Raymond Wiggins v. Wilson Millard and Brewton Standard

John Wiggins sued the Wilson Millard and others including the Brewton Newspapers for defamation based on the publication of the August 9, 2000,
issue of the Standard. On that date, Raymond and John resided
at their home at 2474 Bradley Road, on the outskirts of East
Brewton. Raymond was personally acquainted with Wallace and Chief
Mallard. Chief Mallard had known Raymond for three or four years,
and Wallace became acquainted with Raymond during a 2000
political campaign in which Raymond unsuccessfully sought the
office of Escambia County commissioner. More specifically,
Wallace's acquaintance with Raymond grew out of Raymond's
numerous visits to the office of the Standard to purchase
newspaper space for his campaign advertisements and to distribute
his campaign literature.

In a telephone conversation with Wallace on August 8, 2000,
Chief Mallard, reading from a police report, informed Wallace
that three individuals had been arrested the previous weekend for
"possession of drug paraphernalia and possession of marijuana."
The particulars of that conversation are sharply disputed. By
all accounts, however, Chief Mallard told Wallace that one of
the arrestees was an individual named "Wiggins." According to
Chief Mallard, he told Wallace that the arrestee's name was
Clinton Keith Wiggins. According to Wallace, Chief Mallard said
that the arrestee's name was Raymond Wiggins and that his
address was 2474 Bradley Road.

On the day following that conversation, an article was
published on the front page of the Standard. The article stated
that "Raymond Wiggins of 2724[[fn1]] Bradley Road" was one of
three individuals arrested on "drug charges." It is undisputed
that no one named "Raymond Wiggins" had, in fact, been arrested.

On August 9, 2000, the day the article appeared in the
Standard, Raymond personally contacted both Wallace and Chief
Mallard. Wallace told Raymond that he had printed the information
just as Chief Mallard had given it to him, and Chief Mallard
denied that he had given Wallace the information that was
published in the article. That same day, in a special edition,
the Standard printed a correction.

On April 13, 2001, John and Raymond filed a two-count complaint
against Chief Mallard, East Brewton, Wallace, and the Standard.
The count against Chief Mallard and East Brewton averred that
Chief Mallard had "wrongfully conveyed to [Wallace] the name of
Raymond Wiggins" as an individual who had been arrested on drug
charges, which statement it alleged was "knowingly false" and
made "intentionally . . . for the purpose of humiliating and
defaming either or both of the plaintiffs." The count against
Wallace and the Standard averred that Wallace and the
Standard published the article "with knowledge of the falsity
of the statement that Raymond Wiggins was arrested or with a
reckless disregard of whether the statement was true or false."
The complaint sought compensatory and punitive damages.

In Wilson, the Alabama Supreme Court construed for the first time Ala. Code
1975, § 13A-11-161, which provides: "The publication of a fair
and impartial report of . . . the arrest of any person for any
cause . . . or of any investigation . . . shall be privileged,
unless it be proved that the same was published with actual
malice. . . ." Wilson was a defamation action by a private
person, based on publication in the media of "statements made by
two Cuban refugees to the Birmingham Police Department in the
course of an official investigation and summarized in the
official police incident report." 482 So.2d at 1213. It was
undisputed that the report was "a fair and accurate" account of
the statements. Id. Consequently, this Court held that the
publication was privileged.

In doing so, the Court explained that § 13A-11-161 is an
"explicit statutory privilege protecting fair and accurate
reports of criminal charges and official investigations."
482 So.2d at 1211. The Court stated:

"[Section 13A-11-161] is a codification of the
common law as reflected in the
Restatement (Second) of Torts, § 611 (1977): `The
publication of defamatory matter concerning another
in a report of an official action or proceeding or of
a meeting open to the public that deals with a matter
of public concern is privileged if the report is
accurate and complete or a fair abridgment of the
occurrence reported.'

". . . .

"In short, the news report at issue is [qualifiedly]
privileged because it accurately reports statements
made by the Cuban refugees during an official police
investigation, as reflected in the official police
incident report."

482 So.2d at 1211-12 (emphasis added). Thus, the application of
the privilege turns on whether the alleged defamatory statement
was an accurate, or "substantially accurate,"
482 So.2d at 1213, publication of the report of the arrest.

Ordinarily, "[t]he determination of whether a statement is
privileged is a question of law for the trial judge." Atkins
Ford Sales, Inc., 560 So.2d at 200. However, the application of
the privilege in this case turns specifically on the credibility
of Wallace and of Chief Mallard, whose versions of their August
8, 2000, telephone conversation are in direct conflict.

