Miller v. Nestande

Factual and Procedural Background

Miller, a highly decorated United States Marine Corps fighter pilot, was shot down on October 13, 1967, while leading a mission over North Vietnam. He was captured and held prisoner by the North Vietnamese for five and one-half years. During this time, he and fellow prisoners suffered extreme abuse from their captors. Unlike most of his fellow prisoners, after several years of captivity he voluntarily made antiwar communications at the behest of the North Vietnamese.

After his release, Miller was charged with violating the Uniform Code of Military Justice, and issued an administrative letter of censure by the Secretary of the Navy stating his conduct while a prisoner did not meet the high standard required of military officers and was severely detrimental, to the welfare and the morale of his fellow prisoners.^[1]

On July 9, 1979, Miller was appointed to the Orange County Board of Supervisors. Miller’s appointment created a media furor in light of his activities while a prisoner. Both before and after his appointment, Miller was the subject of numerous news articles recounting his conduct while imprisoned. Many articles contained statements from fellow prisoners, most of whom scathingly denounced Miller’s lack of patriotism. An in-depth history of the commissioned officers held captive in North Vietnam was published in 1976.^[2] This detailed treatise along with many published articles, was submitted as an exhibit in support of the motions for summary judgment and contrasts Miller’s conduct with that of the many prisoners who suffered severe torture without succumbing to these pressures by voluntarily broadcasting or otherwise aiding their captors.

We stress the only ground raised in the motion for summary judgment was that there was no triable issue of fact as to whether Nestande or the POW’s had acted with actual malice. Although each raised an affirmative defense of truth by answer there was no attempt to establish the truth of the allegedly defamatory material at summary judgment. Instead, the evidence submitted in support of the motions consisted solely of self-serving declarations to the effect that each defendant had a good faith belief those allegations were true, accompanied by a compilation of published materials purporting to describe Miller’s objectionable conduct while imprisoned.

The defendants do not contend the distributed statements are not defamatory or that they were not intentionally disseminated in an effort to prevent Miller from retaining public office. Further, there is no dispute but that the allegations were represented as statements of fact, not expressions of opinion. Therefore, for the purpose of the appeal, we assume there has been publication of false information which is libelous per se.^[3]

The latest judicial dune in the shifting decisional sands underlying the law of defamation regarding public figures was sculptured by Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242 [ 91 L.Ed. 2d 202 , 106 S.Ct. 2505 ] when the United States Supreme Court held that summary judgment is appropriate upon a properly supported motion unless a public-figure plaintiff affirmatively establishes by clear and convincing evidence a genuine issue of fact exists as to whether actual malice can be established at trial. (Id. at p. 257 [91 L.Ed.2d at p. 217].) Relying on language in Rebozo v. Washington Post Co. (5th Cir. 1981) 637 F.2d 375 , 381, the California Supreme Court had earlier adopted the same standard in Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at page 252. Thus, the trial court correctly evaluated the evidence to determine whether Miller could produce clear and convincing evidence of actual malice at trial.

Miller argues Anderson's heavy burden to avoid summary judgment in defamation cases is not shifted to a plaintiff except where it is necessary to protect the news media when it criticizes conduct of public officials in their official capacity. However, the plaintiffs to whom that burden was affixed in Anderson and Reader’s Digest were not public officials, but only “public figures.”^[4] (Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at p. 244 [91 L.Ed.2d at p. 209]; Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 256.) In each of those cases, the court required the plaintiffs to establish they had the ability at trial to clearly and convincingly prove the statements were published with knowledge they were false or with reckless disregard of whether they were false or not. This is the classic standard from New York Times Co. v. Sullivan, supra, 376 U.S. at pages 279-280 [11 L.Ed.2d at p. 706], where the Supreme Court “fundamentally altered judicial treatment of defamation actions by placing [this] significant constitutional limitation on the ability of a public official to recover damages for a defamatory falsehood.” (Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 252.) It applies not only to “public figures” (Gertz v. Robert Welch, Inc., supra, 418 U.S. at pp. 335-336, 342-343 [ 41 L.Ed.2d 789 , 803, 807]; Curtis Publishing Co. v. Butts (1967) 388 U.S. 130 , 154-155 [18

