Walpole v. Charleston County ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Amy Garrard and Lee Garrard, Guardians Ad Litem for
R.C.G., A Minor; and Dean Frailey and Kathryn Frailey,
Guardians Ad Litem for C.F., A Minor, Richard Nelson
and Cheryl Nelson, Guardians Ad Litem for D.G.N., A
Minor; Adam Olsen Ackerman; and A.E.P., III,
Plaintiffs,
v.
Charleston County School District, Kevin Clayton, Axxis
Consulting Company, and Jones Street Publishers, LLC,
Defendants,
And
Eugene H. Walpole, Plaintiff,
v.
Charleston County School District, Kevin Clayton, Axxis
Consulting Company, and Jones Street Publishers, LLC,
Defendants,
Of Whom Eugene H. Walpole, Amy Garrard and Lee
Garrard, Guardians Ad Litem for R.C.G., A Minor; and
Dean Frailey and Kathryn Frailey, Guardians Ad Litem
for C.F., A Minor, Richard Nelson and Cheryl Nelson,
Guardians Ad Litem for D.G.N., A Minor; Adam Olsen
Ackerman; and A.E.P., III, are the Appellants,
And
Of Which Jones Street Publishers, LLC, is the
Respondent.
Appellate Case No. 2016-002525
Appeal From Charleston County
Jean H. Toal, Circuit Court Judge
Opinion No. 5691
Heard April 1, 2019 – Filed November 6, 2019
AFFIRMED
John E. Parker and William F. Barnes, III, of Peters,
Murduagh, Parker, Eltzroth, & Detrick, P.A., of
Hampton, for Appellants.
Wallace K. Lightsey and Meliah Bowers Jefferson, of
Wyche, PA, of Greenville, for Respondent.
GEATHERS, J.: In this defamation action, Appellants—six members of the
2014-2015 Academic Magnet High School (AMHS) football team and their head
coach, Eugene Walpole (Coach Walpole)—appeal the circuit court's order granting
summary judgment to Respondent Jones Street Publishers. Appellants contend the
circuit court erred in (1) finding the statements of fact in certain articles published
by Jones Street Publishers are protected by the fair report privilege, (2) finding the
opinions expressed in the articles are not actionable, (3) finding Appellants have not
shown proof of injury to reputation, (4) finding the alleged defamatory statements
were not "of and concerning" the students, and (5) finding Coach Walpole has not
shown that Jones Street Publishers acted with actual malice. We affirm.
FACTS/ PROCEDURAL HISTORY
Appellants initiated this defamation action against Jones Street Publishers
following its publication of two opinion editorials in the Charleston City Paper (City
Paper)1 concerning a post-game watermelon ritual performed by the AMHS football
team. News regarding the watermelon ritual began on October 21, 2014, when the
1
Jones Street Publishers owns and publishes the City Paper.
superintendent of Charleston County School District (the School District), Dr.
Nancy McGinley, issued a press release stating,
There was an allegation related to inappropriate post game
celebrations by the Academic Magnet High School
(AMHS) Football Team. An investigation was conducted
and, as a result of the investigation, the head football coach
will no longer be serving as a coach for Charleston County
School District.
Following this press release, Superintendent McGinley held a press
conference in which she described the post-game ritual that prompted the
investigation. Superintendent McGinley stated that "allegations" were brought to
her attention by one of the School District's board members who indicated AMHS's
football team was practicing a watermelon ritual that involved students making
"monkey sounds" as part of their post-game celebration. She expressed that the
board member was concerned about the "racial stereotypes related to this type of
ritual." Superintendent McGinley contacted AMHS's principal to investigate the
matter. The principal indicated that "the coaches were aware of the ritual following
the victories[,] but they did not observe any cultural insensitivities." The principal
reported back to Superintendent McGinley that it was an "innocent ritual."
However, Superintendent McGinley decided that further investigation was
necessary because the board member stated that the football team engaged in a
"tribal-like chant that [was] animalistic or monkey-like."
Superintendent McGinley asked the School District's diversity consultant,
Kevin Clayton and Associate Superintendent Louis Martin to conduct the
investigation. Mr. Clayton and Mr. Martin interviewed the students on the football
team and the coaches. The investigation revealed that "players would gather in a
circle and smash the watermelon while others were either standing in a group or
locking arms and making chanting sounds that were described as 'Ooo ooo ooo,' and
several players demonstrated the motion." Superintendent McGinley stated the
AMHS team named the watermelons "Bonds Wilson"2 and drew a face on each
watermelon "that could be considered a caricature." A copy of the caricature that
2
Bonds Wilson is the name of a formerly segregated African-American school that
was located at the campus where AMHS is now located and was named in honor of
two prominent African-American educators from Charleston.
was drawn on the watermelons was shown at the press conference.3 Superintendent
McGinley concluded the press conference by stating that it was "our conclusion that
the accountability lies with the adults" and that the Charleston County School
District (the School District) had "taken action to relieve the head coach of his
responsibilities." No students were named during the press conference.
After the press conference, several news media outlets ranging from national
publications to the AMHS's newspaper reported on the firing of Coach Walpole, and
numerous commentators expressed their opinions concerning the post-game ritual.
City Paper's editor, Chris Haire, watched Superintendent McGinley's press
conference by a live television broadcast from the School District's public hearing
room. After viewing the press conference, Mr. Haire wrote an opinion editorial
about the events described entitled, "Melongate: Big toothy grins, watermelons, and
monkey sounds don't mix," which was published in the City Paper on October 21,
2014. The article, in its entirety, provided,
Today, Charleston was consumed by one story and one
story only: the removal of Academic Magnet football
coach Bud Walpole amid allegations that his players more
or less behaved like racist douchebags. And if there's one
lesson to be learned from all of this[,] it's this: big toothy
grins, watermelons, and monkey noises don't mix. Any
sensible person can see that.
Apparently not. And apparently not the coaching staff and
the players on the Academic Magnet Raptors.
Somewhere along the way in this year's unexpectedly
successful season, the Raptors took a liking to buying
watermelons before their games. They apparently drew a
face on it each time—a big toothy, grinning face. The first
time the watermelon was named Junior. The next time it
was Bonds Wilson, the name of the campus the AMHS
shares with School of the Arts. That name stuck.
But here's where the things get even worse. At the close
of each game, the players smashed the watermelon on the
3
The picture was drawn by the same football player who drew the faces on the
watermelons during most of the post-game celebrations.
ground while reportedly making the monkey-like sounds
of 'ooh ooh ooh ooh.' Apparently, the players did this after
four or five games, each time evidently after the largely
white Raptor squad beat one of their opponents, each one
largely an African-American team. Parents of players on
one of the opposing teams reportedly brought this to the
attention of African-American Board member Michael
Miller last week.
That the coaching staff of the Academic Magnet Raptors
and none of its players, including at least one African-
American, didn't see the trouble with this toxic
combination of monkey sounds, toothy grins, and
watermelons is at best baffling and at worst indicative of
the casual acceptance of racism in Charleston today, even
among the best and brightest that the county has to offer.
After all, AMHS is not only the No. 1 ranked school in the
state, it's one of the tops in the nation[].
Seriously, did everyone at AMHS forget the last 100 years
of American history? Did they forget about blackface,
Buckwheat, and Birth of a Nation? Did they forget about
minstrel shows? Did they forget about Coons Chicken,
lawn jockeys, golliwogs, and the like? Apparently so. I
don't know about you, but I think it's time to reconsider
Academic Magnet's rankings because clearly they are
producing nothing more than grade-A dumbas[***].
Even more troubling is the degree to which Raptor Nation
has circled the wagons around Walpole and the team.
Frankly, this has nothing to do with the fact that the coach
is by all accounts a good man. Walpole's merits are
meaningless.