It is axiomatic that the credibility of witnesses is a matter
within the exclusive province of the jury. Floyd v. Broughton,
664 So.2d 897, 900 (Ala. 1995); Mayben v. Travelers Indem. Co.,
273 Ala. 643, 645, 144 So.2d 52, 54 (1962); Dixon v. Davis,
823 So.2d 1275, 1281 (Ala.Civ.App. 2001). If a jury were to believe
Chief Mallard, it must necessarily disbelieve Wallace.
Specifically, the jury must conclude that, in fact, Chief Mallard
told Wallace that the arrestee was Clinton Keith Wiggins, not
Raymond Wiggins. In that event, it must conclude that the
publication made by Wallace and the Standard was not accurate
and, therefore, was not privileged. Under these facts, we cannot
say that Wallace and the Standard are entitled to a qualified
privilege as a matter of law. The trial court erred, therefore,
in entering a summary judgment for Wallace and the Standard. We
next consider whether the Wigginses have presented substantial
evidence of actual malice as to Chief Mallard.

At common law, "[e]very defamatory publication, whether
expressed by words, spoken or by writing . . . imputing to any
person that . . . which is calculated to make him infamous . . .
or ridiculous, prima facie implies malice in the . . . publisher
. . ., and proof of malice [was] not in such cases . . . required
. . . beyond the proof of the publication itself." Martin L.
Newell, The Law of Slander and Libel § 342, at 381 (4th ed.
1924). In Alabama, punitive damages were recoverable upon proof
of actual, or express, malice. Lee v. Crump, 146 Ala. 655,
659, 40 So. 609, 610 (1906).

The common law of this state has long recognized that "[w]ords,
calumnious in their nature, may be deprived of their actionable
quality by the occasion of the utterance or publication. When
this is the case, they are called in the law of defamation
privileged communications. These communications are either
absolutely or [qualifiedly] privileged." Lawson v. Hicks,
38 Ala. 279, 284 (1862) (emphasis added). "When they are
[qualifiedly] privileged, the law simply withdraws the legal
inference of malice, and gives a protection upon the condition,
that actual malice, or express malice, or malice in fact, (as the
same idea is variously phrased,) is not shown." Id. When the
defendant interposes a qualified privilege, "the plaintiff must
plead defamation with actual [common-law] malice and bears the
burden of proving defamation with actual [common-law] malice."
Ex parte Blue Cross, 773 So.2d at 478 (emphasis added).

Common-law malice "implies a desire and intention to injure. . . .
that is, that the defendant was actuated by ill-will in what
he did and said, with a design to causelessly or wantonly injure
the plaintiff." Newell, supra, § 277, at 315. "[T]his malice in
fact, resting as it must upon the libelous matter itself and the
surrounding circumstances tending to
prove fact and motive, is a question to be determined by the
jury." Id. (Emphasis added.) Common-law malice focuses on the
defamation defendant's attitude toward the plaintiff or a third
party, that is, the defendant's motive to publish a falsehood.
Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 99 (2d
Cir. 2000); Clemente v. Espinosa, 749 F.Supp. 672, 682 (E.D.Pa.
1990); Norton v. Glenn, 797 A.2d 294, 299 (Pa.Super. 2002); M.
Newell, supra, §§ 271-77; John E. Hallen, Character of Belief
Necessary for the Conditional Privilege in Defamation, 25 Ill.
L.Rev. 865, 866 (1931).

In Phillips v. Bradshaw, 167 Ala. 199, 210, 52 So. 662, 666
(1910), this Court stated, albeit in dicta, that a jury charge
to the effect that the marking of a statement with knowledge of
its falsity is "conclusive evidence of malice" correctly
stated the law. (Emphasis added.) A similar, but narrower,
statement appeared later in Kenney v. Gurley, 208 Ala. 623,
626, 95 So. 34, 37 (1923), where the Court said: "`[P]roof that
[the] defendant knew [the statement] was untrue when he made it
would be evidence of malice.'" (Emphasis added) (quoting
Newell, The Law of Slander and Libel § 398 (3d ed. 1914)),
overruled on other grounds, Ex parte Blue Cross,
773 So.2d at 478.

In Johnson Publishing Co. v. Davis, 271 Ala. 474, 487,
124 So.2d 441, 450 (1960), released four years before the
United States Supreme Court decided New York Times v. Sullivan, this
Court stated: "Malice, actual or expressed, may be shown by
evidence of hostility, rivalry, the violence of the language, the
mode and extent of publication, including the recklessness of
the publication and prior information regarding its falsity."
(Emphasis added.) This statement was not dicta, because Davis
involved an award of punitive damages. Additionally, the Court
based its holding solely on evidence showing that a statement
regarding a charge against the plaintiff was published, despite
the publisher's knowledge that "the charge against [the
defamation plaintiff] was uninvestigated and possibly false."
271 Ala. at 486, 124 So.2d at 449.

