Wilson v. Daily Gazette Co.

judge-made law is substitute other than to S.E.2d in the reprehensible area particularly WILSON, Quincy Plaintiff clarity and are fairness criminal law where Below, Appellant, Anderson, v. overriding State concerns.” 767, 761, 371, 377 575 S.E.2d 212 W.Va. v. (2002) J., major- concurring). (Albright, COMPANY, a The DAILY GAZETTE reprehen- Nichols ity decision to overrule Virginia Corporation, De- West Moreover, majori- “[t]he author of sible. Below, Appellee. fendant has, effect, ty opinion ‘stood stare decisis ” Props., M Inc. v. A & on its ear.’ 31045. No. Norfolk 632, 189, 197, 506 Corp., S.E.2d 203 W.Va. S. Appeals of Supreme Court (1998) (Starcher, J., dissenting). Virginia. rule, principle of stare general “As ... to to the hold us adhere decisis directs 14, May 2003. Submitted County prior Alle ings cases[.]” of our 12, Decided June Union, gheny Civil Liberties v. American 573, Pittsburgh Chapter, 492 U.S. Dissenting Opinion Greater of Justice 668, 13, 106 L.Ed.2d 109 S.Ct. McGraw June (1989) J., (Kennedy, concurring and dissent Banker, 196 ing). also Banker v. W.Va. 476 n. 546 n. S.E.2d (“Stare policy decisis is the by precedent.”). to “Stare deci- stand important principle upon

sis rests people governed law should which definite, known,’ ‘fixed, and not sub be in the ject frequent modification absence compelling reasons.” Bradshaw Souls 681, 689 by, 210 558 S.E.2d W.Va. J., dissenting), quoting (Maynard, Sims, 350 n. Booth W.Va. (1995). 167, 194n. 14 compelling No overrule reason existed majority opinion pro- did not Nichols. The justification ignoring legitimate vide overturning I Nichols. As stare decisis out, pointed imposed preju- Nichols no have by requiring dice a defendant the defen- the trial present dant credible evidence judicial precious court before resources separate if expended in a trial determine was, fact, person same defendant prior named in a conviction. given, part For I concur the reasons part. dissent in MAY- I am authorized to state the Justice separate joins opinion. in this NARD me

210 County

Court of Hancock granted which summary judgment Daily Gazette Company, (herein- appellee/defendant below Gazette”). after referred as “The circuit court’s order dismissed Mr. Wilson’s defamation claim The Gazette.1 Be- Court, fore this Mr. Wilson contends that the concluding circuit court erred in that he was “public figure,” and further con- erred in cluding that carry he failed to his burden of producing sufficient evidence to establish the element of malice his defamation claim. Simply put, Mr. Wilson contends that he not a figure. Alternatively, if found to figure, be to pro- he claims have duced sufficient evidence meet his burden establishing malice summary judg- at the stage. ment After reviewing the briefs listening arguments parties, of the this case is reversed and remanded.

I.

FACTUAL AND PROCEDURAL HISTORY year Mr. Wilson was a seventeen old High student athlete at Weir School. Mr. Wilson was a high member school’s football and basketball teams. As a player, football Mr. Wilson was co-winner Kennedy of the Award.2 He received an scholarship play athletic football at West Virginia University. player, As basketball Piziak, Ancil Ramey, G. Step- Michelle E. helped Mr. Wilson lead his team to the state Johnson, Charleston, toe & Virginia. West championship. Galloway, Weirton, Virgi- E. William West participat- On March Mr. Wilson nia, Attorneys Appellant. championship high ed a statewide school Rudolph DiTrapano, Barrett, L. I. Joshua game basketball held in Charleston. At the McGinley, P. DiTrapano, Sean Di- Barrett & game, conclusion a rumor was circulat- Piero, Charleston, Virginia, Attorneys that Mr. “exposed” pub- ed Wilson himself in Appellee. during post-game lic victory celebration. published On March the Gazette DAVIS, Justice: referencing two articles the rumor Wilson, Quincy appellant/plaintiff exposed below Wilson had himself after the basket- (hereinafter Wilson”), game.3 referred to as “Mr. language ball relevant from the appeals ruling by an adverse the Circuit first article read follows: 1.The Kennedy given annually circuit court also the- dismissed four other 2. The Award is to the liability. top prep player. ories of Because we decide this State’s football case theory, separately we need not defamation See, liability. supra, address the other theories of Vingle, 3. Both articles were Mitch written reporter note 20. for the Gazette. than run and cele- players, rather complained that Weir’s Bank fans East Some fans, rolling found themselves brate exposed himself [Quincy] Wilson fans. in front of East Bank’s around cheering during Weir’s section Pioneers’ sides. led to taunts from both That scene postgame celebration.4 co-Kennedy allegation ... It led arti- language from the second

