Grayson v. Curtis Publishing Co.

Hunter, J.

This libel action arises from an article in the Saturday Evening Post, published by Curtis Publishing Co., and Curtis Circulation Co., defendants (appellants), referred to hereafter as “Curtis,” which reported in its January 5-12, 1963 edition a referee’s description and criticisms of “Basketball’s Bullies, reckless coaches, rowdy players and riotous fans [who] disgrace our colleges . . . .” John Grayson, the plaintiff (respondent), and head basketball coach at the University of Washington at the time of the publication in 1963, was prominently named in the article as an example of “explosive bench behavior”—a coach’s reaction to adverse decisions by a referee—which contributes to the country-wide “scandal” of “rabble-rousing” and violence that erupt at these emotion-filled contests. The referee, Al Lightner, told the story of his personal involvement to Al Stump, a free-lance writer, the pertinent part of which reads as follows:

Basketball’s Bullies

Reckless coaches, rowdy players and riotous fans disgrace

our colleges, says one top referee. • b, al lightoeb um to al stump

On the evening of last March 2, I stopped by the University of Washington Hospital in Seattle to visit my wife, Alma, who had undergone heart surgery two days earlier. Then I drove a few blocks to Edmundson Pavilion, where I was scheduled to referee an important Big Five Conference basketball game between U.C.L.A. and the Washington Huskies.

About 11 p.m. the last shot had been fired and I was back at the hospital. They let me see Alma for a moment. And although she was still weak, she couldn’t miss the welt on my jaw, scratches on my face and a bandage covering a cut scalp.

“You look worse than I do,” she murmured, without asking what had happened. “Have them roll in another bed.”

I’d been the fall guy in the middle of another basketball riot, and in the Lightner family such things never need explaining. Wild nights on the court are so common that it’s nothing unusual when I stomp into the house, kick my equipment bag across the room, swear I’ll never step onto another university campus and reach for the ñrst-aid kit. Officiating in this game always has been tough. I’ve had 23 years of it, coast to coast, including 18 N.C.A.A. regional or national championship play-offs, and the stuff that’s been thrown at me would fill a garbage truck—ripe Michigan mackerel, bottles, rock candy, a stink bomb, a piccolo, a pair of women’s spiked shoes. This comes under the heading of “minor annoyances” and you take it and smile. But in the past half dozen seasons my job has become intolerable, and I’ve decided to break the “don’t talk” rule that has long been imposed on referees.

From Insult to Injury

To see these forces at work, take that evening of last March 2 when the local Washington Huskies played U.C.L.A. at Seattle. Tip-off time was still five minutes away when I approached Coach John Grayson of the Huskies to ask, “Who’s your captain for tonight?”

The lanky Grayson glared at me. “You’re such a smart character—you pick him,” he snapped. The fact that Grayson doesn’t like referees is well known on the Coast. We officials call him “Mr. T”—for technical foul. In our opinion, he ranks with Branch McCracken of Indiana, Jack Gardner of Utah and Bones McKinney of Wake Forest for explosiveness.

But I let his crack pass. Then, early in the game I called a charging foul on Washington’s star forward, Roger Niva. Grayson leaped up, kicked some towels and yelled. “If that isn’t the worst —call I ever saw in my life!” Taking their cue from his outburst, many of the 7,000 customers began hurling coins, orange peels, bags and wads of gum at me.

There was no question about my next move. I flashed the technical-foul sign to the scorekeeper, awarding U.C.L.A. a one-point penalty shot. As the ball dropped through the basket, the crowd’s muttering built up to an ominous roar. It took no genius to see that trouble was coming. The fans, of course, had no way of knowing that I was acting under orders. Grayson had been a problem for a long time, and Commissioner Bernie Hammerbeck, who assigns Big Five officials, had told me to “nail Grayson the first time he causes trouble. I’ve had enough of his pyrotechnics.”

