Opinion
5:00CV180-H
July 14, 2003
MEMORANDUM AND ORDER
THIS MATTER is before the Court on the Defendants' "Opening Brief in Support of Their Renewed Motion for Summary Judgment" (document #36) filed May 27, 2003; and the Plaintiffs' "Response . . ." (document #38) filed June 25, 2003. On July 7, 2003, the Defendants filed their "Reply . . ." (document #39).
The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c), and this motion is now ripe for disposition.
Having carefully considered the parties' arguments, the record, and the applicable authority, the undersigned will again grant the Defendants' Motion for Summary Judgment as to the Plaintiffs' defamation claim, as discussed below.
As discussed more fully below, this matter has been remanded by the Fourth Circuit Court of Appeals for consideration of state law issues surrounding the Plaintiffs' defamation claim.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is a personal injury action seeking damages in excess of $75,000, initially, for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. The Plaintiffs, Vickie C. Hugger and Carolyn Settle, are, respectively, the Principal and a sixth grade teacher at C.B. Eller Elementary School in Wilkes County, North Carolina, and are North Carolina citizens.The Defendant Rutherford Institute ("RI") is a non-profit civil rights and religious liberties organization incorporated under the laws of Virginia and maintaining its principal place of business in Charlottesville, Virginia. The Defendant Rutherford Institute of North Carolina, Inc. ("RINC") is a non-profit corporation incorporated under the laws of North Carolina, which until 1993, RI operated as a "state chapter" to conduct its business in North Carolina.
The individual Defendants, John W. Whitehead and Steven H. Aden, both Virginia citizens, are attorneys at RI's office in Charlottesville, Virginia. Mr. Whitehead is also RI's founder and President.
In the light most favorable to the Plaintiffs, on November 8, 1999, the RI's Charlottesville, Virginia office received an email from Mrs. Joyce Darnell, who alleged that her twelve-year-old daughter Hanna, a student in Ms. Settle's class, had twice been denied her constitutional rights; that is, Ms. Settle and Ms. Hugger had forced Hanna to say the word "damn" as part of a reading aloud assignment and had prevented Hanna from expressing her religious beliefs through the letters "WWJD" ("What Would Jesus Do?").
The Court has taken the evidence in the light most favorable to the Plaintiffs, the non-moving party, in resolving this summary judgment motion. However, neither the Plaintiffs nor the Defendants took any depositions, and the Plaintiffs conducted no discovery at all. Other than copies of the correspondence and press releases discussed below and their medical records, the Plaintiffs have submitted no evidence in opposition to the Defendants' motion.
The RI receives literally thousands of similar requests for help each year. On November 10, 1999, RI's Legal Coordinator, Ronald Rissler, who is not an attorney but who has a great deal of experience investigating such requests, contacted Mrs. Darnell by telephone and interviewed her and Hanna, who provided great detail in her allegations against Ms. Hugger and Ms. Settle. Not only did Mr. Rissler find Hanna's account to be believable, but Mrs. Darnell unequivocally stated that she believed her daughter.
As to the first incident, Hannah alleged that when she refused to say "damn" aloud, Ms. Settle sent her to Ms. Hugger's office where, after being threatened with in-school suspension, she relented and read the word aloud.
As to the second incident, Ms. Settle conducted a weekly "feature one student" activity in which one student was allowed to write a phrase describing him or herself on the classroom chalkboard. Hannah told Mr. Rissler that, during her week as the "feature one student," she had written "WWJD" on the chalkboard, but Ms. Settle told her she "could not display that kind of information" and had forced her to erase it.
Mr. Rissler attempted to speak with Ms. Hugger by telephone at the school office, but was told that Ms. Hugger was out of town on business. RI staff also purchased the book that was the subject of Hanna's reading assignment and confirmed that it, in fact, contained the word "damn," as Hanna maintained.
