Hugh Franklin Waters

“ As Justice Holmes said in Schenck, supra: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."
It should be pointed out that, even though defendant argues, and plaintiff seems to agree, that this is a case in which the court has to determine whether the "speech" exercised by the defendant can be regulated to any degree, the court simply does not believe that that is the issue. Mr. Norwood is not attempting to have defendant enjoined from exercising its right to run advertisements such as those in question. ”

“ Globe contends it is entitled to judgment as a matter of law because the article and photograph in question did not convey false and defamatory statements about the plaintiff. It is further contended that summary judgment is appropriate because there is no proof of actual malice. Plaintiff, naturally, strenuously opposes the motion.
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds. ”

“ Defendant undoubtedly has the Constitutional right [3] to publish "newspaper stories," "literature," "fiction," or whatever the articles described above and others in this issue are, but when it does and damages others by doing so, our system literally demands that the injured person be adequately compensated in an attempt to make them whole, or as whole as money can [p797] make them. A properly picked jury made that determination after hearing ample evidence to create a jury question, and our system does not permit this judge to substitute his judgment for that of the jury. ”

“ Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. ”

“ Specifically, defendant states a different standard has been developed for determining malice in these situations, namely: whether the author intended, or recklessly failed to anticipate that readers would construe the publication as a statement of defamatory facts. Defendant relies on Miss America Pageant, Inc. v. Penthouse International, Ltd., 524 F. Supp. 1280, 1286–87 (D.N.J. 1981) . We have previously determined, however, that actual malice is not the appropriate standard of fault to be applied to the issue of liability. ”

“ As at trial, the defendant contends that the wrongful death standard of requiring more than normal grief or more than normal mental anguish should be applied in this case. Aside from wrongful death actions and the tort of outrage, the Arkansas courts have not required extreme mental anguish before an award of damages is appropriate. With regard to the tort of outrage the court has stated that "the emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it." ”

“ While few of us would want to change our system which protects such a large array of "rights," it may be that we have more than most of us need, and more than is good for a majority of us. We have the right to "bear arms" and with that right has come personal ownership of a veritable flood of weapons of almost every description, many of which are designed to, and have no other purpose than to, "hurt people." ”

“ What is all that "worth"? A Harrison, Arkansas, jury believed that it was worth $650,000, but this court has been directed to reduce that award by ordering a "substantial remittitur." Obviously, there is room for disagreement as to what that means. Defendant argues that it means that Nellie Mitchell should receive no more than nominal damages, while, on the other hand, plaintiff's attorney argues that it would be "substantial" to reduce the award by one-third. ”

“ The plethora of individual rights which we have in this nation of free men is undoubtedly a source of our strength, but in a sense, is also a source of, or at least the catalyst for, significant lawlessness that pervades our society. ”

“ The inquiry performed is the threshold inquiry of determining whether there is a need for trial—whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. ”

“ Simply stated, it is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached. ”

“ However, under all of the circumstances, the court is convinced that it is "worth" a minimum of $150,000 for Mrs. Mitchell to have been forced to endure what defendant heaped upon her, and the court, [p75] therefore, determines that a "substantial remittitur" in this case, as directed by the Court of Appeals, is $500,000. A reduction of a half million dollars is certainly "substantial", and the court believes that an award of at least $150,000 in compensatory damages is justified by the evidence. ”

“ Summary judgment was granted by the trial court, but the Court of Appeals of Ohio reversed, finding that the First Amendment did not privilege the press to show the entire performance on a news program without compensating the plaintiff for any financial injury he could prove at trial. The Ohio Supreme Court, although agreeing that the plaintiff had the right to the publicity value of his performance under Ohio law, reversed, believing that the First Amendment gave the television station an absolute privilege to report on its newscast matters of legitimate public interest. ”

“ No distinction is made between those articles that are wholly fictional and the articles that are intended to be factual. Fictional articles are not denoted as such. The Sun apparently intends for the readers to determine which articles are fact and which are fiction or what percentage of a given article is fact or fiction. ”

“ The power exists in the trial judge whether the verdict is unreasonably high or unreasonably low.
11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2807 (1973) (citations and footnotes omitted) .
Defendant argues there is no evidence to support the award of $650,000 in compensatory damages. We are informed that this is the highest award in Boone county history and it is also the highest jury award for compensatory damages in a defamation, invasion of privacy, or outrage case in the history of the State of Arkansas. ”

“ Perhaps, those of us who are particularly skilled in the use of these weapons have a right to advertise our skills with the hope and intent that others of us who need these skills will give us employment. It may very well be, as defendant argues, that the state could not absolutely prohibit the "speech" which defendant engaged in unless it could be said that such speech concerned unlawful activity or was misleading. Plaintiff Norwood is not asking that defendant's speech be curtailed. ”

“ Mitchell, and was able to observe their demeanor, is convinced that substantial damages were suffered by her as a result of the wrongful conduct of the defendant. Admittedly, the court cannot take the evidence and point to any "specials" as lawyers call them, or any other identifiable dollar figures which can, with any certainty, justify an award of damages satisfactory to those who believe that these matters should be determined by some kind of formula. ”

