McNabb v. Oregonian Publishing Co.McNabb v. Oregonian Publishing Co.
Plаintiff, a Portland police officer, brought this action to recover for damage to his reputation caused by an allegedly libelous newspaper article that was published by defendant. The trial court entered summary judgment for defendant, and this appeal followed.
The alleged libel, published on May 31,1981, was one of a series of articles that examined the workings of the Portland Police Bureau. The article includes quotations that portray plaintiff as a racist. It is prefaced by a summary statement that plaintiff is reputed to be a racial bigot inclined to using excessive force against blacks. It then reports a meeting between plaintiff, Portland City Commissioner Jordan and Portland Police Chief Baker, in which plaintiff was allegedly told by Commissioner Jordan that he was rumored to be “heavy hаnded” in his work in the North Precinct and that he used “racially demeaning” language. It attributes to an unidentified “white Portland attorney” a statement that plaintiff was an “unreconstructed, unreformable racist.” A black former policeman, described as “Multnomah County’s affirmative action director,” is quoted as saying that plaintiff had a reputation for “using more than necessary force to arrest people, especially people of color and that he had a history of abusive and racist language, calling blacks namеs like ‘nigger,’ ‘coon,’ ‘boy,’ or ‘puke.’ ” It attributes to an unidentified “black official of a civil rights organization” a statement that plaintiff was “bad news, straight out of the Old West.” The article also contains plaintiffs denials and favorable comments about plaintiff made by his superiors at the Portland Police Bureau.
Plaintiff brought this action, asserting two claims against defendant as a result of the article: first, that the article was libelous and, second, that it intentionally held plaintiff up to the public eye in a false
While the case was pending, plaintiff sought discovery of certain notes taken by the reporter who wrote the article and a variety of material gathered by defendant about plaintiff
which was not included in the final draft of the article. The trial court, relying on Oregon’s “shield law,”
Defendant then moved for summary judgment on the libel claim. In support of that motion it argued, in part, that: (1) plaintiff is a “рublic official” under
New York Times v. Sullivan,
The trial court granted summary judgment, concluding, in part, that plaintiff is a “public official” and had not shown any evidence from which a jury could conclude that defendant had acted with actual malice.
Plaintiff assigns three errors on appeal. First, he contends that the trial court erred by granting summary judgment. Second, he contends that the trial court erred in dismissing his “false light in the public eye” claim. Finally, he contends that the trial court erred in failing to require defendant either to produce materiаl that plaintiff requested during discovery or to abandon the claim that it was entitled to the protection of the New York Times rule.
Asa preliminary matter, we agree with the trial court that, as a police officer, plaintiff is a public official.
1
The nature and importance of the subject matter of the allegedly defamatory article published by defendant demonstrate that
plaintiffs duties are governmental in character and that there is significant public interest in the manner in which those duties are discharged.
See Koch v. Laborico,
The question in the present cаse is whether, based on the affidavits and depositions in the record, allowing all permissible inferences and resolving questions of credibility in plaintiffs favor, a reasonable jury could find actual malice.
See Yartzoff v. Democrat-Herald Pub. Co.,
A public official who claims to have been libeled must рrove the existence of actual malice by “clear and convincing proof.”
Gertz v. Welch,
Furthermore, рlaintiffs’ allegations in actions for libel that defendants “reified] on statements made by a single source,”
New York Times Company v. Connor,
365 F2d 567, 576 (5th Cir 1966), or failed to verify statements received from an “adequate news source,”
Post v. Oregonian Publishing Co.,
Plaintiffs contention that the trial court erred in granting summary judgment is grounded primarily on the argument that the serious nature of the charges alleged demanded, but defendant failed to conduct, a thorough investigation as to their accuracy. In support, plaintiff asserts: (1) defendant failed to obtain first-hand information about plaintiff; (2) the absence of “hot news” demanded a more thorough investigation than was performed by defendant; (3) defendant possessed unpublished contradictory information about plaintiff, and it either should have published that information or refrained from publishing what it did; and (4) defendant failed to pursue potentially exculpatory information about plaintiff.