On November 15, 1999, Mr. Whitehead, acting within the scope and course of his employment with RI, faxed a "demand letter" to Ms. Hugger and the Superintendent of the Wilkes County Schools that detailed Hannah's allegations, as well as case law supporting Hannah's constitutional right not to be coerced into saying offensive words and to be allowed to express her religious beliefs. Further, Mr. Whitehead demanded an immediate response — by November 16, 1999 — consisting of a change in school policy, a written apology to Hannah and her family, and a written reprimand to Ms. Hugger and Ms. Settle.
The use of a "demand letter" is a common first step in seeking remediation of grievances, not only by the RI, but also by the American Civil Liberties Union, the National Association for the Advancement of Colored People, and many other civil rights organizations.
Later the same day, Wilkes County School Board attorney Frederick G. Johnson faxed a letter to Mr. Whitehead at RI's Charlottesville, Virginia office stating that he was investigating the facts and would issue "an appropriate response" following his investigation. Mr. Rissler also spoke on the telephone with Mr. Johnson, who expressed his personal disbelief of Hanna's story.
In response to Mr. Johnson's skepticism, Mr. Rissler spoke with Mrs. Darnell and Hanna again by telephone. However, on this occasion, Mrs. Darnell and Hanna were interviewed over Mr. Rissler's speakerphone, and two RI paralegals joined him in "confronting" Hanna about whether she was being truthful. Hanna denied lying and repeated her original story, and Mrs. Darnell, Mr. Rissler, and the paralegals believed her. Hanna also gave Mr. Rissler the names of two students and another teacher whom she contended would verify her allegations. Mr. Rissler attempted to contact these witnesses, but his telephone messages were not returned.
On November 16, 1999, RI issued a press release, which was also published on its Internet web-site, that recounted Hannah's allegations as "fact" and contained an unequivocal quote by Mr. Aden that the Plaintiffs had violated Hannah's First Amendment rights of free speech and religious expression and had "forced her to go against her religious beliefs." It is undisputed that at no time prior to November 22, 1999, did Mrs. Darnell, Mr. Rissler, Mr. Whitehead, Mr. Aden, or any other RI personnel doubt Hanna's truthfulness. See "Declarations" of Steven H. Aden, John W. Whitehead, and Ronald Rissler (documents ##23-25). However, on November 22, 1999, Hannah retracted her entire story and admitted she had lied. Immediately — the same day — RI published a full retraction and apology on its web-site and in a press release to "twice as many media outlets as the original release." At the same time, Mr. Aden wrote letters of apology to each Plaintiff, and Mr. Rissler wrote an apology letter to the school superintendent.
Although the record does not reflect in detail what actually happened in Ms. Settle's classroom, it is undisputed that neither of the Plaintiffs forced Hanna to read aloud the word "damn" or erase the letters "WWJD" from the chalkboard. To the contrary, when questioned by school personnel, several of Hanna's classmates stated that Ms. Settle told the children to skip "damn" when reading aloud and did not remember anyone writing the letters "WWJD" on the chalkboard. See Defendants' "Appendix . . ." at 26-30 (document #22).
Following publication of both RI's initial press release and subsequent retraction, Ms. Hugger received two e-mails from total strangers who had read the press release on the Internet but who were unaware of the retraction and who were harshly critical of her alleged violation of Hanna's rights.
Concerning their alleged damages, the Plaintiffs state in their Complaint that as a result of the publication of Hanna's false accusations, they have suffered "emotional distress, severe anxiety, depression, and loss of sleep." However, even taken in the light most favorable to the Plaintiffs, there is little, if any, evidence in the record to support their damages claim.
Ms. Hugger's medical records establish that she did not see a doctor or counselor for any reason until sometime during 2000, when she saw a social worker, Dorothy Beamon, for "very short term" counseling.
In a November 19, 2001 letter, written in response to the Defendants' request for her medical chart, Ms. Beamon stated, "since my practice was so small and contacts with clients were very short term . . . I neither produced or used any written documentation regarding my visits with [Ms. Hugger]." See Defendants' "Appendix . . ." at 75 (document #22).