The point is that an entire team of players thought it was
OK to draw a grinning face on a watermelon, smash it on
the ground each time they beat a largely black team, and
make monkey noises—and no one apparently told them to
stop.
No one said, "Hey guys, I know not a single one of you
has a racist bone in your body, you know, because that's a
bad thing, and well, you're an Academic Magnet kid, and
you come from a good middle-class white family and
you're going to college, and there's no way in hell you'd,
you know, draw a racist caricature on a watermelon and
make monkey noises and do it fully aware of, like, what
all that stuff means, because if you did, knowing all that
stuff, then yikes, people might start thinking you're racists.
Hell, I'd think you're a racist, and, well, I just don't know
if I can deal with the fact that Charleston's best and
brightest students are racist douchebags. I mean, it's just
a joke right? Right?"
Actually, it’s not. It's the sad truth about life here in
Charleston, S.C. today.
In a reversal, Superintendent McGinley issued a press statement on October
22, 2014 indicating she was reinstating Coach Walpole as head coach and that he
would resume his coaching duties on October 23, 2014. Shortly thereafter, the
Charleston County School Board announced the resignation of Superintendent
McGinley.4 Following this announcement, Mr. Haire wrote a second article entitled,
"Mob Rules: School district forces out superintendent who fired coach who
condoned racist ritual." This article was published in the City Paper on November
5, 2014.
Later that month, six members of the AMHS football team filed a defamation
complaint against Jones Street Publishers, the School District, Kevin Clayton, and
Axxis Consulting Company.5 In December 2014, Coach Walpole also filed a
defamation complaint against the same defendants. Both cases were consolidated
on October 23, 2015.6
Appellants alleged the two opinion editorials contained defamatory
statements. Specifically, as to the article "Melongate," Appellants argued the
4
The record is unclear regarding the reason for Superintendent McGinley's
resignation.
5
Mr. Clayton was an employee of Axxis Consulting Company.
6
This appeal solely concerns Jones Street Publishers. The record does not contain
any details regarding the outcome of Appellants' claims against the other defendants.
reference to the students as "racist douchebags" was defamatory, and as to the article
"Mob Rules," Appellants argued the title of the article itself was defamatory because
it stated Coach Walpole "condoned a racist act." Appellants also alleged Jones Street
Publishers damaged their reputations "by publishing articles that accused
[Appellants] of participating in racially-motivated post-game celebration rituals."
Essentially, Appellants argued the articles implied that the football team and the
coach were racist.
Jones Street Publishers moved for summary judgment, and a hearing was held
on October 11, 2016. Jones Street Publishers argued the following facts were
reported by the City Paper in its publications: "the fact that watermelons were
smashed as part of this ritual, that there was a face drawn on them, that there was a
caricature, that monkey sounds were made, [that] the ritual took place and that a
watermelon was named Bonds Wilson." Jones Street Publishers maintained that
these facts were protected by the fair report privilege because "all of the facts came
from the press conference that the Charleston County School District held to report
its finding of its investigation of the ritual." As for the remaining content in the
articles, Jones Street Publishers argued that "[the] City Paper gave its editorial view
of those facts, its view of what had happened." Specifically, Jones Street Publishers
indicated the following to be its editorial viewpoint of those facts:
That the football players had behaved like racist
douchebags, that if they did not realize that their actions
would be perceived as racially offensive, that that was
indicative of the casual acceptance of racism in Charleston
today, that the school had not taught its students about the
history of the watermelon trope, and it was turning out a
bunch of grade A dumbas[***] and not the best and
brightest and that this was a racist ritual, a racist behavior,
on the part of the people [who] participated in it.
Jones Street Publishers argued the opinions were protected by the First Amendment.7
Additionally, Jones Street Publishers produced affidavits from two of its editors
indicating that they had no reason to doubt the truth of the statements made by
Superintendent McGinley at the press conference.
Appellants opposed Jones Street Publishers' motion for summary judgment,
arguing Jones Street Publishers acted with actual malice by "labeling" the students
7
U.S. Const. amend. I.
and coach "as racist douchebags without any investigation, without any evidence,
without anything to come to that conclusion . . . ." Appellants argued Jones Street
Publishers was negligent "because they made no effort to find the truth," and "made
up the fact that the students and coaches are racist douchebags." Instead, Appellants
asserted the players' motives were not racially based but more akin to the movie
Castaway where Tom Hanks drew a face on a volleyball and named it "Wilson;"
here, the football players drew a face on the watermelon and named it "Bonds-
Wilson." Appellants argued the testimony in their case would prove "their
intentions."
First, the circuit court found that all of the factual statements in the articles
were "accurate reproductions of comments made publicly by School District
officials, and thus [were] protected by the fair report privilege." Next, the circuit
court found the remaining statements in the articles were "merely expressions of the
writer's opinions and ideas on a matter of public concern. Under established First
Amendment jurisprudence, Jones Street [Publishers] cannot be held liable for such
statements." The circuit court stressed that the "subject of the Jones Street
publications addressed a matter of public concern." To this point, the circuit court
stated,
The AMHS football team's ritual, the School District's
investigation into the AMHS football team's ritual, and
Coach Walpole's removal as head coach of the team were
subjects of great interest to the Charleston Community and
garnered widespread coverage from media outlets both
locally and throughout the United States. The controversy
involved allegations of racial insensitivity in a city steeped
with a historical legacy of racial tension. When viewing
the record as a whole, there is little doubt that the speech
at issue in this case was addressed to a matter of public
concern.
The court indicated that it was "settled law that expressions of opinion on matters of
public concern are immune from liability for defamation." The court noted that once
the factual statements in the articles that summarized the statements made by the
School District are removed, none of the remaining statements "assert[] any
verifiable, objectively provable fact. They are expressions of the editorial writer's
ideas and opinions, using rhetorical hyperbole to emphasize his views." The court
further stated,
Whether the football players acted like "racist
douchebags," whether the team's failure to perceive the
negative racial connotations of their actions is "indicative
of the casual acceptance of racism in Charleston today,"
whether the watermelon ritual was an act that "any
sensible outside observer" would "perceive[] as racist," or
an example of "inadvertently . . . hurtful racially offensive
behavior"—these are all statements on which different
persons could have different views and sentiments. In
fact, many people did express different views on the
matter[,] and it was a highly contested issue for the School
District. None of the statements, as expressed in the Jones
Street publications, are statements of fact that can be
objectively proved or disproved in a court of law.
Lastly, the circuit court found that Appellants failed to produce any evidence
of either special damages or general damages arising from an injury to their
reputations as a result of the City Paper publications. Specifically, the court noted
that the alleged defamatory statements were not "'of and concerning' [Appellants],
in that they refer to the entire football team and not to any of [Appellants]
individually." In regard to Coach Walpole, the court found that he was a public
official and noted that "public school teachers and athletic coaches have been held
to be public officials." Therefore, Coach Walpole was required to prove that Jones
Street Publishers acted with actual malice. The circuit court determined that Coach
Walpole failed to prove actual malice. The court noted that there was evidence from
Jones Street Publishers' editors indicating that "they had no reason to doubt that the
reported information was anything other than completely true and accurate." The
court found that Coach Walpole failed to "direct the [c]ourt to a single line of
testimony in the depositions or any passage of the publications that constitutes
evidence that anyone at Jones Street [Publishers] knew of any false statement in the
editorials or articles or in fact entertained serious doubts as to the truthfulness of
them." The circuit court granted Jones Street Publishers' motion for summary
judgment and this appeal followed.
ISSUES ON APPEAL
1. Did the circuit court err in finding the statements of fact in the articles were
protected by the fair report privilege?
2. Did the circuit court err in finding the opinions expressed in the articles were
not actionable?
