Gaylord Entertainment Co. v. Thompson

Page 128

958 P.2d 128

1998 OK 30

GAYLORD ENTERTAINMENT COMPANY, d/b/a The Oklahoma Publishing

Co., The Oklahoma Publishing Company, Petitioners, v. The Honorable Donald D. THOMPSON, Judge of the District

Court of Creek County, Twenty-Fourth Judicial

District, Respondent,

and

Jessie Huff Durham, an individual, and Beau Williams, an

individual, Real Parties in Interest.

WORLD PUBLISHING CO., an Oklahoma corporation, Petitioner, v. The Honorable Donald D. THOMPSON, Judge of the District

Court of Creek County, Twenty-Fourth Judicial

District, Respondent,

and

Jessie Huff Durham, an individual, and Beau Williams, an

individual, Real Parties in Interest.

Nos. 88925, 88935.

Supreme Court of Oklahoma.

April 14, 1998.

Rehearing Denied June 24, 1998.

ORIGINAL COGNIZANCE TAKEN; WRITS GRANTED.

B.J. Rothbaum, Von Russell Creek, Linn & Neville, Oklahoma City, for Petitioners Gaylord Entertainment Company and The Oklahoma Publishing Company in No. 88925.

J. Schaad Titus, Boone, Smith, Davis, Hurst & Dickman, Tulsa, for Petitioner World Publishing Co. in No. 88935.

W.C. Sellers, W.C. "Bill" Sellers, Inc., Sapulpa, and W.C. Sellers, Jr., Bill Sellers, Sapulpa, for Real Parties in Interest in Nos. 88925 and 88935.

OPALA, Justice.

¶1 The dispositive issue tendered by the two consolidated original proceedings for a writ of prohibition is whether the district court action against the petitioners, now pending before the respondent judge, is dismissible for want of actionable quality. We draw from three different sources of law ¹ to conclude that (a) when measured by the applicable Conley v. Gibson ² standard, the plaintiffs (corespondents herein) can muster no set of facts in support of their quest for relief against the petitioners under any legal theory and (b) the writs should issue to arrest further proceedings against the petitioners in the action below.

I THE ANATOMY

¶2 This court's original cognizance is invoked to prohibit further proceedings in an action by two lawyers, Jessie Huff Durham and Beau Williams [respondents or plaintiffs], against World Publishing Company, the Gaylord Entertainment Company d/b/a The Oklahoma Publishing Co., and The Oklahoma Publishing Company [collectively called newspapers, petitioners or defendants]. The lawsuit was also pressed against Citizens Against Lawsuit Abuse, Inc. and five of its leaders [collectively called CALA], entities who are not parties to this original proceeding. ³

¶3 Plaintiffs allege in their second amended petition below that (a) the defendants joined in a conspiracy to undermine the democratic process and to injure the plaintiff "trial lawyers" ⁴ by publishing "false, deceptive, fraudulent, and defamatory statements" relating to the plaintiffs, their profession and to the judicial branch of government, (b) the statements were disseminated with actual malice and with knowledge of their falsity or in reckless disregard of the truth of the statements, (c) the defendants' conduct has injured their reputations as well as the business property interest in their profession, and (d) the defendants' actions were intentionally inflicted, which caused them extreme emotional distress. Plaintiffs attached to the first amended petition copies of five articles published in The Daily Oklahoman and in the Tulsa World about CALA's efforts to bring about "tort reform" through the initiative process. ⁵ Also attached to their first amended petition below is a copy of CALA's allegedly offending communication, a November 14, 1994 letter ⁶ written on its letterhead which (a) states that CALA was formed to change the "Constitution in a manner which will materially reduce the number of frivolous lawsuits," (b) explains that CALA's goal is to secure the passage of two initiative measures--one to place a cap on the recovery of punitive damages and the other to limit the contingency fee rate a lawyer may charge, and (c) solicits new members as well as financial contributions for CALA's initiative petition drive. After unsuccessfully pressing at nisi prius for dismissal of the second amended petition, the two newspapers and CALA brought in this court three separate causes to prohibit the respondent judge from further proceeding against them in the district court tort action. We dealt with the issues pressed by CALA and granted the writ in Brock v. Thompson. ⁷ There, we held that the state constitutional shield surrounding political activity protected the CALA defendants (promoters of the initiative petition) from the burden of defending themselves in court for the conduct that forms the basis of the claim sought to be prosecuted against them. ⁸ Applying the Conley v. Gibson test, this court held that no acts by the CALA defendants could be shown to provide a ground for relief against the petitioners based on any legal theory pressed. ⁹ We now turn to the separately brought causes by the newspapers, which stand consolidated for disposition by a single opinion.