On January 9, 2001, Ms. Hugger began seeing a psychiatrist, who diagnosed major depression. The chart shows, however, that in describing the causes of her depression, Ms. Hugger made no mention of the 1999 events which give rise to this action, but instead gave a history of childhood problems which were resurfacing, as well as stress over her children going to college.
Ms. Settle's medical records show that she was diagnosed with depression as early as 1989, and was continuing on Prozac to treat her depression through the time the events at issue herein occurred. Following publication of Hanna's false accusation, however, Ms. Settle saw a doctor only once, on November 29, 1999. The chart reflects that Ms. Settle suffered sleeplessness and anxiety, which resolved within two weeks.
On October 23, 2000, the Plaintiffs filed the instant Complaint in the Superior Court of Wilkes County, North Carolina, alleging state tort law claims for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.
On November 22, 2000, the Defendants removed the state court action to the United States District Court for the Western District of North Carolina, alleging diversity jurisdiction pursuant to 28 U.S.C. § 1332.
On January 19, 2001, the undersigned denied the Plaintiffs' Motion to Remand. See "Memorandum and Order" (document #14).
On March 1, 2002, and following the expiration of the discovery period, the Defendants filed their "Motion for Summary Judgment" (document #20).
On April 23, 2002, the undersigned granted the Defendants' Motion for Summary Judgment as to each of the Plaintiffs' claims, and they subsequently appealed.
In an unpublished opinion issued May 2, 2003, the Fourth Circuit affirmed this Court's denial of the Plaintiffs' Motion to Remand and grant of the Defendants' Motion for Summary Judgment as to the Plaintiffs' state law intentional and negligent infliction of emotional distress claims. However, the Fourth Circuit reversed this Court's grant of the Defendants' Motion for Summary Judgment as to the Plaintiffs' defamation claim and remanded for consideration of the state law issues pertaining to that claim as a condition precedent to considering the constitutional law issue.
The Fourth Circuit affirmed summary judgment on the Plaintiffs' intentional and negligent infliction of emotional distress claims based on the absence of any evidence that the Plaintiffs suffered actual, or special, damages as a result of the Defendants' actions. Concerning this dearth of damages evidence, the Fourth Circuit held that:
At most, the medical reports show that Settle had "worsening anxiety" on November 29, 1999, and that Hugger received "routine medication management of depression". . . . Moreover, with regard to Hugger, she also did not forecast sufficient evidence to establish that her depression was caused by TRI's actions. Her medical treatment was not closely connected temporally with TRI's actions, and her medical records indicate that her depression was caused by events in her childhood.
Hugger v. The Rutherford Institute, 2003 WL 2008242, 6 (4th Cir. May 2, 2003).
The Court notes that the Fourth Circuit "express[ed] no opinion on the proper resolution of either the state law issue or the constitutional law issue." Hugger, 2003 WL 2008242, at 7.
Accordingly, on May 8, 2003, the undersigned directed the parties to re-brief the "Defendants' Motion for Summary Judgment" (document #20) as to the Plaintiffs' state law defamation claim, which has been fully re-briefed as set forth above and is again ripe for disposition.
II. DISCUSSION
A. The Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment should be granted when the pleadings, responses to discovery, and the record reveal that "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." See also Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir. 1979). Once the movant has met its burden, the non-moving party must come forward with specific facts demonstrating a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the party opposing summary judgment may not rest upon mere allegations or denials and, in any event, a "mere scintilla of evidence" is insufficient to overcome summary judgment. Id. at 249-50.
When considering summary judgment motions, courts must view the facts and the inferences therefrom in the light most favorable to the party opposing the motion. Id. at 255; Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990); Cole v. Cole, 633 F.2d 1083 (4th Cir. 1980). Indeed, summary judgment is only proper "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there [being] no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations omitted).