3. Did the circuit court err in finding Appellants did not show proof of injury to
reputation?
4. Did the circuit court err in finding the alleged defamatory statements were not
"of and concerning" the students?
5. Did the circuit court err in finding Coach Walpole did not show that Jones
Street Publishers acted with actual malice?
STANDARD OF REVIEW
"When reviewing the grant of summary judgment, the appellate court applies
the same standard applied by the [circuit] court pursuant to Rule 56(c), SCRCP."
Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). Summary
judgment shall be granted when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Rule 56(c), SCRCP. "Summary judgment should
be granted when plain, palpable, and indisputable facts exist on which reasonable
minds cannot differ." Pee Dee Stores, Inc. v. Doyle, 381 S.C. 234, 240, 672 S.E.2d
799, 802 (Ct. App. 2009).
"When determining if any triable issues of fact exist, the evidence and all
reasonable inferences must be viewed in the light most favorable to the non-moving
party." Fleming, 350 S.C. at 493–94, 567 S.E.2d at 860. "[S]ummary judgment is
not appropriate when further inquiry into the facts of the case is desirable to clarify
the application of law." Pee Dee Stores, 381 S.C. at 240, 672 S.E.2d at 802. "If
triable issues exist, those issues must go to the jury." BPS, Inc. v. Worthy, 362 S.C.
319, 325, 608 S.E.2d 155, 158 (Ct. App. 2005). "A jury issue is created when there
is material evidence tending to establish the issue in the mind of a reasonable juror."
Jackson v. Bermuda Sands, Inc., 383 S.C. 11, 17, 677 S.E.2d 612, 616 (Ct. App.
2009). "However, this rule does not authorize submission of speculative, theoretical,
and hypothetical views to the jury." Id. (quoting Small v. Pioneer Mach., Inc., 329
S.C. 448, 461, 494 S.E.2d 835, 841 (Ct. App. 1997)). Moreover, "[i]f evidentiary
facts are not disputed, but the conclusions or inferences to be drawn from them are,
summary judgment should be denied." Pee Dee Stores, 381 S.C. at 240, 672 S.E.2d
at 802.
"The purpose of summary judgment is to expedite disposition of cases [that]
do not require the services of a fact finder." George v. Fabri, 345 S.C. 440, 452,
548 S.E.2d 868, 874 (2001). "[W]hen a party has moved for summary judgment[,]
the opposing party may not rest upon the mere allegations or denials of his pleading
to defeat it." Fowler v. Hunter, 380 S.C. 121, 125, 668 S.E.2d 803, 805 (Ct. App.
2008). "Rather, the non-moving party must set forth specific facts demonstrating to
the court there is a genuine issue for trial." Id. Furthermore, "where the federal
standard applies or where a heightened burden of proof is required, there must be
more than a scintilla of evidence in order to defeat a motion for summary judgment."
Hancock v. Mid-S. Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009). Thus,
"the appropriate standard at the summary judgment phase on the issue of
constitutional actual malice is the clear and convincing standard." George, 345 S.C.
at 454, 548 S.E.2d at 875. "Unless the [circuit] court finds, based on pretrial
affidavits, depositions or other documentary evidence, that the plaintiff can prove
actual malice, it should grant summary judgment for the defendant." McClain v.
Arnold, 275 S.C. 282, 284, 270 S.E.2d 124, 125 (1980).
LAW/ANALYSIS
I. Legal Background
"The tort of defamation allows a plaintiff to recover for injury to her reputation
as the result of the defendant's communication to others of a false message about the
plaintiff." Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 508, 506
S.E.2d 497, 501 (1998). "Slander is a spoken defamation while libel is a written
defamation or one accomplished by actions or conduct." Id. "To establish a
defamation claim, a plaintiff must prove: (1) a false and defamatory statement was
made; (2) the unprivileged statement was published to a third party; (3) the publisher
was at fault; and (4) either the statement was actionable regardless of harm or the
publication of the statement caused special harm." West v. Morehead, 396 S.C. 1,
7, 720 S.E.2d 495, 498 (Ct. App. 2011); Erickson v. Jones Street Publishers, LLC,
368 S.C. 444, 465, 629 S.E.2d 653, 664 (2006); Fleming v. Rose, 350 S.C. 488, 494,
567 S.E.2d 857, 860 (2002).
However, there are certain communications that give rise to qualified
privileges. West, 396 S.C. at 7, 720 S.E.2d at 498. One of the qualified privileges
recognized as a common law and constitutional privilege by South Carolina courts
is the "fair report" privilege. See generally Padgett v. Sun News, 278 S.C. 26, 38,
292 S.E.2d 30, 37 (1982) (Ness, J., dissenting) (recognizing a constitutional basis
for the common law privilege of fair report).
II. Fair Report Privilege
The fair report privilege is "the privilege to publish fair and substantially
accurate reports of judicial and other governmental proceedings without incurring
liability." West, 396 S.C. at 7, 720 S.E.2d at 498; Padgett, 287 S.C. at 33, 292 S.E.2d
at 34 (indicating that to hold a publisher liable for an accurate report of a public
action or record would constitute liability without fault and would "make it
impossible for a publisher to accurately report a public record without assuming
liability for the truth of the allegations contained in such record"); Reuber v. Food
Chem. News, Inc., 925 F.2d 703, 712 (4th Cir. 1991) (en banc) ("The fair report
privilege encourages the media to report regularly on government operations so that
citizens can monitor them."). Additionally, "[f]air and impartial reports in
newspapers of matters of public interest are qualifiedly privileged." Jones v. Garner,
250 S.C. 479, 487, 158 S.E.2d 909, 913 (1968). "It is not necessary that [the report]
be exact in every immaterial detail or that it conform to that precision demanded in
technical or scientific reporting. It is enough that it conveys to the persons who read
it a substantially correct account of the proceedings." Restatement (Second) of Torts
§ 611 cmt. f (Am. Law. Inst. 1977).
Furthermore, the publisher is not required to investigate the truth of the
underlying matter. See Padgett, 278 S.C. at 33, 292 S.E.2d at 34 ("[O]ur decision
in Lybrand v. The State Co.[8] completely refutes the contention that the publisher is
required to go behind the allegations contained in the public record."); see also
Reuber, 925 F.2d at 712 ("In return for frequent and timely reports on governmental
activity, defamation law has traditionally stopped short of imposing extensive
investigatory requirements on a news organization reporting on a governmental
activity or document.").
As to the case at bar, Appellants contend the circuit court erred in holding the
statements of fact in the articles are protected by the fair report privilege. Appellants
argue Jones Street Publishers did not accurately report the statements made by
Superintendent McGinley at the press conference. We disagree.
Under the defense of a qualified privilege, "one who publishes defamatory
matter concerning another is not liable for the publication if (1) the matter is
published upon an occasion that makes it [qualifiedly or] conditionally privileged,
and (2) the privilege is not abused." West, 396 S.C. at 7, 720 S.E.2d at 499 (alteration
in original) (quoting Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C.
8179 S.C. 208, 184 S.E. 580 (1936).
469, 484, 514 S.E.2d 126, 134 (1999)); Jones, 250 S.C. at 487, 158 S.E.2d at 913("[T]he privilege attending the publication of a news report arises by reason of the
occasion of the communication, and a communication or statement [that] abuses or
goes beyond the requirement of the occasion, loses the protection of the privilege.").
"Whether the occasion is one [that] gives rise to a qualified privilege is a question
of law." West, 396 S.C. at 7, 720 S.E.2d at 499. A qualified privilege arises when
there is "good faith, an interest to be upheld, a statement limited in its scope to this
purpose, a proper occasion, and publication in a proper manner and to proper parties
only." Fountain v. First Reliance Bank, 398 S.C. 434, 444, 730 S.E.2d 305, 310
(2012) (quoting Manley v. Manley, 291 S.C. 325, 331, 353 S.E.2d 312, 315 (Ct. App.
