Mohr v. Grant

¶37 (concurring in part and dissenting in result) — Analytically, I agree generally with the majority’s assessment of the law of defamation as it relates to nonpublic figures. I part company from the majority on whether, in this case, a judge or jury should decide if the “gist” or “sting” of the story is false.

Chambers, J.

¶38 At common law in Washington State, liability existed for defamation so long as the plaintiff demonstrated that the statements complained of were (1) false, (2) defamatory, and (3) published. See Taskett v. KING Broad. Co., 86 Wn.2d 439, 458, 546 P.2d 81 (1976) (Horowitz, J., dissenting). The defendant, however, could raise two affirmative defenses: truth or privilege. Taskett, 86 Wn.2d at 458; see also Prosser and Keeton on the Law of Torts 802, 815 (W. Page Keeton ed., 5th ed. 1984).

¶39 In 1964 the United States Supreme Court concluded that the first amendment to the United States Constitution gave a higher degree of protection to free speech than was consistent with common law defamation. New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Under New York Times, a public official may not recover damages for defamation unless “actual malice” (which includes knowledge or reckless disregard of the falsity of the alleged defamatory statement) is proved. New York Times, 376 U.S. at 280. The Supreme Court drew a large circle around speech to protect the right to speak freely; however, certain defamatory speech fell outside the circle of protection.

¶40 Since New York Times, courts have struggled to balance the First Amendment rights of the press with the appropriate protection of private individuals harmed by false and irresponsible reporting. In Gertz, the Court articulated the appropriate approach when a private person *832brings a defamation action against a publisher. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). The Court concluded that the First Amendment did not require a private person to show actual knowledge of falsehood, or even mere recklessness to the truth, before an injury to reputation caused by negligent publishing could be redressed in a defamation suit. Gertz, 418 U.S. at 342, 347-48. Accordingly, the Supreme Court reinstated a jury verdict in a defamation action brought by an attorney against a national newspaper. Gertz, 418 U.S. at 329, 332.

¶41 In Gertz, the newspaper had published a story asserting the attorney was part of a worldwide communist conspiracy to destroy local police and substitute a national police force as part of an alleged planned communist take over of the United States. However, the article was a flight of fancy, apparently rooted in the bare fact that the attorney represented a family in a wrongful death action against a police officer who had been convicted of murder. Gertz, 418 U.S. at 325-27. While the attorney could not prove that the publisher had actual malice (since the publisher said he accepted the article without checking any of the facts), he could prove that the allegations were patently false and published negligently. The Supreme Court concluded that the First Amendment did not require a private person to prove actual malice to prevail. See Gertz, 418 U.S. at 347.

¶42 In the absence of an actual malice standard, courts and legislatures have articulated a variety of standards perceived necessary to balance the interests of a free and vigorous news media against the individual’s right to be free from false and defamatory reports. This court articulated the governing principles in Mark v. Seattle Times, 96 Wn.2d 473, 635 P.2d 1081 (1981).

¶43 Mark, a case similar to the one before us today, involved the reporting by Seattle media on charges concerning Medicaid fraud. Mark, 96 Wn.2d at 476. The media, which had been invited to a press conference by the prosecutor, reported the fraud indictment and trial widely and relied in part upon affidavits of probable cause and other *833court documents. Mark, 96 Wn.2d at 476-81. Mark, who was found guilty of Medicaid fraud after several of the widely publicized charges were dropped, brought a defamation action against several publishers. Mark, 96 Wn.2d at 476-82. We concluded that a private person, resisting a defense motion for summary judgment in a defamation case, must establish a prima facie case by convincing clarity. Mark, 96 Wn.2d at 487, 489. This heightened standard is the concession defamation law makes to the First Amendment. See Mark, 96 Wn.2d at 485. I do not read the majority to alter that standard.12 Once falsity is established by convincing clarity, the burden is upon the media defendant to “show that the statement is substantially true or that the gist of the story, the portion that carries the ‘sting’, is true.” Mark, 96 Wn.2d at 494 (citing William L. Prosser, Handbook of the Law of Torts 798 (4th ed. 1971)); Taskett, 86 Wn.2d at 443 (statement defamatory only if the “substance of the statement” is likely to harm a reputation).13

¶44 I agree with my colleagues that falsity may be established by implication and that the omission of facts may result in defamation by implication. See majority at 823, 826-27. But I agree with the Court of Appeals that Eliot Mohr points to numerous discrete historical facts which, if believed, could lead a trier of fact to conclude that KXLY-TV knew and purposely omitted facts from its story that slanted coverage. Under the story told by KXLY, it appeared that a developmentally challenged man wandered into Mohr’s store seeking to wash windows, and Mohr’s response was to assault the man and prosecute him for criminal trespass and harassment. See Mohr v. Grant, 117 Wn. App. 75, 86, 68 P.3d 1159 (2003); cf. majority at 815 n.1. If the facts relied upon by Mohr are believed, he would have *834established the element of falsity by convincing clarity. The burden would then shift to KXLY to establish that the gist or sting of the story was true. Mark, 96 Wn.2d at 494. I disagree with the majority that this is a question of law when reasonable minds can differ. Contra majority at 826.

¶45 KXLY does not show, as a matter of law, that the gist of this story was true. It does not meet its burden. KXLY relies only on the truth of the factual statements made to argue that its reports were factually accurate, even in their implications. Mohr’s evidence is sufficient to defeat summary judgment on the issue of whether material omissions rendered the otherwise true story false and defamatory, and KXLY has failed to show that the gist or sting of the story was true.

¶46 Accordingly, I would affirm the Court of Appeals and reverse summary judgment. While I largely agree with the majority’s articulation of the governing principles, I respectfully dissent in result.

Bridge, J., and Ireland, J. Pro Tern., concur with Chambers, J.

The majority correctly notes in this case the appellant and the respondent agreed that the standard for a private person alleging defamation is to prove falsity by a preponderance of evidence, giving us no occasion to decide definitively the deeper standards question. Majority at 822.

However, the media has no duty to independently verify information contained in court documents. Mark, 96 Wn.2d at 493.