B. State Law Claim for Defamation
In North Carolina, to recover under a defamation theory, a plaintiff must "allege that the defendant caused injury to the plaintiff by making false, defamatory statements of or concerning the plaintiff, which were published to a third person." Boyce Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 898 (2002). It is further well-settled that "[t]he term defamation includes two distinct torts, libel and slander. In general, libel is written while slander is oral." Tallent v. Blake, 57 N.C. App. 249, 251, 291 S.E.2d 336, 338 (1982).
The Complaint simply alleges a claim for "defamation," that is, the Plaintiffs contend that Mr. Whitehead's demand letter and the subsequent press release "were false and impeached the plaintiffs in their character and reputation." However, the parties have briefed the Plaintiffs' defamation claim as a libel claim, and as noted below and as the Plaintiffs' now concede, their remaining claiming is one for libel per se.
North Carolina recognizes three classes of libel: "(1) publications obviously defamatory which are called libel per se; [and] (2) . . . publications not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances become libelous and (3) . . . publications susceptible of two interpretations one of which is defamatory and the other not . . . which are termed libels per quod." Renwick v. News Observer Pub. Co., 310 N.C. 312, 316, 312 S.E.2d 405, 408 (1984), rehearing denied, 310 N.C. 749, 315 S.E.2d 704 (1984), cert. denied, 469 U.S. 858 (1984).
1. Libel Per Quod
Unlike libel per se, discussed below, the two categories of libel per quod require a showing of fault, that is, negligence, in order to recover. See Walters v. Sanford Herald, Inc., 31 N.C. App. 233, 228 S.E.2d 766 (1976) (private individual was not entitled to recover damages based upon publication of alleged libel per quod without alleging and showing fault on part of publisher and failure of publisher to retract did not create fault required).
In the first category of libel per quod, the publication is not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances the publication becomes libelous. See Aycock v. Padgett, 134 N.C. App. 164, 167, 516 S.E.2d 907, 910 (1999). North Carolina recognizes a second type of libel per quod — in effect, a middle tier between libel per se and the first type of libel per quod — where publications are susceptible of two interpretations one of which is defamatory and the other not. Id. This type of libel per quod requires a plaintiff to prove that the defendant intended the defamatory meaning and that the recipients or readers understood the statement in a defamatory way. Robinson v. Nationwide Ins. Co., 273 N.C. 391, 394, 159 S.E.2d 896, 899 (1968), citing Wright v. Credit Co., 212 N.C. 87, 192 S.E. 844 (1937).
Moreover, it is undisputed that in order to prevail upon either type of libel per quod, a plaintiff must show that she incurred actual, or special damages, as a result of the defamatory publication. See Renwick, 310 N.C. at 316, 312 S.E.2d at 408; and U. v. Duke University, 91 N.C. App. 171, 181, 371 S.E.2d 701, 708, disc. review denied, 323 N.C. 629, 374 S.E.2d 590 (1988). Potential pecuniary injuries, such as harm to professional reputation and career prospects, or emotional distress are insufficient to support a claim of libel per quod. See Salgado v. Joyner Management Services, Inc., 127 N.C. App. 209, 490 S.E.2d 253, rev. denied, 347 N.C. 403, 494 S.E.2d 419 (1997).
Applying these principles to the facts in this case, even taken in the light most favorable to the Plaintiffs, they cannot prevail under either theory of libel per quod, because as the undersigned previously held concerning their infliction of emotional distress claims, and as the Fourth Circuit has affirmed, the Plaintiffs have wholly failed to prove that they incurred actual damages as a proximate result of the Defendants' actions. Indeed, the Plaintiffs acknowledge that the Fourth Circuit's affirmation of summary judgment on their emotional distress claims is also death to their libel per quod claim, stating in their "Response" that they "acknowledge [their] inability to recover special damages [which is] required for libel per quod." Document #38 at 14. For this reason, the Defendants' Motion for Summary Judgment as to Plaintiffs' defamation claim to the extent that it states a claim for libel per quod will be granted.