The relevant Quincy winner Wilson went ex- Award step exposed read as follows: himself.5 cle tra Kennedy Quincy went the winner Wilson appeared Award article of the first 4. The full text step exposed himself. extra follows: Today, Ingram po- to interview scheduled Investigation Incident Under Civic Center police will determine tential witness. REPORTS FROM STAFF necessary. ges- investigating whether action police lewd Charleston outcome, High Regardless the situation allegedly one Weir made at least tures Dog ugly. following ugly. last-second player the team’s School dog. Bank at the state basketball win East And need curb Thursday Sunday meeting,” at the Civic Center. tournament said SSAC "At our coaches reported Carter, principal Hopkins secretary Neil Bank "[assistant East Warren executive involving Quincy Wilson Weir’s secretary] Betsy up incident and talked about Best stood Police. to Charleston sportsmanship. complained that Wilson how, East Bank fans Some right talked about stood there and "She cheering exposed section himself to the Pioneers' problems years, previous had with we’ve during postgame celebration. Weir’s going oppo- and cheerleaders mascots Ingram R.E. said Detective Charleston Police taunting. fans and nent’s today potential and a witness he will interview thought we'd have to discuss the "I never if is warranted. further action determine doing that.” teams you’re allegations “These are some serious fairness, to team didn't rush East In all Weir's about,” talking Weir Jack Kostur said. coach Bank's fans. "Certainly it if there’s I would not tolerate players Blakemore When the Red Rider lifted it, any proof. As far I haven't seen truth to but celebration, just party in front of crashed concerned, proven oth- its until as I’m innocent the Pioneers’ fans. erwise.” taunting gestur- screaming and Then the Wilson, signed play to foot- a who has senior place. ing degree whatever —to —took University, Virginia was co-winner ball at West something happens," “When like this said Car- House) (along of the 1998 Ken- with Nitro’s J.R. ter, couple steps. "it us back a sets Award, annually nedy Virginia's given to develop I’ve taken I’ve tried to “Since over. top player. prep football good sportsmanship. when the kids see the But college having prob- pro players players and the appeared article text of second full The lems, they way go. that’s the to think follows: "Now, got go up and over.” we’ve to back start Up Clean Our Trash Time To course, pump. simple a few mind a arm Or Of Vingle Mitch joy. good-natured leap even trash talk- Or HAD IT. I'VE dialogue ing long as the is concluded with —as it. All of handshake. grabbing. finger wagging. mid- The The everyone, give your opponents please, Just fingering. dle props. their deposit it in the Take it all and Do me favor. respect. Especially proper at the them Give compactor. nearest trash high school level. enough. had I’ve volatile,” becoming more ’Tve noticed crowds boys Thursday’s exhibition at the basketball working Perry Estep, who is said area official capper. Bill Blake- Weir’s tournament was disappointed "And been in the tournament. I've almost-impossible shot to lift his more nailed an tough to find administra- administrations. It’s past Bank. team East youth.” today's willing up to stand to tors you get I Did I did interview Blakemore? But big Estep players weren't said coaches joy, his exhilaration? sense Blakemore’s problem season. this No. season," Estep. games said "I had 70 game. I the mess at the end had to cover games, only I had two technical fouls on all tiróse police Detective I had to interview Charleston situations, objects I had In about 10 coaches. Ingram. R.E. others, I to In about 10 had thrown the floor. players, rather than run and celebrate Weir’s of fan vul- the administration because fans, summon rolling found themselves around with their garity." Bank’s fans. in front of East The result? to both sides. It scene led taunts from That high taking school basket- families out of Ryan "It’s allegation Jeter an Weir's led to ball,” fans, himself, Estep. a lot of families "You don’t see taunting said grabbed East Bank pro- games going high because of the allegation to school and co- that Jeter’s teammate Subsequent publication “[s]ummary judgment of the arti- should denied be ‘even cles, Mr. Wilson filed a defamation no dispute action where there is as to the evidentia- ry period only facts in the Gazette. After of dis- the ease but as to the conclu ” covery, sions be drawn therefrom.’ Gazette filed motion sum- Williams Coil, Inc., Precision mary judgment. legal W.Va. One issues (quoting Pierce v. raised the Gazette’s motion was that Mr. (4th Ford Motor Cir. a public figure Wilson was within the mean- 1951)). inquiry “The essence of the court ing of defamation law. circuit court must make is presents ‘whether the evidence agreed Consequently, with the Gazette. disagreement require sufficient submis circuit held that Wilson had show jury sion to a or whether it is so one-sided publications were made with actual mal- party prevail one must a matter ultimately ice. The circuit court concluded ” Williams, law.’ 194 W.Va. at present that Mr. Wilson failed to sufficient (quoting S.E.2d at 338 Liberty Anderson v. evidence to establish actual malice. There- Inc., 242, 251-252, Lobby, 477 U.S. 106 S.Ct. fore, granted summary circuit judg- (1986)). 91 L.Ed.2d 202 More ment favor of the Gazette. It is from over, nonmoving “[a] party need come rulings that Mr. appeals. these Wilson forward in a form evidence that would be trial in admissible at order to avoid sum II. However, mary judgment. to withstand the motion, STANDARD OF REVIEW nonmoving party must show will enough competent there be Here, we asked to review the finding available at trial to enable favorable granting summary circuit judg court’s order nonmoving Williams, party.” ment in favor of the Gazette. Our cases have 60-61, (cita at W.Va. S.E.2d 337-338 clear entry “[a] made circuit court’s of omitted). tions summary judgment is reviewed de novo.” 1, 189, Syl. pt. Peavy, Painter v. 192 W.Va. proceeding In this of one the dis- “ (1994). ‘appellate 451 S.E.2d 755 Insofar as positive upon issues we are called to examine entry of summary judgment review an of is involves circuit court's determination that Court, court, plenary, this like circuit public figure. Mr. Wilson awas Courts have light must view the entire record most generally hold, recognized, and we now hospitable party summary opposing plaintiff “whether a in a defamation action is judgment, indulging all reasonable inferences public figure question is a of law for the ” party’s in that favor.’ Provident and Int’l, Inc., trial court.” Khawar v. Globe 19 Life Bennett, 236, v. Accident Ins. Co. 199 W.Va. 254, Cal.Rptr.2d Cal.4th 79 965 P.2d 238, 819, (1997) (quoting 483 S.E.2d 821 (1998). 696 also ex State rel. Suriano v. Res-Care, Inc., 687, 684, Asaad v. 197 W.Va. Gaughan, 198 W.Va. 480 S.E.2d (1996)). 357, 478 360 S.E.2d We have 548, made (holding 555 that whether “summary judgment appropriate clear that is by ais “can be a court decided if [only] genuine no law.”); Co., ‘there is as to issue Mfg. [a] Lundell matter[ ] moving party material fact and ... Cos., Inc., is Inc. v. American Broad. 98 F.3d ” (8th (“The judgment Cir.1996) to a 351, entitled of law.’ matter 362 determination Committee, v. Republican Pritt Nat’l 210 plaintiffs of a .... public figure status as a 452, 446, 853, law.”); Piro, W.Va. 557 S.E.2d 859 is an issue Tavoulareas v. 56(c)). Further, (‘Whether (quoting (D.C.Cir.1987) 762, W. Va.R.Civ.P. 817 F.2d 772 fanity vulgarity challenge and the lack of crowd con- Carter said will his administra- trol.” after tors coaches the season. mean, high And help? that's a shame. I what is Will that Probably school basketball for if not families and commu- This the era of WWF. not. is nity? P.T. Barnum has been traded for Sable. office,” Carter, wrestling “In our said been “we’ve deal- Pro where shows are moms and dads Refs, ing kids, problems with days. more with fans. mean- take their these while, dealing problems sportsmanship? have been with more As for players.” just It’s a New World Order.

