### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 6, 2003 Se ssion DONITA PIPER, ET AL 

### . v. CURT IS M IZE Appeal from the Circuit Court for Montgomery C ounty No. 50000474 John H. Gasaway, III, Judge

No. M2002-00626-COA-R3-CV - Filed June 10, 2003

Plaintiffs in this case are citizens of Montgome

ry County . Defen dants, Pau l Avallone , Way

ne Gill, Curtis Mize and Yvonne Van Der Touw are also citizens of Montgomery County who, in vary

ing degre es, were alleged to be involved in the printing and distribution of a newspaper known as The Rattler

. Defendant Avallone was the sole writer, publisher and editor of each issue of The Rattler

. Defendant

Mize is a businessman who allowedcopies of the October 5, 2000 edition of The Rattler to be placed on the co

unter at his place of busi ness for f

ree distribution. The trial court granted summary judgment in favor of Defendant Mize and finalized the judgment as to Mize under Tennessee Rules of Civil Procedure 54.02. Plaintiffs appeal, and we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and S TELLA H ARGROVE , S P . J., joined. Rodger N. Bowman, Clarksville, Tennessee, f or the appellants, Donita Piper and Lori Tur ner. Christopher J. Pittman, Clarksville, Tennessee, for the appellee, Curtis Mize. OPINION At the time of the events inv olved in this defamation suit, Johnny Piper was May or of the City of Clarksville, Tennessee. Plaintiff/Appellant, Donita Piper, was his wi fe. Plain tiff/App ellant, LoriTurner, was a former candidate for Mayor

of Clarks villeand was t

he Gran ts Writer f

or the City of Clarksville. On or about February

1, 2000, a

person or persons n ot enamor

ed with the

merits of the Piper administration began distribution of an underground new spaper called T he Rattler . Referr

ing to itself as a “slande r sheet”this publication proclaimed itself to be “the first in venomous gossip.” To say that the various issue s of The Rattler were uncomplimen

tary of May or Piper, his wife D onita1 Th e O ctob er 5, 2 000 issue of The R attler con tains the d isclaime r, “ The Rattler is a miracl e blend of fact, ficti on, trut

h, opini on and satire. I t uses invent ive names in al l it s st ories, except i n cases where publi c fi gures are being sat iri zed. Any o ther use of real n ame s is accidental and coincidental . If you ar e a thin-skin ned pub lic official an d do n’t like being satiri zed, gi ve up the easy m one y and th e per ks of p owe r and get ou t of the sp otlight.” T he effec t of this cave at, if any, ad dress es itself prim arily to the issu es be tween and a mon g the p arties still be fore the trial cou rt. -2- Piper and G

rant s Wr iter L

ori Turne r would be

a most cha

ritable u ndersta tement. T

his appea l, however, does not provide a proper forum for a full adjudication of the issues between those who wrote, edited andpublished the various issues of The Rattler on the one ha

nd, and Pla

intiffs, D onita Piper and Lori Turner, on the other . The record shows that Defend ant/Appe

llee Curt is Mize neither wrote, edited nor published any issue of The Rattler , but such was the handiwork of Defendant Paul Avallone. The issues drawn between Plaintiffs on one hand and Paul Avallone a nd the other Defend ants on the other

remain before the trial

court. Pursuant to the finality designation entered by the trial court under Tenne ssee Rule s of Civil Pr ocedure 54.02, onl

y th e Curtis Mize

case is before this Court, and only such act s as the r

ecord shows to be attributable to Defendant Mize are at issue in this appe al. While the C omplaint fi led in this case is extensive and does not distinguish the relative degrees of alleg ed culpa bility of Defe ndants, th

e recor d before the Court e sta

blishes t hat the participation o f Defen dant Curtis Mize in The Rattler saga is limi ted to his ac tion in all owing a single edition of The Rattler , to wit, the October 5, 2000 ed

ition, to be

placed o n the coun

ter at his place of business, along with other free publica tions, for his customers to take if they so c hose. The meat of the October 5, 2000 issue of The Rattler , as it relates to this cas e, is an a rticle en titled “Sex Scand als Still Roc k City Hall.” U

nder this ey e catch

er is said , “Lo

ud mouths a

n d gossips had a fie

ld day earlier in the y ear whe n rumors o f Mayor Piper’ s infideli ty w ith his gr

ants gal, the vivacious and every spunky Ms. L

ori Turn er, spread like a Montana wildfire throug h the nooks and crannies of this otherwise quiet mini-metr

opolis on the Cumberl and River .” The a rticle continues witha recitation that, “as the story goes,”the May

or’s wif e, Donita Piper, ca tching h im in the act with Ms. Turner the previous January , “clobbered him with a nine iron.” 1
Curtis Mize ans wered the Complaint with general denials and, af ter discovery , filed a Motion for Su mmary Ju dgment . The t rial c ourt gr anted the Mo tion hold ing:

