PUBLISHED OPINION
Case No.: 95-0901
Complete Title
of Case:
BAY VIEW PACKING COMPANY
and REINHARD LIEBNER,
Plaintiffs-Appellants,
v.
JERRY TAFF,
MARTY BURNS WOLFE,
COLLEEN HENRY,
WISN TV, Division of Hearst Corporation,
HEARST CORPORATION and DENNIS VLASAK,
Defendants-Respondents.
Submitted on Briefs: ---
Oral Argument: October 3, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: December 12, 1995
Opinion Filed: December 12, 1995
Source of APPEAL Appeal
from judgments
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: THOMAS P. DOHERTY
so indicate)
JUDGES: Wedemeyer,
P.J., Sullivan and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the plaintiffs-appellants the cause was submitted on the briefs of Robert E.
Sutton of Sutton & Kelly, of Milwaukee, with oral argument by
Robert E. Sutton.
Page 2
Respondent
ATTORNEYSFor
defendants-respondents Jerry Taff, Marty Burns Wolfe, Colleen Henry, WISN TV
and Hearst Corporation, the cause was submitted on the briefs of Matthew J.
Flynn, Jeffrey O. Davis, Kevin P. Crooks, and Katherine H. Grebe of Quarles
& Brady, of Milwaukee, with oral argument by Matthew J. Flynn.
For
defendant-respondent Dennis Vlasak the cause was submitted on the briefs of Grant
F. Langley, city attorney, and Susan E. Lappen, assistant city
attorney.
COURT OF APPEALS DECISION DATED AND RELEASED December 12, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0901
STATE
OF WISCONSIN IN COURT OF
APPEALS
BAY VIEW PACKING
COMPANY
and REINHARD LIEBNER,
Plaintiffs-Appellants,
v.
JERRY TAFF,
MARTY BURNS WOLFE,
COLLEEN HENRY,
WISN TV, Division of
Hearst Corporation,
HEARST CORPORATION and
DENNIS VLASAK,
Defendants-Respondents.
APPEAL from judgments of
the circuit court for Milwaukee County: THOMAS P. DOHERTY, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
SULLIVAN,
J. Bay View Packing Company, a Wisconsin food processor, and
Reinhard Liebner, Bay View Packing Company’s president and owner, collectively
appeal from a summary judgment dismissal of their defamation claims against
television anchors Jerry Taff and Marty Burns Wolfe; television reporter
Colleen Henry; WISN TV; the Hearst Corporation, WISN TV’s corporate parent; and
Dennis Vlasak, an environmental health specialist with the City of
Milwaukee. The primary issue before
this court is whether Bay View Packing is a limited purpose public figure for
purposes of Wisconsin defamation law.
We affirm the trial court’s summary judgment dismissal of the claims
against the WISN TV defendants because the summary judgment materials establish
that: (1) Bay View Packing was an involuntary limited purpose public
figure with respect to the alleged defamatory statements; and (2) Bay View
Packing’s summary judgment materials fail to raise a genuine issue of material
fact that the WISN TV defendants acted with actual malice when making the
alleged defamatory statements. Further,
we affirm the trial court’s summary judgment dismissal of the claim against
Vlasak because we conclude that the summary judgment materials establish that
the alleged defamatory statements made by Vlasak were substantially true.
I. Background.
A. Overview.
This case arises out of
WISN TV’s television coverage on the parasitic contamination that beset the
City of Milwaukee’s municipal water supply during the spring of 1993. In early April 1993, undetected cryptosporidium
protozoans entered the water supply and shortly thereafter hundreds of city
residents reported severe cases of digestive illness.[1] As reported cases of the illness spread
throughout the metropolitan area, the City began to investigate for possible
causes of the outbreak. On April 7,
after tests on eight individuals struck with the digestive illness confirmed
the presence of cryptosporidium, City of Milwaukee Mayor John O.
Norquist issued a boil advisory for any Milwaukee residents drinking or using
Milwaukee municipal water in food preparation.
On April 8, the Wisconsin Department of Agriculture, Trade, and Consumer
Protection issued a food handling advisory to Milwaukee‑area businesses
using unheated water in either food processing, as a food ingredient, or in
cleaning food preparation utensils. In
addition, the advisory “strongly recommend[ed] that the
[businesses] recall and dispose of all ready-to-eat food products processed
with water distributed by the Milwaukee water utility unless [the] ready-to
eat food was fully cooked or the water used was boiled or appropriately
filtered.” (Emphasis in original.)
During April 1993, Bay
View Packing, a Milwaukee-based company, processed and pickled food products
using untreated municipal water including: pickled eggs, pork feet, pork hocks,
cooked turkey gizzards, and polish sausage.
On April 15, the United States Food and Drug Administration specifically
requested that Bay View Packing recall its food products. On April 16, the United States Department of
Agriculture informed Bay View Packing that it should recall its food products,
and late that afternoon, the company began to call its distributors.[2] On Monday, April 19, Bay View Packing mailed
written notices to its distributors, telling them to recall the products.