214 extent) public

(and public particular into a controver person is a themselves to what thereby figures public for sy for court to become of law a matter Liddy, range of Wells v. 186 Washington limited issues.” decide.”); Post Rebozo v. (4th Cir.1999). Cir.1981) (5th (“[T]he 505, Accord 375, 532 U.S. trial F.3d 379 Healthcare, Inc. Greater court, v. Blue Cross jury, must determine whether not (3d 914, F.2d Cir pub Philadelphia, showed the evidence .1990); Abernathy, 816 Naantaanbuu v. Consequently, further hold figure.”).6 we lic 218, (S.D.N.Y.1993); Metge F.Supp. trial court’s resolution appeal, “[o]n Ass’n, Improvement Neighborhood questions bearing on the disputed factual Central (Minn.Ct.App.2002); for 649 N.W.2d is reviewed public figure determination error], Pittaway, N.C.App. resolution Gaunt while the trial court’s [clear (2000).9 In the instant public figure sta 664-665 question of of the ultimate subject proceeding, circuit court’s order does [de novo] question tus is a of law identify figure category for Mr. Khatwar, public Cal.Rptr.2d review.” Therefore, view, separately we must ex principles in we Wilson. P.2d 696. With these category. amine each now turn to merits of ease. public figure. All-purpose Gertz

