United States Court of Appeals,
Eleventh Circuit.
No. 94-6668.
K. Carl LITTLE, Plaintiff-Appellant,
v.
Debbie BRELAND, Mobile Press Register, Inc., Defendants-
Appellees,
Robert O. Bostwick, Jr., Mobile Convention and Visitor's
Corporation, Defendants,
AmSouth Bank N.A., Commonwealth National Bank, Gulf Federal Bank,
Garnishee.
Sept. 5, 1996.
Appeal from the United States District Court for the Southern
District of Alabama. (No. 92-0820-CB-C), Charles R. Butler, Jr.,
Chief Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and FARRIS*, Senior
Circuit Judge.
FARRIS, Senior Circuit Judge:
K. Carl Little appeals the district court's holding that his
resignation as president of the Mobile Convention & Visitors
Corporation was a matter of public controversy thereby making
Little a limited purpose public figure. He contends that the
district court erred in instructing the jury that he must prove the
Mobile Press Register acted with actual malice to establish
liability. We AFFIRM.
Little sued The Mobile Press Register, Inc., reporter Debbie
Breland, The Mobile Convention & Visitors Corporation, and interim
president Bobby Bostwick for defamation. The Mobile Convention &
*
Honorable Jerome Farris, Senior U.S. Circuit Judge for the
Ninth Circuit, sitting by designation.
Visitors Corporation, a non-profit corporation created to provide
sales and marketing services and to attract conventions to Mobile,
hired Little as its president on April 27, 1992. The suit involves
comments made by Bostwick and reported by Breland in an article
appearing in the Press-Register on May 20, 1992. The article
reported Little's firing by the Mobile Convention & Visitors
Corporation for alleged sexual misconduct. The district court held
that Little was a limited purpose public figure and was required to
prove actual malice to prevail on his defamation claim. After a
jury trial, Little prevailed against the Mobile Convention &
Visitors Corporation and Bostwick but lost against the Mobile Press
Register and Breland.
DISCUSSION
Plaintiffs in defamation cases can be characterized as
either: 1) public officials or public figures, 2) limited purpose
public figures, or 3) private individuals. The Supreme Court has
struck a "balance between the needs of the press and the
individual's claim for wrongful injury" by establishing different
tests for different defamation plaintiffs. Gertz v. Robert Welch,
Inc., 418 U.S. 323, 343, 94 S.Ct. 2997, 3008-09, 41 L.Ed.2d 789
(1974). A limited purpose public figure is "an individual [who]
voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range
of issues." Id. at 351, 94 S.Ct. at 3013. Public figures "must
prove that the defendant acted with actual malice to establish
liability" when the "defamatory material involves issues of
legitimate public concern." Silvester v. American Broadcasting
Co., Inc. 839 F.2d 1491, 1493 (11th Cir.1988). To show that the
Press-Register acted with "actual malice" by publishing defamatory
material, Little must show that they acted "with knowledge that it
was false or with reckless disregard of whether it was false or
not." New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct.
710, 726, 11 L.Ed.2d 686 (1964).
In Silvester, we adopted the three part test set forth in
Waldbaum v. Fairchild Publications, Inc. 627 F.2d 1287
(D.C.Cir.1980), to determine if the plaintiff is a limited purpose
public figure. Under this analysis, we must "(1) isolate the
public controversy, (2) examine the plaintiff's involvement in the
controversy, and (3) determine whether the alleged defamation [was]
germane to the plaintiff's participation in the controversy."
Silvester, 839 F.2d at 1494 (citing Waldbaum ).
I. THE PUBLIC CONTROVERSY
Little argues that the controversy surrounding his reasons
for leaving the Mobile Convention & Visitors Corporation was not a
"public controversy," but merely "newsworthy." See Silvester, 839
F.2d at 1494 ("[A] public controversy must be more than merely
newsworthy."). If the controversy "will affect people who do not
directly participate in it, the controversy is more than merely
newsworthy and is of legitimate public concern." Id. at 1495. "In
short, ... [i]f the issue was being debated publicly and if it had
foreseeable and substantial ramifications for nonparticipants, it
was a public controversy." Id. The public controversy must have
preexisted the alleged defamation. Id.
