dissenting. In seeking a directed verdict at the close of Mr. Fitzhugh’s case-in-chief, Little Rock Newspapers argued, among other things, that Mr. Fitzhugh had offered no evidence to show that the article published by the Arkansas Democrat-Gazette actually injured his reputation. Little Rock Newspapers was correct in this assertion, and its motion for directed verdict should have been granted.
With respect to the damages question in this case, the majority perceives the issues to be “what particular type of proof is sufficient to sustain a jury’s verdict in favor of a plaintiff in a defamation action” and “how much proof of actual injury to reputation is sufficient to render the issue one for the jury to resolve.”
Since 1983, the “type” of proof of damages that we have required in a defamation case such as this one is proof of actual injury to reputation. Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983). See generally Howard W. Brill, Arkansas Law of Damages § 33-9, at p. 577 (3d ed. 1996) (stating that, in a case against a media defendant, “damages to reputation are not presumed. In the absence of a showing of actual malice, no damages may be recovered without proof of some actual injury to the reputation. Recovery for the mere humiliation, mental suffering or sorrow of the plaintiff, standing alone without injury to reputation, is not permitted”)(footnotes omitted); David A. Anderson, Reputation, Compensation, and Proof, 25 Wm. & Mary L. Rev. 747, 758 (1984)(“If a plaintiff suffers no demonstrable harm to his reputation, however, he should have no cause of action for defamation.”).
In order to create a jury question on the issue, a plaintiff simply must introduce substantial evidence, or evidence “of sufficient force and character to induce the mind of the factfinder past speculation and conjecture,” Allred v. Demuth, 319 Ark. 62, 64, 890 S.W.2d 578, 580 (1994), that the publication of the defamatory statement has in fact injured his reputation. In Hogue v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985), which did not involve a media defendant, we said the issue of reputational injury should have gone to the jury where the plaintiff had testified that his reputation had been harmed as a result of the publication of the allegedly defamatory statement and another witness had testified, albeit “rather vaguely,” that the plaintiffs reputation had “changed for the worse” following publication of the statement. Id. at 483, 695 S.W.2d at 374. Citing the Hogue case, a federal district court and a commentator have suggested that the burden of proving reputational injury in this jurisdiction is not difficult. See Mitchell v. Globe Intern. Pub., Inc., 773 F. Supp. 1235, 1237 (W.D. Ark. 1991) (“The showing of actual damage to reputation required by other Arkansas cases has been slight.”); Brill, supra (“The amount of evidence of damage to reputation necessary to take the case to the jury appears to be easily satisfied.”). Regardless of how one characterizes the quantum of proof necessary to sustain a verdict, the proof, at least in this type of defamation case, must establish, as a threshold matter, that the statement actually injured the plaintiffs reputation.
Our cases since Little Rock Newspapers, Inc. v. Dodrill, supra, have not prescribed a clear method by which a plaintiff may prove that his reputation has been injured by the publication of a defamatory statement. Able commentators have made several good suggestions, however. A student commentator has noted that a plaintiff’s interest in his reputation
is a “relational interest” that involves the opinions which others in the community may have of the plaintiff. The most important relations that people have are family relations, social relations, trade relations, and professional relations. The plaintiffs task is to prove the defamatory statements have been communicated to others who reacted to the detriment of these relations.
Steve Garner, Little Rock Newspapers, Inc. v. Dodrill: Proving Damage to Reputation in a Libel Action, 38 Ark. L. Rev. 889, 908 (1985)(emphasis added). See also Prosser & Keeton on the Law of Torts § 111, at p. 771 (5th ed. 1984)(stating “defamation is an invasion of the interest in reputation and good name. This is a ‘relational’ interest, since it involves the opinion which others in the community may have, or tend to have, of the plaintiff”).