On Novembe

r 15, 2001 , the def

endant, C urti s Mize, filed a motion for summary judgmen t. In s upport of

his motion, the defendant simultaneously filed a memorandum

of law, a statement of undisputed material facts and ten(10) exhib its consisting of public ations, c orrespo ndence , portionsof deposi tions, requests for admissions and an affidavit by the defendant. On December 18, 2001, the plaintiffs filed a brief in response to the defe ndant ’s motion. On December 18, 2001, the defendant filed his reply

to the plaintiffs’ brief. The Court has consider ed all of the above, deems the facts asserted by the defendant to be undisputed, and finds that there is no genuine issue as to any mater ial-3-

fact and further finds that the defendant is entitled to summary judgment a s a matter of law. Plaintiffs timely appealed.
In granting the Motion for Summary Judgment filed by

Defendant Curtis Mize, the trial court had be fore i t und ispu ted fac ts est ablis hing:

1. Paul Avallone, is the sole writer, publisher and editor of each issue of the new spaper known at (sic) “ The Rattler” except the October 10, 2000 alleged ed it ion of “ The Rattler ” which was not written, published, or distributed by Avallone. 2. Paul Avallone

talked to no one about his plannednewspaper before he began publ ishi ng “ The Rattler .” 3. Paul Avallone, alone, distributed the various issues of “ The Rattler .” 4. Paul Ava llone prin ted and di stributed

thousandsof copie s [of] variou s issues of “ The Rattler .” 5. No one except Yvonne Van Der Touw knew prior to Paul Avallone’s deposition in this lawsuit that Paul Avallone was the writer, publisher, and editor of

“ The Rattler .”
6. Curtis Mize did not print any issue of “ The Rattler .”
7. Curtis Mize did not write any story found in any issue of “ The Rattler .” 8. Curtis Mize did not take any pictures used in any is sue of “ The Rattler .” 9. Curtis Mize did not pa y any pri nting costs of any

issue of “ The Rattler .” 10. Curtis Mize did not t ell Paul Av allone to

publis h any issue of “ The Rattler .” 11. Curtis Mize did not give Paul Avallone any story idea to use in any issue of “ The Rattler .”-4- 12. Neither

of the plaintiffs ever requested, either ora lly or in writing, that Curtis Mize retract

any of the state

ments contained in any

edition of “ The Rattler .” 13. The plaintiff

s’ complaint specifically a sserts that the February 1, 2000 , October 5, 2000 and October 10, 2000 editions of “The Rattler” contain defamatory statemen ts conce rning th e plaintif fs. 14. Among the “stories” contained in the February 1, 2 000 edition of “ T he Rattler ” are stories asserting the following: that the Republican National Convention would be held in Clarksville in 2004 and that an additional 18,6 73 par king spaces had been located in downtown Clarksville. 15. Among the “stor

ies” con tained in the October 5, 2000 edition of “ The Rattler ” are stories asserting the following: that God a nnounced that one local politic i an was going to win an upcoming election; and that Mayor Johnny Piper’s head explo ded on tel evision du ring the taping o f a prog

ram. 16. Paul Avallone

did not wri

te, publis h or d istribute any copies of the document purporting to be the October 10, 2000 edition of “ The Rattler .” 17. Curtis Mize did not w rit e, publish

or distribute any copies of the documents purporting to be the October 10, 2000 edition of “ The Rattler .” 18. The plaintiffs cannot identify a ny harm suffe

red by them due to the actions of Curtis Mize. 19. There were rumors in the community of Clarksville, Ten nessee, before February 1, 2000, that Mayor Johnny Piper had allegedly

had an affair and that the plaintiff, Donita Pipe

r, caug ht her hus band in

such an affair

and hit him with a golf club. 20. Plaintiff

Lori Turner is a forme

r candidate for Mayor of

the C ity of Clarksville. 21. Plaintiff

Lori Turner has bee

n the subject of

numerousarticle s in both the “ Our City” newspaper and “ The L eaf-Chr onicle ” newspaper. 22. Plaintiff

Lori T urner ha s been the

featur ed speak er at va rious civic groups in the pas t 7 y ears. 23. Plaintiff Lori Turner has hosted a loca l radio talk show.2 These undisput ed fact s are t aken verbati m from the Defendant’ s Rule 56.03 St atement of Undisput ed Material Fac ts fi led wi th h is Motion f or Summar y Judg ment. The Sta temen t of Undispu ted Fa cts is , i ndeed, undi spu te d by Plaintiffs/Appellants. -5-