Then, as if stirring up the well-filled stands weren’t enough, Grayson’s behavior produced a second result. When one coach begins disputing decisions, his rival across the court begins worrying that this agitation may influence the ref, so he starts popping off himself. And from the bench of Johnny Wooden of U.C.L.A. came a towel and the rasping cry: “Open your eyes, you homer!” “Homer” is basketball lingo for an official who favors the home club. And since I live not many miles from the Washington campus I couldn’t ignore the questioning of my integrity. I instantly hit U.C.L.A. with a technical.

The fever now spread to Roger Niva, the Washington star, who screamed dirty words at me after I caught him elbowing the Bruins’ Walt Hazzard on a rebound. “Remember what happened a few weeks ago,” I warned him. In an earlier game, I’d “technicaled” Niva for the same thing.

Clenching his fists, Niva snapped at me: “I can say anything I want because I’m captain!” That brought more junk flying from above. This time foul calls didn’t help. Tempers steamed to the point where courtside fans tried to trip me as I ran past them. When that failed, the Washington cheerleader jumped into my path. Shoving him aside, I caught a hot penny between the eyes. Today’s campus cutups apply matches to coins and throw them in salvos. But all this was nothing compared to what happened near the end of the game. With 17 seconds to play and U.C.L.A. leading by 68-66, I ruled against Washington on where an out-of-bounds ball should be put in play. It was an open-and-shut decision, but Grayson raved and complained to the crowd. It was like ordering a tree and a rope. The Los Angeles boys won 69-66, and as time ran out I heard a familiar sound—rushing feet.

About 50 students and older fans came at me, swinging. A bottle opened my scalp. A handful of campus police tried to hold them back, but I took dozens of punches and elbow blows as we struggled toward the dressing room. One 200-pounder in a “Big W” sweater made a fullback’s rush at me. An officer flattened him and hollered at me, “Don’t stop—-we’ll run for it!” Amid falling bodies we made it. A guard was set up outside the locked door.

“Never again while Grayson is coach here,” I told the sportswriters, “will I work a game at this school. I get $65 a game to act as a referee. I’m not paid to be a punching bag or to keep the crowd in line while he incites it.”

Friends slipped me away later. Large headlines followed. Washington U officials “deplored” the “incident” and Athletic Director Jim Owens officially apologized next day. “For which ‘incident’ do you apologize?” I asked Owens.

“Why, for the one last night,” he said.

“Thanks, I wanted to make sure,” I said, “because I’ve been manhandled here three times in the past two seasons.”

Although Grayson eventually added his regrets, my promise not to return to Seattle remains firm. For this wasn’t an isolated incident, but simply one more case among hundreds each fall and winter of rabble-rousing, terrible sportsmanship and irresponsible patrolling of a school facility by people supposed to set and enforce good standards of conduct.

I’d like to be able to say we should excuse the actions of coaches. They’re in a frenzied, jammed-tight, contagious atmosphere where the score seesaws every few seconds. But I won’t make excuses. Grown men shouldn’t pound their fists on the floor, shred towels, scream, faint, fling dippers of water. Such people are dangerous—especially since today’s kids often have hair-trigger tempers; they’ve watched TV violence and they respond to every action of the coach.

The text further criticized colleges and universities for their indifference in not backing up officials’ crackdowns on unruly players and coaches, and failure to “police the house thoroughly.”

Referee Lightner then described the efforts taken at the University of California to control rowdyism, and noted the improvement after the Chancellor of the University decided to “take a hand.” A “basketball sportsmanship” project was announced and the student council demanded that everyone behave. The Straw Hat band, noted for its “hot coin” and “paper wad” peltings, was moved well back from the floor and was under surveillance. The California coach “suffered plenty” when his team took a one-sided defeat, but not once did he protest a ruling. And everywhere that Lightner looked, he saw a policeman.

The article’s conclusion made clear that “college students and officials can maintain order if they want to make the effort”; that “the effort must be made soon, or this great game—already crippled by scandals—could be killed for good.”

Approximately 4 months following publication of the Post article, the University of Washington declined to renew Grayson’s contract as head basketball coach. After failing to gain new employment for the 1963-1964 basketball season, Grayson instituted this action seeking $300,000 compensatory damages.