1987)). Furthermore, the fair report privilege "extends only to a report of the
contents of the public record and any matter added to the report by the publisher,
which is defamatory of the person named in the public records, is not privileged."
Jones, 250 S.C. at 487, 158 S.E.2d at 913. "Where there is conflicting evidence, 'the
question [of] whether [a qualified] privilege has been abused is one for the jury.'"
West, 396 S.C. at 8, 720 S.E.2d at 499 (second alteration in original) (footnote
omitted) (quoting Swinton Creek, 334 S.C. at 485, 514 S.E.2d at 134).
Here, a review of the "Melongate" article reveals a fair and substantially
accurate report of the statements made by Superintendent McGinley at the press
conference.9 See Jones, 250 S.C. at 487, 158 S.E.2d at 913 ("Fair and impartial
9
We note that at oral argument, Appellants maintained that Jones Street Publishers
did not accurately report the statements made by Superintendent McGinley in an
undated written statement. Superintendent McGinley's written statement provided,
in pertinent part:
[T]here was no evidence to suggest that the football
players understood the negative cultural implications of
their ritual that included buying a watermelon, drawing a
caricature (face) on the watermelon, naming the
watermelon "Bonds-Wilson," transporting the watermelon
on the team bus, sitting it on the team bench and
surrounding and smashing the watermelon after a victory.
However, it was clear the coaches either knew or should
have known about the negative racial stereotypes of this
watermelon ritual.
reports in newspapers of matters of public interest are qualifiedly privileged.").
Jones Street Publishers argued the following were factual statements taken from the
press conference: "watermelons were smashed as part of this ritual," "there was a
face drawn on them, [] there was caricature, [] monkey sounds were made, the ritual
took place and that a watermelon was named Bonds Wilson." All of those statements
were in fact made by Superintendent McGinley at the press conference. The article
included details of how the ritual was performed, the sounds that were allegedly
made by the players as described by Superintendent McGinley, and a description of
the caricature that was shown at the press conference. Furthermore, Superintendent
McGinley stated that all of the details she described were allegations that the school
district was investigating, and the first paragraph of the article informs the reader
that "allegations" were made against the football team.
Additionally, Jones Street Publishers submitted to the circuit court two
affidavits from its editors, including Mr. Haire, indicating they had no reason to
doubt the veracity of the statements made by Superintendent McGinley. See
Fleming, 350 S.C. at 497, 567 S.E.2d at 861–62 ("The evidence shows [respondent]
relied on the results and conclusions of an investigation conducted by two highly
respected investigators. [Respondent] testified he had no reason to doubt the
investigation was not thorough, solid, correct, and truthful. . . . The evidence shows
[respondent] . . . had full faith in the veracity of their report."). Mr. Haire affirmed
that he had known Superintendent McGinley for a period of time and "always
considered her to be completely honest and trustworthy," and consequently relied
upon the conclusion she drew from her in-depth investigations. Thus, Jones Street
Publishers was not required to investigate the statements made by Superintendent
McGinley. See West, 396 S.C. at 11, 720 S.E.2d at 500 ("[T]he mere failure to
investigate an allegation is not sufficient to prove the defendant had serious doubts
about the truth of the publication."); id. ("The media has no duty to verify the
accuracy or measure the sufficiency of a party's legal allegations. The Constitution
does not require that the press 'warrant that every allegation that it prints is true.'"
(quoting Reuber, 925 F.2d at 717)).
Therefore, the circuit court correctly found that the factual statements reported
in City Paper's publications regarding the ritual were accurate accounts of comments
The entirety of the statement recounts events occurring from October 13, 2014 to
October 22, 2014. Thus, it appears the statement was released after the live televised
press conference that occurred on October 21, 2014. Jones Street Publishers
maintained that it relied on the factual statements that were released at the live press
conference.
made publicly by school district officials. See McClain, 275 S.C. at 285, 270 S.E.2d
at 125 (holding summary judgment was proper where newspaper accurately reported
information of a judicial proceeding). Thus, we find the statements of fact are
protected by the fair report privilege. See West, 396 S.C. at 7, 720 S.E.2d at 499
("Under this defense . . . one who publishes defamatory matter concerning another
is not liable for the publication" as long as "the matter is published upon an occasion
that makes it [qualifiedly or] conditionally privileged” and “the privilege is not
abused." (alteration in original)). We further note that Appellants concede in their
brief that,"[a]ny factual reporting by the City Paper regarding actual statements
made by Academic Magnet or [Charleston County School District] officials is
protected by the fair report privilege."
Appellants focus their arguments on the articles' use of the words "racist" and
"racist douchebag." Appellants maintain that characterizing the student's actions as
"racist" does not fall under the fair report privilege. However, Jones Street
Publishers does not contend that using the word "racist" in the articles would fall
under the fair report privilege. The circuit court also made no findings to suggest
that Jones Street Publishers' use of the word "racist" was either protected or not
protected under the fair report privilege. Instead, Jones Street Publishers argued,
and the circuit court found, the remaining statements in the articles were opinions
protected by the First Amendment.
III. Opinions Expressed in the Article
In order to determine the level of protection that the speech at issue is entitled
to under the First Amendment, we must first address whether Jones Street Publishers
reported on a matter of public or private concern.
Matter of Public Concern
Appellants contend the circuit court erred in finding the opinions expressed in
the articles were not actionable because they were expressions of opinions protected
under the First Amendment. Appellants argue Jones Street Publishers should not be
protected "because the statements are assertions that the members of the [AMHS]
football team are racists." Appellants allege Jones Street Publishers' statements
"concerned the character and beliefs" of Appellants and, thus, were a matter of
private, not public, concern. We disagree.
At the heart of the First Amendment's protection is speech on matters of public
concern. Snyder v. Phelps, 562 U.S. 443, 451–52 (2011). "The First Amendment
reflects 'a profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open.'" Id. at 452 (quoting New York Times
Co. v. Sullivan, 376 U.S. 254, 270 (1964)). "That is because 'speech concerning
public affairs is more than self-expression; it is the essence of self-government.'" Id.(quoting Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)). Thus, "speech on
public issues occupies the 'highest rung of the hierarchy of First Amendment values,'
and is entitled to special protection." Connick v. Myers, 461 U.S. 138, 145 (1983)
(quoting N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)).
However, when "matters of purely private significance are at issue, First
Amendment protections are often less rigorous." Snyder, 562 U.S. at 452.
That is because restricting speech on purely private
matters does not implicate the same constitutional
concerns as limiting speech on matters of public interest:
"[T]here is no threat to the free and robust debate of public
issues; there is no potential interference with a meaningful
dialogue of ideas"; and the "threat of liability" does not
pose the risk of "a reaction of self-censorship" on matters
of public import[ance].
Id. (first alteration in original) (quoting Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749, 760 (1985)).
"Speech deals with matters of public concern when it can be fairly considered
as relating to any matter of political, social, or other concern to the community, or
when it is a subject of legitimate news interest; that is, a subject of general interest
and of value and concern to the public." Id. at 453 (citations and internal quotation
marks omitted). "Whether . . . speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by
the whole record." Connick, 461 U.S. at 147–48. "In considering content, form, and
context, no factor is dispositive, and it is necessary to evaluate all the circumstances
of the speech, including what was said, where it was said, and how it was said."
Snyder, 562 U.S. at 454; see Connick, 461 U.S. at 148 n.7 ("The inquiry into the
protected status of speech is one of law, not fact.").