Moreover, even assuming arguendo that the Plaintiffs could establish that they suffered some amount of actual damages, they have failed to establish that the Defendants acted negligently. Indeed, the Plaintiffs offer only their unsupported opinions that the Defendants performed a negligent investigation prior to issuing the demand letter and press release. However, the Defendants' submissions, which in light of the Plaintiffs' failure to conduct any discovery or submit any exhibits other than those relating to their alleged damages are undisputed, establish that the Defendants did investigate Hanna's allegations initially, including attempting to speak with Ms. Hugger by telephone and verifying that Hanna's description of the book was accurate. After speaking with the school system's attorney, Mr. Rissler "confronted" Hanna a second time, with the aid of two paralegals, who also believed Hanna, and also attempted to contact three reported eyewitnesses by telephone. In other words, even taken in the light most favorable to the Plaintiffs, the record establishes that at the time they published the press release, the Defendants had conducted a reasonable investigation and believed Hanna's story and had not entertained serious doubts concerning her veracity. For this further reason as well, summary judgment on the Plaintiffs' libel per quod claim is appropriate.
2. Libel Per Se
Unlike defamatory publications which amount to libel per quod, if a defamatory statement falls within one of the categories of libel per se, damages are presumed and no showing of fault is required. See Renwick, 310 N.C. at 317-18, 312 S.E.2d at 408-09.
Libel per se is "a [false] publication by writing, printing, signs or pictures which, when considered alone without innuendo, colloquium or explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace." Id. Whether a publication is of the type that properly may be deemed libelous per se is a question of law to be decided initially by the trial court. Id. at 317-18 (defamatory words to be libelous per se "must be susceptible of but one meaning and of such nature that the court can presume as a matter of law that they tend to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule, or cause him to be shunned and avoided") (emphasis in original).
It is well-established, however, that a statement which is otherwise defamatory, is non-actionable if it was published pursuant to qualified privilege. See DiamlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572, 583, 561 S.E.2d 276, 284-85 (2002) (extending qualified privilege to attorney who wrote letters to potential class members of proposed class action lawsuit for fraud against automobile manufacturer). A qualified privilege exists when a communication is made:
(1) on subject matter (a) in which the declarant has an interest, or (b) in reference to which the declarant has a right or duty, (2) to a person having a corresponding interest, right, or duty,(3) on a privileged occasion, and (4) in a manner and under circumstances fairly warranted by the occasion and duty, right, or interest.
DiamlerChrysler, 148 N.C. App. at 583, 561 S.E.2d at 285, quoting Phillips v. Winston-Salem/Forsyth County Bd. Of Educ., 117 N.C. App. 274, 278, 450 S.E.2d 753, 756 (1994).
"The essential elements for the qualified privilege to exist are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion and publication in a manner and [to] the proper parties only." DiamlerChrysler, 148 N.C. App. at 583, 561 S.E.2d at 285, quoting Long v. Vertical Technologies, Inc., 113 N.C. App. 598, 602, 439 S.E.2d 797, 800 (1994). "Whether a communication is privileged is a question of law for the court to resolve, unless a dispute concerning the circumstances of the communication exists, in which case it is a mixed question of law and fact." Id. Where the privilege exists, a presumption arises "that the communication was made in good faith and without malice." DiamlerChrysler, 148 N.C. App. at 583, 561 S.E.2d at 285, quoting Phillips, 117 N.C. App. 274, 278, 450 S.E.2d 753, 756 (1994). To rebut this presumption, the plaintiff must show actual malice or excessive publication. Id.
