HAY v. INDEPENDENT NEWSPAPERS, INC

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Docket Number

No. 83-215.

Attorney(S)

David C. Holloman of Holloman Lambert, Arcadia, for appellant. W. Cort Frohlich of Wotitzky, Wotitzky, Mandell, Batsel, Wilkins Frohlich, Punta Gorda, for appellees.

Judges

SCHOONOVER, Judge.

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Smart Summary

Factual and Procedural Background

Leroy Hay, the appellant, filed a libel action against Independent Newspapers, Inc., publisher of the Arcadian newspaper, and Phillip A. Pettus, its editor. The suit alleged that appellees libeled Hay by publishing a letter to the editor referring to him as a "crook" and a "criminal." The letter criticized the judicial system's handling of criminal charges against Hay and others, expressing frustration that charges were not prosecuted. The trial court dismissed the complaint with prejudice, holding the statements were protected expressions of opinion under the First Amendment. Hay appealed the dismissal.

Legal Issues Presented

Whether the statements published in the letter to the editor constituted actionable libel or were protected expressions of opinion under the First Amendment.
Whether the appellant sufficiently alleged fault (negligence or malice) on the part of the appellees in publishing the statements.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Miami Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla. 3d DCA 1982)	Elements of libel for private persons: publication of false, defamatory statements without reasonable care, causing actual damage.	Used to define the required elements for a libel claim by a private individual.
Boyles v. Mid-Florida Television Corp., 431 So.2d 627 (Fla. 5th DCA 1983)	Adoption of negligence standard for fault in defamation cases involving private individuals.	Supported the court’s application of a negligence standard for fault rather than presumed malice.
Tribune Co. v. Levin, 426 So.2d 45 (Fla. 2d DCA 1982)	Adoption of negligence standard for defamation liability regarding private persons.	Reinforced the court’s reliance on negligence as the standard of fault.
From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981), petition for review denied 412 So.2d 465 (Fla. 1982)	Determination of whether a statement is fact or opinion is a question of law; distinction between pure and mixed opinion.	Guided the court’s legal analysis on classifying the statements as protected pure opinion.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)	First Amendment protection for expressions of opinion; states may set fault standards for defamation of private individuals.	Foundation for applying a negligence standard and protecting pure opinion from libel liability.
Kotlikoff v. The Community News, 444 A.2d 1086 (N.J. 1982)	Distinction between pure opinion (based on disclosed facts) and mixed opinion (implying undisclosed defamatory facts).	Supported the classification of the statements as pure opinion.
Information Control v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir. 1980)	Factors to consider in determining pure opinion: totality of the statement, context, medium, audience, and cautionary terms.	Used to analyze the context and nature of the published statements.
Demoya v. Walsh, 441 So.2d 1120 (Fla. 3d DCA 1983)	Characterizations as pure opinion based on disclosed facts are protected speech.	Analogous support for classifying the appellant’s characterization as protected opinion.
Commander v. Pedersen, 116 Fla. 148, 156 So. 337 (1934)	Libel per se occurs when one charges another as a crook unless the communication is privileged.	Referenced to explain the traditional libel per se standard but distinguished under current fault requirements.
Johnson v. Finance Acceptance Co., 118 Fla. 397, 159 So. 364 (1935)	Prior to Gertz, malice and damage were conclusively implied in libel per se cases.	Historical context for fault and damage presumptions before Gertz.
Rinaldi v. Holt, Rinehart Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977)	Accusations of criminal activity, even as opinions, are not constitutionally protected.	Distinguished by the court as contrary precedent, not controlling here.

Court's Reasoning and Analysis

The court began by identifying that the appellant is a private individual and recited the elements required to state a libel claim under Florida law. It emphasized the constitutional protection for expressions of opinion under the First Amendment, distinguishing between pure and mixed opinions. Pure opinions are based on facts disclosed or known to the public, while mixed opinions imply undisclosed defamatory facts.

Applying these principles, the court found that the statements in the letter to the editor were pure expressions of opinion. The letter was published in the "The Forum, Opinion" section, signaling to readers the nature of the content. The letter’s statements referenced facts that were publicly known or disclosed, such as criminal charges filed against the appellant. Additionally, the letter targeted the judicial system rather than the appellant personally.

Because the statements were pure opinion, they were protected by the First Amendment and could not form the basis of a libel claim. Furthermore, even if the statements were considered defamatory facts, the appellant failed to allege fault—specifically negligence—in publishing the statements, which is required under the negligence standard adopted post-Gertz for private individuals. The court noted that prior to Gertz, libel per se allowed for presumed malice and damage, but under current law, fault must be affirmatively alleged.

Accordingly, the trial court properly dismissed the complaint both because the statements were protected opinion and because the appellant failed to plead fault.

Holding and Implications

The court affirmed the trial court’s final judgment dismissing the libel action with prejudice.

The direct effect of this decision is that the appellant’s libel claim was dismissed because the alleged defamatory statements were constitutionally protected pure opinion and because the appellant did not allege the requisite fault. No new precedent was established beyond the application of existing First Amendment and Florida libel law principles to the facts of this case.

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LEROY HAY, APPELLANT, v. INDEPENDENT NEWSPAPERS, INC., AND PHILLIP A. PETTUS, APPELLEES.

SCHOONOVER, Judge.

This is an appeal from a final judgment dismissing a libel action with prejudice. We affirm.

Appellant, Leroy Hay, filed an action alleging that appellees, Independent Newspapers, Inc., publisher of the Arcadian, a newspaper in DeSoto County, Florida, and Phillip A. Pettus, Editor, committed libel by publishing an article in the Arcadian referring to appellant as a crook and a criminal.