III. Welch, Inc., 323, 94 418 U.S. S.Ct. v. Robert (1974), 41 L.Ed.2d the United DISCUSSION Supreme established all- States Court Determining Whether Mr. Wilson A. public figure category.10 The deci purpose Figure Was a Public defamation involved a action sion Gertz attorney brought by that he who The first issue we must address correctly concluded was defamed an article the defendant’s whether the circuit figure7 magazine. was a The article described the attor that Mr. Wilson ney claim.8 At the as a communist. The lower federal purposes of his defamation outset, among judgment general granted rule courts for the defendant. follow Court, appeal Supreme jurisdictions one of the and state hold On other federal defamation, attorney that, issues raised was whether ing in claim there figure. recognized categories public figures: The evidence on attor thi-ee “(1) figures,’ ney’s public figure status as a ‘involuntary public who become revealed groups as local civic through no action served an officer of public figures purposeful “[h]e (2) own; professional organizations, public figures,’ of and ‘all-purpose and various of their notoriety published several books and articles pervasive ha[d] such fame or he who achieve subjects.” Gertz, 351, legal at public figures pur for 418 U.S. 94 they become all (3) issue, contexts; at In its of this poses in all and ‘limited- S.Ct. 3013. resolution and voluntarily inject all-purpose figures,’ public figure the purpose public who GeHz created Brewer, 511, Estep In v. 192 W.Va. 453 8. Since this defamation action concerns written curiam) (1994) (per allegations, technically a 345 asked deter- matter libel 8, Syl. in mine whether tire trial court committed error pt. v. claim. See Schmidt Bak- Greenfield jury Inc., 447, submitting interrogatory Co., an which ing 199 W.Va. 485 S.E.2d 391 jury required plain- the form, to determine whether (1997) (“Defamation published in written public figure. a We declined to form, libel.”). tiff was address opposed spoken constitutes finding properly pre- after not the issue it was Estep made clear in that "we served. This Court Gaughan, ex 198 W.Va. 9. See State rel. Suriano v. interroga- of do not endorse submission such 548, (1996) (recogniz 480 S.E.2d 556 515, tory by courtf.]” at the trial 192 W.Va. 453 ing public figures). types two of three of S.E.2d at 349. previously not This Court has addressed held that defamation "[i]n 7. This Court has figure category. cases, all-purpose public But plaintiffs Gertz’s types public of exist: three Havalunch, 268, Mazza, office; (2) v. 170 W.Va. 294 see Inc. public officials and candidates for and, (3) (providing general S.E.2d 70 some discus- public figures; private individuals.” 10, public figure Syl. Daily all-purpose pt. of and limited part, in sion Hinennan v. Gazette Co., Inc., 157, (1992). figure categories). purpose public 423 S.E.2d 560 188 W.Va.

