Taylor v. Greensboro News Co. , 57 N.C. App. 426 ( 1982 )

291 S.E.2d 852 (1982)

Delmer TAYLOR
v.
GREENSBORO NEWS COMPANY.

No. 8118SC986.

Court of Appeals of North Carolina.

June 1, 1982.

Anne R. Littlejohn, Greensboro, for plaintiff-appellant.

Smith, Moore, Smith, Schell & Hunter by Richard W. Ellis and Alan W. Duncan, Greensboro, for defendant-appellee.

WELLS, Judge.

The dispositive question before us is whether defendant's G.S. 1A-1, Rule 56(c) motion was properly granted. In its recent decision in Lowe v. Bradford, ___ N.C. ___, 289 S.E.2d 363 (1982), our Supreme Court reiterated the rules regarding the burden of proof upon a motion for summary judgment, as follows:

A party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). Generally this means that on "undisputed aspects of the opposing evidential forecast," where there is no genuine issue of fact, the moving party is entitled to judgment as a matter of law. 2 McIntosh, North Carolina Practice and Procedure § 1660.5, at 73 (2d ed. Supp.1970). ....

If the moving party satisfies its burden of proof, then the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Rules of Civil Procedure (emphasis added). The non-moving party "may not rest upon the mere allegations of his pleadings." Id.

Within these well-established rules of procedural law, we now turn to the substantive law of defamation. In the seminal case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), a Montgomery, Alabama City Commissioner whose official duties included supervising the Montgomery Police Department, brought a civil libel action against defendant, alleging that the New York Times had published an advertisement which contained false allegations of brutal conduct by the Montgomery police against civil rights activists. Although Sullivan's name was not specifically mentioned in the advertisement, he contended that the libel had in fact damaged his professional reputation. Weighing the right of an individual not to be libeled against the First Amendment's protection of freedom of the press, especially in light of the public's right of vigorous debate as to the conduct of public officials in the performance of their duties, the Supreme Court held:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" —that is, with knowledge that it was false or with reckless disregard of whether it was false or not. (Emphasis added).

Later cases have shown that this basic approach is not limited to public officers or to the performance of official duties, or even to conventional civil libel suits. See Annot., 20 A.L.R.3d 988. In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), a district attorney was convicted for criminal libel of Louisiana state judges. The Supreme Court held that the rule applies equally to criminal and civil libel suits, and that "The New York Times rule is not rendered inapplicable merely because an official's private reputation, as well as his public reputation, is harmed."

In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), reh. denied, 389 U.S. 889, 88 S.Ct. 11, 12, 19 L.Ed.2d 197, 198 (1967), the Supreme Court extended the application of the New York Times rule to include "public figures" as well as public officials. Plaintiff Butts, a well-known football coach and university athletic director, was accused in a newspaper article of "fixing" the outcome of a football game. Plaintiff Walker, a politically prominent private citizen, was alleged to have encouraged the use of violence during a race riot at the University of Mississippi. The Court characterized those plaintiffs as public figures because:

[B]oth Butts and Walker commanded a substantial amount of public interest at the time of the publications; both, in our opinion, would have been labeled "public figures" under ordinary tort rules. (Citation omitted). Butts may have attained that status by position alone and Walker by his purposeful activity amounting to a thrusting of his personality into the "vortex" of an important public controversy, but both commanded sufficient continuing public interest and had sufficient access to the means of counterargument to be able "to expose through discussion the falsehood and fallacies" of the defamatory statements.

In Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967), a Clerk of Court alleged that he was libeled in editorials published during his reelection campaign which criticized his official conduct, and again, the Supreme Court applied the New York Times rule.

Finally, in Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971), defendant published a column referring to plaintiff, a candidate in the New Hampshire Democratic Party primary for the U.S. Senate, as a "former small-time bootlegger." The Court stated that it was unnecessary to characterize plaintiff as either a public figure or a public official, since, "That New York Times itself was intended to apply to candidates, in spite of the use of the more restricted "public official" terminology, is readily apparent from that opinion's text and citations to case law."

Given such precedent, we find that at the time of this incident, the New York Times standard of liability clearly applied to plaintiff, a candidate for public office. See Patriot Co. v. Roy, supra.

Our next level of inquiry is whether the materials before the trial court conclusively show that plaintiff would be unable to produce evidence of "actual malice" at trial, entitling defendant to summary judgment. Plaintiff relies on the case of Hall v. Publishing Co., 46 N.C.App. 760, 266 S.E.2d 397 (1980), to support his argument that summary judgment for defendant was improperly granted. However, the stipulations of facts in this case distinguish it from Hall, supra.

Under the "actual malice" test, a prevailing plaintiff must prove, by clear and convincing evidence, that the false statement was made with either actual knowledge of falsity, reckless disregard for the truth, or a high degree of awareness of probable falsity. Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Garrison v. Louisiana, supra; St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Applying the "actual knowledge of falsity" test, Stipulations of fact 14 and 16 make it clear that reporter Brent Hackney did not know that plaintiff had never served time in prison. According to Stipulation 22, no one with management authority over the article knew that the statement was incorrect. Under the "reckless disregard for the truth" basis for liability, Stipulations 3, 14, 16 and 22 show that Hackney and his editors at the Greensboro Daily News had not learned from any source that plaintiff's sentence had been modified or that plaintiff had not served time in prison. Thus, it appears that plaintiff relies on the "high degree of awareness of probable falsity" standard, arguing that the close relationship between the Greensboro Record and the Greensboro Daily News implies that actual notice to the Record also constitutes constructive notice to the Daily News. Stipulations 12, 13, 19, 20, 21 and 22 show that the Greensboro Record and the Greensboro Daily News are separate entities, independent of each other in reporting and editing, and further, that their joint advertising department does not customarily, and did not on this occasion, communicate with the news staff about the content of advertising copy. Thus, there is no basis in fact to support an inference of constructive notice to the Daily News.

Given such stipulated facts, we are persuaded that defendant has shown that an essential element of plaintiff's claim, actual malice by defendant, is nonexistent, and that defendant is entitled to judgment as a matter of law. See Lowe v. Bradford, supra.

For the reasons previously stated, we also find that the trial court properly denied plaintiff's motion for summary judgment.

The order of the trial court must be and is

Affirmed.

WEBB and WHICHARD, JJ., concur.