It is undisputed that both the demand letter and the press release stated as fact Hannah's false allegations and, further, falsely accused the Plaintiffs of violating her constitutional rights to freedom of speech and religious expression. For the same reasons, discussed below, that a public school principal and teacher are "public officials" within the Supreme Court's "actual malice" requirement, that is, that public school educators occupy professions which are of extraordinary interest not only to students and their families, but also to the general public as well, it is also obvious that allegations that a public school educator had denied a student of her constitutional rights to freedom of speech and religious expression would "tend to impeach [that teacher or principal] in that person's trade or profession," one of the categories of libel per se. Renwick, 310 N.C. at 317-18, 312 S.E.2d at 408-09. Accordingly, as an initial matter, the undersigned concludes that the false statements contained in the demand letter and press release are sufficient to support a claim of libel per se.
However, even when taken in the light most favorable to the Plaintiffs, it is clear that the first publication, the demand letter that Mr. Whitehead faxed to Ms. Hugger and to the Superintendent of Schools, was published subject to a qualified privilege. Indeed, the Defendants sent the letter in their capacity as Hannah's then-attorneys, representing her concerning what they reasonably believed to be a violation of her constitutional rights, that is, the letter was sent in good faith and concerning a significant interest. Moreover, it is clear that far from being published "excessively," the demand letter was published only once, was sent only to "proper parties," and was otherwise properly confined to addressing the single issue of protecting Hannah's constitutional rights. Accord DiamlerChrysler, 148 N.C. App. at 583, 561 S.E.2d at 284-85 (extending qualified privilege to attorney who wrote letters to potential class members of proposed class action lawsuit for fraud against automobile manufacturer).
In the face of the presumption of good faith and absence of malice that arises when the privilege applies, and as discussed above in Section II.B.1., the Plaintiffs offer nothing more than their subjective belief that the Defendants conducted a negligent investigation. It is well-settled, however, under North Carolina law, that negligence, even if proven, does not rise to the level of ill-will required to establish malice sufficient to defeat the qualified privilege to defamation. Accord Moore v. Evans, 124 N.C. App. 35, 55, 476 S.E.2d 415, 429 (1996) (defining malice as "ill-will, spite, or desire for revenge"). Moreover, in addition to the undisputed evidence, discussed above, of the Defendants' reasonable investigation, there is also the matter of their full and immediate retraction and apology — once Hanna admitted that she had lied — that is further evidence of an absence of malice.
The undersigned notes that the type of malice denoting "ill-will" sufficient to defeat North Carolina's qualified privilege to defamation is different from the type of "actual malice," discussed below, required in order to maintain a claim of defamation against a "public official," as established by the Supreme Court. See Masson v. New Yorker Magazine, Inc., 501 U.S. 495, 510 (1991) ("[a]ctual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will); and Rosenblatt v. Baer, 383 U.S. 75, 84 (1966).
In short, on these facts and having failed to establish that the Defendants acted negligently, they have also failed to create an issue of material fact as to the existence of malice, and it cannot be doubted that the demand letter was published subject to privilege and, although defamatory, is not subject to the Plaintiffs' defamation claim.
Concerning the second disputed publication, however, the Defendants have not argued that the press release, which was published on the Internet and many media outlets, was subject to any privilege, nor have they cited any authority supporting that position, and the undersigned is aware of none.
Accordingly, the Defendants' Motion for Summary Judgment will be granted as to the Plaintiffs' libel per se claim to the extent that it arises from the demand letter, but denied as to the press release.
C. Constitutional Requirement of Actual Malice
To the extent that the record otherwise supports the Plaintiffs' state law claim for libel per se arising from publication of the press release, the undersigned has applied the constitutional requirement of "actual malice," and again concludes that even taking the evidence in the light most favorable to the Plaintiffs, they are public officials who have failed to prove that the Defendants acted with "actual malice," as that term is defined for constitutional purposes.