Later, on April 19,
during the 6:00 p.m. and 10:00 p.m. newscasts, WISN TV broadcasted the
following stories as reported by Henry, and as read by WISN TV’s news anchors,
Taff and Burns Wolfe:
Channel
12 6:00 News:
TAFF: Last week
we told you the FDA asked Milwaukee food producers to voluntarily recall any
products they made with bad water.
WOLFE: Now we
have learned one Milwaukee company completely disregarded that call.
COLLEEN HENRY: Well
Marty and Jerry the honor system apparently failed for one Milwaukee food
producer. The FDA says the Bay View
Packing Company never stopped using bad Milwaukee water to pickle its
products. Those foods are produced
under the Bay View and Lake Side labels.
They included pickled eggs, pork feet, pork hocks, cooked turkey
gizzards and polish sausage. Today
inspectors from the Milwaukee Health Department scoured the City in search of
Bay View products still on the shelves.
DENNIS VLASAK: It’s
either Bay View or Lake Side. That’s
pickled eggs, pickled pigs feet or cooked turkey gizzards.
COLLEEN HENRY: The
FDA said it asked Bay View to pull its pickled products last Monday because
they don’t heat water used in the processing but today inspectors found pickled
pigs feet ready for purchase and pulled them from stock. It’s no surprise to Carla Hegman the honor
system failed. When she heard she’d
have to have faith in Milwaukee manufacturers she started buying food made out
of town.
CARLA HEGMAN: No,
I don’t trust them, no, I think they should have taken it off just because alot
[sic] of my friends got really sick from this, really sick.
COLLEEN HENRY: Now
the president of Bay View wouldn’t talk on camera but he says they are
cooperating with the FDA and USDA.
Reinhard Liebner says while the company continued to make products with
Milwaukee water he says no product made after the boil advisory ever hit the
shelves.
Channel
12 10:00 News:
WOLFE: We can
now drink our water but we continue to watch for the aftereffects and today the
health department figured thousands of us maybe as many as 232,000 could have
been sick from our crypto contamination.
And now we have found out at least one Milwaukee food producer has not
pulled their products from store shelves.
TAFF: As they
had been asked to do if they used bad water and they apparently did during some
production process. The FDA calls it
bad faith after they asked the things be voluntarily taken off the shelves and
recalled. Colleen Henry went along this
afternoon as health inspectors pulled the products of that local company
physically off the local shelves.
COLLEEN HENRY: He
went in search of pickled pigs feet, a Milwaukee inspector in hot pursuit of
potentially tainted food.
DENNIS VLASAK: It’s
either Bay View or Lake Side pickled eggs, pickled pigs feet or cooked turkey
gizzards.
COLLEEN HENRY: The
FDA said it asked Bay View Packing to pull its pickled products from the
shelves last May [sic].[3] Today health inspectors had to do it for
them saying the company was shipping risky food across the country. Bay View officials wouldn’t talk on camera
but say they’re cooperating with the FDA and USDA though they say such a
nationwide recall is not an overnight process.
They add so far they’ve had no report of any food related illness.
DENNIS VLASAK: Bay
View they’ve got the USDA and FDA to contend with.
COLLEEN HENRY: Dennis
Vlasak spent the day going from store to store pulling Bay View products. He says so far they’re the only products the
health department has had to remove.
But Carla Hegman doubts they’ll be the last. When she heard she’d just have to trust Milwaukee food makers to
pull their products she started buying food made someplace else.
CARLA HEGMAN: No,
I don’t trust them, no, I think they should be taken off just because a lot of
my friends got really sick from this, really sick.
COLLEEN HENRY: Despite
FDA claims Bay View’s president says no product made after the boil advisory
ever hit the shelves. Besides the
staffs' been eating the food and he says none of them’s sick. Colleen Henry, Channel 12 News, Milwaukee.
TAFF: The foods
produced by Bay View are sold under the Bay View and Lake Side labels. They included pickled eggs, pork feet, pork
hocks, cooked turkey gizzards and polish sausage.
(Transcript
from complaint; alleged defamatory statements of each defendant have been
emphasized.)
B. Bay View Packing’s
and Liebner’s Defamation Action.
On May 12, 1993, Bay
View Packing and Liebner filed a defamation suit against the WISN TV defendants
and Vlasak, alleging that they “negligently, intentionally and maliciously with
reckless disregard for the truth of their statements did defame the plaintiffs”
in the April 19, 1993, newscasts. Bay
View Packing and Liebner alleged that the “entire context of the statements
made [during the newscasts] were false and defamatory in that they depicted the
plaintiffs as defying governmental regulatory agencies in shipping contaminated
food products throughout the United States.”
The WISN TV defendants admitted in their answer that they made the
statements attributed to them in the complaint, but denied the remaining
allegations in the complaint. Further,
they pleaded the following affirmative defenses: the complaint failed to state
a claim upon which relief could be granted; the statements alleged to be defamatory
were true; the statements were privileged as a matter of law; one or both of
the plaintiffs were public figures and the statements were not made with actual
malice; and the statements “were not of and concerning one or both of the
plaintiffs.” The City, representing its
employee Vlasak, admitted that Vlasak made the statements, but denied that they
were defamatory or false. Both the WISN
TV defendants and the City moved for summary judgment dismissal of the suit.
