Maguire v. Journal Sentinel, Inc.

SCHUDSON, J.

¶ 36. (concurring in part; dissenting in part). Under the Wiegel test, I conclude that *260Marjorie Maguire, by virtue of her involvement in a public issue or controversy, was a limited purpose public figure. See Wiegel v. Capital Times Co., 145 Wis. 2d 71, 426 N.W.2d 43 (Ct. App. 1988). As a limited purpose public figure, Marjorie, in order to prevail in her libel action, had to establish not only that the Milwaukee Sentinel article was defamatory, but also that it was printed with "actual malice." See id. at 82, 426 N.W.2d at 49. She failed to establish either. Indeed, under Lathan v. Journal Co., 30 Wis. 2d 146, 158, 140 N.W.2d 417, 423 (1966), the portion of the article she challenged was "substantially true." Therefore, on the two central issues of the appeal, I disagree with the majority's analysis and would reverse.

¶ 37. The majority concludes that Marjorie was not a limited purpose public figure because she was not involved in a "public controversy" and, therefore, did not meet the first part of the Wiegel test. As the majority acknowledges, however, although " 'private concerns or disagreements do not become public controversies simply because they attract attention,'" they do become public controversies when they " 'receive[ ] public attention because [their] ramifications will be felt by persons who are not direct participants.'" Majority op. at 245 (quoting Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980)). In the instant case, the undisputed *261facts establish that Marjorie's "private concern[] or disagreement" with Daniel became a public controversy and, indeed, did so precisely because of Marjorie's efforts to assure "public attention" so that the "ramifications" of her disagreement with Daniel would "be felt by persons who are not direct participants."

¶ 38. The majority, while conceding that Marjorie "did not take the divorce sitting down" and "expressed her personal opinions about [Daniel]," majority op. at 245, fails to acknowledge the crucial point: Marjorie, with considerable success, attempted to connect what she viewed as Daniel's hypocritical statements and behavior to broad, public issues on which she and he were publicly recognized authorities. In fact, it was Marjorie's apparent ability to convey that connection that enabled her to garner press attention. After all, had Marjorie been expressing nothing more than her displeasure with Daniel's decision to divorce, the press would have had little if any interest. Here, however, Marjorie convinced reporter Mary Beth Murphy that there was much more — and what more there was transformed Marjorie's private dispute into a public controversy involving issues of Catholicism and divorce, among others. See generally Bay View Packing Co. v. Taff, 198 Wis. 2d 653, 678-83, 543 N.W.2d 522, 531 — 33 (Ct. App. 1995); Erdmann v. SF Broad, of Green Bay, Inc., 229 Wis. 2d 156, 164-66, 599 N.W.2d 1, 5-7 (Ct. App. 1999). Thus, Marjorie became a limited purpose public figure.1

*262¶ 39. The majority also concludes "that the presence of other true facts, which may fit the definition of 'assault,' does not make the libelous statement 'substantially true.'" Majority op. at 248.1 disagree.

¶40. The evidence confirmed what, I thought, was well known: "assault" has many meanings and may include verbal as well as physical conduct. See American Heritage Dictionary op the English Language 110 (3d ed. 1992) (listing first definition of "assault" as a "violent physical or verbal attack") (emphasis added). Now, however, based on Marjorie's evidence, the majority tacitly accepts "that the popular definition of assault almost always implies physical contact and sudden, intense violence." Majority op. at 248-49 (emphasis added). That assertion, to say the least, is dubious. And even if "the popular definition of assault almost always implies physical contact and sudden, intense violence," the majority's analysis still fails for two reasons.

¶ 41. First, evidence that Marjorie physically confronted Daniel a number of times — grabbing his coat, grabbing his arm, pushing and embracing him against a wall, and pouring their deceased son's baptismal water on him — renders the article's reference to an *263assault "at the university" as nothing more than a " 'slight inaccurac[y]'" about the location of the assault. See Lathan, 30 Wis. 2d at 158, 140 N.W.2d at 423. Thus, the article was "substantially true." See id.; see also Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 302-03 (2d Cir. 1986) (statement implying that plaintiff was currently an adulterer was substantially true although plaintiff had ceased being an adulterer after "unabashedly committ[ing] adultery" for thirteen of seventeen years); Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 369 (S.D.N.Y. 1998) (statements that plaintiff was the "main" or "prime" suspect were substantially true in light of plaintiffs admission that he had been "a" suspect); Corporate Training Unlimited, Inc. v. National Broad. Co., 981 F. Supp. 112, 120—21 (E.D.N.Y. 1997) (statement that plaintiff was "forced to leave the military for less than satisfactory service" was substantially true where plaintiff, rather than face a court martial, submitted a request for discharge "for the good of the service" after it was discovered that plaintiff had engaged in "financial improprieties") (internal quotation marks omitted); Aequitron Med., Inc. v. CBS, Inc., 964 F. Supp. 704, 716 (S.D.N.Y. 1997) (use of the word "alarm" was substantially true although plaintiff actually used a "monitor" device).2