215 category. ‘celebrity,’ stated some a “[i]n Gertz instances his name ‘household word.’ The may pervasive an public recognizes individual achieve such him and his follows words deeds, notoriety public regards fame or he becomes either because it his ideas, figure conduct, purposes judgment worthy for all and in all contexts.” or of its Gertz, 351, at 94 actively 418 U.S. S.Ct. at 3013. attention or pursues because Waldbaum, “[a]bsent Gertz further clear of held evidence consideration.” F.2d 627 at general notoriety community, or in fame 1294. Accord Kroll Assoc. v. City and Coun (D.Haw. Honolulu, pervasive ty in F.Supp. 802, involvement the affairs of 805 833 of society, 1993); Tomczak, 687, an individual should not be deemed Harris v. 94 F.R.D. (E.D.Cal.1982); public personality aspects Heller, for all of his life.” 703 Bowman v. 420 Gertz, 352, 517, 369, (1995); 418 94 at 3013. In Mass. U.S. S.Ct. 651 N.E.2d 373 Vas application Bell, 347, all-purpose its an N.J.Super. of the test for sallo v. 221 534 A.2d 724, (1987); public figure 733 Rutt Gertz concluded that the attor- v. Bethlehems’ Globe ney 163, 72, all-purpose Publ’g Pa.Super. public figure. was not an 335 484 A.2d 80 (1984); Bay Packing Taff, View Co. leading interpreting One of the cases 653, (Ct.App. Wis.2d 543 N.W.2d determining all-purpose Gertz test for 1995).12 The decision Waldbaum articu public figure stated is a “[t]his test strict following guidelines lated helping Publ’ns, Inc., one.” Waldbaum Fairchild person all-purpose determine whether is an (D.C.Cir.1980).11 figure: public Veribanc, Inc., Ridge also Blue Bank v. determining In plaintiff whether a has Cir.1989) (4th (“The F.2d attainment degree notoriety achieved of and influ- general public figure is not status to be necessary figure ence become a lightly assumed, if plaintiff even is in contexts, all may look to several affairs, community requires volved judge factors. can examine statistical stature.”); clear such evidence of National surveys, presented, if that concern the Inc., Phillips Publ’g., Ins. Co. v. Life plaintiffs recognition. name Previous cov- (“[T]he (D.Md.1992) F.Supp. evi erage press also is determining dence general standard judge relevant. The can cheek whether one, purpose public requir is a strict others in fact alter or reevaluate their ing convincing gen clear and light plaintiffs conduct or ideas eral pervasive fame and influence societal actions. can if He also see has affairs.”); Thompson, B.R. re shunned the attention that the has (“[This (Bkrtcy.E.D.Mich.1993) up test] sets given him and determine if those efforts fairly strong presumption what amounts to successful_No parame- have been one finding widespread notoriety: a dispositive; ter is still decision involves person general- will be deemed to be Nevertheless, judgment. an element of purpose unless there is ‘clear weighing these relevant and other general notoriety evidence of fame or in the can to a factors more accurate and a lead ’); community.” Burgess v. Pub. Reformer predictable person’s a more assessment of 612, 1359, 1361(1986) Corp., 146 Vt. 508 A.2d notoriety overall in fame and the communi- (“The one.”). stringent test is a Waldbaum ty- people also ... “[f]ew held that attain the Waldbaum, F.2d at 1295. general notoriety pub that would make them Waldbaum, figures purposes.” lic for all In view of the authorities above action, that, Consequently, F.2d at 1296. the in hold in in decision we a defamation order interpreted holding all-purpose public Waldbaum that to find that a is Gertz an all-purpose figure, “public produce an is a well-known must clear defendant evi- plain- 11. The held that the It decision Waldbaum 12. should be noted that nationwide fame or "Rather, tiff, notoriety required. question president largest cooperative is not the the of second nation, is whether the individual had achieved the neces- public figure purpose the awas limited sary notoriety degree where was defamed of he all-purpose public figure. and not an i.e., published.” where the defamation was Waldbaum, at 1295 n. 22. (5) high championship played in the school plaintiffs general fame or noto- of denee the (6) tournament; state, his was father pervasive and involvement basketball riety the (7) player;14 determining professional football and society. In former in the of affairs on accomplishments posted all-purpose public his athletic were an whether a (1) Virginia University may website.15 consider statisti- figure, a trial court plaintiffs concerning the survey cal data contends this evi The that Gazette (2) previous of recognition; name evidence Mr. Wilson’s dence was sufficient to establish (3) media; coverage plaintiff by the making “prominence notoriety,” thereby and or that others alter reevaluate their evidence all-purpose public figure. We dis him an plaintiffs light conduct or ideas agree. completely The evidence Gazette’s actions; (4) any other relevant evidence. “occupied a Mr. Wilson failed to show that hand, power influ position ‘persuasive of such Turning to case at Gazette, of that by that he could be deemed one The and ac ence’ submitted evidence court, group of individuals who are circuit revealed that Mr. small cepted by the (2) (1) athlete; Read outstanding figures purposes.” for all Wolston v. an Wilson: was (3) Ass’n, Inc., Award; Kennedy Digest 443 U.S. er’s was a co-winner (1979).16 champion S.Ct. 61 L.Ed.2d 450 his team to the state led football evidence, best, coverage sign simply established ship; news of his This received circles, athletics, namely Mr. accept intent that in some ing football letter may as a Virginia University;13 reputation have achieved scholarship from West Wilson rejected all-purpose public figures. In the Supreme children as 13. The States Court has United case, press argument holding that a few confer no actual evidence to estab- instant there is person all-purpose into an ences transform all-purpose can that Mr. father an lish Wilson's Time, Firestone, public figure. Inc. v. Assuming, argu- public figure. for the sake of n. 96 S.Ct. 965 n. U.S. ment, was, Gazette nevertheless failed that ("Nor do think the fact L.Ed.2d 154 produce evidence of affirmative sufficient may press respondent have held a few con by widespread Mr. Wilson conduct during proceedings the divorce in an ferences attempt link him to would his father’s status. satisfy inquiring reporters converts ’). figure.” 'public her into a showing that the The record is not clear Assuming, court this factor. circuit considered points Mr. fa- 14. out that Wilson’s Gazette however, presented ther, Wilson, that the Gazette played professional Otis football University Virginia the cir- the West website to Chicago than Bears the 1980’s. Other court, fact, totally such evidence is irrelevant. cuit mentioning Gazette has failed to holding or all-purpose law is clear in fame "[t]he Wilson an show how Mr. public figure became notoriety as a result of his father’s accom- must have achieved Nizer, Meeropol plishments. point preexisted defamatory A case on allegedly statements (2d Cir.1977). Meeropol, In give litigation.” 560 F.2d 1061 Harris v. which rise to the (who Rosenberg Tomczak, Julius and Ethel (E.D.Cal.1982). two sons of 94 F.R.D. conspiring provide were in 1953 for Waldbaum, ("The executed 621 F.2d at 1295 n. 19 See also Union) to the Soviet national defense information they factors existed court must examine these publish- filed a action several defamation published.”). Evi- before the defamation was ers. The action dismissed the district publication biogra- of tire of Wilson’s dence summary judgment. appeal, In court their website, defamation, phy on a after argued they plaintiffs all-pur- establishing simply cannot be to assist in used public figures. appeals pose The court of found figure. all-purpose public that he is all-purpose public figures plaintiffs were that the (arguably plain- court have found the should Examples persons have found courts figures). purpose public limited tiffs were public figures all-purpose are: Eastwood be (Eastwood Clint so, doing appeals noted the of that Inc., Enquirer, v. 123 F.3d National plaintiffs published a book about their lives had (9th Cir.1997)); (Newton Wayne v. 1249 Newton Consequently, it parents. with was held their NBC, Inc., (9th Cir.1990)); Johnny F.2d 662 930 public that course of extensive debate "[i]n the (Carson News F.2d 206 Carson (7th Cir.1976)); v. Allied 529 Rosenberg appellants revolving tire trial about (Buckley Buckley, Jr. William F. limelight 'public the and became cast into Littell, (2nd Cir.1976)); Chase 539 F.2d 882 v. figures’ Meeropol, the under standards.” Gertz Inc., (Carafano Metrosplash.com, Masterson v. Meeropol interpret 1066. We 560 F.2d at (C.D.Cal.2002); F.Supp.2d Carol 1055 and 207 requiring evidence of affirmative and sufficient Inc., (Burnett Enquirer, 144 widespread by v. National public Burnett conduct children of all- (1983)). figures Cal.App.3d Cal.Rptr. purpose public order to the in establish plaintiff purpose A high pub- school Evidence of a libel is a limited quality athlete. satisfy notoriety figure proves of does not lic if limited circle the the defendant the fol- by establishing bar outlined for high lowing: Gertz all-purpose public figure doctrine. the (1) plaintiff voluntarily engaged the in Gertz, 351-352, 94 418 U.S. at S.Ct. at 3013 significant public efforts to influence a de- (“Although petitioner ... was well known in voluntarily position bate —or assumed circles, general he had achieved no some propel would him to the forefront of a Time, notoriety community.”); or fame in the public public debate —on a matter of con- Firestone, Inc. U.S. S.Ct. cern; (1976) (“Respondent 47 L.Ed.2d 154 public the or controversy debate and any especial promi did assume role plaintiffs the in it pri- involvement existed society, in the affairs of nence other than or publication allegedly libel- society[.]”); Palm perhaps Beach Tavoular statement; ous and Piro, (D.C.Cir.1987) eas plaintiff had reasonable access to (“William a highly prominent Tavoulareas per- channels of communication that would individual, circles, especially in business but mit response him to make an effective celebrity society large at his does not defamatory in question. statement approach archetypes that of ... test, Under the Suriano the Court ruled general purpose public figure.”). plaintiff purpose public that the a limited was figure. purpose public 2. Limited figure. The evidence Suriano established purpose figure limited doctrine was controversy regarding state healthcare by United also established States Su coverage prior existed defama- opined preme Court in that “an Gertz. Gertz statements, tory plaintiff voluntarily voluntarily injects [who] individual himself or debate, injected himself into the and that the particular public drawn controversy into a plaintiff had access to the media. Evidence [may] thereby become[ ] a for a plaintiffs of the involvement in the contro- Gertz, range limited of issues.” 418 U.S. at versy was as follows: summarized 94 S.Ct. at 3013. The seminal case clear, too, It is Dr. Romano volun- addressing purpose