The plaintiffs “evidence must focus upon proving damages to relational interests” and demonstrate “the impact the statements had upon others to the detriment of the plaintiffs relationships with them.” Garner, supra, at 911. Toward this end, the plaintiff may introduce testimony bearing on his “standing and reputation prior to the libel” and the “effect the libel had on his family, business, and social relations.” Id. at 908. Testimony showing any “specific instances of social ostracism and rebuke,” as well as testimony “concerning the impression and effect which the libel had on the minds of other persons,” would also be relevant. Id. at 909. See also Brill, supra (“Specific instances of rebuke, humiliation and insults may aid in demonstrating post-defamation reputation.”). Other approaches to proving reputational injury are discussed in David A. Anderson, Reputation, Compensation, and Proof, 25 Wm. & Mary L. Rev. 747, 764-78 (1984); Rodney A. Smolla, Law of Defamation § 9.06[6], at pp. 9-15 to 9-16 (1993); and 2 Dan B. Dobbs, Law of Remedies § 7.2(5), at p. 274 (1993).
Based on the evidence introduced by Mr. Fitzhugh, reasonable men and women could not have concluded that the article published in the Arkansas Democrat-Gazette caused actual harm to Mr. Fitzhugh’s reputation. Mr. Fitzhugh’s case for damages rested on his own testimony as well as that of his wife and his friends and acquaintances who had read, or heard about, the article. Mr. Fitzhugh maintained at trial that the publication of the article had damaged his reputation “because people have told me it has an effect.” Mr. Fitzhugh testified that, following the publication of the article, some 25 to 30 friends and acquaintances, family members, or colleagues in the legal profession had either telephoned him or approached him at various times and places to inquire or comment about the article or the status of his lawsuit against the newspaper.
According to Mr. Fitzhugh, these individuals made a variety of comments. Some indicated to Mr. Fitzhugh that they had seen the article and had discussed it with others. Some asked whether there would be a retraction or whether a lawsuit would be filed. Others, according to Mr. Fitzhugh’s very general testimony, just “made comments” about the case or “inquired” about it. Mr. Fitzhugh mentioned certain individuals who had told him that they were glad he was not involved in the Whitewater investigation; that they were concerned for him; or that they did not believe the story was about him. One individual wondered if the article had used Mr. Fitzhugh’s middle name, and he called Mr. Fitzhugh to ask what his middle name was. Some individuals “tried to kid” Mr. Fitzhugh about the article.
The majority suggests that Mr. Fitzhugh’s testimony helped establish that his reputation was injured as a result of the publication of the article. The majority’s analysis, however, overlooks the remainder of Mr. Fitzhugh’s testimony. On cross-examination, Mr. Fitzhugh conceded that he did not think that the individuals he had mentioned believed that he was being prosecuted for a Whitewater-related crime. Mr. Fitzhugh conceded that none of these individuals ever shunned or avoided him. He testified that he had remained friends with his “close friends” and that he knew of no one who had “quit seeing [him] because of this article.” Mr. Fitzhugh said that he knew of no lawyers who had quit speaking to him, or referring clients to him, on account of the article. Furthermore, Mr. Fitzhugh never claimed that publication of the article had deleteriously affected his law practice or income or had hindered his ability to maintain or expand his client base. He specifically testified that he was not seeking special damages of this kind, and there was no evidence of such damages introduced at trial.
Although Mr. Fitzhugh testified that he was upset and embarrassed by the article and that he had experienced difficulty sleeping, such evidence of mental anguish, in the absence of proof of an actual reputational injury, cannot support an award of damages in a defamation action. Little Rock Newspapers, Inc. v. Dodrill, supra. Absolutely nothing in Mr. Fitzhugh’s testimony supports the conclusion that his reputation was harmed as a result of the article in question. Mr. Fitzhugh cited no relationships that were actually injured on account of the article, and he could not name one person who held him in lower esteem after having read the story. Mr. Fitzhugh could not recall one instance of rebuke, “shunning,” or social ostracism that occurred as the result of the article’s publication. Although Mr. Fitzhugh had testified that “people,” whom he never identified, had told him that publication of the story would have the “effect” of damaging his reputation, he did not point to any conversation in which he was told that the article had in fact injured his reputation. Nothing that Mr. Fitzhugh said suggests that anyone actually held him in lower esteem after having read the article in the Arkansas Democrat-Gazette. The relationships that Mr. Fitzhugh did discuss were clearly unaffected by publication of the article.