Curtis answered, admitted publication of the article, but denied any defamatory content and alleged damages. In addition, Curtis pleaded the defenses of substantial truth, fair comment, qualified privilege, good faith, and the absolute protection of the First Amendment as guaranteeing freedom of the press in the absence of malicious publication.

Upon motion of the plaintiff, this sixth and last affirmative defense, which raises the constitutional privilege set forth in the case of New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 Sup. Ct. 710 (1964), was stricken by the trial court ruling that plaintiff Grayson was not a “public official” within the meaning of the rule announced in New York Times. Thereafter, the case went to trial on the remaining issues.

Evidence produced at the trial was framed by the issues raised in affirmative defense, and the jury was charged under pre-New York Times instructions. The jury returned its verdict in favor of Grayson, awarding him damages in the amount of $175,000. Timely motions for directed verdict, new trial, and for judgment notwithstanding the verdict were made by Curtis and denied by the trial court. Curtis appeals.

Curtis first contends that the trial court erred in denying its motion for dismissal after the plaintiff’s opening statement, at the close of the plaintiff’s case, and in denying its motion for dismissal and for a directed verdict at the close of all the evidence. This contention is underpinned by the defense argument that the publication is not libelous per se; that the article, considered as a whole, does not charge Grayson with a crime, moral turpitude, lack of integrity, incompetence in his chosen profession; or, state directly or by implication, that Grayson should be scorned, hated, or subjected to public abuse.

The complaint alleged that publication of the article tended to destroy the plaintiff’s good reputation for integrity and sportsmanship, depriving him of the benefits of public confidence, respect and esteem, and destroyed his career as a basketball coach. The kind of aspersion necessary to come under this phase of the rule of libel per se; i.e.} the tendency of the imputation to injure one in his business, trade, profession or office, must be one which is especially injurious to the plaintiff’s reputation because of the particular demands or qualifications of his vocation. 1 Harper & James, Torts § 5.12, p. 382; Restatement of Torts § 573, comment e. The Restatement notes that:

Disparagement of a general character, equally discreditable to all persons, is not enough unless the particular quality disparaged is of such a character that it is peculiarly valuable in the plaintiff’s business or profession. . . . It is enough if the statement is of a character to he particularly disparaging of one engaged in such an occupation. (Italics ours.)

Considering the article as a whole, we think the statements made therein, with respect to the plaintiff’s alleged lack of good sportsmanship, and its effect on others, are of such a character as to charge him with an impropriety necessarily affecting his competency to successfully carry on his career as a university basketball coach, an occupation in which the record reveals good sportsmanship is a particularly valuable qualification. Consequently, on this basis, the trial court properly denied the defendants’ (Curtis) motions for dismissal and a directed verdict.

Curtis contends that the trial court erred in denying its motions for dismissal and directed verdict for the further reason that the uncontradicted evidence established the substantial truth of the article; i.e., that Grayson did not get along with officials and that his bench conduct created crowd control problems for the referees.

We disagree. The gist of the alleged libel charged that Grayson, during the Washington-U.C.L.A. game was guilty of bench conduct which incited acts of violence against referee Lightner, by dramatically disputing the decisions of Lightner: “Grayson leaped up, kicked some towels and yelled, ‘If that isn’t the worst—call I ever saw in my life!’ . . . It was an open-and-shut decision, but Grayson raved and complained to the crowd. It was like ordering a tree and a rope.”

The record discloses that the occurrence of these events, as related, was in dispute; and that this conflict in the testimony constituted a question of fact for the jury’s determination. The trial court therefore properly denied the defendants’ (Curtis) motions for dismissal and directed verdict on this ground.

Curtis further contends that it was entitled to judgment of dismissal or, in the alternative, a new trial for the reason that the trial court erred in striking its affirmative defense based on the first amendment to the United States Constitution; that the rule of New York Times Co. v. Sullivan, supra, does apply to the plaintiff Grayson, as a public official, and required a showing of actual malice in order to warrant any recovery for the alleged libel. The rule as stated in the New York Times case is as follows:

The constitutional guarantees [of freedom of speech and press] 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. 376 U.S., at 279-280.