First, we note that Appellants conceded this issue and agreed with the circuit
court that the speech was a matter of public concern. The following colloquy
occurred between Appellants' counsel and the circuit court regarding whether the
speech at issue was a matter of public or private concern:
THE COURT: Tell me this. With respect to, of course,
you got two different kind[s] of [plaintiffs]. You have Mr.
Walpole, then you have the players, team players. Do you
seriously contend this is not a matter of public interest?
[APPELLANTS]: I don't contend that. For the coach it is.
I don't think that as far as the kids it is. I think that the kids
have a different standard. I think the coach—
THE COURT: Why is it a public—matter of public
interest as far as the coach is concerned? He may be a
public figure. They may be private figures, but the event
is the event. Why [isn’t it] equally a matter of public
interest whether a bunch of kids did it or the coach or both
of them?
[APPELLANTS]: I don't seriously contend that is not a
matter of public interest. I think that it probably was and
is.
Because Appellants conceded this issue at the summary judgment hearing, they
cannot now argue the issue on appeal. See TNS Mills, Inc. v. S.C. Dep't. of Revenue,
331 S.C. 611, 617, 503 S.E.2d 471, 474 (1998) ("An issue conceded in a lower court
may not be argued on appeal."); Ex parte McMillian, 319 S.C. 331, 335, 461 S.E.2d
43, 45 (1995) (finding an issue procedurally barred when the appellants expressly
conceded the issue at trial); see also Erickson, 368 S.C. at 476, 629 S.E.2d at 670("Moreover, a party may not complain on appeal of error or object to a trial
procedure [that] his own conduct has induced.").
Nonetheless, even if this matter was not conceded below, when viewing the
record as a whole, we find the speech at issue addressed a matter of public concern.
See Connick, 461 U.S. at 147–48 ("Whether . . . speech addresses a matter of public
concern must be determined by the content, form, and context of a given statement,
as revealed by the whole record."). The School District released a press statement
and held a press conference to inform the community on a matter that affected
students and teachers within the district—not just at AMHS. The watermelon ritual,
the School District investigation of the watermelon ritual, and Coach Walpole's
removal as head coach of the football team were subjects of great interest to the
Charleston community. At the press conference, Superintendent McGinley stated
the board member who brought the allegations to her attention was "concerned about
the racial stereotypes" related to activities like the watermelon ritual practiced by
AMHS's football team. The board member informed Superintendent McGinley that
a concerned parent witnessed the ritual and reported it to the board member. Thus,
the content of Mr. Haire's speech about these events concerned broad issues of
interest to society at large—i.e., allegations of racial insensitivity. Moreover, the
events reported during the press conference gained national attention from media
outlets throughout the United States. Therefore, we find the circuit court did not err
in finding this was a matter of public concern. See Holtzscheiter, 332 S.C. at 531–
32, 506 S.E.2d at 513 (Toal, J., concurring in result) ("[M]atters of public concern
are those related to the 'unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.'" (quoting Dun & Bradstreet, 472
U.S. at 759)).
Fact or Expressions of Opinion
As contended by Appellants, the "central issue is whether [a person] being
referred to as a 'racist douchebag' and someone [who] condones a 'racist act' is
defamatory." Specifically, the statement at issue in the first article "Melongate"
provides: "Today, Charleston was consumed by one story and one story only: the
removal of Academic Magnet football coach Bud Walpole amid allegations that his
players more or less behaved like racist douchebags." (emphasis added). The
statement at issue in the second article is the title itself: "Mob Rules: School district
forces out superintendent who fired coach who condoned racist ritual." (emphasis
added). Thus, we must consider whether the statements are factual assertions about
Appellants. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20 (1990) ("[A]
statement on matters of public concern must be provable as false before there can be
liability under state defamation law, at least in situations . . . where a media defendant
is involved."); see also Connick, 461 U.S. at 148 n.7 ("The inquiry into the protected
status of speech is one of law, not fact.").
"Under the First Amendment[,] there is no such thing as a false idea. However
pernicious an opinion may seem, we depend for its correction not on the conscience
of judges and juries but on the competition of other ideas. But there is no
constitutional value in false statements of fact." Gertz v. Welch, 418 U.S. 323, 339–
40 (1974). Therefore, an expression of opinion that conveys a false and defamatory
statement of fact can be actionable. See Milkovich, 497 U.S. at 18 (noting that "a
wholesale defamation exemption" was not created "for anything that might be
labeled 'opinion'" because "it would . . . ignore the fact that expressions of 'opinion'
may often imply an assertion of objective fact").
There are certain "statements that cannot 'reasonably [be] interpreted as
stating actual facts' about an individual." Id. at 20 (alteration in original) (quoting
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)). Statements such as
opinion, satire, epithets, or rhetorical hyperbole cannot be the subject of liability for
defamation. See id. ("This provides assurance that public debate will not suffer for
lack of 'imaginative expression' or the 'rhetorical hyperbole' which has traditionally
added much to the discourse of our Nation.").
Although the Supreme Court has not delineated a test10 to determine whether
certain statements are “fact” or “opinion,” the Milkovich court indicated that
"statement[s] on matters of public concern must be provable as false before there
can be liability under state defamation law, at least in situations, . . . where a media
defendant is involved." 497 U.S. at 19–20. Moreover, "a statement of opinion
relating to matters of public concern [that] does not contain a provably false factual
connotation will receive full constitutional protection." Id. at 20.
We do not find that the term "racist douchebag" can "reasonably [be]
interpreted as stating actual facts" about Appellants. See Milkovich, 497 U.S. at 20(indicating there is protection for statements that cannot "reasonably [be] interpreted
as stating actual facts" about a person to ensure "that public debate will not suffer
for lack of 'imaginative expression' or the 'rhetorical hyperbole' [that] has
traditionally added" to topics of great debate); cf. id. at 21–22 (finding statement
written in newspaper that high school coach lied under oath was actionable because
the "language [was] an articulation of an objectively verifiable event").
10
We note that the Fourth Circuit has adopted a set of factors to consider when
distinguishing between statements of fact and opinion. See Potomac Valve & Fitting
Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1288 (4th Cir. 1987) (noting that the
threshold inquiry is whether the challenged statement can be characterized as true or
false; if the statement cannot be characterized as either true or false then it is not
actionable); id. at 1287–88 (noting that if the challenged statement can be
characterized as either true or false, then three additional factors must be considered
to determine whether the statement is nevertheless an opinion because "a reasonable
reader or listener would recognize its weakly substantiated or subjective character—
and discount it accordingly"); id. (noting the additional factors are "the author or
speaker’s choice of words;" "the context of the challenged statement within the
writing or speech as a whole;" and "the broader social context into which the
statement fits").
Additionally, whether someone "more or less behaved like [a] racist
douchebag" or whether someone condoned an act that was "racist" is susceptible to
varying viewpoints and interpretations. One person may view certain behavior as
disrespectful and offensive, but another person might view the same behavior as
non-controversial and socially acceptable. Importantly, we note that all of the
Appellants agreed during their deposition testimony that whether something is racist
is a matter of opinion.11
Furthermore, the opinion editorials at issue were published in the "Views"
section of the newspaper. This is a section of the newspaper that is dedicated to the
expression of opinions by the newspaper's editors, guest editorial writers, and
readers. Essentially, the article was published in a section devoted to opinions and
commentary. See Potomac Valve & Fitting Inc., 829 F.2d. at 1288 ("Even when a
statement is subject to verification, however, it may still be protected if it can best
be understood from its language and context to represent the personal view of the
author or speaker who made it."). Thus, we find that the use of the term "racist" in
an opinion editorial to describe a sequence of events related to a racially sensitive
matter does not assert any verifiable, objectively provable fact about Appellants. We
find the circuit court correctly held the use of the terms "racist" and "racist
douchebag" in the articles were not actionable because they were expressions of
11
Appellant Adam Ackerman was asked, "Do you believe that whether or not
something is racist is a matter of opinion?" Appellant replied, "It is a matter of
opinion."
