Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 25, 2008

Louisiana Appellate Court Finds Owner of Radio Station is Limited Purpose Public Figure For Purposes of Defamation Action

The Louisiana Court of Appeal, First Circuit, has affirmed a lower court ruling granting a special motion to strike, and ruling that the owner-operator of a radio station is a limited purpose public figure for purposes of his defamation action against the defendants, whom he alleged made defamatory statements in a newspaper. The plaintiff "voluntarily injected himself" into the debate, thus abandoning his private figure status for purposes of the controversy.

In Louisiana defamatory words have traditionally been classified into two categories those that are defamatory per se and those that are susceptible of a defamatory meaning....Words which expressly or implicitly accuse another of criminal conduct, or which, by their very nature tend to injure one's personal or professional reputation even without considering extrinsic facts or surrounding circumstances are considered defamatory per se....When a plaintiff proves publication of words that are defamatory per se the elements of falsity and malice are presumed but may be rebutted by the defendant....Injury may also be presumed....When the words at issue are not defamatory per se a plaintiff must prove in addition to defamatory meaning and publication the elements of falsity malice and injury....In cases involving statements made about a public figure, where constitutional limitations are implicated, a plaintiff must prove actual malice, i.e., that the defendant either knew the statement was false or acted with reckless disregard for the truth....
To establish a reckless disregard for the truth the plaintiff must show that the false publication was made with a high degree of awareness of probable falsity, or that the defendant entertained serious doubt as to the truth of his publication.... Further, conduct which would constitute reckless disregard is typically found where a story is fabricated by the defendant, is the product of his imagination, or is so inherently improbable that only a reckless man would have put it in circulation.

In the instant case Starr asserts that five statements printed in the newspaper articles are defamatory. These five statements assert: (1) Michael Starr Vincent Bruno and John Treen were equal owners of Delta Starr; (2) final judgment in a suit against Starr is pending; (3) Cajun Radio executives discovered unethical dealings of ownership with KTIB; (4) KTIB employees complained about receiving bounced checks from Starr and (5) Bruno makes additional claims against Starr, which are serious under federal law, and each count could result in heavy fines or up to five years in jail if the court agrees.

Particularly, Starr contends that these five statements are defamatory per se, and therefore, he does not need to establish falsity, malice or injury, as those elements are presumed. However, the Louisiana Supreme Court has recognized that the legacy of United States Supreme Court decisions regarding defamation is that “the protections afforded by the First Amendment supercede the common law presumptions of [malice], falsity and damages with respect to speech involving matters of public concern, at least insofar as media defendants are concerned.”
Accordingly, our supreme court has recognized that in actions against a media defendant involving an issue of public concern, the presumptions of falsity, malice, and injury do not apply.
Additionally prior to Kennedy, the supreme court indicated that in cases involving statements made about a public figure, where constitutional limitations are implicated, a plaintiff must prove actual malice, implying that defamation per se does not apply in cases involving a public figure.
Therefore, in accordance with the above decisions, in cases involving statements made on an issue of public concern against a media defendant or statements made about a public figure, a plaintiff must prove all elements of his cause of action for defamation including actual malice, and may not rely on any presumption based on the fact that the words are defamatory per se. Starr however, contends that he is not a public figure, and therefore, any heightened standard of proof is inapplicable. From our review of the facts and the record in the instant case, we find that Starr is a public figure for purposes of the limited issues involved in the newspaper articles.

The United States Supreme Court stated in Gertz v. Robert Welch Inc.... that a person[']s designation as a public figure may rest on either of two alternative bases In some instances, an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts....More commonly, however, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.... An individual who voluntarily injects himself or is drawn into a particular controversy becomes a public figure for this limited range of issues. In either case such persons invite attention and comment and assume special prominence in the resolution of public questions.
In the instant case Starr is an owner of Delta Starr and La-Terr, which operates KTIB, a radio station that served as an important source to the community for local news talk and weather. In his capacity as an owner and operator of KTIB, Starr issued a press release explaining KTIB's sudden removal from the airwaves. In this release, Starr stated that there had been some recent changes and that the station had experienced some setbacks. Starr stated that KTIB was seeking a new owner and he also expressed confidence that KTIB would resume broadcasting. In issuing this press release, Starr voluntarily injected himself into the debate regarding KTIB's removal from the airwaves and voluntarily divulged information regarding the company's operational problems and its search for a new owner. Therefore, to the extent that the newspaper articles at issue discussed Starr in his capacity as an owner and operator of KTIB, and addressed issues directly related to the ownership and management of KTIB, we find that Starr was a public figure for that limited issue.

Further even if we did not find that Starr was a public figure, the articles and statements at issue involve a matter of public concern. The United States Supreme Court has defined matters of “public concern” as speech “relating to any matter of political, social, or other concern to the community.”
Clearly, the articles discussing the removal of a local radio station from the airwaves, which was an important source for local news, talk, and weather, relates to a matter of public concern and is an issue about which the local community would reasonably be expected to have a legitimate interest. Therefore, because we find that Starr is a public figure for the limited issues involved, and alternatively, that the articles at issue, published by the media defendants, involve a matter of public concern, Starr must prove actual malice, as well as the other elements of his defamation claim, in order to prevail.

From our review of the record, we find no evidence to suggest that the defendants acted with actual malice in publishing the newspaper articles at issue. Defendants filed into the record affidavits of Darrin Guidry, the President and Chief Executive Officer of Guidry Group, and Kenny Boudreaux. In these affidavits, Guidry and Boudreaux state that the articles were researched and written in accordance with proper reporting standards, including review of the public records and interviews with known, reliable, and identified sources. Additionally, the defendants attached copies of the documents they reviewed in writing the articles, including copies of complaints filed in the Seventeenth Judicial District Court and federal court; emails from Starr's employees; letters from Vincent Bruno to the Federal Communications Commission; and affidavits from Vincent Bruno, John Treen, and Thomas Cvitanovich (a shareholder of La-Terr).

In opposing the motion to strike, Starr filed his affidavit acts of sale related to ownership interests in Delta Starr and La-Terr, a judgment from the Seventeenth Judicial District Court dismissing a claim filed against Starr on an exception of Venue, affidavits from two of Starr's employees clarifying previous statements regarding their paychecks; and an email from the President of Wilkins Communications stating that he did not know where the defendants obtained information that it or Cajun Radio was excusing itself from the deal with KTIB, that he did not comment orally or in writing to anyone with the defendants, and that the comments contained in the newspaper articles were not made by any of his representatives or counsel.

However, none of the evidence presented by Starr demonstrates any actual malice on the part of the defendants in publishing the newspaper articles at issue. The evidence neither suggests that the defendants knew the statements were false, nor that they acted with reckless disregard for the truth. The evidence presented by Starr may establish that the statements were subsequently shown to be false. However, it does not demonstrate that the defendants were highly aware at the time the statements were made that they were false or that they entertained serious doubt at that time as to the statements’ truth. In fact, the totality of the evidence shows that at the time the articles were published, the defendants had a reasonable basis for believing the statements were true....
Accordingly, because Starr has failed to prove actual malice with regard to the statements made by the defendants in the newspaper articles, he did not establish a probability of success on his claim for defamation, and the trial court was correct in granting defendants’ special motion to strike Starr's petition.
Read the entire opinion here. The case is Starr v. Boudreaux, 978 So. 2d 384 (2007); 2007 0652 (La.App. 1 Cir. 12/21/07).

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