“ FARMER KILLS SELF BY BREATHING COW GAS—He dies with his beloved animals
It may be, as defendant in essence argues, that Mrs. Mitchell does not show a great deal of obvious injury, but a reasonable juror might conclude, after hearing the evidence and viewing the Sun issue in question, that Nellie Mitchell's experience could be likened to that of a person who had been dragged slowly through a pile of untreated sewage. ”

“ Instead, he is simply asking that a jury, after a trial, award him damages for the consequences of those advertisements. Thus, the cases cited by both plaintiff and defendant on the permissible boundaries of regulation of First Amendment rights simply do not apply.
As the authors in 16A Am. Jur. 2d, Constitutional Law § 506 at 343, point out:
Although freedom of speech or of the press under constitutional guaranties may not be altogether restrained, he who abuses the right may nevertheless be held to liability therefor. ”

“ A great many of the articles in the Sun, as I said before, are fantasy, fantastic, very much like science fiction. There are a sprinkling of actual happenings in the articles about actual happenings in the paper; those are very, very well updated." Vader Deposition at 38.
The typical defamation action involves a purportedly factual publication. Actions involving fictional works are atypical. In an action arising from a purportedly nonfactual publication concentration on the "falsity" of the allegations is problematic. Courts have taken different analytical approaches to this issue. ”

“ IV. Motion for New Trial As to the motion for a new trial, this court has frequently expressed its concern and uncertainty about the standard to be applied in view of what appears to be the inconsistencies and ambiguities engendered by cases decided by various panels of the Court of Appeals for the Eighth Circuit. ”

“ The court believes that a reasonable juror could find that advertisements such as those described above had a substantial probability of ultimately causing harm to some individual. In fact, if the allegations are true, these advertisements caused harm not only to the plaintiff, but to several other individuals. ”

“ The second element of this test would, of course, need to be modified in cases involving private plaintiffs [p1239] when no issue of public concern is involved. In such cases, the inquiry is whether the defendant negligently published a falsehood.
The defendant urges the court to adopt a different standard because the article is completely fabricated and could not be taken as true. As pure fiction or fantasy the defendant argues the article is not reasonably susceptible to a defamatory meaning. The court cannot say this article is clearly fiction. ”

“ The material at issue "must convey to a reasonable reader the impression that they describe actual facts about the plaintiff or activities in which she participated to be actionable. When one cannot reasonably interpret the material as portraying actual facts about the plaintiff, no damage to reputation can result." ”

“ Thus, it is clear that it is inappropriate, to say the least, to equate the issue with which the Court was dealing in New York Times Co. v. Sullivan, supra, with the issue in this case. In Sullivan, one of three elected commissioners of the city of Montgomery, Alabama, was awarded a jury verdict of $500,000 on his libel suit against the newspaper as the result of an alleged libelous advertisement run by the "Committee To Defend Martin Luther King and the Struggle For Freedom in the South." ”

“ The court concludes that reasonable jurors could find that it is "worth" a great deal to suddenly find your likeness buried in the slime of which this publication was made, directly in front of an article describing the relative tastiness of adult human flesh compared to that of children. ”

“ The court concluded "that permitting recovery of presumed and punitive damages in defamation cases absent a showing of 'actual malice' does not violate the First Amendment when the defamatory statements do not involve matters of public concern." Id. at 763.
The Arkansas Supreme Court has stated that in a suit by a private individual against a media defendant the standard of care is that of ordinary negligence, not actual malice as the defendant contends. Little Rock Newspapers, Inc. ”

“ Reasonable jurors might conclude that a reasonable person shouldn't be especially surprised when he learns that the gun that had been hired through his advertisement was used to do one of the things that guns often do and are designed to do—hurt people. ”

“ Suffice it to say that the court has carefully considered the defendant's arguments and believes for the reasons stated on the record at trial that the defendant is entitled to no relief.
V. Conclusion For the reasons stated herein the defendant's motion will be denied.
↑ In this respect, Paul Greenberg, Pulitzer-prize winning journalist testified in a deposition used as evidence in this case, while being questioned by defendant's attorney:
Q.If the author testifies that he made up a story, isn't that fiction? A.Sir, it's false. All things that are false are not necessarily fiction. ”

“ I think that Nellie has been humiliated, and I think she's been very sad about it, and she's been worried about what people say about her, and people believe that she's been involved in this, whatever this story accuses that she has. And she's been a real depressed woman. She's changed. ”

“ Bone, 283 Ark. 399, 678 S.W.2d 312 (1984) ) . The Ross court further noted that "the tort of outrage is not easily established and required clear-cut proof; merely describing the conduct as outrageous does not make it so." ”

“ He has no special privilege to invade the rights and liberties of others.'" Id. at 683 (citing Associated Press v. NLRB, 301 U.S. 103, 132 (1937) .
The argument that the news media is absolutely shielded by the First Amendment from suits by persons who claim that they have been wronged or have suffered damages to their property by actions of the news media was answered by the Supreme Court in Zacchini v. ”