The record demonstrates that there was a preexisting public
controversy surrounding both: 1) the leadership of the Mobile
Convention & Visitors Corporation generally, and 2) Little's sudden
unexplained departure specifically. The decision to build the $60
million convention center had been the subject of extensive public
debate. The $1.37 million contract between the City of Mobile and
the Mobile Convention & Visitors Corporation to provide sales and
marketing services and to attract conventions to Mobile was a
matter public controversy.
The problem with leadership of the Mobile Convention &
Visitors Corporation was a preexisting public controversy as well.
The previous president had been forced out five months earlier,
receiving "a good deal of coverage" in the local media. "To
determine whether a controversy indeed existed ... [t]he court can
see if the press was covering the debate, reporting what people
were saying and uncovering facts and theories to help the public
formulate some judgment." Waldbaum, 627 F.2d at 1297. Little's
hiring was covered by the local media. He attended a Media
Appreciation Night on May 7. Little was described as "the best
person possible for the job" in a press release. His plans for the
Mobile Convention & Visitors Corporation and reactions to Mobile
and the Convention Center were quoted extensively in the local
media.
On May 15, Mobile Convention & Visitors Corporation officials
issued a press release announcing that Little withdrew his
acceptance of the presidency. On May 16, the Press-Register
published a front-page story on Little's departure entitled "Little
Has "Change of Heart'." Before the allegedly defamatory article
was published, a local television news anchor noted that "[t]his
latest development [Little's departure] raises new concerns about
the MCVC's leadership and its future." The television reporter
also noted: "The question is, was there something so wrong with
Mobile or the MCVC that Little would choose unemployment over the
high-paying convention job here?"
On May 19, two reporters asked Mobile Convention & Visitors
Corporation officials about rumors that Little had been forced to
resign because of sexual misconduct. Several people spoke to
Breland about these rumors and she received an anonymous letter
stating that the "Change of Heart" story was incorrect. Little's
sudden departure from the Mobile Convention & Visitors Corporation
was a public controversy "of legitimate public concern."
Little contends that his resignation was "of no concern to
anyone other than himself" and had no ramifications for
nonparticipants. This is incorrect. The leadership of the Mobile
Convention & Visitors Corporation and the success of the $60
million convention center has "foreseeable and substantial
ramifications" for the entire city of Mobile. The success or
failure of such an expensive endeavor will have a substantial
impact on the City of Mobile's tax base.
II. LITTLE'S INVOLVEMENT IN THE CONTROVERSY
The second prong of the analysis "addresses the extent to
which the plaintiffs are involved in the public controversy."
Silvester, 839 F.2d at 1496. Little either "(1) must purposely
[try] to influence the outcome of the public controversy, or (2)
could realistically have been expected, because of his position in
the controversy, to have an impact on its resolution." Id. Even
if Little did not "voluntarily put [himself] in a position to
influence the outcome of the controversy," he was "caught up in the
controversy against his will, [and] assume[d] a prominent position
in its outcome." Id. Little's choice to assume the position of
leadership at the Mobile Convention & Visitors Corporation, an
organization involving public scrutiny, shows a voluntary decision
to place himself in a situation where there was a likelihood of
public controversy. Little was "participating in activities whose
success depends in large part on publicity." Brewer v. Memphis
Publishing Co., 626 F.2d 1238, 1255 (5th Cir.1980). Little
voluntarily accepted a taxpayer-supported job to market the $60
million convention center and attract visitors to Mobile. His
hiring, performance, and firing would all be the subject of public
concern and debate. Little sought out media attention at a press
conference and was the subject of four newspaper articles and eight
television news stories prior to the article in question. Little
was "intimately involved in the public controversy." Silvester,
839 F.2d at 1496.
CONCLUSION
The district court did not err in determining that Little was
a limited purpose public figure for purposes of his leadership of
the Mobile Convention & Visitors Corporation as well as the
controversy surrounding his sudden departure as president of the
organization.1 An "actual malice" jury instruction was properly
1
The Mobile Press Register also argues that the judgment
should be affirmed because: (1) Little has discharged the Press
Register and Breland by satisfying the judgment against the MCVC
given.
AFFIRMED.
and Bostwick, and (2) Little cannot recover additional damages
from the Press Register or Breland after receiving a settlement
in an amount more than his compensatory damages. Since the
district court was correct in determining that Little was a
limited purpose public figure, we do not reach either of these
arguments.