Likewise, the testimony of the other witnesses called by Mr. Fitzhugh did nothing to establish that the publication of the article caused an actual injury to Mr. Fitzhugh’s reputation. Mr. Fitzhugh’s wife testified that Mr. Fitzhugh was upset and had lost sleep over the article and that he was worried about his reputation. Ms. Fitzhugh testified she, too, had “worried about the people we didn’t know that thought it was him.” This testimony, however, showed only the emotional harm that the Fitzhughs suffered as a result of the article’s publication and did not show any reputational injury. Ms. Fitzhugh testified that people would inquire and ask her and her husband “what was going on.” However, Ms. Fitzhugh conceded that none of Mr. Fitzhugh’s relationships had suffered because of the publication. On cross-examination, she testified, as abstracted, that “[n]one of his friends avoided him to my knowledge, and none of our couple friends avoided us. We were never asked to leave the country club as a result of this article.” Like Mr. Fitzhugh, Ms. Fitzhugh referred to no instances of social ostracism that occurred as a result of the article’s publication. Her testimony did nothing to show any injury to Mr. Fitzhugh’s reputation.
Testimony was also given by Jeannie Kay Luttrell, Cole Goodman, Gilbert Travis, Philip Merry, Howard Pearson, Ben Barry, and Asa Hutchinson. Ms. Luttrell and Messrs. Goodman and Travis testified that they initially believed the article was about Mr. Fitzhugh. Ms. Luttrell testified that she was under this impression from June until some point in the fall when she learned the truth from a friend. Mr. Goodman testified that he initially believed Mr. Fitzhugh had been indicted in the Whitewater case and was “perturbed” with him for a few moments until he immediately reread the article and realized it was about someone else. Mr. Travis stated he initially believed Mr. Fitzhugh was “in trouble” until he phoned Mr. Fitzhugh to ask what was going on.
Although these three witnesses initially believed the story and concluded that Mr. Fitzhugh had in fact been indicted for fraud, they did not testify that they, or anyone else, held Mr. Fitzhugh in lower esteem or thought less of him as a result of the article’s publication. As Ms. Luttrell testified, “I was friends with Mr. Fitzhugh before this occurred and am still.” In no manner did she indicate that her opinion of Mr. Fitzhugh wavered during the time that she believed he was a criminal defendant in the Whitewater case. She admitted she never called the Fitzhughs during this time but explained that she had not wanted to embarrass them with questions. Likewise, Mr. Coleman testified that the article had not damaged his relationship with Mr. Fitzhugh, and Mr. Travis testified that the article would not prevent him from going to Mr. Fitzhugh for legal advice if he needed to change attorneys.
The testimony of the remaining witnesses also failed to establish any injury to Mr. Fitzhugh’s reputation. Mr. Merry testified that he had not even read the article in question, and he stated that Mr. Fitzhugh has “always” had a good reputation in the community. Mr. Pearson testified that he understood the article “as a whole” to suggest that Mr. Fitzhugh had “done something wrong,” but he indicated that he had not believed the article. Mr. Barry testified that he knew the article was not about Mr. Fitzhugh and that the article had not impaired his friendship with Mr. Fitzhugh. Finally, Mr. Hutchinson testified that he, too, had not believed the article was about Mr. Fitzhugh and that the article had not affected his friendship with Mr. Fitzhugh or prevented him from referring clients to Mr. Fitzhugh.
These witnesses specifically testified that publication of the article in question had no impact on their own relationships with Mr. Fitzhugh or their opinions of him. Not one of them identified anyone else'who held Mr. Fitzhugh in low esteem as a result of the article’s publication, and not one of them referred to an actual present or potential relationship between Mr. Fitzhugh and any other person that suffered on account of the article’s publication. Moreover, none of them mentioned any instances of rebuke or social ostracism encountered by Mr. Fitzhugh as a result of the article’s publication.