Incorporation by Reference of the Plaintiffs' Exhibits

¶4 Although none of the newspaper articles was affixed to the second amended petition below, these instruments were made part of the materials pressed at nisi prius in the petitioners' dismissal quest and stand tendered by them for our consideration here. The parties are hence deemed to have adopted these materials as fit for our analysis in entertaining this cause. ¹⁰

II RELIEF SOUGHT IN THIS COURT

¶5 In this original proceeding the petitioners seek dismissal of the district court action against them because of its chilling effect on their fundamental-law liberties that are at stake in the trial court process--i.e., the constitutional right of free press and freedom of political speech. ¹¹

¶6 A prerogative writ that may be granted in the exercise of this court's supervisory control over inferior courts, ¹² prohibition will lie to arrest unauthorized or excessive use of judicial force. ¹³ While erroneous denial of a motion to dismiss is not usually an error for which prohibition will lie, original cognizance will be taken to prohibit the use of unauthorized or excessive judicial force in entertaining nonactionable claims where, as here, valued fundamental-law rights are clearly implicated and their immediate protection from encroachment appears absolutely necessary. ¹⁴

¶7 The Availability of the Prerogative Writ Sought Herein Must Be Assayed by the Conley v. Gibson Standard ¹⁵

¶8 A motion to dismiss for failure to state a cause of action will not be sustained unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief. ¹⁶ Drawing from three legal sources--statutory, common law and constitutional--we hold that, for the reasons to be explained in Parts IV, V and VI infra, no relief may be available on the claim sought to be prosecuted against World Publishing Company, Gaylord Entertainment Company and The Oklahoma Publishing Company. Because the respondents' action against these petitioners is utterly devoid of actionable quality, it cannot withstand the petitioners' quest for dismissal.

III THE PARTIES' ARGUMENTS

¶9 The petitioners (newspapers) argue that the news articles and editorials ¹⁷ in contest are privileged under the statutory (12 O.S.1991 § 1443.1) ¹⁸ and common-law fair report privilege. According to petitioners, the initiative process (including the fundraising stage) ¹⁹ is authorized and regulated by constitutional ²⁰ and statutory law ²¹ and hence falls under the § 1443.1 category of "other proceeding authorized by law." They argue the publications are protected by the First Amendment as rhetorical hyperbole in the nature of core political speech. Lastly, petitioners submit that venue in Creek County was mislaid. ²²

¶10 The plaintiffs counter that when the newspapers pledged large sums of money to CALA, they became "newsmakers" (rather than reporters) and ceased covering the developments fairly and accurately. According to the plaintiffs, the petitioners "conspired" to publish false and defamatory statements about the respondents as "trial lawyers" in order to limit their ability to represent their clients against the newspapers and CALA in tort actions. The plaintiffs argue that these actions amount to intentional infliction of emotional distress and injury to their reputation as well as to their property interest in the profession they practice.

IV

¶11 THE PUBLICATIONS IN QUESTION ARE PROTECTED AGAINST CIVIL LIABILITY AS POLITICAL SPEECH

A. ¶12 The Protection of Oklahoma's Free-Speech-and-Press Guarantee

¶13 Restraint upon free speech is prohibited by the terms of Art. 2 § 22, Okl. Const. ²³ The State's free-speech-and-press guarantee protects the public by allowing issues to be freely and vigorously discussed. ²⁴ There is a recognized need in a free, self-governing society for dissemination of information of fundamental importance to the people. ²⁵ Without accurate media coverage and discussion of issues that are of governmental interest, it is doubtful that the general public would be able to make informed decisions and participate intelligently in their governance; nor would representatives of government be able to perform their assigned tasks effectively. ²⁶ The protection of this activity is essential for an effective democracy. The fundamental law's free-speech-and-press components are intended to facilitate the functioning of a democratic government by protecting speech that relates to the self-governing process.

¶14 The phrase "free speech" is often equated with "political speech". ²⁷ The term "political" pertains "to the policy or the administration of government" or to "the influence by which individuals of a state seek to determine or control its public policy." ²⁸ Political speech is hence any expression concerning the ideas and art of governing. ²⁹ Protected political speech is vital to self-government. It must be available without any governmental hindrance. There should be ...