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A. S. Abell Co. v. Kirby

Decided: December 22, 1961.


Appeal from the Circuit Court for Baltimore County; Menchine, J.

Henderson, Hammond, Prescott, Horney, and Marbury, JJ. Hammond, J., delivered the opinion of the Court. Prescott, J., dissenting in part.


The A. S. Abell Company, publisher of The Sunpapers, appealed from the substantial judgment that followed the jury's verdict against it and in favor of the appellee, Kirby, in his suit for defamation. The defense was that the editorial complained of, in which Kirby was called "infamous," was fair comment on a matter of public interest. The principal reliance on appeal is that the trial judge erred when he made the issue of fair comment vel non turn on whether the facts stated or referred to in the editorial formed a sound basis for the charge that Kirby was infamous. It is claimed he erred in not permitting the jury to consider in bar of the action (but only as bearing on the presence or absence of express malice) any testimony as to other facts concerning Kirby's conduct on and activities in connection with the Rackets Squad of the Police Department, which the publisher claimed were so well known in the community as to support the use of the term "infamous" as fair comment.

After it had held a hearing at which unsworn witnesses not subject to cross-examination, including Kirby, testified, the Baltimore City Delegation in the Legislature formally charged to the Governor that Police Commissioner Hepbron had condoned illegal wire taps, had been friendly with underworld leaders, had used personnel of the Police Department outside the City, and had brought unauthorized persons into the wire tap room of the Department; and that these actions amounted to incompetence and misconduct within the meaning of Art. II, Sec. 15, of the Constitution of Maryland, which empowers the Governor to remove a civil officer for such causes. After a hearing at which there were some twenty-five witnesses (including Kirby, who testified he had seen Hepbron leaving a Baltimore hotel with an underworld figure and two girls from "the Block"), the Governor found that "the most that the

evidence discloses * * * is that the Police Commissioner has committed certain indiscretions and at times has exercised poor judgment. Contact, however slight, with persons having past criminal records * * * which is not in the line of duty is neither desirable nor discreet. The record discloses that Mr. Hepbron had such contact after he became Police Commissioner." He concluded, "I am not unmindful of the fact that the ability of Mr. Hepbron to serve in the delicate and sensitive position of Police Commissioner of Baltimore City may have been impaired. * * * Regrettable as this may be, it would not justify me in exercising the extraordinary powers * * * to remove the Police Commissioner for incompetency or misconduct."

On June 17, 1959, the day after the Governor's decision was announced, his opinion, news stories about it, and the editorial complained of appeared in The Morning Sun.

The editorial was headed "Not Proved." It said the driving force in the effort to "get" Hepbron was a legislator fronting for a political leader of Baltimore; that the manager of the "shocking kangaroo court" staged by the City Delegation in the Spring, "at which unsworn witnesses threw everything they had at Mr. Hepbron and the victim was not even allowed to cross-question witnesses or introduce witnesses of his own," was another member of the political leader's "crowd in the Legislature"; that the motives of the "crowd" in trying to "get" the Police Commissioner and so to create a vacancy in the office "may be left to the imagination." There followed the paragraph alleged to have been libelous, as follows:

"Every important witness against the Police Commissioner, moreover, was a man with a motive. We name especially the infamous Kirby, former Inspector Forrester, and former Chief Inspector Ford whose retirement was requested and granted some time ago with dazzling haste."

To the declaration of Kirby, alleging that the editorial has libeled him, the publisher plead the general issue. Thus justification by way of truth could not be shown, Maryland Rule 342 c 2 (h), although the defense of fair comment could be.

At the trial publication was admitted and it was conceded that the term "infamous" is libelous per se and gives rise to a presumption of malice unless privileged.

Offered in evidence were standard definitions of the word "infamous," including these: "having a reputation of the worst kind [,] held in abhorrence [,] base, detestable [,] nefariousodious"; and, "One of the strongest adjectives of detestations of persons in the English language. * * * Deprived of all or certain of the rights of a citizen, in consequence of conviction of certain crimes." The writer of the editorial testified he intended by the use of the word to convey the meaning of "the common usage -- bad reputation, disgraceful."

It is recognized that a newspaper like any member of the community may, without liability, honestly express a fair and reasonable opinion or comment on matters of legitimate public interest. The reason given is that such discussion is in the furtherance of an interest of social importance, and therefore it is held entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation. 1 Harper & James, The Law of Torts, Sec. 5.25; Prosser, Torts (2d ed.), p. 607.

The Courts and the writers have not agreed as to whether fair comment is a qualified privilege (those who say it is rely largely on the fact that actual malice, as in the case of concededly qualified privileges, destroys the otherwise existing immunity) or whether such a publication is merely outside the scope of actionable defamation. In practical effect and result, whichever view is taken would seem to make no difference (except perhaps on the burden of proof), since there is immunity on either basis.*fn1