*264¶ 42. Second, if a newspaper's First Amendment rights recede based on an appellate court's dubious determination of what "the popular definition" of a word "almost always implies," journalists will forever be chilled. Let's not forget that, in this case, the majority is declaring that Journal Sentinel's liability results from Murphy's accurate reporting of her interview of Daniel Maguire who, according to the article, said that Marjorie had "harassed" him "for more than two years" and had "assaulted him at the university." For all we know, Daniel may have used those words to refer to non-physical conduct. If an appellate court can adopt and interpose one party's sense of what "the popular definition" of a word "almost always implies," and if it can then substitute that sense for the definition in the dictionary and, possibly, for the unknown definition in the mind of the person who spoke the word, then journalists will never know where their liability logically begins and ends. See Kelli T-G. v. Charland, 198 Wis. 2d 123, 130, 542 N.W.2d 175, 178 (Ct. App. 1995) ("virtual impossibility of defining a sensible starting or stopping point" precludes tort liability on public policy grounds).

¶ 43. By her own account, Marjorie Maguire engaged in a crusade to discredit Daniel Maguire by exposing what she deemed to be his hypocrisy. She did so publicly. She connected their divorce dispute to public issues on which she and Daniel were prominent public spokespersons. She sought press coverage of her efforts. Mary Beth Murphy accurately reported *265Daniel's comments responding to questions about Marjorie's claims. Marjorie, a limited purpose public figure, failed to establish that Murphy's report was either inaccurate or malicious.

¶ 44. Concluding, as a matter of law, that Journal Sentinel's arguments should have prevailed in this appeal, I must confess to a certain self-consciousness. Lest anyone imagine that my conclusion might have been affected by Journal Sentinel's political power, I must disclose that I, like so many members of our community, believe that in the last twenty years or so the Milwaukee Sentinel and the once responsible and respected Milwaukee Journal steadily deteriorated and ultimately became a single, shameful newspaper — a newspaper that, indeed, maliciously misrepresents facts, libels individuals, embarrasses the many good journalists on its staff, and seriously disserves our citizens. Thus, years ago, like so many of my neighbors, I terminated my Journal Sentinel subscription and now delight in the daily delivery of the New York Times. Nevertheless, newspapers, whether responsible or shameful, enjoy strong First Amendment protection and I, whether right or wrong in my assessment of journalistic quality, must attempt to identify what I view as the majority's mistaken message.

¶ 45. In this case, the alleged libel was "a quarrel over semantics." See Lathan, 30 Wis. 2d at 154, 140 N.W.2d at 421. This is not even a close call. The chilling precedent implicit in the majority's decision ultimately will freeze First Amendment rights — of both shameful *266and responsible newspapers. Accordingly, on the appeal, I respectfully dissent.3

The majority, resolving this aspect of the appeal on the first part of the three-part Wiegel test, declines to discuss the other two parts. Deciding the first part differently, however, I must also consider the rest of the test. I am satisfied that: (1) Marjorie's role in the controversy was more than trivial or tan*262gential; and (2) the alleged libel was germane to Maijorie's participation in the controversy. See majority op. at 243; Wiegel v. Capital Times Co., 145 Wis. 2d 71, 83, 426 N.W.2d 43, 49 (Ct. App. 1988); see also Bay View Packing Co. v. Taff, 198 Wis. 2d 653, 678-83, 543 N.W.2d 522, 531-33 (Ct. App. 1995).

Similarly, in the appeal, the majority had no need to address whether Marjorie proved "actual malice." I, however, having concluded that Marjorie was a limited purpose public figure, must do so. I conclude that Marjorie failed to establish actual malice. The majority, deciding the cross-appeal, agrees. See majority op. at 250.

In Jewell, the court farther explained:

Admittedly, there is a difference between the statements inasmuch as the word "a" implies that Jewell was one of a few people being investigated, whereas the plain meaning of the words "prime" and "main" indicate that Jewell was the leading suspect. Nonetheless, a reasonable reader would not have reacted differently to either these specific statements or the overall content of the July 31 Column based upon this difference in terminology. Under either usage, the main "sting" or "gist" of the overall content of the column was the same....

*264Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 369 (S.D.N.Y. 1998). Similarly, here, whether Marjorie assaulted Daniel at the university or at some other location, "a reasonable reader would not have reacted differently," because the " 'gist' of the overall content of the [article] was the same."

On the cross-appeal, although I agree that we must affirm, I do not join in the majority's opinion. Moreover, because the majority opinion, on both the appeal and cross-appeal, provides only the most cursory review of the facts and law, and neglects to discuss many rich issues the parties thoroughly and effectively addressed, I respectfully decline to join in the recommendation for publication.

In response to footnote 5 of the majority opinion, I would only ask that readers carefully compare the majority's characterization of this concurring/dissenting opinion to the actual words I have written.