During the course of
discovery, the following facts were revealed.
During his deposition, Liebner admitted that he was aware of Mayor
Norquist’s boil advisory on April 7, and that he spoke to his USDA inspector
about it. Further, he admitted that he
received the State food advisory letter on April 13 asking Bay View Packing to
recall its products and that he then spoke with the state agency on
April 14. He stated that he
immediately thought of recalling Bay View Packing's products when he received
the letter, but that when he talked to the state agency, the agency was not
“willing to be as forthcoming” as it was in the letter. Liebner also admitted that on April 15, he
was informed that the FDA was requesting that Bay View Packing “begin recall
operations.” Liebner testified that he
told the FDA that he was waiting for the USDA to “get back” to him, because the
USDA had “main jurisdiction over a majority of the products involved,” and that
he wanted the two federal agencies “to get together so that [Bay View Packing]
could recall all the products at one time.”
He admitted that although the USDA had not issued a recall notice on
April 15, the FDA told him to begin working on recalling the fifteen percent of
Bay View Packing’s product line over which the FDA had jurisdiction. He testified that he again told the FDA that
he “would like to see USDA and [the FDA] coordinate their effort
together.” Finally, Liebner testified
that it was not until the USDA told Bay View Packing to recall its products on
the afternoon of April 16, that he began to call his distributors to tell them
to remove Bay View Packing’s products.
He also stated that he mailed a letter to all Bay View Packing customers
on April 19, telling them of the recall.
With respect to the
April 19, WISN TV newscasts, Liebner admitted that Bay View Packing continued
to process food using unheated Milwaukee water after the mayor’s boil advisory
on April 7, and that it did “limited” packing and processing from April 12 to
April 16. He testified that Henry
called him on April 19, asking if she could come down to Bay View Packing with
her camera crew to do a story, and then asked, “Why [was Bay View Packing]
still producing product during the crisis?”
He testified that he told her she could not do the story. Later, after seeing a WISN TV “teaser” news
brief about his company, he called Henry to dissuade her from running the
story, because, in his words, she did not have her “facts straight.” She asked him further questions and told him
WISN TV was going to run the story.
Henry testified in her
deposition that she was investigating follow-up stories for WISN TV’s coverage
of the cryptosporidium outbreak, when she was informed by the FDA that
Bay View Packing was not complying with an “honor system” of recalling products
produced with unheated Milwaukee water.
She also testified that on April 19, the FDA official told her that Bay
View Packing was “not acting in good faith.” She further testified that she was
informed that the City of Milwaukee Health Department was told by the FDA to
remove Bay View Packing products from store shelves and that she then followed
Vlasak in two stores, filming him and questioning him as he removed Bay View
Packing products.
Henry also testified in
her deposition that she called Liebner on April 19 to see if she could
interview him, and she told him that the FDA had stated that Bay View Packing
was not acting in “good faith.” Henry
testified that Liebner told her that Bay View Packing was “cooperating with the
FDA ... and that it was not an overnight process.” Henry also testified that Liebner declined her invitation to
appear on camera. With respect to the
April 19 newscasts, Henry testified that she wrote both the “lead-ins” to the
stories and the stories themselves.
In their depositions,
both Taff and Burns Wolfe concede that they could not remember WISN TV’s
newscasts concerning Bay View Packing.
Both testified, however, that the reporter and producer prepare the
original news copy for the WISN TV broadcasts and that the anchors occasionally
make stylistic or editing changes if necessary. Neither Taff nor Burns Wolfe
could recall if they made any changes to Henry’s stories on Bay View Packing.
The trial court granted
summary judgment dismissal in favor of the WISN TV defendants because it
concluded that Bay View Packing and Liebner were limited purpose public figures
for purposes of Wisconsin defamation law.
Accordingly, the trial court concluded that in order for Bay View
Packing’s and Liebner's defamation claims to survive summary judgment, Bay View
Packing needed to show in its summary judgment materials that the WISN TV
defendants acted with actual malice in making the alleged defamatory
statements. The trial court concluded
that Bay View Packing did not meet this burden, and granted summary judgment
dismissal for the WISN TV defendants.
With respect to the
defamation claim against Vlasak, the trial court dismissed the complaint,
concluding that the summary judgment materials established that Vlasak’s
statement were “substantially true,” and therefore, Bay View Packing’s
defamation claim could not survive summary judgment. The trial court later awarded both the City and the WISN TV
defendants costs for defending the action.
Bay View Packing and Liebner appeal from the summary judgment
dismissals.
II.
Analysis.