Whether a publication claimed to come within the protection of fair comment is actionable often turns on whether or not it contains misstatements of fact as distinguished from expression of opinion. The majority of the States (perhaps three-fourths) hold that the immune instances of public discussion are those limited to opinion, comment, and criticism, and do not embrace those in which there is any false assertion of dafamatory fact. See, for example, Washington Times Co. v. Bonner, 86 F. 2d 836 (D. C. Cir.); Post Pub. Co. v. Hallam, 59 F. 530 (C. C. A. 6th) (per Taft, J.); Hubbard v. Allyn, 86 N. E. 356 (Mass.); Burt v. Advertiser Newspaper Co., 28 N. E. 1 (Mass.) (per Holmes, J.); Eikhoff v. Gilbert, 83 N. W. 110 (Mich.); 1 Harper & James, op. cit. supra, p. 458-9; Prosser, op. cit. supra, p. 621-2; Annotations, 150 A.L.R. 358, 110 A.L.R. 412, 1918 E L. R. A. 21. The American Law Institute reversed the view taken in its tentative draft and adopted the majority view. See 3 Restatement, Torts, 598, comment a, discussed in Note, Fair Comment, 62 Harv. L. Rev. 1207, 1212. The minority view, that even false statements of fact are privileged, at least as to public officers and candidates, if they are made for the public benefit with an honest belief in their truth (because the public interest demands that those who are in a position to furnish information about public servants should not be deterred by fear of suit), has long been favored by many commentators but there has been no rush by the Courts to adopt it. See Noel, Defamation of Public Officers, 49 Col. L. Rev. 875, 891-900; Comment, Developments in the Law -- Defamation, 69 Harv. L. Rev. 875, 928.

Maryland has consistently followed the majority rule -- that defamatory misstatement of fact cannot be defended successfully as fair comment. Snyder v. Fulton, 34 Md. 128, 137-8; McBee v. Fulton, 47 Md. 403, 416; Brush-Moore Newsp. v. Pollitt, 220 Md. 132, 138. Cf. Negley v. Farrow, 60 Md. 158; {PA}

Page 274} Coffin v. Brown, 94 Md. 190. The distinction between "fact" and "opinion," although theoretically and logically hard to draw, is usually reasonably determinable as a practical matter: Would an ordinary person, reading the matter complained of, be likely to understand it as an expression of the writer's opinion or as a declaration of an existing fact? An opinion may be so stated as to raise directly the inference of a factual basis, and the defense of fair comment usually has been held not to cover an opinion so stated.

The greater number of Courts have held that the imputation of a corrupt or dishonorable motive in connection with established facts is itself to be classified as a statement of fact and as such not to be within the defense of fair comment. Prosser, op. cit., supra, p. 622; Thayer, Legal Control of the Press (3d ed.), Sec. 66.

In Negley v. Farrow, 60 Md. 158, 175, the newspaper charged a State senator with being under the influence of a corrupt ring and alleged that a valuable contract was given him by the head of the ring because he was a senator and "had a vote to give in the Senate." The defense was fair comment. The Court said:

"No one denies the right of the defendants to discuss and criticize boldly and fearlessly the official conduct of the plaintiff. It is a right which, in every free country belongs to the citizen, and the exercise of it, within lawful and proper limits, affords some protection at least against official abuse and corruption. But there is a broad distinction between fair and legitimate discussion in regard to the conduct of a public man, and the imputation of corrupt motives, by which that conduct may be supposed to be governed. And if one goes out of his way to asperse the personal character of a public man, and to ascribe to him base and corrupt motives, he must do so at his peril; and must either prove the truth of what he says, or answer in damages to the party injured.

The fact that one is the proprietor of a newspaper, entitles him to no privilege in this respect, not possessed

by the community in general. The law recognizes no duty, imposed on him, arising from his relations to the public, to defame and libel the character of any one, and if he does, it is no answer to say, he did so in good faith, and without malice, honestly believing it to be true. * * *" (Id. at 176-7.)

The rules laid down in Negley were followed in Coffin v. Brown, 94 Md. 190, cited above.

Kirby says the reference to him as "infamous" and the imputation that his motive in testifying against Hepbron was corrupt were untrue statements of fact. He contends earnestly that since the allegations were libelous as a matter of law and publication was conceded, only the issue of damages should have been submitted to the jury.*fn2

It is not necessary to the determination of the only issues presented for decision by the record, as we see them, that we pass on the contention of Kirby that the publisher was treated more liberally and favorably by the trial court than it should have been. Judge Menchine instructed the jury that the critical words of the editorial made the publisher liable to Kirby unless they were privileged as fair comment. The only exceptions to the charge were (a) that it was error to limit the jury, in its consideration of whether the editorial was fair comment, to the words of the editorial itself and the two hearings referred to therein (which was consistent with the restrictions the court put on the publisher's opening statement and the introduction of testimony), and not allow consideration of Kirby's police department activities and record; and (b) that there was no evidence of actual malice sufficient to allow the jury to award punitive damages. On these instructions the jury found against the publisher, who has no justifiable

complaint unless the instructions were erroneous, and the case turns on whether or not they were.

After Judge Menchine charged the jury that the words of the editorial were in and of themselves actionable "unless they were privileged as hereinafter defined," he instructed them that their duty was to decide whether they were privileged; that "[a] newspaper publisher, in common with any citizen, has the right * * * to discuss all matters of public interest and to comment on, criticize, and censure the official conduct of a police officer, even if such * * * comment is defamatory, provided [it] was the actual opinion of the writer and was made in good faith upon such facts appearing in the article itself or incorporated therein by reference as would justify a man of reasonable intelligence and judgment to make the same."

There followed the instructions which the publisher says were prejudicial and reversible error:

"You are instructed that you will make the determination whether a man of reasonable intelligence and judgment was justified in using the language relating to Edgar Gordon Kirby by giving consideration only to the following evidence: (1) the entire editorial of June 17, 1959; (2) all of the evidence introduced in this Court by witnesses or exhibits or quotations from transcripts of testimony relating to the hearing before the Baltimore City Delegation; and (3) all of the evidence introduced in this Court by witnesses or exhibits or quotations from transcripts of testimony relating to the hearing before Governor Tawes.

Consider that evidence and that evidence alone and make your decision on this question: 'Would a man of reasonable intelligence and judgment, with knowledge of that evidence, be reasonably justified in using the ...

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