In Barnett, 536 So.2d at 54, this Court stated clearly,
albeit again in dicta: "Common law malice also includes
defamatory statements that are `made with knowledge that they
are false or made with reckless disregard of whether they are
false.'" (emphasis added) (quoting Prudential Ins. Co. of
America v. Watts, 451 So.2d 310, 313 (Ala.Civ.App. 1984)). See
also Hayes v. Wal-Mart Stores, Inc., 953 F.Supp. 1334, 1341
(M.D.Ala. 1996) ("Common law malice also includes defamatory
statements made with knowledge of their falsity or with reckless
disregard as to whether they are false."); Lewis v. Ritch,
417 So.2d 210 (Ala.Civ.App. 1982). See generally Restatement
(Second) of Torts § 600 (1977), which states:

"Except as stated in § 602, one who upon an occasion
giving rise to a [qualified] privilege publishes
false and defamatory matter concerning another abuses
the privilege if he

"(a) knows the matter to be false, or

:
"(b) acts in reckless disregard as to its truth or
falsity."

Common-law malice and the methods of proving it differ in a
number of important respects from the "constitutional malice"
established by New York Times v. Sullivan.

Constitutional malice arises under the First Amendment of the
United States Constitution, not under the common law, and is,
therefore, properly called "constitutional malice." The threshold
inquiry is whether the plaintiff in the defamation
action is a "public official or public or private figure."
Mobile Press Register, Inc. v. Faulkner, 372 So.2d 1282, 1284
(Ala. 1979). This is so, because Sullivan "and its progeny
mandate that no public [official or] figure may recover
compensatory or punitive damages for libel unless actual malice
as defined in Sullivan is proved: a publication made with
actual knowledge of its falsity or made with reckless disregard
of its truth or falsity." 372 So.2d at 1284 (emphasis added).

"As defined . . . in Sullivan, [`actual malice'] connotes
neither the common meaning of `malice' nor the meaning attached
to it in other areas of the law." 372 So.2d at 1284 n. 5.
"Common-law malice" and "constitutional malice" constitute two
distinct species of malice, Duffy v. Leading Edge Prods., Inc.,
44 F.3d 308, 313 (5th Cir. 1995), and proof of constitutional
malice is not made merely by proof of common-law malice. Elder
v. Gaffney Ledger, 341 S.C. 108, 114, 533 S.E.2d 899, 902
(2000). Constitutional malice must be shown by clear and
convincing evidence. Smith v. Huntsville Times Co.,
888 So.2d 492, 499 (Ala. 2004). While constitutional malice "focuses on the
defendant's attitude toward the truth or falsity of his
published material," common-law malice focuses generally "on the
defendant's attitude toward the plaintiff." Gomes v. Fried,
136 Cal.App.3d 924, 934, 186 Cal.Rptr. 605, 611 (1982) (emphasis
added).

The similarity in terminology is deceptively superficial. For
these reasons, the two definitions have "caused a considerable
amount of confusion and ambiguity in interpretation and
application of the two different standards of malice." Fulton v.
Advertiser Co., 388 So.2d 533, 538 (Ala. 1980).

Unfortunately, our cases have not always explained the means of
proving common-law malice as methodically or as fully as they
could have. At times, the Court has stated that proof could
consist, not only of evidence of "previous ill will, hostility,
threats, other actions, former libels or slanders, or by the
violence of the defendant's language, the mode and extent of
publication, and the like" - the APJI formulation - but also of
"knowledge that [the statements were] false or made with reckless
disregard of whether they [were] false" - the Barnett
formulation. See Johnson Publ'g Co. v. Davis, 271 Ala. at 487,
124 So.2d at 450; Kenney v. Gurley, 208 Ala. 623, 626,
95 So. 34, 37 (1923). At other times it has cited only the APJI
formulation. See, e.g., Delta Health Group, Inc. v. Stafford,
887 So.2d 887 (Ala. 2004); Nelson v. Lapeyrouse Grain Corp.,
534 So.2d 1085, 1095 (Ala. 1988); Webster v. Byrd,
494 So.2d 31, 36 (Ala. 1986); Fulton, 388 So.2d at 538. Curiously, these
latter cases rely on Kenney, which, in fact, recognized both
formulations.