Ms. Luttrell and Mr. Goodman said that they “would think” that the article “would harm” Mr. Fitzhugh’s reputation or “would have a damaging effect” on it and that the article “might” cause potential clients to seek legal assistance elsewhere. Mr. Travis added that some “people” who saw the article and were seeking to hire counsel “might have second thoughts” about hiring Mr. Fitzhugh. Mr. Hutchinson similarly predicted that an article like the one in question “would harm anyone’s reputation.” These witnesses did not testify, however, that Mr. Fitzhugh’s reputation in particular had in fact been damaged by the article’s publication or that the article had in fact turned potential clients away. Dr. Goodman conceded on cross-examination that he did not know whether Mr. Fitzhugh had lost clients or potential clients on account of the article, and Mr. Hutchinson conceded that he had no personal knowledge of Mr Fitzhugh’s law practice. These witnesses did no more than testify that they presumed an injury to Mr. Fitzhugh’s reputation had resulted from publication of the article. This was clearly insufficient under our holding in the Dodrill case.
The last bit of evidence cited by the majority is the testimony of Robert Lutgen, a managing editor at the Arkansas Democrat-Gazette. The majority endorses Mr. Fitzhugh’s position on appeal that Mr. Lutgen’s apparent “admission” that publication of the article caused “minor damage” to Mr. Fitzhugh suffices as proof of injury to his reputation. The majority rejects Little Rock Newspapers’ argument that Mr. Lutgen was not talking about Mr. Fitzhugh’s reputation when he made that statement.
After conceding that a newspaper has the power to damage a person’s reputation by printing false information about him or her, Mr. Lutgen moved on to discuss other issues in the case. Counsel for Mr. Fitzhugh later asked him whether the newspaper believed Mr. Fitzhugh had suffered any “damage” as a result of the article’s publication. Mr. Lutgen answered that the publication had not caused “significant damage” because the newspaper had printed a retraction. Mr. Lutgen conceded that the article had caused “some damage” and that “the question is how much,” but he never indicated whether he was referring to damage to Mr. Fitzhugh’s reputation or some other type of damage such as emotional distress. Counsel for Mr. Fitzhugh asked Mr. Lutgen to state “how much damage you believe this caused to Mike Fitzhugh,” and Mr. Lutgen answered, “We understand it was embarrassing to him. We understand that it was a mistake er — I don’t suspect there is any way of actually measuring the damage.” Counsel then suggested that Mr. Lutgen could not “put a dollar figure on your reputation,” and Mr. Lutgen answered, “right.” Mr. Lutgen later discussed his estimate of the number of readers who had recognized Mr. Fitzhugh and stated that it had been difficult to “assess the overall damage.” Counsel asked Mr. Lutgen to describe once more the amount of “damage” that he believed Mr. Fitzhugh had suffered, and Mr. Lutgen responded that publication of the article had caused “minor damage.”
The record does not clearly establish, one way or the other, whether Mr. Lutgen made the statement that publication of the article had caused “minor damage” in reference to damage to reputation. Mr. Lutgen did not specifically indicate that he was referring to any reputational injury, and his statement that the article had been “embarrassing” to Mr. Fitzhugh suggests he was referring only to damages for mental anguish. Other portions of the testimony, however, particularly Mr. Fitzhugh’s estimate of the number of readers who might have recognized Mr. Fitzhugh, could suggest that Mr. Lutgen was assessing the impact of the article on Mr. Fitzhugh’s reputation.
Given the obvious ambiguity in the testimony, we should not assume that Mr. Lutgen was necessarily giving an opinion as to the effect of the article on Mr. Fitzhugh’s reputation. However, whether or not Mr. Lutgen was in fact stating a belief that the article’s publication had injured Mr. Fitzhugh’s reputation, his testimony was not sufficient to establish such an injury. The statement in question was no more than a guess that Mr. Fitzhugh’s reputation had suffered as a result of the article’s publication. Like the other witnesses, Mr. Lutgen pointed to no relationship that was actually harmed by the publication of the story, and he did not mention any person who in fact held Mr. Fitzhugh in lower esteem after having read the story.