Appellant R.M. was asked, "[D]o you think that people can have different
opinions as to what is racist?" Appellant responded, "Absolutely."
Appellant C.F. was asked, "Do you think whether or not the watermelon ritual,
the perception of the watermelon ritual, whether or not that's racist is a matter of
opinion?" Appellant responded, "[I]t is a matter of opinion, but it's also—it's an
opinion generated on what you've heard."
Appellant Coach Walpole was asked, "Who determines whether or not
something is racist?" Appellant responded, "It's up to the—it depends on what it is,
up to the individual interpretation, I don't know."
opinion and rhetorical hyperbole.12 See 3 Dan B. Dobbs et. al., The Law of Torts §
572 (2011) ("'[R]acist' is sometimes said to be mere name-calling and not actionable
in some contexts[; however,] the term can be actionable where it plainly imputes
acts based on racial discrimination." (emphasis added)); see also 50 Am. Jur. 2d
Libel and Slander § 200 (2017) ("However, general statements charging a person
with being racist, unfair, or unjust, without more, such as contained in the signs
carried by protestors, constitute mere name calling and do not contain a provably
false assertion of fact as required for defamation.").
Accordingly, Appellants did not meet their burden of proving that Jones Street
Publishers published a false and defamatory statement and thus, summary judgment
was proper. See West, 396 S.C. at 7, 720 S.E.2d at 498 ("To establish a defamation
claim, a plaintiff must prove: (1) a false and defamatory statement was made . . . ."
(emphasis added)); see also Milkovich, 497 U.S. at 19–20 ("[A] statement on matters
of public concern must be provable as false before there can be liability under state
defamation law, at least in situations . . . where a media defendant is involved."); see
also Boone v. Sunbelt Newspapers, Inc., 347 S.C. 571, 579, 556 S.E.2d 732, 736 (Ct.
App. 2001) ("The plain language of Rule 56(c), SCRCP, mandates the entry of
12
We note that other jurisdictions have held that referring to someone as "racist" is
an expression of one's opinion and is not actionable for defamation. See Stevens v.
Tillman, 855 F.2d 394, 402 (7th Cir. 1988) (noting that calling someone a racist "is
not actionable unless it implies the existence of undisclosed[] defamatory facts");
Buckley v. Littell, 539 F.2d 882, 893 (2d Cir. 1976) (finding that use of the word
"fascist" "cannot be regarded as having been proved to be [a] statement[] of fact");
Meissner v. Bradford, 156 So.3d 129, 133–34 (La. Ct. App. 2014) (holding
statement that former president of youth football league "has a problem with people
of color" was a statement of opinion in the nature of hyperbole rather than an
actionable statement of fact); Ward v. Zelikovsky, 643 A.2d 972, 983 (N.J. 1994)
(holding statement that plaintiff hated or did not like Jews was not actionable); id.("[T]he statement [that plaintiff hated or did not like Jews] cannot be distinguished
from characterizations that a person is a 'racist,' 'bigot,' 'Nazi,' or 'facists.'");
Silverman v. Daily News, L.P., 129 A.D.3d 1054, 1055–56 (N.Y. App. Div. 2015)
(holding defendant's publication that plaintiff authored "racist writings" is a
statement of opinion, not fact); Covino v. Hagemann, 627 N.Y.S.2d 894, 899–900
(N.Y. Sup. Ct. 1995) (holding statements that characterized plaintiff's behavior as
"racially insensitive" were protected expressions of opinion and did not give rise to
an action for defamation); id. ("In daily life [the word] 'racist' is hurled about so
indiscriminately that it is no more than a verbal slap in the face[.]").
summary judgment, after adequate time for discovery[,] against a party who fails to
make a showing sufficient to establish the existence of an element essential to the
party's case and on which the party will bear the burden of proof at trial." (quoting
Carolina All. for Fair Emp't v. S.C. Dep't of Labor, Licensing, and Regulation, 337
S.C. 476, 485, 523 S.E.2d 795, 800 (Ct. App. 1999))).
Because the qualified privilege of fair report applies to the factual statements
of the articles and the remaining statements in the articles are protected under the
First Amendment as opinion, ideas, and rhetorical hyperbole, the statements are not
actionable. Therefore, Appellants have failed to establish the first element of
defamation. See West, 396 S.C. at 7, 720 S.E.2d at 498 ("To establish a defamation
claim, a plaintiff must prove: (1) a false and defamatory statement was made . . . .").
Nonetheless, we will address the remaining issues.
IV. Proof of Injury
Appellants maintain the circuit court erred in finding that they have not shown
proof of injury to reputation. Appellants contend they have suffered actual injury to
their reputations and standing in the community as well as personal humiliation and
mental anguish. Appellants argue the students are private figures and do not need
to provide proof of damages to defeat summary judgment.13 We disagree.
"[I]n a case involving an issue of public controversy or concern where the
libelous statement is published by a media defendant, the common law presumptions
[that] the defendant acted with common law malice and the plaintiff suffered general
damages do not apply." Erickson, 368 S.C. at 466, 629 S.E.2d at 665. "Instead, the
private-figure plaintiff must plead and prove common law malice and show 'actual
injury' in the form of general or special damages." Id. General damages include
injuries such as "injury to reputation, mental suffering, hurt feelings, and other
similar types of injuries [that] are incapable of definite money valuation."
Holtzscheiter, 332 S.C. at 510 n.4., 506 S.E.2d at 502 n.4 (quoting Whitaker v.
Sherbrook Distrib. Co., 189 S.C. 243, 246, 200 S.E. 848, 849 (1939)). "[S]pecial
damages are tangible losses or injury to the plaintiff's property, business, occupation
or profession, capable of being assessed monetarily, . . ." Id. However, special
damages do not include hurt feelings, embarrassment, humiliation, or emotional
distress. Wardlaw v. Peck, 282 S.C. 199, 205–06, 318 S.E.2d 270, 274–75 (Ct. App.
1984). Additionally, "in a case involving an issue of public controversy or concern
where the libelous statement is published by a media defendant, the common law
13
Jones Street Publishers conceded that the football players were private figures.
presumption that the libelous statement is false is not applied." Erickson, 368 S.C.
at 466, 629 S.E.2d at 665. "Instead, the private-figure plaintiff must prove the
statement is false." Id. Appellant bears the burden of proving the defamation case
by a preponderance of the evidence. Id. at 475, 629 S.E.2d at 670.
In viewing the evidence in the light most favorable to Appellants, Appellants
did not produce evidence of either general or special damages arising from injury to
their reputations as a direct result of the City Paper's publications. See Fleming, 350
S.C. at 493–94, 567 S.E.2d at 860 ("When determining if any triable issues of fact
exist, the evidence and all reasonable inferences must be viewed in the light most
favorable to the non-moving party."); see also Erickson, 368 S.C. at 466, 629 S.E.2d
at 665 ("[T]he private-figure plaintiff must plead and prove common law malice and
show 'actual injury' in the form of general or special damages."). Appellants could
not identify individuals who read the City Paper's publications and as a result of
those publications, viewed Appellants in a different light. Nor did Appellants
provide evidence of any lost opportunities as a result of the articles. Appellants
agreed that they did not lose any friends, remained employed at their places of
employment, and were accepted to the colleges they desired to attend. At most,
Appellants contended they felt "more self-conscious" and that their school had been
defamed. See Murray v. Holnam, Inc., 344 S.C. 129, 138, 542 S.E.2d 743, 748 (Ct.