this Court the limited tarily into thrust himself the debate and doctrine was authored Jus sought Indeed, its outcome. influence Cleckley in rel. tice State ex Suriano v. aggressively he was quanti- involved. The Gaughan, 198 W.Va. S.E.2d 548 ty (1996). newspapers, writing pro- his letter journals organizations, fessional fellow Suriano, plaintiff physician, physicians, government officials re- a defamation filed action two defen garding controversy impressive published dants as result of statements engagement and demonstrated an active plaintiffs about defendants made with Indeed, controversy. the PEIA the record participation state-sponsored from drawal fifty examples contains at of such least programs. languished The ease healthcare letters, correspondence. In these Dr. Ro- years in for several the trial court before the mano regarding set forth his views state- prohibition defendants filed a writ care, perception funded health his prohibition sought Court. The writ of oppressive imposed by restrictions going to prevent the case from trial. One of Virginia Omnibus Health Care Act issues addressed in Suriano was regulations, and federal Medicare ex- contention that the defendants’ plained withdrawing his from reasons figure. purpose public a limited order to programs, frequently these exhorted determine whether the was a limited join protest. others to his public figure, purpose Cleckley Justice 349-350, Suriano, adopted syllabus following point 480 S.E.2d at test W.Va. of Suriano: 558-559.17 further, ultimately granted request- The Court the writ precluded going in Suriano and the case from ed

218 proceeding, plaintiffs written about the con-

In the instant The Ga articles were striking duct in the as well satisfy opponent, to the Suriano factors. as the failed zette fact, present any penalty. to The does not officials’ failure call a con- In the Gazette Then, plain- suggest troversy it in the that would satisfied the resurfaced argument granted sportswritar. tiff a factors. No evidence existed interview with Suriano voluntarily interview, injected As a articles Mr. result of the five show that Wilson controversy regarding “sports published about the incident. into a 1961 Subse- himself 18 plaintiff quent publications, no 1979 the manship.” was also evidence to those There controversy newspa- regarding a existed filed a defamation action two show that prior publication per companies reporter. Holtz sportsmanship, descriptions law in them of the 1961 articles. The is clear hold that Gazette’s plaintiff not be false and him. ing that “a should considered incident were defamed public figure the limited-purpose absent in The defendants Holt moved sum- pre-defamation public aof contro existence mary judgment. One of the issues feder- has di versy plaintiff in which the become address, al had to district court whether Ridge Veri rectly involved.” Blue Bank v. plaintiff purpose limited or not the was a (4th Cir.1989). Inc., banc, 688 F.2d public figure. In a rather convoluted man- also Worldnet Co. Gannett See Software ner, ultimately court found that the district Network, Inc., 122 Ohio Satellite Info. purpose public was a plaintiff limited (1997) (“It 149, 156 App.3d N.E.2d dicta, figure. In district stated important plaintiff that a does not note that, plaintiff college player, football merely because the become purpose became a limited defamatory allegedly statements create Holt, engaged sport.” “when first controversy; controversy must have ex “dicta” F.Supp. 412.19 It is this that statements”). prior to the isted to adopt. seeks this Court Gazette below, For set the reasons forth we decline urges The Gazette Court to do so. exception carve out an to the Suriano factors [Mr. and hold “amateur athletes like In find our review Holt we