Curtis argues that the privilege applies to libel actions other than those involving elected public officials; that it applies to all matters of legitimate public concern and persons whose conduct invites public scrutiny and discussion.

The plaintiff’s position is, however, that he is not a public official or public man involved in a major political issue of national concern; and that the privilege does not extend to him, as a public figure, since the discussion of basketball and its conduct is not such a public issue as would warrant it to be controlled by the New York Times case.

Two cases in point, Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 Sup. Ct. 1975 (1967), and Associated Press v. Walker, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 Sup. Ct. 1975 (1967), have been reviewed by the United States Supreme Court since oral argument of the instant case. These cases were consolidated to consider the impact of New York Times on libel actions instituted by persons who are not public officials, but who are “public figures” and involved in issues in which the public has a justified and important interest, a question expressly reserved in New York Times, 376 U.S. 283, n.23. See Garrison v. Louisiana, 379 U.S. 64, 13 L. Ed. 2d 125, 85 Sup. Ct. 209 (1964).

Despite minority adherence to a new standard for publishers differing from New York Times,¹ the seven members of the court, who reached the question, agreed that the First Amendment guarantees of freedom of speech and press are applicable to libel actions instituted by public figures. And in Walker, the Supreme Court extended the New York Times rule to prohibit a public figure, in which the public has a justified and important interest, from recovering damages for a defamatory falsehood relating to his [public] conduct unless he proves that the statements were made with “ ‘actual malice’—that is, proof that the defamatory statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Walker, supra, at 162 (concurring opinion by Mr. Chief Justice Warren) .² This required showing of “actual malice” is not so restrictive, however, that recovery is limited to situations where there is “knowing falsehood” on the part of the publisher. As stated by Mr. Chief Justice Warren, at 164:

Its [New York Times] definition of “actual malice” is not so restrictive that recovery is limited to situations where there is “knowing falsehood” on the part of the publisher of false and defamatory matter. “Reckless disregard” for the truth or falsity, measured by the conduct of the publisher, will also expose him to liability for publishing false material which is injurious to reputation.

This disposition of the constitutional applicability of the First Amendment to defamation of public figures, in Walker and Butts, supra, is controlling of the instant case, since the plaintiff Grayson, like Wallace Butts (a university football coach), and Edwin Walker (a retired Army General), is not a public official, but is a “public figure in which the public has a justified and important interest.” See Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 221 N.E.2d 543 (1966); Time, Inc. v. Hill, 385 U.S. 374, 17 L. Ed. 2d 456, 87 Sup. Ct. 534 (1967), cited in Walker, supra. See also Dempsey v. Time Inc., 43 Misc. 2d 754, 252 N.Y.S.2d 186, (1964).

It does not follow from this disposition, however, that Curtis, as contended, is automatically entitled to a judgment of dismissal as a matter of law. Whether the article in the instant case was published with actual malice or with reckless disregard for its truth, as measured by the conduct of the publisher, is a question of fact that has yet to be litigated under the New York Times standards, and consequently a new trial is necessitated.

Due to our disposition of this case it is unnecessary to consider the remaining assignments of error.

The judgment of the trial court is reversed, and the case is remanded with directions for a new trial on all issues. Costs will abide the final determination of the case.

Finley, C. J., Hill, Donworth, Weaver, and Hamilton, JJ., concur.

1 Four members of the court, Justices Harlan, Clark, Stewart and Fortas would substitute the following for the New York Times standard: “a ‘public figure’ who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” 388 U. S.155.

2 Four members of the court, Justices Brennan, White, Black and Douglas, joined Mr. Chief Justice Warren in his concurring opinion, in extending the New York Times rule to “public figures” in the Walker case. Justices Black and Douglas, however, joined only to permit a disposition of the case, having the opinion that an even higher standard than New York Times should be applied, it being their view that the First Amendment was intended to leave the press free from the harassment of libel judgments.