The article, a letter to the editor, published in the "The Forum, Opinion" section of the newspaper, provided as follows:

What's happened to our laws?

Editor:

What has happened to our laws? Monday the state attorney's office announced its intention not to prosecute Leroy Hay, Fort Ogden, and Rich Heath, Fort Lauderdale, and the judge fines Henry Hay $5,000 and gives him 5 years probation.

This makes me sick! Catch a crook, pat him on the back and let him go free. I wonder how many laughs they have had on this, at the taxpayers expense.

No wonder the young people today have no respect for law and order — look at the fine examples you judges and lawyers give them. You twist the laws so the crooks can go free. It makes one wonder who really is the criminal.

It's time, you judges, lawyers, and leaders of our land, to take a good look at yourselves. Who are you really trying to protect, the crook, the innocent, or maybe your pocketbooks?

Concerned Name withheld by request.

The trial court held the alleged libelous language was an expression of unactionable opinion protected by the First Amendment of the United States Constitution and granted appellees' motion to dismiss the complaint. After appellant declined an opportunity to further amend his complaint, a final judgment dismissing the action with prejudice was entered. This appeal timely followed.

It is undisputed that appellant is a private person and not a public official or public figure. To state a cause of action for libel, a private person must allege publication (1) of false and defamatory statements of and concerning that private person, (2) without reasonable care as to the truth or falsity of those statements, (3) resulting in actual damage to that private person. Miami Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla. 3d DCA 1982); Boyles v. Mid-Florida Television Corp., 431 So.2d 627 (Fla. 5th DCA 1983); Tribune Co. v. Levin, 426 So.2d 45 (Fla. 2d DCA 1982).

Whether a statement is one of fact or one of opinion is a question of law. From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981) petition for review denied 412 So.2d 465 (Fla. 1982). False statements of fact of or concerning a private person are not protected by the Constitution, but expressions of opinion are. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

There is a distinction between pure expression of opinion and mixed expression of opinion. Pure opinion is based upon facts that the communicator sets forth in a publication, or that are otherwise known or available to the reader or the listener as a member of the public. Mixed opinion is based upon facts regarding a person or his conduct that are neither stated in the publication nor assumed to exist by a party exposed to the communication. From. Rather, the communicator implies that a concealed or undisclosed set of defamatory facts would confirm his opinion. Kotlikoff v. The Community News, 444 A.2d 1086 (N.J. 1982). Pure opinion is protected under the First Amendment, but mixed opinion is not. See From.

In determining whether an alleged libelous statement is pure opinion, the court must construe the statement in its totality, examining not merely a particular phrase or sentence, but all of the words used in the publication. The court must consider the context in which the statement was published and accord weight to cautionary terms used by the person publishing the statement. All of the circumstances surrounding the publication must be considered, including the medium by which it was disseminated and the audience to which it was published. Information Control v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir. 1980) cited with approval in From.

The complaint in the case sub judice was defective because it was based upon an expression of pure opinion and therefore failed to allege a false and defamatory statement of and concerning the appellant. The complaint alleged that statements contained in the article referred to the appellant as a crook and a criminal. These statements were based in part upon facts disclosed in the article, but the fact that criminal charges had been filed against the appellant was either known or readily available to the reader as a member of the public. Furthermore, the statements were made in a letter to the editor published in a section of the newspaper titled "The Forum, Opinion," and the letter was directed not toward the appellant, but toward the judicial system. Applying the principles hereinabove set forth, we hold the statement was a pure expression of opinion and accordingly protected by the First Amendment of the United States Constitution. See also Demoya v. Walsh, 441 So.2d 1120 (Fla. 3d DCA 1983) (characterization of co-worker as "raving maniac" and "raving idiot" was pure opinion based on disclosed facts); Kotlikoff (accusations of mayor's involvement in "huge coverup" and "conspiracy" were, in context, protected expressions of opinion); contra Rinaldi v. Holt, Rinehart Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977) (accusations of criminal activity, even in form of opinion, are not constitutionally protected).

The complaint was further defective because it failed to allege fault upon the part of appellee in publishing statements without regard to their truth or falsity. The complaint alleged that the published matter referred to appellant as a crook and a criminal and was therefore libel per se. The Supreme Court of Florida has held that a person commits libel per se when he charges that another is a crook, unless the communication is privileged. Commander v. Pedersen, 116 Fla. 148, 156 So. 337 (1934). Assuming arguendo that we had held the references to the appellant as a crook and criminal to be nonprivileged, false, and defamatory fact statements as opposed to pure opinion, this allegation would have been sufficient to satisfy the fault requirement prior to Gertz. Until Gertz, the law conclusively implied malice and damage if the defamatory language was libel per se. Johnson v. Finance Acceptance Co., 118 Fla. 397, 159 So. 364 (1935).

In Gertz, however, the United States Supreme Court stated:

We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

418 U.S. at 347, 94 S.Ct. at 3010.

Pursuant to Gertz, this court has adopted the negligence standard as the appropriate standard of liability in connection with defamatory statements concerning a private individual. Tribune v. Levin; see also Miami Herald (negligence standard adopted by Third District Court of Appeal); Boyles (negligence standard adopted by Fifth District Court of Appeal). Although libel per se still exists in Florida where nonprivileged defamatory words are deemed injurious upon their face without resort to extrinsic proof, it is not sufficient for a plaintiff to merely raise a presumption of malice. Fault must be alleged. Miami Herald; Boyles. Therefore, the trial court properly dismissed the complaint because the alleged libelous language was an expression of unactionable opinion, but even if the expression had been actionable, dismissal would have been proper because appellant failed to allege fault.

AFFIRMED.

GRIMES, A.C.J., and LEHAN, J., concur.