgett, & Ins. Co. v. occurred Life (1966)and Dalrymple v. Fields, Ark. present case, matter In the the entire

633S.W.2d 362 jury. properly presented appellees Had the newscast not shown the might subjects damages existed. not have the telecast clearly would-be identified as two were story completely kidnappers. false. robbers and This any, appellees’ telecast, few, if friends and this Without acquaintances brief deten- would have even heard of their police. tion press right speech free of free

The First Amendment responsibility. is no freedom to with it some There carries falsely U.S., in a crowded theater. Schenck shout “fire” injure Nor is there the freedom U.S. people through faces on a of their innocent the broadcast story widely viewed newscast when the facts disregard unconfirmed, for standards falseand show an utter reporting profession that is extent to an within easily recognizable news properly juryA of twelve

as reckless. subsequently the case awarded that this was found prior abrogate damages appellees. compensatory To subject to all do a disservice on this is to considerable law jurisdiction, is now a of whom each residents of this court’s victim of potential This does an irresponsible journalism. itself, even disservice to the news media greater without the reasonable constraints for under our provided previous law, will be ever temptation present to be less diligent efforts to confirm the truthfulness of a newsmaking story. Freedom be abused and I press may believe it sincerely in this case. At least the issue of whether the story broadcast with “actual malice” or “reckless for the disregard truth” was a matter properly presented the jury. Finding errors, no other I would affirm the trial court.

Cullen Reed & HARRIS Sandra HARRIS Kay

v. STATE of Arkansas S.W.2d 710 Supreme Court of Arkansas Opinion delivered September Davis, L. for appellants. James Clark, Gen., Steve Atty. Holder, by: Theodore Asst. Gen., Atty. for appellee.

Per Curiam. Appellants, Cullen Reed Harris Harris, Kay Davis, Sandra by their E. attorney, have James filed a motion for rule on the clerk. The motion admits that the record was not filed timely and it was no fault of the appellants. Their admits attorney

Case Details

Case Name: KARK-TV v. Simon

Court Name: Supreme Court of Arkansas

Date Published: Sep 12, 1983

Citation: 656 S.W.2d 702

Docket Number: 83-47

Court Abbreviation: Ark.