First, as we have stated, malice may not be inferred from the fact that the accusations are of a serious nature,
Washington Post Company v. Keogh, supra,
365 F2d at 970, or from a defendant’s “slipshod investigation.”
Colombo v. Times-Argus Assoc., supra,
135 Vt at 458. Second, although some courts have considered “hot news,”
i.e.,
the immediateness of a story, as a factor in determining actual malice,
see, e.g., Curtis Publishing Co. v. Butts,
Finally, plaintiff asserts that actual malice may be inferred from defendant’s failure to follow up on potentially exculpatory information concerning him. Plaintiff excerpts a portion of the deрosition of one of defendant’s sources, who testified that he described plaintiff to defendant’s reporter as a “young officer with red hair * * * who was well-versed in karate.” Plaintiff then refers to his affidavit, in which he states that he does not have, nor has he ever had, red hаir, and that he has only a faint acquaintance with the martial arts, acquired during his experience in the Army between 1962 and 1964, and forgotten soon thereafter.
When a plaintiff in a libel action has shown that the defendant possesses contradictory information, or that for some reason the defendant had serious doubt as to the trustworthiness of the source of its information, some courts have been willing to infer actual malice.
See, e.g., Widener v. Pacific Gas & Electric Co.,
75 Cal App 3d 415, 142 Cal Rptr 304 (1977),
cert den
Summary judgment was appropriately granted on the libel claim, because plaintiff failed to show from the affidavits and depositions in the record any material issue of fact from which a reasonable jury could find actual malice.
Plaintiffs second assignment of error is that the trial сourt erred in dismissing his second claim for relief on the ground that the tort of “false light in the public eye” does not exist in Oregon. Assuming that the tort exists in Oregon,
see Flowers v. Bank of America,
“One who gives publicity to a matter concеrning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
“(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
“(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”
Subsection (b) requires that a plaintiff prove actual malice. Our holding that plaintiff failed to show actual malice in his libel claim alsо bars his “false light” claim.
In his final assignment, plaintiff contends that the trial court erred in failing to compel defendant either to produce certain material that plaintiff had requested during discovery or to abandon the
New York Times v. Sullivan
privilege. The trial court held that Oregon’s “shield law,”
“(1) No person connected with, employed by or engaged in any medium of communication to the public shall be required by a legislative, executive or judicial officer or body, or any other authority having power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise;
* * * *
“(b) Any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium оf communication to the public.”
Plaintiff does not dispute that the information sought falls within the shield law privilege. Instead, he contends that the trial court, by interposing the privilege, has preventеd him from discovering anything other than the very substance of the article. He argues that the ruling has prohibited him from discovering matters indicating defendant’s state of mind, matters that are essential to prove actual malice and, therefore, has limited his ability to pursue a dеfamation action. That may be so. However, except for constitutional limitations, to the extent that a state authorizes a claim for defamation, it may also limit a party’s ability to prove the claim in order to promote other social purposes. 3 Plaintiff has made no state constitutional challenge, 4 and the trial court was not wrong in applying the statute in the face of the challenge that plaintiff made.
Affirmed.
Notes
Plaintiff does not strenuously contest this holding. In his brief he states:
“Plaintiff has not conceded that he is a ‘public official’ as that term is defined in Times. Plaintiff does acknowlеdge, however, that the vast majority of cases which have considered the issue have found even rank and file police officers to be public officials. Accordingly, in these proceedings, Plaintiff will not stress the argument that he is not a public official.” (Emphasis supplied.)
Roe testified by deposition:
“Q. Did [defendаnt’s reporter] ask your permission to publish statements to the effect that you had no personal information that John McNabb was a racist?
“A. She asked me that question.
“Q. What question?
“A. If in my opinion John McNabb was a racist, and I told her no.
“Q. Did she ask you if she could publish that?
“A. I don’t recall. She may have. If she did, she didn’t. I don’t believe she did ask me. I just don’t reсall.”
See Steaks Unlimited, Inc. v. Deaner, 623 F2d 264, 279 (3rd Cir 1980), upholding the application of Pennsylvania’s shield law (which is similar to Oregon’s) in a defamation case.
Article I, section 8, of the Oregon Constitution provides:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
Article I, section 10, of the Oregon Constitution provides:
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”