We tacitly acknowledged the Barnett formulation in a recent
defamation action by Karen Brackin, a former employee of Family
Security Credit Union ("FSCU"), against, among others, Jo Lynn
Rutledge, "a certified public accountant employed [by] the
Alabama Credit Union League." Brackin v. Trimmier Law Firm,
897 So.2d 207, 209 (Ala. 2004). The dispute in Brackin began when
an audit of FSCU identified "potential lending violations and
other improprieties" connected with Mitchell Smith, a former
employee of FSCU. Id. Rutledge was employed to investigate the
possible violations. 897 So.2d at 209.

During her investigation, Rutledge discovered "that the due
dates on several loans originated by Smith had been `advanced.'"
897 So.2d at 210. In connection with that discovery, she
interviewed a number of Brackin's co-employees. 897 So.2d at 210.
Her investigation and interviews culminated in a written report
to her
employer, in which she criticized Brackin and implicated her in
the improprieties. 897 So.2d at 210-11. Matters addressed in the
report were also discussed at a meeting before the Alabama Credit
Union Administration ("the ACUA"). 897 So.2d at 215.

In Brackin's defamation action, the trial court entered a
judgment as a matter of law for Rutledge. 897 So.2d at 217. On
the appeal of that judgment, Brackin relied on the knowledge
factor as set forth in Barnett. 897 So.2d at 225. More
specifically, she argued that Rutledge failed "to investigate the
accuracy of [Brackin's co-employees'] statements" to Rutledge,
which, she argued, was evidence that Rutledge's statements before
the ACUA were "`"made with reckless disregard of whether they
[were] false."'" 897 So.2d at 225 (quoting Barnett, quoting in
turn Prudential Ins. Co. of America, 451 So.2d at 313).

This Court affirmed the judgment. In our analysis, we first
concluded that "Brackin did not present substantial evidence
showing that Rutledge acted with actual malice" under the APJI
formulation. 897 So.2d at 224. We went further, however, and also
found "no evidence to indicate that Rutledge knew that any of the
statements made in her report were false or that she acted with
reckless disregard of their falsity." 897 So.2d at 225.

We employed a comparable analysis in Delta Health Group, Inc.
v. Stafford, supra, which involved a qualified privilege
asserted by Delta Health Group, Inc. ("Delta"), in a defamation
action against it commenced by Tim Stafford and Lana Stafford.
887 So.2d at 895. The Staffords alleged that Delta had filed an
insurance claim that falsely accused Tim Stafford of pilfering
building materials for use on the Staffords' personal residence
from a nursing home owned and operated by Delta.
887 So.2d at 890-91.

In holding that Delta's qualified privilege did not entitle it
to a judgment as a matter of law on the Staffords' claims, we
quoted the APJI formulation. However, we cited no evidence of
"previous ill will, hostility, threats, rivalry, other actions,
former libels or slanders and the like." Instead, we focused on
the extent of the investigation conducted by Delta and the
basis for its assumptions that Tim Stafford was responsible for
the missing materials, and held that there was substantial
evidence of common-law malice. 887 So.2d at 897.

In reality, evidence needed to establish constitutional malice
and common-law malice "overlap[s] significantly." Paul v. Hearst
Corp., 261 F.Supp.2d 303, 306 (M.D.Pa. 2002). It overlaps
insofar as the same evidence bears both on the defendant's
motive, for purposes of common-law malice, and on the defendant's
"attitude toward the truth or falsity of his published
material," Gomes v. Fried, 136 Cal.App.3d at 934,
186 Cal.Rptr. at 611, for purposes of constitutional malice. Indeed, "evidence
that the defendant failed to determine whether or not his or her
statements were grounded in fact is probative of whether
common-law malice motivated the statements, since disregard of
the truth may suggest that ill will and hostility were actually
at work." Marshall v. Planz, 13 F.Supp.2d 1246, 1253 n. 16
(M.D.Ala. 1998). The failure of our cases to cite consistently
the Barnett formulation does not deprive that formulation of
its value as proof of common-law malice.

In this case, we are not asked to hold, and we do not hold,
in accord with the dicta in Phillips v. Bradshaw, supra, that
the making of a statement with knowledge of its falsity is
"conclusive evidence of malice." (Emphasis added.) Neither are
we asked to decide whether a qualified
privilege may be dissolved by proof of constitutional malice as
an alternative to proof of common-law malice.[fn3] We do
hold, however, consistent with statements in our cases, in
dicta and otherwise, that a private-party-defamation plaintiff
may overcome a qualified-immunity defense with testimony
indicating that the defendant intentionally lied about the
plaintiff. Thus, common-law malice may be shown, not only by
"evidence of hostility, rivalry, the violence of the language,
the mode and extent of publication," but, also, by proof of "the
recklessness of the publication and prior information regarding
its falsity." Davis, 271 Ala. at 487, 124 So.2d at 450.