A. Standard of Review.
“Summary judgment is
appropriate to determine whether there are any disputed factual issues for
trial and ‘to avoid trials where there is nothing to try.’” Caulfield v. Caulfield, 183
Wis.2d 83, 91, 515 N.W.2d 278, 282 (Ct. App. 1994) (citation omitted). Summary judgment may be particularly
appropriate in defamation actions in order to mitigate the potential “chilling
effect” on free speech and the press that might result from lengthy and
expensive litigation. See, e.g. Time,
Inc. v. Hill, 385 U.S. 374, 401-02 (1967) (Douglas, J., concurring).[4] While we apply the same methodology as the
trial court when reviewing a summary judgment motion, we owe no deference to
the conclusion of the trial court. Kotecki
& Radtke, S.C. v. Johnson, 192 Wis.2d 429, 436, 531 N.W.2d 606, 609
(Ct. App. 1995). Indeed, the United
States Supreme Court has declared that in defamation cases “an appellate court
has an obligation to ‘make an independent examination of the whole record’ in
order to make sure ‘that the judgment does not constitute a forbidden intrusion
on the field of free expression.’” Bose
Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 499
(1984). As such, we first examine the pleadings to determine whether they state
a claim for relief. See Kotecki
& Radtke, S.C., 192 Wis.2d at 437, 531 N.W.2d at 609. If the pleadings state a claim and the
responsive pleadings join the issue, we then must examine the evidentiary
record to analyze whether a genuine issue of material fact exists or whether
the moving party is entitled to a judgment as a matter of law. Id. Further, “[o]n summary judgment, we must draw all justifiable
inferences in favor of the non-moving party, including questions of credibility
and of the weight to be accorded particular evidence.” Masson v. New Yorker Magazine, Inc.,
501 U.S. 496, 520 (1991). Applying the
above standard of review, we next address the law of defamation in Wisconsin in
order to determine whether the trial court properly granted summary judgment to
the defendants.
B. Defamation Claims in
Wisconsin.
In Wisconsin, the
elements of a common law defamation claim are:
“(a) a false and defamatory statement
concerning another;
(b) an unprivileged publication to a
third party;
(c) fault amounting at least to
negligence on the part of the publisher; and
(d) either actionability of the statement
irrespective of special harm or the existence of special harm caused by the
publication.”
Van
Straten v. Milwaukee Journal Newspaper-Publisher, 151
Wis.2d 905, 912, 447 N.W.2d 105, 108 (Ct. App. 1989) (citation omitted), cert.
denied, 496 U.S. 929 (1990). In New
York Times Co. v. Sullivan, 376 U.S. 254 (1964), the United States
Supreme Court added a constitutional element to defamation actions that is
dependent on the status of the plaintiff.
The Court held that the First and Fourteenth Amendments to the United
States Constitution require that in order for “public officials” to recover
damages in a defamation action against media defendants, they must prove by
clear and convincing evidence that the defamer made the defamatory statement
with “actual malice”—that is, either with “‘knowledge that it was false or with
reckless disregard of whether it was false or not.’” Denny v. Mertz, 106 Wis.2d 636, 643, 318 N.W.2d
141, 144 (citation omitted), cert. denied, 459 U.S. 883 (1982).
The New York Times
Co. v. Sullivan “constitutional privilege” was later extended to media
defendants facing a defamation action by “public figure” plaintiffs, as well as
“public official” plaintiffs.[5] See Curtis Publishing Co. v.
Butts, 388 U.S. 130, 155 (1967).
Generally, “public figures” are defined as “those persons who, although
not government officials, are nonetheless ‘intimately involved in the
resolution of important public questions.’”
Wiegel v. Capital Times Co., 145 Wis.2d 71, 81, 426 N.W.2d
43, 48 (Ct. App. 1988) (citation omitted).
One may become a public
figure in two ways. He or she may be a
public figure for all purposes due to general fame or notoriety. More commonly, however, one assumes that
status by involvement in a particular public issue or controversy and thereby
becomes a public figure for a limited range of issues.
Id. at
82, 426 N.W.2d at 48.
“To fit the first
category, the person must be a ‘well-known “celebrity,” his [or her] name a
“household word”’—a person whose words and deeds are followed by the public ‘because
it regards his [or her] ideas, conduct, or judgment as worthy of its
attention.’” Id. (quoting
Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1294
(D.C. Cir.), cert. denied, 449 U.S. 898 (1980)). In the present case, none of the parties
contend that either Bay View Packing or Liebner was a general purpose public
figure. Nonetheless, the plaintiffs may
fit the second category; that is, although they are “not generally famous or
notorious,” they may become public figures for a “limited purpose” because of
their involvement in a “particular public controversy.” Id. at 82, 426 N.W.2d at
48-49.
Our supreme court has
definitively stated that the question of whether a person is a “limited purpose
public figure” is an issue left solely to the court to decide as a matter of
law, not an issue of fact to be decided by the jury. Lewis v. Coursolle Broadcasting of
Wisconsin, Inc., 127 Wis.2d 105, 110, 377 N.W.2d 166, 168 (1985). Indeed, because the status of the plaintiff
controls whether he or she must prove “actual malice” in order to recover
damages, or merely meet a lesser standard of proof to recover, the question of
whether a plaintiff is a limited purpose public figure should be resolved
first. Id. at 109, 377
N.W.2d at 168. Nonetheless, while the
ultimate question of whether a plaintiff is a limited purpose public figure is
a question of law, material factual disputes on this issue can arise. These factual disputes are not to be left to
the jury at trial, but should be resolved by the trial court prior to trial,
after an evidentiary hearing solely on this issue, if necessary. See, e.g., Harris v. Tomczak,
94 F.R.D. 687, 693 (E.D. Cal. 1982) (analogizing procedure to that of probable
cause determinations in criminal cases) (citation omitted).
