Smith v. Huntsville Times Co., Inc.

888 So.2d 492

Edward W. SMITH v. The HUNTSVILLE TIMES COMPANY, INC., and David Person.

1021999.

Supreme Court of Alabama.

March 12, 2004.

Sharon A. Johnston, Huntsville, for appellant.

E. Cutter Hughes and Kimberly Bessiere Martin of Bradley Arant Rose & White, LLP, Huntsville, for appellees.

WOODALL, Justice.

Edward W. Smith appeals from a summary judgment in favor of The Huntsville Times Company, Inc. ("the Times"), and David Person, an editorial writer for the Times, in Smith's defamation action against them. We affirm.

On October 27, 2000, the Times published on its editorial page the following "Commentary" written by Person:

"COMMENTARY

"Can Glen Park residents believe in the badge?

"She said he called her a prostitute, a low-life and a nigger. She said he cursed her, using the five-letter word for a female dog.

"She is Helen Griffin, a resident of the Glen Park neighborhood in northwest Huntsville. He is Edward Smith, a crime scene investigator assigned to the north precinct of the Huntsville Police Department.

"But they weren't at a crime scene when this alleged incident took place. They were, she said, in front of her home.

"And she, while far from perfect, said that she had committed no crime. That's why she filed a complaint against Smith with the police department. It's also why she and more than 20 of her neighbors and friends have signed a petition protesting what they say has been Smith's `dishonorable and unethical conduct.'

"`It ain't supposed to be that way with a police officer,' Griffin said.

"Attempts to contact Smith through the police department were unsuccessful.

"Helen Griffin describes herself as a 46-year-old, retired licensed practical nurse who is church-going and community-oriented. She also said she's enrolled in the R.N. program at Calhoun Community College.

"`Basically, I'm just a normal person,' she said. `I'm not a bad person.'

"But Griffin admits that she was charged with driving under the influence of alcohol four or five years ago. She also concedes that she's been convicted of assault on two occasions.

"But those mistakes had nothing to do with what she said happened the night of Oct. 5 when she got home from class. She got out of her car and was on her way to the duplex apartment next to hers. Robert Brooks lives there. He said he was standing out on his porch at the time and confirms her account.

"Officer Smith, who is assigned to the north precinct right down the street, was standing on the lawn of the apartment building next door when she drove up. It's not clear if he was on duty at the time.

"But he was, Griffin said, wearing street clothes except for a dark blue jacket that has `Police' in big, white letters on the back. Smith saw her, she said, and began shouting obscenities and racial epithets at her. She was embarrassed and hurt.

"`He don't even know me,' she said. `He just saw a black woman.'

"On Oct. 9, Griffin and John Lavender, her brother and a local minister, went to the police department. They met with Deputy Chief Col. Leon Schenck, and he directed her to Internal Affairs where she filed her complaint.

"`That would definitely be conduct unbecoming a police officer,' Schenck said regarding Griffin's complaint. `Assuming those statements were made.'

"If the Internal Affairs investigation concludes that Smith did indeed make those statements, it's unclear what penalty he would face. Schenck said that disciplinary actions are determined case by case.

"But true or false, this much is clear: Helen Griffin and more than 20 petitioners believe that Smith has mistreated them or their neighbors in the Glen Park neighborhood, been abusive and acted in an unethical way. They are concerned. Some are afraid.

"Citizens — whether their community is rich or poor, black or white — need to know that the police can be trusted. They need to know that they can believe in the badge.

"And they need to know that those charged to serve and protect them don't see them as less than human."

(Emphasis added.) In October 2000, Smith owned and leased a number of "residential duplex buildings" in Glen Park.

On July 27, 2001, Smith filed a three-count complaint against the Times and Person. The counts alleged (1) "defamation/libel," (2) "false light invasion of privacy," and (3) "defamation involving profession." The Times and Person moved for a summary judgment on the ground that Smith is a "public official," and, therefore, that the defendants are entitled to the constitutional protection recognized in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In its judgment granting the motion, the trial court stated, in part:

"This court finds that [Smith], as a police officer, is a public official under the holding of [New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)]. This court follows the vast majority of courts in holding that law enforcement officers are public officials. See Williams v. Marcum, 519 So.2d 473 (Ala.1988); Hailey v. KTBS, Inc., 935 S.W.2d 857, 860-61 (Tx.Ct.App.1996). The court further finds that all of plaintiff's claims must be analyzed under the constitutional protections enunciated under the New York Times v. Sullivan doctrine. See e.g., Hustler v. Falwell, 485 U.S. 46[, 108 S.Ct. 876, 99 L.Ed.2d 41] (1988).

