This is a defamation action filed by two attorneys against an investigative television
The trial court granted defendants' motion for summary judgment and dismissed plaintiffs' action. The court noted that failure to dismiss an unwarranted defamation action by summary judgment produces long and expensive litigation which has a chilling effect upon free speech.
The court of appeal reversed the summary judgment. 601 So.2d 792. The court first determined that plaintiffs were not "public figures" and therefore were not burdened, under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), with having to prove by clear and convincing evidence that the statements were made with actual malice.
On defendants' application, this court granted certiorari to determine whether summary judgment was appropriate in this case. 605 So.2d 1105.
Juan Ronquille originally acquired the pertinent tract by Spanish land grant. The tract was eventually transferred to the State of Louisiana. For several years Lloyd, an heir of Ronquille, and her former attorneys attempted to locate other Ronquille heirs for the purpose of presenting a claim for return of the tract, telling the heirs that the State was holding in escrow $63,000,000,000 in mineral royalties from these lands.
In early 1986 several class members, concerned that there were discrepancies in the genealogy and that Lloyd may be misleading and misusing them, contacted Elder, who began an investigation of Lloyd's activities. Elder interviewed other heirs and also contacted Douglas Greenburg, the district attorney of Terrebonne Parish where many of the heirs lived and where a grand jury was conducting an investigation into Lloyd's transactions. In May of 1986, Elder attended a meeting of the heirs arranged by Lloyd and the plaintiffs for the purpose of revising the contracts.
Elder and the station televised a series of investigative reports between June 1 and July 7, 1986, which showed clips of the May meeting, portions of Elder's interviews with the heirs and with Greenburg, and comments by Elder on the investigation.
Plaintiffs then filed the instant action, claiming that Elder defamed them in these broadcasts. In their petition plaintiffs alleged that Elder, intending to damage plaintiffs' professional reputations, broadcast knowingly false statements that plaintiffs rushed non-clients into signing legal contracts, did not have professional offices or telephones, were attempting to take the heirs "to the cleaners," refused to divulge their last names to their clients, misrepresented the purpose of the meetings, were afraid to have their contracts examined, charged exorbitant and inconsistent fees, unethically solicited clients, refused to give any accounting or answers to the clients, and "entered into an unlawful conspiracy with a `criminal charlatan of the worst order' for the purpose of `duping simple people who really need their money' and for the purpose of committing `extortion' and actions `smacking of fraud.'" Plaintiffs further alleged that Elder suppressed favorable facts, refused to retract statements after learning of their falsity, presented staged events, used innuendo to distort and misrepresent taped statements, and violated professional ethics.
After defendants' answer and extensive discovery, defendants filed a motion for summary judgment. Plaintiffs opposed the motion with affidavits by each plaintiff and by a former investigative television reporter who stated his opinion that the televised reports violated industry standards for ethical and accurate reporting. Also filed in connection with the motion were videotapes of the newscasts, accompanied by written transcripts, which may be described generally as follows:
Plaintiffs contend that Elder defamed them in the portions of the newscasts quoted above. Defamation is an invasion of a person's interest in his reputation and good name. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111 (5th ed. 1984). In order to prevail in a defamation action, the plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages. Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.2d 196 (La.1980); Ritchey v. Azar, 383 So.2d 360 (La.1980). Because the present case is at the summary judgment stage, a discussion of the standard for summary judgments in defamation cases is appropriate.
A motion for summary judgment shall be granted when the mover establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. La.Code Civ.Proc. art. 966 B. The decision is made on the basis of the pleadings, affidavits and discovery documents in the record. Id.
In the present case the court of appeal, citing a federal appellate decision, held that the standard for summary judgment in defamation cases is the same as the standard in any other civil case. While that statement may be accurate in the federal system, this court has long employed a different standard for summary judgment in defamation cases. Because the threat of unmeritorious litigation could otherwise have a chilling effect on freedom of the press, adequate protection of that constitutional guarantee requires that plaintiffs in defamation cases demonstrate at an early stage that they can meet their burden of proof at trial. Otherwise, media defendants will be subjected by even the threat of unmeritorious action to an inordinate amount of self-censorship which could significantly infringe upon their constitutionally protected freedom. In cases affecting the exercise of freedom of the press, proper summary judgment practice is essential. Mashburn v. Collin, 355 So.2d 879 (La.1977). Thus, in order to survive a motion for summary judgment, a defamation plaintiff must produce evidence of sufficient quality and quantity to demonstrate that he likely will be able to meet his burden of proof at trial. Without such evidence, there is no genuine issue of material fact, and summary judgment should be granted.