If the trial court at
summary judgment determines that the plaintiff is a limited purpose public
figure, the dispositive factual dispute then becomes whether the plaintiff's
summary judgment materials show “actual malice” on the part of the defendant. Hence, the trial court must determine
“whether the evidence in the record could support a reasonable jury finding
either that the plaintiff has shown actual malice by clear and convincing
evidence or that the plaintiff has not.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56
(1986). If the plaintiff does not meet
this burden, the defamation claim should be dismissed as legally insufficient
because it is quite clear that under no circumstances can the plaintiff recover. See Barillari v. City of Milwaukee,
194 Wis.2d 247, 256, 533 N.W.2d 759, 762 (1995). If the plaintiff meets this burden, the remaining elements of the
defamation claim are sufficiently pleaded, no other defenses or privileges
raised to the defamation action dispose of the action as a matter of law, and
genuine issues of material fact remain in dispute, the defamation action should
proceed to trial.
C. Limited Purpose
Public Figure Test.
In Denny v. Mertz,
106 Wis.2d 636, 318 N.W.2d 141, cert. denied, 459 U.S. 883 (1982), our
supreme court established the following two-prong test to determine whether a
defamation plaintiff is a limited purpose public figure: (1) there must be
a public controversy; and (2) the court must look at the nature of the
plaintiff’s involvement in the public controversy to see whether the plaintiff
has injected himself or herself into the controversy so as to influence the
resolution of the issues involved. Id.
at 649-50, 318 N.W.2d at 147. In Wiegel
v. Capital Times Co., 145 Wis.2d 71, 426 N.W.2d 43 (Ct. App. 1988),
this court expanded on Denny and provided a three-step analysis
to be used when considering the second prong of the Denny test.[6]
The three steps include: (1) isolating the controversy at issue; (2)
examining the plaintiff’s role in the controversy to be sure that it is more
than trivial or tangential; and (3) determining if the alleged defamation was
germane to the plaintiff’s participation in the controversy.
Van
Straten, 151 Wis.2d at 913-14, 447 N.W.2d at 109 (citing Wiegel,
145 Wis.2d at 82-83, 426 N.W.2d at 49).
With these factors in mind, we address the question of whether Bay View
Packing is a limited purpose public figure.
D. Application of Denny
v. Mertz Test.
1. Public controversy.
The first factor we
examine is whether there is a “public controversy.” Denny, 106 Wis.2d at 649-50, 318 N.W.2d at
147. Dispositive of this factor is
whether the dispute or controversy has “an impact outside of those immediately
interested” in the dispute. Id.
at 650, 318 N.W.2d at 148. Thus, the
question is not whether the issue is only of “‘general or public interest,’” Gertz
v. Robert Welch, Inc., 418 U.S. 323, 346 (1974) (citation omitted), or
is merely “newsworthy.” Waldbaum,
627 F.2d at 1296. “[I]t must be a real
dispute, the outcome of which affects the general public or some segment of it
in an appreciable way.” Id. Hence, “[i]f the issue was being debated
publicly and if it had foreseeable and substantial ramifications for
non-participants, it was a public controversy.” Id. at 1297.
It is clear that there
was a public controversy in this case.
The cryptosporidium contamination of the City of Milwaukee’s
water supply had a substantial effect on the entire Milwaukee metropolitan
area. According to the uncontroverted
summary judgment materials, 400,000 people—nearly one-half of the city’s
population—were affected by cryptosporidiosis. Schools were closed, hospital emergency rooms and health clinics
were inundated with patients, and the lives of those metropolitan residents
with compromised immune systems were placed in jeopardy. Further, the secondary effects of the
contamination, such as lost worker productivity, rippled throughout the State
of Wisconsin and, to a lesser extent, the rest of the nation. Thus, there is no question that at the time
of the alleged defamatory statements, the cryptosporidium contamination
“was being debated publicly” and that “it had foreseeable and substantial
ramifications” for the entire Milwaukee community. Id.
2. Plaintiffs' role in
controversy.
Under Denny,
we must next look at the nature of the plaintiff’s involvement in the public
controversy. Denny, 106
Wis.2d at 650, 318 N.W.2d at 147. As
stated above, Wiegel provides an expanded three-step analysis for
this court to use when addressing this factor.
a. Isolating the narrow
public controversy at issue.
The first step is to
isolate the public controversy with respect to the alleged defamatory
statements at issue. Wiegel,
145 Wis.2d at 83, 426 N.W.2d at 49 (citation omitted). This is necessary because a public
controversy, as defined in Denny, can be both “broad” and
“narrow” in scope.
A narrow controversy will have fewer
participants overall and thus fewer who meet the required level of
involvement. A broad controversy will
have more participants, but few can have the necessary impact. Indeed, a narrow controversy may be a phase
of another, broader one, and a person playing a major role in the
“subcontroversy” may have little influence on the larger questions or on other
subcontroversies. In such an instance,
the plaintiff would be a public figure if the defamation pertains to the
subcontroversy in which he is involved but would remain a private person for
the overall controversy and its other phases.