In New York Times v. Sullivan, 376 US. 254, 279-80 (1964), the Supreme Court held that the First and Fourteenth Amendments to the U.S. Constitution prohibit a "public official" from recovering damages on a state law claim for publication of a defamatory falsehood unless the official proved that the defendant acted with "actual malice," which is publication with knowledge of falsity or with reckless disregard of whether the publication was true or false. The actual malice standard applies not only to claims denominated as "defamation," "libel," or "slander," but to any claims arising from an allegedly defamatory publication. See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) (holding that Sullivan applies to state law claim for intentional infliction of emotional distress).
"Reckless disregard" requires publication with "a high degree of awareness of . . . probable falsity," Garrison v. Louisiana, 379 U.S. 64, 74 (1964), and is "not measured by whether a reasonably prudent man would have published, or would have investigated before publishing." St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Accord Reuber v. Food Chemical News, Inc., 925 F.2d 703, 711 (4th Cir. 1991) (failure to investigate is not "actual malice"); and Ryan v. Brooks, 634 F.2d 726, 732 (4th Cir. 1980) (applying St. Amant to hold that failure to conduct reasonable investigation does not amount to "actual malice").
Accordingly, in order for a public official to defeat a defendant's motion for summary judgment on claims arising from an allegedly defamatory publication, "there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [its] publication." St. Amant, 390 U.S. at 731. Furthermore, as the Supreme Court more recently stated, a public official plaintiff must carry his burden of proving actual malice by clear and convincing evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986).
Regarding determining whether a plaintiff is a "public official," the Supreme Court has stated generally that if a plaintiff's position "has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the [public's] general interest in the qualifications and performance of all government employees," then the plaintiff is a "public official" and the Sullivan actual malice standard applies. Rosenblatt v. Baer, 383 U.S. 75, 85-86 (1966) ("criticism of government is at the very center of the constitutionally protected area of free discussion . . . criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.")
However, because public school personnel are state employees whose qualifications and duties vary from state to state, federal courts typically defer to each state's determination of whether public school employees are "public officials" in resolving state law defamation claims. Accord Milkovich v. Lorain Journal Co., 497 U.S. 1, 10 (1990) (treating Ohio Supreme Court's decision that public school coach was not "public official" as the "law of the case"); and Johnson v. Robbinsdale Independent School Dist. No. 281, 827 F. Supp. 1439, 1443 (D. Minn 1993) (concluding Minnesota state courts would hold that public school principals are "public officials," federal district court held that Sullivan actual malice standard applied).
The issue of whether a public school principal and teacher are "public officials" who are required to meet the Sullivan actual malice standard is a question of first impression in both the Fourth Circuit and the North Carolina appellate courts. However, a majority of the jurisdictions that have addressed the issue have concluded that public school teachers and principals are "public officials" and that Sullivan does apply. See Johnson, 827 F. Supp. at 1443; (public school principals are "public officials"); Corbally v. Kennewick Sch. Dist., 973 P.2d 1074, 1077 (Wash.Ct.App. 1999) (public school teacher was "public official"); Jee v. New York Post Co., Inc., 671 N.Y. So.2d 920, 924 (N.Y.Sup.Ct. 1998) (principal was "public official"); Cambell v. Robinson, 955 S.W.2d 609, 612 (Tenn.Ct.App. 1997) (teacher was "public official"); Elstrom v. Independent Sch. Dist. No. 270, 533 N.W.2d 51, 56 (Minn.Ct.App. 1995) (same); Johnson v. Southwestern Newspapers Corp., 855 S.W.2d 182 (Tex.Ct.App. 1993) (same); Palmer v. Bennington School District, Inc., 615 A.2d 498, 501 (Vt. 1992) (principal was "public official"); Kelley v. Bonney, 606 A.2d 693, 710 (Conn. 1992) (teacher was "public official"); Mahoney v. Adirondack Publishing Co., 509 N.Y.S.2d 193, 195 (ICY. App. Div. 1986) (same), reversed on other grounds, 517 N.E.2d 1365 (ICY. 1989); Luper v. Black Dispatch Publishing. Co., 675 P.2d 1028, 1031 (Okla.Ct.App. 1983) (same); State v. Defley, 395 So.2d 759, 761 (La. 1981) (principal was "public official"); Johnston v. Corinthian Television Corp., 583 P.2d 1101, 1103 (Okla. 1978) (teacher was "public official"); Sewell v. Brookbank, 581 P.2d 267, 270 (Ariz. 1978) (same); Basarich v. Rodeghero, 321 N.E.2d 739 (Ill.App. 1974) (same); Kapiloff v. Dunn, 343 A.2d 251, 258 (Md.Ct.Spec.App. 1975) (principal was "public official"); and Reaves v. Foster, 200 So.2d 453, 458 (Miss. 1967) (same).