The misplaced reliance by the court of appeal on federal pronouncements probably results from the difference in state and federal practice in summary judgment procedures in non-defamation cases. In the federal system, when the nonmoving party bears the burden of proof at trial, there is no genuine issue of material fact if the nonmoving party cannot come forward at the summary judgment stage with evidence of such sufficient quantity and quality for a reasonable juror to find the party can satisfy his substantive evidentiary burden. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court in Celotex stated:
477 U.S. at 322-23, 106 S.Ct. at 2552. The "purpose of summary judgment in the federal system is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e), Advisory Committee Note to 1963 Amendment).
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), a defamation case against a media defendant, the Court held that when the First Amendment requires clear and convincing evidence as the standard of proof (actual malice cases), the trial judge, in deciding a
In Louisiana, however, there is a strong preference for full trial on the merits in non-defamation cases. Because of the resulting heavy burden on the mover, a showing by the mover that the party with the ultimate burden of proof likely will not meet his burden at trial is an insufficient basis for summary judgment. Adams v. Travelers Ins. Co., 420 So.2d 507 (La.App. 2d Cir.), cert. denied, 422 So.2d 426 (La.1982); Yocum v. City of Minden, 566 So.2d 1082 (La.App. 2d Cir.1990); Morgan v. Campbell, Campbell & Johnson, 561 So.2d 926 (La.App. 2d Cir. 1990). Summary judgments are to be sparingly granted. Pace v. Zilka, 484 So.2d 771 (La.App. 1st Cir.), cert. denied, 488 So.2d 691 (La.1986). Any doubt is to be resolved against granting the motion. Cooke v. Allstate Ins. Co., 575 So.2d 404 (La.App. 4th Cir.1991).
Therefore, while in the federal system the standard for summary judgment may be the same in all cases, there is a different standard in Louisiana in defamation cases because of the constitutional considerations in such cases. Because a media defendant's having to go to a full trial in multitudes of nonmeritorious defamation claims would certainly stifle the constitutional guarantee of freedom of the press, the rule in other summary judgment cases favoring trial on the merits is simply not applicable in defamation cases. See also Bussie v. Lowenthal, 535 So.2d 378 (La.1988); Schaefer v. Lynch, 406 So.2d 185 (La.1981); Kidder v. Anderson, 354 So.2d 1306 (La.), cert. denied, 439 U.S. 829, 99 S.Ct. 105, 58 L.Ed.2d 123 (1978).
Statements by Elder
Recognizing that the court in a defamation case must consider the entirety of a statement in determining whether the statement is actionable, we consider separately the five portions of the investigative reports which plaintiffs point to as defamatory. Of course, each portion will be considered in the context of the entire report.
A defamatory communication is one that tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Restatement (Second) of Torts § 559 cmt.e (1977). The question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is one for the court.
We conclude that the communications at issue in this case were not defamatory and therefore not actionable. Accordingly, we do not reach the issues of whether the statements were false or whether plaintiffs were required to prove actual malice.
The first communication was the portion of the June 17 newscast in which Elder, after reporting that the grand jury was meeting to decide whether there was fraud involved in Lloyd's efforts to sign the
Of course, Elder asked the question simply for effect and did not expect an answer, nor did he provide one. He did not state, as a matter of fact or opinion, that Lloyd had acted fraudulently (although he reported circumstances suggesting pressure in obtaining signatures). He merely posed the question for public consideration, thereby expressing suspicion about activities which clearly raised the suspicions of many Ronquille heirs and others. Although defamation can occur by means of a question, this question which Elder posed to the television viewers for their consideration was not one which, in and of itself, the listener would have reasonably understood to be intended in a defamatory sense so as to harm plaintiffs' reputations and to lower their community esteem.
The second communication occurred during the lengthy June 1 newscast when Elder asked plaintiff Montgomery to photograph people signing the new contract, and Montgomery refused on the basis that it was private business between him and his clients. Whereupon Elder asked Montgomery, "You're not taking these people to the cleaners, are you?" Montgomery emphatically denied this suggestion.
This question, much like the rhetorical question about the wrongness of Lloyd's and plaintiffs' activities surrounding the signing of the new contracts, merely expressed suspicion and indeed offered Montgomery an opportunity to explain the contract and the surrounding circumstances. Again, this direct question was not one which a reasonable listener would have taken to so harm plaintiffs' reputations as to lower the community's opinion of them. The unusual circumstances surrounding the heirs' signing of contracts presented a situation about which Elder was entitled to investigate and to raise questions for public consideration.