Waldbaum, 627
F.2d at 1297 n.27.
The isolated controversy
in this case is a narrowly drawn “subcontroversy” of the broadly framed issue
of the cryptosporidium contamination of the city’s water supply. The subcontroversy is the alleged production
and distribution of foodstuffs using untreated or unboiled Milwaukee water
after governmental agencies first advised and then demanded that potentially
contaminated products be recalled.
Clearly, this is a dispute that had “an impact outside those immediately
interested,” that is, beyond Bay View Packing, Liebner, and the WISN TV
defendants. Denny, 106 Wis.2d
at 650, 318 N.W.2d at 148.
It is undisputed that
prior to the WISN TV broadcasts, both the state and federal governments were
concerned about Milwaukee food producers, including Bay View Packing, which
used untreated or unboiled Milwaukee water.
Indeed, both governments issued either food advisories or recall orders
to Bay View Packing before the WISN TV newscasts. Underlying these advisories and recalls was a public concern for
the potential distribution of food produced or processed with contaminated
water. Further, it is undisputed that
these governmental concerns had been the focus of news reports the week prior
to the specific WISN TV story on Bay View Packing. Thus, it is clear that the underlying subcontroversy was being
“debated publicly” prior to the April 19 newscasts, albeit not with specific
reference to Bay View Packing. Waldbaum,
627 F.2d at 1296. Keeping this
subcontroversy in mind, we next apply the second of the Wiegel
steps, that is, we examine Bay View Packing’s “role in the controversy to be
sure that it is more than trivial or tangential.” Van Straten, 151 Wis.2d at 913-14, 447 N.W.2d at
109 (citing Wiegel, 145 Wis.2d at 82‑83, 426 N.W.2d at 49).
b. Are the
plaintiffs' roles in controversy more than trivial or
tangential?
This issue lies at the
heart of this appeal. At oral argument
on this case, Bay View Packing and Liebner’s counsel contended that the WISN TV
defendants “created” a controversy “where none existed,” and that the plaintiffs’
“only public involvement was the television reports.” Therefore, Bay View Packing and Liebner argue, the WISN TV
defendants “cannot, by their own conduct, create their own defense by making
the claimant a public figure.” Hutchinson v. Proxmire, 443 U.S.
111, 135 (1979). We fundamentally
disagree with Bay View Packing and Liebner’s characterization of their role in
the public controversy.
Generally, to be
considered a limited purpose public figure, a person must have “thrust
themselves to the forefront of particular public controversies in order to
influence the resolution of the issues involved.” Gertz, 418 U.S. at 345. “This one factor, however, is not the be-all and end-all of
public figure status. Injection is not
the only means by which public-figure status is achieved.” Dameron v. Washington Magazine, Inc.,
779 F.2d 736, 740-41 (D.C. Cir. 1985), cert. denied, 476 U.S. 1141
(1986). Indeed, as the Supreme Court
recognized in Gertz, “it may be possible for someone to become a
public figure through no purposeful action of his own.” Gertz, 418 U.S. at 345. “Persons can become involved in public
controversies and affairs without their consent or will,” Dameron,
779 F.2d at 741, through “‘sheer bad luck,’” Wiegel, 145 Wis.2d
at 86, 426 N.W.2d at 50 (citation omitted), or “if [their] activities ‘almost
inevitably put [them] into the vortex of a public controversy.’” Id. at 85, 426 N.W.2d at 50
(citation omitted). Such involuntary
persons can thus become public figures “for the limited purpose of discussions
of” the public controversy they have been drawn into; Dameron,
779 F.2d at 741; however, “the instances of truly involuntary public figures
must be exceedingly rare.” Gertz,
418 U.S. at 345.
Bay View Packing and
Liebner intimate that they had no desire for publicity in the cryptosporidium
controversy and that they did not “thrust” themselves into the
controversy. Our focus, however, is on
their role in the public controversy “rather than on any desire for publicity
or other voluntary act” on their part. Wiegel,
145 Wis.2d at 85, 426 N.W.2d at 50.
Indeed, in some cases it is sufficient that a plaintiff “‘voluntarily
engaged in a course that was bound to invite attention and comment.’” Id. (citation omitted).
The summary judgment
materials do establish that, at best, Bay View Packing and Liebner were
“reluctant” participants in the public controversy. See id. Neither Bay View Packing nor Liebner
announced to the world that the company was continuing to process and pack food
on a “limited” basis after the government advisories were issued. Nor did either announce that Bay View
Packing was waiting for the USDA to order a recall before it told its
distributors to remove the products from the store shelves. Our analysis does not end with this
evidence, however, because “[p]ersons can become involved in public
controversies ... without their consent or will.” Dameron, 779 F.2d at 741.