In sum, none of the witnesses who testified on Mr. Fitzhugh’s behalf established that the Arkansas Democrat-Gazette’s publication of the article in question had in fact (1) negatively affected their own relationships with, or opinions of, Mr. Fitzhugh; (2) negatively affected any other person’s relationship with, or opinion of, Mr. Fitzhugh; (3) caused Mr. Fitzhugh to experience any type of rebuke or social ostracism from any person; or (4) caused Mr. Fitzhugh to suffer any “special damages,” such as loss of income to his law practice. Little Rock Newspapers’ motion for directed verdict therefore should have been granted. See Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 26-27 (Minn. 1996) (affirming summary judgment in defendants’ favor where plaintiff could “point to no specific facts demonstrating that her reputation has been affected” and where proof showed, among other things, that no one thought less of plaintiffs on account of defamatory broadcast and that there was no “change in behavior” in those plaintiff regularly encountered in his employment).
At most, the evidence introduced by Mr. Fitzhugh showed that some witnesses who read the article thought it had the tendency or propensity to injure Mr. Fitzhugh’s reputation or that some witnesses believed that Mr. Fitzhugh had been implicated in the federal Whitewater investigation. However, as our holding in the Dodrill case makes clear, the proof of damages must show an actual injury to reputation, not merely that the publication of the article “could have” harmed or “had the tendency to harm” the plaintiffs reputation. See also Reveley v. Berg Publications, Inc., 601 F. Supp. 44, 46 (W.D. Tex. 1984)(“. . . the court concludes that in the wake of Gertz even if evidence was heard that the article tended to injure plaintiff, that a mere tendency to injure without proof of actual injury cannot support a finding of defamation . . . .”).
Moreover, none of our defamation cases, and no defamation case from any other state that has adopted, as we did in the Dodrill case, a requirement of reputational injury, see, e.g., Richie v. Paramount Pictures Corp., 544 N.W.2d 21 (Minn. 1996); Gobin v. Globe Publishing Co., 649 P.2d 1239 (Kan. 1982); France v. St. Clare’s Hospital and Health Center, 82 A.D.2d 1, 441 N.Y.S.2d 79 (A.D. 1st Dept. 1981); see generally Annotation, Proof of Injury to Reputation as Prerequisite to Recovery of Damages in Defamation Action—Post-Gertz Cases, 36 A.L.R.4th 807, 811-13 (1985 & Supp. 1997), has ever held that proof of reputational injury may be established by testimony showing that, for a brief amount of time, a witness believed that the publication was true. Other than the barest obiter dicta from Salomone v. MacMillan Pub. Co., Inc., 77 A.D.2d 501, 429 N.Y.S.2d 441 (A.D. 1st Dept. 1980), nothing is cited by the majority to support its novel position that a reputational injury occurs whenever an individual, if only for a fleeting moment, believes the truth of a defamatory publication.
The majority essentially presumes that Mr. Fitzhugh’s relationships with Ms. Luttrell and Messrs. Goodman and Travis were harmed by the article’s publication simply because they said they initially believed Mr. Fitzhugh had been indicted in the Whitewater case. Not only does this position lack the support of a holding of any defamation case, but it also blatantly ignores the testimony of these very witnesses who plainly stated that their high opinions of Mr. Fitzhugh remained unchanged despite their initial belief in the truth of the publication. These witnesses’ testimony directly refutes the majority’s assertion that “[t]he fact that the witnesses believed that Appellee was charged with a crime involving the Whitewater scandal demonstrates that they thought less of Appellee as a result of the article.”
More troubling, however, is the majority’s statement that “persons who were not personally acquainted with Appellee would not have been capable of verifying the truth nor would they have been known to Appellee so that he could secure their testimony for trial.” The suggestion seems to be that there might have been individuals who read the story and, as they did not know Mr. Fitzhugh and were therefore unable to inquire with him about the truth of the article, must have held him in lower esteem as a result of having read the article. The mere possibility that readers of the Arkansas Democrat-Gazette think less of Mr. Fitzhugh on account of the article, the majority seems to say, is additional proof that his reputation was actually injured by the publication of the article.
The majority pays lip service to the rule from Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), that damages may not be presumed in cases against media defendants absent evidence of malice, and yet it sustains the award of damages in this case based in part on a hunch that readers who did not testify at trial might have seen the article and might have thought less of Mr. Fitzhugh as a result. The majority presumes damages in direct contravention of the Gertz case and our holding in the Dodrill case and bases that presumption upon unknown readers’ presumed reactions to the article.
I respectfully dissent.
Arnold, C.J., and Thornton, J., join this dissent.