Ill

Even so, Miller claims neither the Anderson evidentiary burden nor the New York Times actual malice test protects nonmedia defendants like Nestande and the pamphleteering ex-prisoners. Although the United States Supreme Court has yet to directly address whether a public or private figure libeled by allegations relating to matters of public concern must prove those statements to be false or reckless when made by nonmedia defamers (Philadelphia Newspapers, Inc. v. Hepps, supra, 475 U.S. at p. 779, fn. 4 [89 L.Ed.2d at p. 794]; Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) 472 U.S. 749 , 753-754 [ 86 L.Ed.2d 593 , 598-599, 105 S.Ct. 2939 , 2942]), at least two Justices (Brennan and Blackmun) (Philadelphia Newspapers, Inc. v. Hepps, supra, 475 U.S. at pp. 779-780 [89 L.Ed.2d at p. 795] (conc. opn. of Brennan, J.)) and maybe more (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., supra, 472 U.S. at p. 781 [86 L.Ed.2d at p. 617, 105 S.Ct. at pp. 2957-2959] (dis. opn. of Brennan, J.)); Comment, Dun & Bradstreet v. Greenmoss: Cutting Away the Protective Mantle of Gertz (1986) 37 Hastings L.J. 1171 , 1192) would make no distinction. Such rationale is based on the perception that First Amendment publications are rooted in the inherent worth of informing the public, not on the identity of the source. (Philadelphia Newspapers, Inc. v. Hepps, supra, 475 U.S. at pp. 779-780 [89 L.Ed.2d at p. 795] (conc. opn. of Brennan, J.)); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., supra, 472 U.S. at p. 781 [86 L.Ed.2d at p. 617, 105 S.Ct. at p. 2957] (dis. opn. of Brennan, J.).)^[5]

Here, Miller first pointedly interjected his military record and his North Vietnamese imprisonment into his campaign in a mailer portraying a Marine Corps insignia and a POW bracelet with his rank, name and date of capture. This fund solicitation begins:

“Dear Fellow Americans:

“For 5-1/2 years I was a POW in North Vietnam.

“I know you remember me because you were one of the people who wore a POW bracelet with my name on it or wrote to me and my family____

“... Now that I have left the military, I want to continue serving my country in government. I want to bring to elected office the same strong feelings you and I shared in the past: patriotism, honesty, decency, and concern for our fellow man.”

Miller’s flyer heavily emphasizes his status as, and impliedly his conduct while, a prisoner. Whatever privacy expectations he might have had regarding his activities during that time became irrelevant when he directly injected this factor into his campaign.^[6] Nestande’s rebuttal mailer describing

Miller argues the New York Times standard applies only to statements criticizing his conduct in the performance of his official duties. He cites the passage “[t]he constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for 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.” (New York Times Co. v. Sullivan, supra, 376 U.S. at pp. 279-280 [11 L.Ed.2d at p. 706], italics added.) Miller cites no cases which expressly restrict the scope to “official conduct.” The very application of the actual malice protection to public figures, who do not hold public office, shows the fallacy in Miller’s narrow interpretation. (See Gertz v. Robert Welch, Inc., supra, 418 U.S. at pp. 335-336, 342-343 [41 L.Ed.2d at pp. 803, 807]; Curtis Publishing Co. v. Butts, supra, 388 U.S. at pp. 154-155 [18 L.Ed.2d at p. 1111]; Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 253; Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415 , 432 [ 142 Cal.Rptr. 304 ], disapproved on other grounds in McCoy v. Hearst Corp. (1986) 42 Cal.3d 835 , 847, fn. 9 [ 231 Cal.Rptr. 518 , 727 P.2d 711 ].) Further, numerous decisions have applied the New York Times standard to published allegations defaming public figures in regards other than their conduct in public office. For instance, in Noonan v. Rousselot (1966) 239 Cal.App.2d 447 [ 48 Cal.Rptr. 817 ], the defamed plaintiff was a nonincumbent candidate for public office “smeared” when an opposing Republican primary candidate alleged he was the lackey of left-wing Democrats. This political character assassination attempt was deemed subject to the New York Times test. (Id. at p. 451.) Further, the alleged libels in Anderson v. Liberty Lobby, Inc., supra, 472 U.S. 242 [ 91 L.Ed.2d 202 ], were an investigative reporter’s depiction of a self-described “citizens lobby” and its founder as neo-nazi, antisemitic, racist and fascist. These epithetic characterizations were held to require summary judgment review according to the New York Times standard.