App. 2001) ("The focus of defamation is not on the hurt to the defamed party's
feelings, but on the injury to his reputation." (quoting Fleming v. Rose, 338 S.C. 524,
532, 526 S.E.2d 732, 737 (Ct. App. 2000), rev'd on other grounds, 350 S.C. 488,
567 S.E.2d 857 (2002))); see also Johnson v. Nickerson, 542 N.W.2d 506, 513 (Iowa
1996) ("While a defamation suit can be viewed as serving the purpose of vindicating
the plaintiff's character by establishing the falsity of the defamatory matter, if no
harm can be established[,] the action must be regarded as trivial in nature."). Some
Appellants indicated that they had been questioned about the watermelon incident
by various people; however, Appellants were unable to identify those individuals
and unable to concretely state whether those individuals were questioning them as a
result of reading the City Paper's publications. See Jackson, 383 S.C. at 17, 677
S.E.2d at 616 ("A jury issue is created when there is material evidence tending to
establish the issue in the mind of a reasonable juror. 'However, this rule does not
authorize submission of speculative, theoretical, and hypothetical views to the jury.'"
(internal citation omitted) (quoting Small, 329 S.C. at 461, 494 S.E.2d at 841)).
As previously stated, the watermelon ritual controversy gained local and
national attention resulting in reports by media outlets, including television and radio
broadcasts, throughout the United States. Importantly, the City Paper was not the
first medium to produce a story on the events. Moreover, the factual statements in
City Paper's article were a substantially accurate report of the statements made by
Superintendent McGinley at the live press conference. Thus, we find that Appellants
did not meet their burden of showing proof of injury. See id. ("Finally, assertions as
to liability must be more than mere bald allegations made by the non-moving party
in order to create a genuine issue of material fact."); see also Boone, 347 S.C. at 579,
556 S.E.2d at 736 ("The plain language of Rule 56(c), SCRCP, mandates the entry
of summary judgment, after adequate time for discovery against a party who fails to
make a showing sufficient to establish the existence of an element essential to the
party's case and on which that party will bear the burden of proof at trial." (quoting
Carolina All. for Fair Emp't, 337 S.C. at 485, 523 S.E.2d at 800)).
V. Whether Statements Were "Of and Concerning" the Students
Appellants argue the circuit court erred in finding the alleged defamatory
statements were not "of and concerning" the students because the statements refer to
the entire football team and not to any individual student. Appellants cite to Fawcett
Publ'ns, Inc. v. Morris, 377 P.2d 42 (Okla. 1962)14 for the proposition that a member
of a football team may be defamed even if the individual is not specifically named.
"To prevail in a defamation action, the plaintiff must establish that the
defendant's statement referred to some ascertainable person and that the plaintiff was
the person to whom the statement referred." Burns v. Gardner, 328 S.C. 608, 615,
493 S.E.2d 356, 359 (Ct. App. 1997). "Where a publication affects a class of persons
14
The case cited by Appellants is the only defamation case that our research
uncovered that has held a member of a football team can prevail when the
defamatory language concerns the entire team. In Fawcett, the Supreme Court of
Oklahoma held that a fullback on the alternate squad of the University of Oklahoma
football team had been defamed by an article alleging that members of the team had
used amphetamines. 377 P.2d at 52. None of the players were named in the article;
however, the article referred specifically to the 1956 football season. Id. at 47, 52.
Specifically, the article stated "several physicians observed Oklahoma players being
sprayed in the nostrils with an atomizer." Id. at 47. Thus, the article insinuated the
players were using amphetamines. Id. at 44. The court held the fullback presented
evidence that he was a constant player during the 1956 season; the substance
administered with the atomizer was a harmless substance used to help players with
mouth dryness; and he did not use amphetamines or any other narcotic drugs. Id. at
47. Therefore, the court determined that despite the football team consisting of sixty
or seventy players, the fullback had "established his identity in the mind of the
average lay reader as one of those libeled." Id. at 52.
without any special personal application, no individual of that class can sustain an
action for the publication." Hospital Care Corp. v. Commercial Cas. Ins. Co., 194
S.C. 370, 377, 9 S.E.2d 796, 800 (1940) (citation omitted). Thus, "where defamatory
statements are made against an aggregate body of persons, an individual member not
specially imputed or designated cannot maintain an action." Id. "Where defamatory
words reflect upon a class of persons impartially, and there is nothing showing which
one is meant, no action lies at the suit of a member of the class." Id. at 378, 9 S.E.2d
at 800 (citation omitted); see also 50 Am. Jur. 2d. Libel and Slander § 225 (2017)
("Under the ‘group libel doctrine,’ a plaintiff has no cause of action for a defamatory
statement directed to some of, but less than, the entire group when there is nothing
to single out the plaintiff; consequently, the plaintiff has no cause where the
statement does not identify to which members it refers.").
However, in Holtzscheiter, our supreme court held that "[w]hile the general
rule is that defamation of a group does not allow an individual member of that group
to maintain an action, this rule is not applicable to a small group." Holtzscheiter,
332 S.C. at 514, 506 S.E.2d at 504. The Holtzscheiter court held a newspaper liable
for publishing a statement that a murder victim lacked "family" support. Id. The
murder victim’s mother sued for defamation alleging the statement defamed her. Id.
at 508, 506 S.E.2d at 500. The Holtzscheiter court indicated there was evidence
from which a jury could find the statement was "of and about" the victim's mother.
Id. at 514, 506 S.E.2d at 504. In the instant matter, by any measure, a football team
would not constitute a small group—at least not under the analyses of
Holtzscheiter.15 See Hospital Care Corp., 194 S.C. at 377-87, 9 S.E.2d at 800–04
(affirming the circuit court's order ruling that a small insurance company could not
maintain a defamation action against defendants who published pamphlet stating that
small insurance companies that had recently entered into the insurance business were
inexperienced and financially unstable); id. (affirming the finding that the pamphlet
15
See Evans v. Chalmers, 703 F.3d 636, 659–60 (4th Cir. 2012) ("One who publishes
defamatory matter concerning a group or class of persons is subject to liability to
an individual member of it if, but only if, (a) the group or class is so small that the
matter can reasonably be understood to refer to the member, or (b) the circumstances
of publication reasonably give rise to the conclusion that there is particular reference
to the member." (quoting Restatement (Second) of Torts § 564A (1977)))
(Wilkinson, J., concurring); Church of Scientology Intern. v. Daniels, 992 F.2d 1329,
1331 (4th Cir. 1993) ("[D]efamatory statement about a large group cannot support a
libel action by a member of the group" (citing Ewell v. Boutwell, 121 S.E. 912, 915
(Va. 1924))).
was not actionable because the defamation, if any, was to a class and had no specific
application to the plaintiff); see also Burns, 328 S.C. at 615-16, 493 S.E.2d at 360
(holding two blind citizens lacked standing to maintain defamation action on behalf
of blind population in general).
Here, we conclude the circuit court did not err in finding the statements were
not "of and concerning" Appellants. City Paper's publication made only general
statements about the conduct of the AMHS’s football team as a whole. The article
did not reference any names nor did it include any pictures of the members of the
football team. Additionally, the City Paper did not publish any facts or commentary
specific to any particular member of the AMHS football team. Thus, there are no
statements within the articles that single out any particular member of the football
team. Accordingly, Appellants have not met their burden of proving the allegedly
defamatory statements concerned Appellants. See Hospital Care Corp., 194 S.C. at
378, 9 S.E.2d at 800 ("Where defamatory words reflect upon a class of persons
impartially, and there is nothing showing which one is meant, no action lies at the
suit of a member of the class."); see also Burns, 328 S.C. at 615, 493 S.E.2d at 359
("To prevail in a defamation action, the plaintiff must establish that the defendant's
statement referred to some ascertainable person and that the plaintiff was the person
to whom the statement referred.").