The record also
establishes that through the “‘sheer bad luck,’” see Wiegel,
145 Wis.2d at 86, 426 N.W.2d at 50 (citation omitted), of the cryptosporidium
contamination, Bay View Packing’s and Liebner’s action, or more properly
stated, voluntary inaction, in not immediately complying with the state’s
advisory recommendation and the federal government’s recall notice “inevitably
put [them] into the vortex of a public controversy.” Id. at 85, 426 N.W.2d at 50 (citation
omitted). Liebner’s deposition confirms
that he had received the state food advisory with the voluntary recall notice
on April 13. He further admitted that
although the FDA told him on April 15 to recall the fifteen percent of his
product line under FDA jurisdiction, he waited for the USDA to issue its recall
notice on April 16 before he called any of his distributors to tell them
to remove all of Bay View Packing’s products from the store shelves. In addition, he admitted that Bay View
Packing continued to process and pack food on a limited basis after the
April 13 advisory was issued.
These actions, or inactions, in the face of the underlying public
concern for preventing contaminated food from reaching the consumer, made both
Bay View Packing’s and Liebner’s roles in the controversy more than trivial or
tangential. Van Straten,
151 Wis.2d at 913-14, 447 N.W.2d at 109.
c. Are defamatory statements
germane to participation in controversy?
Lastly, we address the
third of the Wiegel steps by examining whether “the alleged
defamation was germane to the plaintiff’s participation in the
controversy.” Van Straten,
151 Wis.2d at 914, 447 N.W.2d at 109 (citation omitted). All of the alleged defamatory statements
made by WISN TV were reported “in connection with and to emphasize” the
potential public heath concerns of cryptosporidium-contaminated food
reaching the public. See id.
at 916, 447 N.W.2d at 110. As such, the
alleged defamatory newscasts were fully germane to Bay View Packing and
Liebner’s actions and inactions with respect to the governmental advisories and
recall notices.
3. Involuntary limited
purpose public figure status.
Simply put, the summary
judgment materials establish, as a matter of law, that Bay View Packing and
Liebner fit the “exceedingly rare” status of being an involuntary limited
purpose public figure. Gertz,
418 U.S. at 345. This status was solely
with respect to the narrow public controversy surrounding the potential
distribution of contaminated food products.
Therefore, because we conclude the plaintiffs were involuntary limited
purpose public figures, in order for their complaint to survive summary
judgment, we must determine “whether the evidence in the record could support a
reasonable jury finding ... that the plaintiff[s have] shown actual malice by
clear and convincing evidence.” See
Anderson, 477 U.S. at 255-56.
We agree with the trial court that the plaintiffs failed to meet this
burden.
E. Actual Malice
Standard.
Whether the undisputed
facts at summary judgment “fulfill the legal standard of actual malice is a
question of law.” Van Straten,
151 Wis.2d at 917, 447 N.W.2d at 110.
The United States Supreme Court defined “actual malice” as knowledge
that the statement was false or reckless disregard as to whether it was
false. New York Times,
376 U.S. at 279-80. “The focus is upon
the defendant’s attitude pertaining to the truth or falsity of the published
statements rather than upon any hatefulness or ill-will.” Van Straten, 151 Wis.2d at
917, 447 N.W.2d at 110. Indeed, to
survive summary judgment “[t]he plaintiff must show ‘that the defendant in fact
entertained serious doubts as to the truth of [the] publication.'” Id. (quoting St. Amant
v. Thompson, 390 U.S. 727, 731 (1968)).
Bay View Packing and
Liebner attempt to establish “actual malice” by pointing to the fact that
Liebner called Henry shortly before the 6:00 p.m. WISN TV newscast and told her
that she did not have her “facts straight,” and that Bay View Packing was
recalling its products. This assertion
does not show by clear and convincing evidence that Henry either had “actual
knowledge” that the report was false, or that she “entertained serious doubts”
as to the truth of her reports.
Further, “mere proof of failure to investigate the accuracy of a
statement, without more, cannot establish reckless disregard for the truth.” Van Straten, 151 Wis.2d at
918, 447 N.W.2d at 111. Indeed, it is
undisputed that Henry asked Liebner to appear on camera to give Bay View
Packing’s “side of the story.” Liebner
declined, but Henry still reported that according to Liebner, Bay View Packing
was “cooperating with the FDA and USDA” and that “no product made after the
boil advisory ever hit the shelves.” In
addition, the plaintiffs make no showing that either Taff or Burns Wolfe had
knowledge that Henry's story was false or that they “entertained serious
doubts” as to the truth of the newscasts.
In short, the summary
judgment materials do not establish “actual malice” on the part of any of the
WISN TV defendants. As such, the trial
court properly granted their motion for summary judgment dismissal because it
is clear that the plaintiffs cannot recover under any circumstance. Barillari, 194 Wis.2d at 256,
533 N.W.2d at 762.
F. Defamation Claim
Against Vlasak.
The only remaining issue
we must review is whether the trial court properly granted summary judgment
dismissal to Vlasak. Vlasak made the
following statements in the WISN TV newscasts: (1) “It’s either Bay View or
Lake Side. That’s pickled eggs, pickled
pigs feet or cooked turkey gizzards;” and (2) “Bay View they’ve got the USDA
and FDA to contend with.” The trial
court concluded that the uncontroverted summary judgment materials establish
that Vlasak’s statements were substantially true. We agree with the trial court.
In a defamation action,
the defendant must make a false statement concerning another. Van Straten, 151 Wis.2d at
912, 447 N.W.2d at 108 (citation omitted).