Wilson], public figures they partici when plaintiff supported finding the voluntarily pate public sporting events.” purpose public figure. A limited contro- words, In other The Gazette seeks to have versy years regarding had existed for non-professional this Court hold that all ath plaintiff voluntarily incident. The in- purpose public figures. limited To letes are terjected plain- himself into the debate. The argument, support its The Gazette cites tiff had access to the With this media. evi- Enterprises, decision Holt v. Cox established, clearly dence the district court (N.D.Ga.1984). F.Supp. 408 speculate suggest did not have to nor all nonprofessional complicated purpose Holt involves a set of facts. are limited athletes essence, Furthermore, working public figures. to their those the dicta lan- Reduced plaintiff guage are as in Holt contained in has not facts follows. Holt been player University adopted country. was a football for the court in the fact, During highly publicized game only Holt. Alabama. five courts have cited Not Tech, one Georgia adopted between Alabama of those five have Holtz’s dicta opponent nonprofes- suggesting merely playing struck an face his sports forearm. The blow struck sional makes an individual limited nose, jaw purpose opponent’s public figure. Contemporary broke the Mission, game and knocked out teeth. Inc. v. New Times several York (2nd Cir.1988) Washington penalty plaintiff. officials did not call a F.2d (D.D.C.1995); Smith, years game, F.Supp. For several after the numerous Don published by granted summary judgment 18. From our review of both articles The district court Gazette, determined have that the over- to the defendants. riding sportsman- involved theme of the articles ship.