Elder's use of interviews of two heirs to tell the television audience that some heirs believed plaintiffs did not have working telephone numbers and that some heirs at the May 6 meeting did not know plaintiffs' last names is also not defamatory. In the June 1 newscast Elder published statements by three of Lloyd's critics. The second critic stated that her daughter tried to reach the attorneys, but "[t]he do not have a working number." Pointing to Elder's admission in his deposition that he had telephoned plaintiffs and thus knew that plaintiffs had operating office telephones and listed numbers, plaintiffs argue that the critic's statement, published by Elder without equivocation or limitation, communicated to the viewer that plaintiffs did not have working telephone numbers, a fact Elder knew to be false. The key question is whether the critic's statement is defamatory.
Plaintiffs in effect claim defamation by innuendo. In defamation by implication or innuendo, the court must distinguish between statements of opinion and statements of fact. In the case of opinion, if the defendant states non-defamatory facts on which he bases his derogatory opinion, he is not liable for defamation unless the opinion indicates the existence of other facts which are defamatory and would justify the forming of the opinion. Restatement (Second) of Torts § 566 cmt.c (1977). But if the defendant states a derogatory opinion without disclosing the facts on which it is based, he may be liable for defamation if the comment creates
Elder's use of the critic's comment was a statement of fact that one person attempted to telephone one of the plaintiffs one time and somehow came to the conclusion that the lawyer did not have a working number. This may not be the pinnacle of fairness in news reporting by a reporter who had himself telephoned the lawyer, but the issue here is defamation. Unless implications are considered, the critic's statement is not defamatory. But when the court looks not at what was said, but at what impression was created, a media publication can give rise to an infinite number of impressions. When a public figure and matter of public concern are involved, perhaps there can be no defamation by implication. See Schaefer v. Lynch, 406 So.2d 185 (La.1981). But even if this court were to recognize defamation by implication in actions by private plaintiffs against media defendants (an issue we hereby pretermit), adequate protection of freedom of the press at least requires that the plaintiffs prove that the alleged implication is the principal inference a reasonable reader or viewer will draw from the publication as having been intended by the publisher.
Here, a reasonable viewer would not draw, from the critic's statement of her daughter's hasty conclusion, the principal inference that plaintiffs are shady lawyers. Any number of equally plausible inferences can be drawn from the brief statement. Accordingly, we conclude that a reasonable viewer could not have understood the words as intended in a defamatory sense. The statement, especially when considered in the context of several consecutive statements critical of Lloyd, does not give rise to a defamatory inference. Bussie v. Lowenthal, 535 So.2d 378, 382 (La.1988).
Similar to the preceding statement, Elder published on June 17 a question-and-answer session with an heir which focused on that person's statement that he and other heirs attending the May 6 meeting did not know plaintiffs' last names. In their affidavits plaintiffs asserted that they introduced themselves with their full names at the May 6 meeting. Because Elder had left a microphone in the hall when he was ushered out and because he admitted in his deposition that he listened to portions of the meeting from outside the hall after his departure, plaintiffs contend it is at least a jury question whether Elder knew the heir's statement about plaintiffs' last names was false. They further contend that the statement that an attorney failed to disclose his or her last name to a mass meeting of clients-heirs was defamatory. According to plaintiffs, such a statement tells the television audience, for no apparent reason other than to undermine the perception of the lawyer's integrity, that this lawyer operates in a clandestine manner so as to hide his or her identity.
The heir's comments simply stated that he and several other heirs in attendance did not know the last names of the new lawyers brought in by Lloyd. Although the extended interrogation of this heir was of questionable newsworthiness, a reasonable listener to the communication, especially when considered in the context of the entire newscast, could not draw the principal inference that plaintiffs lacked integrity or operated their practices in an unethical manner, or understand the communication in a manner that would lower plaintiffs' reputations and community esteem.
Elder's statements in the June 1 newscast about his interview with Greenburg present a tougher question on defamation. Elder followed his lead-in statement "District Attorney Doug Greenburg began digging into the matter" with a clip of Greenburg saying in an apparently positive declaration, "It's an extortion. I think that it smacks of fraud...." But in a subsequent deposition Greenburg asserted he made the taped comment, not as his views on the proved criminality
In the next clip of Greenburg's interview, Elder suggested Greenburg's anger over the vulnerability of the "victims," but Greenburg in deposition denied characterizing anyone as a victim. He stated that in the taped interview he described the people who complained to him as persons of limited means who could have been misled, but did not express an opinion that they had been victimized, as he believed the investigative report had led viewers to believe.