"As a public official, the plaintiff must present clear and convincing evidence of actual malice in order to defeat the summary judgment motion filed by the defendants. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 [, 106 S.Ct. 2505, 91 L.Ed.2d 202] (1986); White v. Mobile Press Register, 514 So.2d 902, 904 (Ala.1987). The plaintiff has failed to present such evidence, and summary judgment is therefore appropriate on the plaintiff's claims."

The principal issues Smith raises on appeal are whether the actual-malice standard applies to his claims, and, if so, whether the evidence he produced in opposition to the summary-judgment motion provided sufficient evidence of actual malice.

I. Applicable Standard

The threshold question whether the actual-malice standard applies in a defamation action involves a two-pronged inquiry — whether the defendant is a public official and, if so, whether the allegedly defamatory comments related to his conduct as a public official.¹ This is so, because "the Constitution protects statements made about public officials when those statements concern `anything which might touch on an official's fitness for office ....'" Soke v. Plain Dealer, 69 Ohio St.3d 395, 397, 632 N.E.2d 1282, 1284 (1994) (quoting Garrison v. Louisiana, 379 U.S. 64, 77, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)) (emphasis added); see Roberts v. Dover, 525 F.Supp. 987, 989 (M.D.Tenn.1981). This formulation includes "personal attributes," regardless of whether they "may also [reflect] the official's private character." Garrison, 379 U.S. at 77, 85 S.Ct. 209. This is so, because "[f]ew personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation." Id. Thus, the first prong concerns the defamation plaintiff's status, while the second prong concerns the "nexus between that position and the conduct that is the subject of the defamation." Note, The Status/Conduct Continuum: Injecting Rhyme and Reason into Contemporary Public Official Defamation Doctrine, 84 Va. L.Rev. 871, 874 (1998) (emphasis added). Such threshold determinations are questions of law for the court. See Ex parte Rudder, 507 So.2d 411, 416 (Ala.1987); Fulton v. Advertiser Co., 388 So.2d 533, 536 (Ala.1980).

Smith does not contend that the first prong of the public-official analysis is not satisfied. He does not argue, in other words, that a police officer is not a public official for defamation purposes. See St. Amant v. Thompson, 390 U.S. 727, 730, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) (accepting "the determinations of the Louisiana [state] courts" that a deputy sheriff who was a plaintiff in a defamation action was a "public official"); Hailey v. KTBS, Inc., 935 S.W.2d 857, 860 (Tex.Ct.App.1996) (stating that "[l]aw enforcement personnel are almost universally held to be `public officials,'" and citing more than 50 defamation cases involving police officers or related law-enforcement personnel). He states, however, that he was "not on duty" at the time the incident in the Commentary is alleged to have occurred, and, therefore, that "Person's article defamed [him] in his private business." Smith's brief, at 28-29. "The alleged actions... which were the subject of Person's article were," he insists, "all actions connected to his private business as a landowner and landlord in the Glen Park area of Huntsville." Smith's brief, at 29. Thus, Smith contends, the allegedly defamatory statements were "not related to his `official conduct,'" for the purposes of the second prong of the public-official analysis. Smith's brief, at 28 (Smith's emphasis). We disagree.

The Commentary never mentions Smith's status as a property owner or as a landlord. It does, however, make frequent references to Smith's status as a police officer. Indeed, the Commentary is titled: "Can Glen Park residents believe in the badge ?" (Emphasis added.) Nothing in the Commentary apprises the reader that Smith owns property in the neighborhood or suggests that Griffin's allegations relate in any manner to real estate. Indeed, the Commentary suggests no reason for Smith's presence in Glen Park, other than as a police officer.

The fallacy of Smith's argument is further reflected by the procedural history underlying the dispute. A few days after the alleged incident, Griffin and her brother, Lavender, visited the Huntsville Police Department ("the Department") and filed a complaint against Smith. Her complaint alleged, among other things, that on the evening of October 5, 2000, Smith yelled derogatory accusations at her, accusing her of prostitution and disparaging her ethnicity. Smith did this, Griffin alleged, "...