219 Prods., King Douglas, F.Supp. defendant, Inc. 742 tion v. Liddy, the G. Gordon (S.D.N.Y.1990); 778, CBS, Inc., v. 783 Pesta over plaintiff statements made about the 166, (E.D.Mich.1988); F.Supp. 686 169 War in Watergate his talks about the 1972 break- Co., Lexington v. Herald-Leader 789 ins. The granted federal district court the ford 758, Moreover, (Ky.1990). 770 S.W.2d the summary judgment defendant finding after dicta in is plaintiff Holt inconsistent with Gertz. The involuntary public the was an figure requirement imposed central Gertz for prove and that she failed to actual malice. labeling person purpose public a limited plaintiff appealed to the Fourth Circuit figure particular that “a there must be of Appeals. Court addressing Prior to the Gertz, controversy.” 351, 418 at 94 U.S. plaintiff issue of the whether was an involun- S.Ct. at playing 3013. The mere fact of on a tary public figure, the Fourth Circuit team, high school football league adopted or little following the establishing test for team, team, college golf baseball or a plaintiff is not involuntary public figure: as an in controversy. and of itself a First, prove plaintiff to that a is an involuntary public figure the defendant Involuntary public figure. 3. The invol must demonstrate to the untary public figure origins has its doctrine plaintiff figure has become a central in one sentence from the United States Su significant public controversy and that the preme “Hypotheti Court decision Gertz: allegedly defamatory statement has arisen cally, may possible it be to someone in the regarding course discourse public figure through purposeful become no public prove To matter. plaintiff own, truly action of his but the instances of figure a central controversy, involuntary public figures exceeding must be put defendant must forth evidence that the ly Gertz, 345, rare.” 94 U.S. S.Ct. at plaintiff has regular been the focus of me- involuntary recognition Gertz’s that an reports Second, controversy.... dia on the supported by is rare has been although involuntary public figure need is, subsequent only That case law. a handful sought publicize not have her views on plaintiff courts have ever found a to be an controversy, the relevant she must have public involuntary figure. See Dameron v. publicity. nonetheless assumed risk of Inc., 736, Washington Magazine, F.2d Therefore, the defendant must demon- (D.C.Cir.1985) (holding airport 742-43 con plaintiff strate that has taken some duty during plane troller on crash to be an action, or failed act when action was public involuntary figure); v. Carson Allied required, in in which circumstances a rea- Co., (7th Cir.1976) 206, News person pub- sonable would understand that (wife Johnny Carson held to be an involun likely licity would inhere. tary public figure); Zupnilc v. Associated Inc., Press, (D.Conn. 70, F.Supp.2d Wells, 186 F.3d at Applying 539-540. its test 1998) (wife involuntary public figure because presented, to the facts the Fourth Circuit spouse’s notoriety); Atlanta Journal-Con plaintiff concluded that the was not an invol- Jewell, stitution v. 251 Ga.App. public 555 untary figure “simply she has because 175, 186 (2002) (security guard held to figure reports been central in media involuntary figure); be public Daniel Id., Gol Watergate.” F.3d at dreyer, Inc., Ltd. Dow Jones & Therefore, we hold that in a defama (1999) (art A.D.2d 687 N.Y.S.2d action, prove plaintiff tion that a is an involuntary figure); restorer held be involuntary public figure, defendant must Bay Packing Taff, View Co. Wis.2d (1) demonstrate clear (Ct.App.1995) 543 N.W.2d 532-34 plaintiff has become central (holding processing company food was invol significant public controversy, untary public figure). allegedly defamatory has statement arisen leading explore case the contours of regarding course discourse involuntary public figure matter, doctrine is has taken some (4th Cir.1999). Liddy, action, Wells v. 186 F.3d 505 or act action failed to when was re Wells, quired, filed a defamation ac- circumstances in which a reason- Requiring B. Mr. Wilson to publicity that person would understand able Prove Actual Malice likely inhere. would that, found because The trial court test to the facts Applying the above figure, public was a he had Mr. Wilson case, Mr. Wilson we find that of the instant malice, prove actual and that he failed to do involuntary figure. public not Noth was that Wilson was not so. We have found Mr. remotely suggests Mr. that ing the record Instead, private a public figure. he was a figure any purport awas “central” Wilson at the time of the defama individual controversy sportsman involving public ed recognized tory publications. This Court publi prior to Gazette’s ship that existed a significance public figure a between cations. syllabus point part, private individual in trial court’s 4. Summation. The sum- of Suriano as follows: that mary judgment order concluded Mr. figures public are ... public figure. Plaintiffs who a The order failed was Wilson convincing public prove by which of the three must clear and evi- to state within catego- categories could be figure Mr. Wilson their de- dence that the defendants made Consequently, deemed it neces- rized. we knowledge it famatory that statement sary to under all three examine the evidence disregard was or of false with reckless categories. analysis From our fig- it false or not. Private whether was evidence, we have determined that the of only that ures need show the defendants failed to show clear and convinc- Gazette negligent publishing false and were fit ing that Mr. Wilson under of defamatory statement.21 recognized public figure categories. the three By labeling public figure, Mr. Wilson a Further, invi- have the Gazette’s we declined required him to establish that circuit adopt specific figure catego- public a tation to publications done with the Gazette’s Therefore, ry nonprofessional athletes.20 malice, opposed to the lower stan- actual public conclude that Mi’. Wilson was not we negligence. of This was Mr. dard error. alleged defamatory figure at the time of the merely showing is that of Wilson’s burden and the trial court committed publications, publications negligently.22 finding. were done error so intimating argued he more has also that this Court writer was knew about 20.The Gazette caseespecially public portion that Mr. Wilson is a of tire column should hold having stop purportedly his counsel admitted that that refers to the writer what he because figure during hearing public doing report was on the incident. summary disagree. judgment. finding by supports motion for We this the circuit record hearing passage Ga- from the cited court. speaking only zette counsel shows Wilson's hypothetical private terms. 21. “The distinction between figures justified grounds. First is the two Additionally, the Gazette contends sum- figures great- self-help. rationale of Public have mary judgment appropriate because er to the channels of effective communica- access publications did not contain false statements. opportunity tion and hence have more realistic Court, During argument to counsel for oral private than indi- to counteract false statements prop- Mr. erly that the Gazette did not Wilson noted Second, normally enjoy. perhaps viduals falsity assign- of cross set out issue assumption important, of of more is the notion brief, consequently the ment of error in its issue [Pjublic figures risk.... in some sense voluntari- agree. properly not We before this Court. ly put position greater themselves in However, argument, even if the the sake scrutiny disparag- risk and thus assume the assignment properly issue was raised as cross ing negligently made remarks will be about error, the circuit court’s would disturb Paiewonsky, F.2d them." McDowell v. ruling court’s on the matter. The circuit sum- (3d Cir.1985) (citations and internal 947-948 mary judgment order found that the issue of omitted). quotation marks falsity jury question: presented a law The Court concludes as a matter of Mr. Wil- concerning Insofar as the trial court dismissed of fact a falsehood could issue liability upon get its errone- jury son's other theories on the Hinerman case. The based public figure/actual ous issues, malice Court of law that a fair resolution concludes as matter reading those theories also reinstated. the article could indicate that IV.

CONCLUSION conclude that the circuit court commit- We ruling ted error in Wilson was public figure and that he had to establish

actual malice. the circuit Therefore court’s granting summary judg-

order the Gazette ment is ease is remanded reversed this proceedings opinion. consistent

Reversed Remanded. McGRAW and Justice Justice ALBRIGHT right dissent and reserve to file opinions. dissenting McGRAW, Justice, dissenting:

(Filed 2003) June I it As undesireable as is to make believe young high school I figures, students that, fact, society our

believe is what has Consequently, I stu- done. believe that the present dent involved case should be categorized. so reason, foregoing For I respectfully I am dissent. authorized state that Jus- joins Albright tice inme this dissent. Virginia West ex rel. STATE of Charlotte PRITT, Petitioner, VICKERS, Judge Charles Honorable M. Fayette County Court; Re- Circuit publican Committee; National National

Republican Committee; Senatorial Virginia Victory Committee, West State Respondents.

No. 31356. Supreme Appeals Court of Virginia. Sept.

Submitted Decided Oct.

Case Details

Case Name: Wilson v. Daily Gazette Co.

Court Name: West Virginia Supreme Court

Date Published: Jun 13, 2003

Citation: 588 S.E.2d 197

Docket Number: 31045

Court Abbreviation: W. Va.