Indeed, applying Rosenblatt's "independent interest" test, there can be no doubt that the public has a much greater interest in the qualifications and performance of public school principals and teachers than in the qualifications and performance of government employees generally. Accord Johnson, 827 F. Supp. at 1443 (because of public's strong interest in the education of their children and principals' "significant governmental power over public education and the students they supervise," they are public officials); Elstrom, 533 N.W.2d at 56 ("our society gives teachers great authority and holds them in a position of special trust"); and Kelley, 606 A.2d at 710 ("[u]nquestionably, members of society are profoundly interested in the qualifications and performance of the teachers who are responsible for educating and caring for the children in their classrooms").
It is particularly appropriate to hold these Plaintiffs to Sullivan's actual malice standard where the subject-matter of the allegedly defamatory publication was of special interest to parents of public school students, that is, where public school personnel were charged — albeit very briefly — with unlawfully preventing a student from exercising her constitutional rights to freedom of speech and religion. Accord Corbally, 973 P.2d at 1077 (public school teacher was "public official," because the subject matter of the alleged defamation concerned the "manner in which he performed his teaching duties").
In short, in order to overcome the Defendants' Motion for Summary Judgment, these "public official" Plaintiffs must establish by clear and convincing evidence that the Defendants acted with actual malice, that is, that they issued the press release with knowledge of its falsity or with reckless disregard of whether it was true or false. Accord Sullivan, 376 US. at 279-80; and Anderson, 477 U.S. at 255-56.
As discussed above, in the face of this heavy burden, the Plaintiffs offer only their unsupported allegation that the Defendants performed a negligent investigation prior to issuing the press release.
However, as discussed above, it is well-settled that failure to investigate does not rise to the level of actual malice. Accord St. Amant, 390 U.S. at 731; Reuber, 925 F.2d at 711; and Ryan, 634 F.2d at 732.
Moreover, as previously discussed, the Defendants did investigate Hanna's allegations initially, including attempting to speak with Ms. Hugger by telephone and verifying that Hanna's description of the book was accurate. After speaking with the school system's attorney, Mr. Rissler "confronted" Hanna a second time, with the aid of two paralegals, who also believed Hanna, and also attempted to contact three reported eyewitnesses by telephone.
Finally, the Defendants' immediate retraction and apology upon learning that Hanna had lied is further evidence of an absence of malice.
In other words, even taken in the light most favorable to the Plaintiffs, the record establishes that at the time they published the press release, the Defendants had investigated and believed Hanna's story and had not entertained serious doubts concerning her veracity. Accord St. Amant, 390 U.S. at 731 (defining "actual malice" as publication while "entertain[ing] serious doubts" as to the publication's truth).
The Plaintiffs have failed, therefore, to create an issue of material fact as to the existence of actual malice, which is fatal to their remaining libel per se claim, on which the Defendants' Motion for Summary Judgment must therefore be granted.
III. ORDER
NOW THEREFORE, IT IS ORDERED:
1. The "Defendants' "Motion for Summary Judgment" (document #20) is GRANTED, and the Plaintiffs' remaining claim for defamation is DISMISSED WITH PREJUDICE.
2. The Clerk is directed to send copies of this Memorandum and Order to counsel for the parties.
SO ORDERED AND DECREED.