Later, Elder led in with the statement "District Attorney Doug Greenburg minced no words in describing the alleged actions of one Marie Lloyd Giordano," followed by Greenburg's taped statement that "[t]his person is a criminal charlatan of the worst order." In his deposition Greenburg asserted that his interview statement was to the effect that if the allegations about Lloyd were proved, this person was a criminal charlatan of the worst order.
Elder followed these statements about Lloyd with a statement that Greenburg's investigation centered on the contract (shown on the screen) which obligated the heirs to pay a substantial amount of any recovery to Lloyd and to "the lawyers," and then named plaintiffs as the lawyers who together with Lloyd called the meeting to change the contract that "the district attorney is looking into."
Elder's use of Greenburg's statements arguably present a jury question whether the statements were maliciously misused and so distorted as to be untrue. But malice and falsity do not become pertinent until it is determined at the outset whether the communications were defamatory to these plaintiffs.
Significantly, neither Greenburg in the clips of his interview nor Elder in his comments leading into the clip of Greenburg's interview ever mentioned plaintiffs. The ten-minute report of June 1 concentrated on Lloyd and her use of claimed documents to secure substantial payments and contingency contracts from other heirs for recovery of billions of dollars held in an escrow account disclaimed by the State. Elder carefully used words like "possible fraud" and "alleged actions" to describe Lloyd's activities, and then presented comments on "the alleged actions of one Marie Lloyd Giordano" by Greenburg, who was conducting an investigation into the heirs' complaints about Lloyd. The harsh comments by Greenburg, whatever the context, were directed at Lloyd (who was eventually indicted for fraud) and not at plaintiffs. After Greenburg's statements, Elder did refer to the contracts and to the meeting called by Lloyd and plaintiffs to revise the contracts. But the connection between Lloyd's using claimed documents to solicit heirs for contributions and contracts over several years and plaintiffs' role in the May 16 meeting to sign new contracts was tenuous at best.
After reviewing the videotape of the June 1 news report containing the excerpts of Greenburg's interview, and considering the report in its entirety, we conclude that the report could not be understood by a reasonable and detached viewer so as to harm plaintiffs' reputation or to lower their esteem in the community. We hold that the use of Greenburg's interview, although arguably distorted, did not constitute defamation as to these plaintiffs and was not actionable.
In summary, we conclude that the overall news reports focused on questions rather than conclusions and that the communications pointed out by plaintiffs, when considered in the context of the overall reports and the almost total emphasis on Lloyd's suspicious and protracted activities, were not capable of being understood by a reasonable viewer as intending a defamatory meaning toward these plaintiffs.
For these reasons, the judgment of the court of appeal is reversed, and the judgment
DENNIS, J., concurs with reasons.
DENNIS, Justice (concurring).
I respectfully concur.
I believe that a firmer foundation is available for the greater part of the court's decision, although I cannot say that the majority is incorrect in its analysis in any respect.
Prior to the adoption of our state constitution a plurality of the Supreme Court in Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) would have extended the constitutional privilege to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." Id. at 43, 91 S.Ct. at 1820. The Supreme Court did not clearly retreat from this position until its decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), decided June 25, 1974, subsequent to the ratification of the 1974 Louisiana Constitution on April 20, 1974. Consequently, it is permissible and appropriate for this court to interpret the Article I, § 7 freedom of expression guarantee to grant broader protection of these important rights than that afforded by the current federal standard, under a criterion similar to that proposed by the Rosenbloom plurality.
Applying a Rosenbloomesque standard and the Mashburn v. Collin, 355 So.2d 879 (La. 1977) summary judgment precepts to the present case, I conclude that (1) the defendant's derogatory expressions relating to the plaintiff attorneys were part of "discussion and communication involving matters of public or general concern," and therefore were privileged under Article I, § 7 of the 1974 Louisiana Constitution unless uttered with knowing or reckless falsity; (2) the plaintiff opponents to summary judgment have not shown that a judge or jury reasonably could find by clear and convincing evidence that most of the alleged defamatory statements were made with knowing and reckless falsity; (3) the defendant's alleged misrepresentation of the district attorney's remarks about Marie Giordano Lloyd's conduct were not defamatory of the plaintiff attorneys for the reasons assigned by the majority opinion.