VI. Constitutional Actual Malice
Lastly, Appellants argue the circuit court erred in finding that Coach Walpole
did not show that Jones Street Publishers acted with actual malice. First, Appellants
contend that Coach Walpole is a private figure and not a public official as the circuit
court held. Appellants also assert the City Paper's use of the word "racist" in the
articles constituted actual malice. Conversely, Jones Street Publishers maintains that
Coach Walpole is a public official and he must prove constitutional actual malice.
Jones Street Publishers contends that Coach Walpole failed to produce evidence of
actual malice. We agree with Jones Street Publishers.
"[A]n important initial step in analyzing any defamation case is determining
whether a particular plaintiff is a public official, public figure, or private figure."
Erickson, 368 S.C. at 468, 629 S.E.2d at 666. "This determination is a matter of law
which must be decided by the court, . . ." Id. "In general, a public official is a person
who, among the hierarchy of government employees, has or appears to the public to
have 'substantial responsibility for or control over the conduct of governmental
affairs.'" Id. at 469, 629 S.E.2d at 666 (quoting Holtzscheiter, 332 S.C. at 520 n.4,
506 S.E.2d 507 n.4 (Toal, J., concurring in result)). "In considering the question of
whether one is a public official, the employee's position must be one [that] would
invite public scrutiny and discussion of the person holding it, entirely apart from the
scrutiny and discussion occasioned by the particular charges in controversy." Id.(quoting Holtzscheiter, 332 S.C. at 520 n.4, 506 S.E.2d 507 n.4 (Toal, J., concurring
in result)). "The status of a public official may be deemed sufficient . . . not because
of the government employee's place on the totem pole, but because of the public
interest in a government employee's activity in a particular context." Id. at 469, 629
S.E.2d at 666–67 (quoting McClain, 275 S.C. at 284, 270 S.E.2d at 125).
For purposes of a First Amendment analysis, our courts have held a variety of
public school administrators and employees to be public officials. See Sanders v.
Prince, 304 S.C. 236, 403 S.E.2d 640 (1991) (finding school board members to be
public officials); Scott v. McCain, 272 S.C. 198, 250 S.E.2d 118 (1978) (finding
school trustee to be a public official). Other jurisdictions have held that public
school teachers and athletic coaches are public officials for purposes of applying the
New York Times doctrine. See Mahoney v. Adirondack Publ. Co., 517 N.E.2d 1365,
1368 (N.Y. 1987) (finding a public high school football coach to be a public figure);
Johnston v. Corinthian Television Corp., 583 P.2d 1101, 1102 (Okla. 1978) (finding
person holding the dual positions of public school coach and physical education
teacher to be a public official); Johnson v. Sw. Newspapers Corp., 855 S.W.2d 182,
184 (Tex. Ct. App. 1993) (finding person holding the dual position of athletic
director and head football coach to be a public official).
Once it is determined that the plaintiff is a public official, pursuant to New
York Times Co. v. Sullivan,16 the plaintiff must show proof that the publication was
made with "actual malice" or else the publication is constitutionally privileged. See
McClain, 275 S.C. at 283, 270 S.E.2d at 124. Actual malice must be proven by clear
and convincing evidence. Elder v. Gaffney Ledger, 341 S.C. 108, 114, 533 S.E.2d
899, 902 (2000). "Actual malice in this context has been defined as the publication
of an article 'with knowledge that it was false or with reckless disregard of whether
it was false or not.'" McClain, 275 S.C. at 283, 270 S.E.2d at 124 (quoting New York
Times, 376 U.S. at 280). "Whether the evidence is sufficient to support a finding of
actual malice is a question of law." Elder, 341 S.C. at 113, 533 S.E.2d at 901–02.
"When reviewing an actual malice determination, [the appellate court] is obligated
to independently examine the entire record to determine whether the evidence
sufficiently supports a finding of actual malice." Id. at 113–14, 533 S.E.2d at 902.
16
376 U.S. 254 (1964).
However, a "reckless disregard" for the truth "requires more than a departure
from reasonably prudent conduct." Id. at 114, 533 S.E.2d at 902. "There must be
sufficient evidence to permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication." Id. (quoting St. Amant v.
Thompson, 390 U.S. 727, 731 (1968)). "There must be evidence the defendant had
a 'high degree of awareness of . . . probable falsity.'" Id. (alteration in original)
(quoting Garrison, 379 U.S. at 74). Thus, "[a]ctual malice may be present . . . where
one fails to investigate and there are obvious reasons to doubt the veracity of the
[information]." Id. at 114, 533 S.E.2d at 902.
Here, the circuit court correctly held that Coach Walpole is a public official
for purposes of applying the New York Times doctrine. Coach Walpole holds many
positions within the School District. He is the head football coach at AMHS, the
head coach of the women's basketball team at AMHS, and a teacher at Liberty Hill
Academy. Coach Walpole testified that he interacts with the parents of the athletes
after each game and he participates in newspaper and television interviews.
Furthermore, as head coach, he is responsible for the oversight of the teams'
activities.
As a public official, Coach Walpole was required to demonstrate
constitutional actual malice by clear and convincing evidence. A review of the
record indicates that Coach Walpole failed to produce sufficient evidence to support
such a finding. See id. at 114, 533 S.E.2d at 902. Coach Walpole failed to produce
evidence showing Jones Street Publishers had "in fact entertained serious doubts as
to the truth" of the publications. See id. ("[T]here must be evidence at least that the
defendant purposefully avoided the truth."). Jones Street Publishers provided
affidavits from its editors indicating they did not have any reason to doubt the
veracity of Superintendent McGinley's statements regarding the events and
circumstances surrounding the watermelon ritual. See id. ("Actual malice is a
subjective standard testing the publisher’s good faith belief in the truth of his or her
statements."). Thus, Jones Street Publishers was not required to investigate the
School District's statements when it did not have reason to doubt its truth. See id.("Actual malice may be present, . . . where one fails to investigate and there are
obvious reasons to doubt the veracity of the [information]."); id. ("Failure to
investigate before publishing, even when a reasonably prudent person would have
done so, is not sufficient to establish reckless disregard."). Therefore, we conclude
the circuit court correctly found Coach Walpole failed to show proof of actual
malice.
CONCLUSION
Accordingly, we find (1) the statements of fact in the articles are protected by
the fair report privilege and (2) the remaining statements in the articles are
expressions of opinion, ideas, and rhetorical hyperbole protected under the First
Amendment. Because we find the statements at issue are not actionable, Appellants
have failed to meet their burden of proving the first element of their defamation
claim, and therefore, summary judgment was appropriate.17 Furthermore, we find
Appellants (1) have not shown proof of injury to their reputations,18 (2) have not
shown that the allegedly defamatory statements were "of and concerning"
Appellants, and (3) have not shown that Jones Street Publishers acted with actual
malice.
AFFIRMED.
WILLIAMS and HILL, JJ., concur.
17
See West, 396 S.C. at 7, 720 S.E.2d at 498 ("To establish a defamation claim, a
plaintiff must prove: (1) a false and defamatory statement was made; . . ." (emphasis
added)); see also Boone, 347 S.C. at 579, 556 S.E.2d at 736 ("The plain language of
Rule 56(c), SCRCP, mandates the entry of summary judgment, after adequate time
for discovery[,] against a party who fails to make a showing sufficient to establish
the existence of an element essential to the party's case and on which the party will
bear the burden of proof at trial." (quoting Carolina All. for Fair Emp't, 337 S.C. at
485, 523 S.E.2d at 800)).
18
See Erickson, 368 S.C. at 466, 629 S.E.2d at 665 ("[T]he private-figure plaintiff
must plead and prove common law malice and show 'actual injury' in the form of
general or special damages.").