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07/23/73 ELMER E. WHITMORE v. KANSAS CITY STAR

July 23, 1973

ELMER E. WHITMORE, JR., PLAINTIFF-APPELLANT,
v.
THE KANSAS CITY STAR, DEFENDANT-RESPONDENT.



From the Circuit Court of Jackson County; Civil Appeal From Action for Damages (Monetary Recovery); Special Judge Douglas W. Greene.

Before Dixon, C.j., Pritchard and Somerville, JJ., and Clark, Sp.J.

The opinion of the court was delivered by: Somerville

Elmer E. Whitmore, Jr.'s action against The Kansas City Star Company is predicated on libel per se. The purported malediction was contained in an article published on July 29, 1967, in the "Times Edition" of The Kansas City Star Company.

Whitmore was employed by the Jackson County Juvenile Court as a Depty Juvenile Officer in the Foster Home Department. Homer Ontman, who also figured prominently in the article, was likewise an employee of the Jackson County Juvenile Court, although working in a different department. The "backdrop" for the complained of article was a series of articles by the Star concerning operation of the Jackson County Detention Home and a grand jury investigation of the home.

The article complained of bore the following headline: "Use Boy As Lever In Controversy". Cut to the marrow the article reported: That a fourteen year old boy, who was a ward of the Jackson County Juvenile Court, "was used as a pawn" to "hold down adverse publicity about the Jackson County parental school"; that the fourteen year old boy, who had been placed in the Ontman home, was removed therefrom by the efforts of Whitmore; that Ontman, in reference to Whitmore, was quoted as saying, "He told me that if I would resign from my position at the parental school and quit talking, I could have the boy back."; following an article in the "Star Edition" of defendant reporting on the grand jury's findings concerning the Jackson County Detention Home, Ontman, in reference to Whitmore, was quoted as saying, "He told me this time that I would not have a chance of ever seeing the boy again." ... "He said I had gone too far with this thing and it would not be possible for the boy to come back in my home. He said I should have taken the first offer and all the trouble would not have come about."; when questioned by the scrivener of the article, concerning the purported statement by Ontman attributed to Whitmore, Whitmore "agreed to the substance of the conversation and agreed he had made the original offer, and then the second call", and, further, that he (Whitmore) "was considering placing the boy back at Ontmans."; additionally, the article reported Whitmore as saying, "I told him if things quieted down he (sic, the boy) might be able to go back."; moreover, during the questioning of Whitmore by the scrivener of the article, Whitmore was quoted as saying, "I told him (sic, Ontman) the boy was being used as a pawn and I was not going to put that boy back there.", the context of which was that Ontman was using the boy as a "pawn"; the article further reported that a deputy Juvenile Officer could only make recommendations to the Juvenile Court concerning placement of wards of the court, however, Whitmore was quoted as saying, "Most of the time" such "recommendations are followed" and the fourteen year old boy who had been removed from the custody of Ontman was placed in another foster home "on Whitmore's recommendation."

The trial court, over the objection of Whitmore, excised and excluded from the jury all of that part of the principal article following the sub-headline "To Hold A Hearing". The excised portion reported that the day preceding publication of the article the Judge of the Juvenile Court of Jackson County had ordered a hearing to investigate the matters reported in the principal article. There was absolutely no contention on Whitmore's part that the matters reported in the excised portion of the article were untrue or inaccurate. Although Whitmore claims prejudicial error resulting from the excision, controlling Disposition of the case makes it unnecessary to rule the point.

At the close of Whitmore's evidence, the Star filed a motion for a directed verdict which was sustained by the trial court and judgment was rendered in favor of the Star. Whitmore duly perfected his appeal.

Slander, since the time of Adam and Eve, together with libel since Johann Gutenberg invented the printing press, have met in head on confrontation with mankind's inherent belief in freedom of oral and written expression. The genesis for mankind's inherent belief in freedom of expression was, and continues to be, that unfettered freedom of expression serves the greater good of a majority of the people, as opposed to serving the smaller good of a minority of the people by its stiflement. Involved, almost inexorably, in the determination of this, or any other, libel action, is which way do the scales of Justice tip, in favor of the scrivener by virtue of mankind's inherent concept of freedom of speech and press, or in favor of the maligned by virtue of mankind's opposing concept of vindication of honor and redress for injury. Voltaire expressed the concept of freedom of expression in the extreme when he wrote, "I disapprove of what you say, but I will defend to the death your right to say it." Conversely, there exists a galaxy of libel decisions, in this and other states, placing the burden of showing truth of the publication on the publisher (however good his intent), and void of any requirement as to proof of malice save only with respect to punitive, but not actual, damages. The First Congress of the United States, on September 25, 1789, proposed to the Legislatures of the several States the first Ten Amendments to the Constitution of the United States, same comprising the Bill of Rights. It is surely not without note that the First Amendment proscribed any law that abridged freedom of speech and press. Subsequently, the Fourteenth Amendment proscribed the various states from abridging freedom of speech and press as mandated by the First Amendment.

The underlying philosophy of the broad latitude attached to the First Amendment's guarantee of freedom of the press found eloquent expression in the words of John Marshall, which were quoted with approval by James Madison, 6 Writings of James Madison 1790-1802, p. 336 (G. Hunt ed. 1906):

"'Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess; that it has sometimes degenerated into licentiousness , is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America .'" (Emphasis in original.)

Chief Justice Hughes in DeJonge v. Oregon, 299 U.S. 353, 365, 57 S. Ct. 255, 260 (1937) tersely stated the underlying philosophy inherent in the First Amendment's guarantee of freedom of speech and press in the following words:

"(Imperative) is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political Discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government."

Until New York Times Company v. Sullivan, 376 U.S. 254, 279- 280, 84 S.Ct. 710, 716 (1964), courts literally groped for some measurable standard with which to strike a legally acceptable balance between freedom of the press on the one hand and vindication of individual honor and redress for injury on the other hand. It is appropriate to point out that media irresponsibility undoubtedly allayed -- and continues to do so -- ultimate resolve of whether the First Amendment is to be literally applied to all written and oral expression in this country. But be that as it may, New York Times Company v. Sullivan, supra, laid down the following mandate applicable to state court libel actions involving public officers:

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages from a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

Subsequently, the "actual malice" rule was made applicable in 1967 to libel actions brought by public figures (Curtis Publishing Company v. Butts, 388 U.S. 120, 87 S. Ct. 1975 (1967)), and in 1971 to libel actions brought by individuals involved in events of public or general interest (Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811 (1971)). This case clearly falls within the controlling purview of New York Times v. Sullivan, supra, Curtis Publishing Company v. Butts, supra, and Rosenbloom v. Metromedia, Inc., supra.

New York Times v. Sullivan, supra, Curtis Publishing Company v. Butts, supra, and Rosenbloom v. Metromedia, Inc., supra, a trilogy of libel, after careful analysis, force the Conclusion -- prior legal concepts applicable to the law of libel in this state aside -- that the rule of "actual malice" imposes upon a party claiming to have been libeled the burden of proving by "clear and convincing" proof the falsity of the purported defamatory article, and, additionally, that the false and defamatory article was published "with knowledge that it was false, or with reckless disregard of whether it was false or not." Additionally, in St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325 (1968), the Supreme Court of the United States imposed a further refinement on the weighty burden resting on a party claiming libel with respect to the elusive standard of determining whether or not the scrivener's conduct was reckless:

"(Reckless) conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the Conclusion that the defendant in fact ...


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