Therefore, “substantial truth” is the ultimate defense to a defamation
action. See Prahl v.
Brosamle, 98 Wis.2d 130, 141, 295 N.W.2d 768, 776 (Ct. App. 1980). In his deposition, Liebner admitted that
both of Vlasak’s statements were true.
Accordingly, the trial court properly granted summary judgment dismissal
to Vlasak because he could not recover under any circumstance. Barillari, 194 Wis.2d at 256,
533 N.W.2d at 762.
III. Conclusion.
We conclude that the
summary judgment materials establish, as a matter of law, that Bay View Packing
and Liebner were involuntary limited purpose public figures with respect to the
alleged defamatory statements made by the WISN TV defendants. Further, the summary judgment materials do
not establish that the WISN TV defendants made the alleged defamatory
statements with actual malice; thus, the trial court properly granted summary
judgment dismissal on their behalf.
Finally, we conclude that the summary judgment materials establish that
Vlasak’s alleged defamatory statements were substantially true and that the
trial court properly granted summary judgment dismissal on his behalf.
By the Court.—Judgments
affirmed.
[1] Cryptosporidium
are minute protozoans that are “parasitic in the intestinal tracts of many
different vertebrates, including reptiles, birds, and mammals and are an
uncommon cause of diarrhea in humans.” Dorland's Illustrated Medical Dictionary
400 (28th ed., 1994). Infection with
the protozoans is known as cryptosporidiosis. Id.
Infection in “immunocompetent persons ... causes a self-limited diarrhea
syndrome,” however, in “immunocompromised patients” infection causes “prolonged
debilitating diarrhea, weight loss, fever, and abdominal pain, with occasional
spread to the trachea and bronchial tree.”
Id.
According to the WISN TV defendants' uncontroverted summary judgment materials, by the end of the outbreak, an estimated 400,000 Milwaukee residents contracted cryptosporidiosis, allegedly causing severe digestive illness in most and allegedly leading to the death of over fifty residents with weakened immune systems.
[2] Both the FDA and USDA had jurisdiction over different segments of Bay View Packing's product line.
[3] The parties agree that Henry's use of the term “May” was misstatement that has no bearing on the dispositive issues in this case.
[4] “Summary judgment occupies a position of great importance in libel actions as compared with other civil actions, due to the possible chilling effect on constitutionally protected speech which would result from the defense of defamation claims.” Sunshine Sportswear & Elecs., Inc., v. WSOC Television, Inc., 738 F. Supp. 1499, 1505 (D. S.C. 1989).
[5] We note that the
United States Supreme Court has only required that the “constitutional
privilege” be applied to media defendants facing defamation claims from public
officials or public figures. It has not
yet ruled on whether non-media defendants facing defamation claims from public
figures have the same constitutional privilege. Further, this remains an open question under Wisconsin law
because the Wisconsin Supreme Court has not definitively addressed this issue
either. See Denny v.
Mertz, 106 Wis.2d 636, 660-61, 318 N.W.2d 141, 152-53 (determining that
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), does not
require that non-media defendants are entitled to the constitutional
privilege), cert. denied, 459 U.S. 883 (1982); Calero v. Del Chem.
Corp., 68 Wis.2d 487, 505-06, 228 N.W.2d 737, 747-48 (1975) (concluding
that purely private defamations are not entitled to constitutional privileges);
cf. Polzin v. Helmbrecht, 54 Wis.2d 578, 586, 196 N.W.2d
685, 689 (1972) (holding New York Times privilege does apply to
non-media defendant facing defamation claim from media plaintiff: “We think
critics of the media, like appellant here, are entitled to the same protections
as were provided for the media in the New York Times ...
case[].”). But see Dalton
v. Meister, 52 Wis.2d 173, 183, 188 N.W.2d 494, 499 (1971) (“The Times-Sullivan
rule is not confined to news media and free press but also applies to private
individuals and free speech in some cases.” (Emphasis added.)), cert.
denied, 405 U.S. 934 (1972); Harris v. Quadracci, 48 F.3d
247, 253 & n.8 (7th Cir. 1995) (concluding that federal courts have
“determined that Wisconsin law allows the application of the `actual malice'
standard to at least some non-media defendants.”); Underwager v. Salter,
22 F.3d 730, 734-35 (7th. Cir.) (concluding plaintiffs had not persuaded
federal court of appeals that Wisconsin courts made a distinction between media
and non-media defendants in defamation actions), cert. denied, 115 S.
Ct. 351 (1994).
In the case at bar, the WISN TV defendants are all media defendants, and thus, the constitutional privilege applies. While Vlasak is not a media defendant, we need not resolve the question of whether the constitutional privilege applies to him because we resolve the claim against him on other grounds. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).
[6] While other jurisdictions have questioned whether the Denny v. Mertz, factors and the Wiegel v. Capital Times Co., 145 Wis.2d 71, 426 N.W.2d 43 (Ct. App. 1988), standards differ, see Harris, 48 F.3d at 251 n.6, we conclude that Wiegel essentially expands and provides more depth to the second of Denny's two prongs. Hence, the two cases should not be viewed as inconsistent.