24. Plaintiff

Donita Piper is married to the May or of Clar ksville , Tennessee. 25. Plaintiff

Donita Piper has traveled out of the state and country as the spouse of the Mayor

of Clarksville, Tennessee. 26. Plaintiff

Donita Piper has written stories and ha s b een a g uest commentator for “ The Leaf-C hronicle ” newspaper. 27. Curtis Mize did not distr ibute any copies of

the February

1, 2000 edition of “ The Rattler .” 28. P a ul Avallone anonymously left several copies of the October 5, 200[0] edition of “ The Rattle r” at the front door of Cur tis Mi ze ’s business before Curtis Mize arrived at work one day in early October 2000. 29. Along with the October 5, 2000 edition of “ The Rattler ,” Curtis Mize also has a llowed oth

er fre e publica

tions, such as “ Our City ” to be pla ced on his counter at work for customers to take if they choose. 2
DEFAMATION Certain near univers al ru les of law form a backdrop for our consider ation. The law of defamation consists of

the twin torts of libel and slander. Lara v. Thomas , 512 N.W.2d 777 (Iowa 1994); Batt v. Globe Engineering Co. , 774 P.2d 371 (Kan. Ct. App. 1989). “It is reputation which is defamed, reputation which is injured, and reputation which is protected by the la

w of defamation.” 50 Am.Jur.2nd Libel and Slander § 2 (1995); see also Gobin v. Globe Publ’g Co. , 649 P.2d 1239 (Kan. 1982). As regar ds a priva te perso n, “To es tablish

a prima f acie case of defamation in Tennessee, the plaintiff must estab lishthat: 1) a party published a statement; 2) with knowledge that the statement is false and defaming to the other; or 3) with reckless disregard for the truth o f the stat

ement or with negligence

in failing to ascert ainthe truth of the statement. See Restatement (Second) of Torts § 580 B (1977); Press, Inc. v. Verran , 569 S.W.2d 435, 442 (Tenn.1978).” Sulli va n v. Baptist Mem’l Hosp. , 995 S.W.2d 569, 571 (Tenn. 1999). As regar ds a public

officia l or public

figure, Te nnessee follows section 580(a) of the Rest ateme nt of T orts p rovid ing:-6-

§ 580A. Defamation of

Public Off

icial or Pu blic Figur

e . One who publishes a false and defamatory

communication con cerninga public official or public figure in reg ard to his conduct, fitnessor role in that cap acity

is subjec t to liability, if, but only if, he (a) knows that the statement is false and that it defames the other person, or (b) act s in reck

less disre gard o f these ma tters. Press, Inc. v. Verran , 569 S.W.2d 435, 442. “ ‘Public ation’ is a

term of a rt meaning the co mmunicati on of def amatory matter to a third person.” Sullivan , 995 S.W.2d at 571-72 (citing Quality Auto Parts Co. v. Bluff City Buick Co. , 876 S.W.2d 818, 821 ( Tenn. 199 4). “Thisbeing a civil and not a criminal suit

for libel , it is essential that there be public ation; tha

t is, a communi cation of

the defa matory matter to a third pe rson. Thisis so for the rea son t hat th e gravam en of t he act i s the p ecuni ary damage to the character or credit of the party libeled. No such damage can ar ise, of course, without publication.” Freeman v. Dayto n Scale Co. , 19 S.W.2d 255, 256 (Tenn. 1929). There is a difference between civil and c riminal actions for liable where publication is concerned. “I n the former, publication m ust be made to some third person, or in

such publi c manner as to reach third persons; but, in criminal proceeding s, publication may be made

by communicating

the printed matter alone to the party libeled.” Fry v. McCor

d , 33 S.W. 568, 571 (Tenn. 1895). If the pers on alleg edly

libeled isa “public

official or

public figure,” only

clear and convincing proof of actual malice on the part of the defenda nt will survive a motion fo r summary judgmen t. Trigg v. Lakeway Publishers, Inc. , 720 S.W.2d 69, 75 (Tenn. Ct. App. 1986). The defamation action at bar is a libel action, as opposed to one for slander. Three questions are dispositive of the case: 1. Did Curtis Mize “publish” the October 5, 2000 issue of “The Rattler”? 2. Are Donita Piper and Lori Turner “ public figures”? 3. If so , does the

record disclose sufficie nt evidence of actual malic e on the pa rt o f Curtis Mize? THE STANDARD OF REVIEW ON APPEAL As to the questions of

whether or not Defendant Mize published the October 5 issue of The Rattler and whether or not Donita Piper and L ori Turner are “public figure s,” the standard of review of a grant of summar

y ju dgment i s we ll se tt le d b y Byrd v. H all , 847 S.W.2d 208 (Tenn. 1993) and Evco Corp. v. Ro ss , 528 S.W.2d 20 (Tenn. 1975). The trial court, and this Court on a ppeal, mu st look at all the evidence and take the strongest leg itimate view of it in favor of the opponent of the motion allowing all reasonable inferenc es in favor of the opponent and discarding all countervailing evidence. If, after doing so, there is any dispute a s to any material fa ct or any doubt as to the conclusion to be drawn from the evidence, the motion must be denied.-7-

As to the third question, assuming Plaintiffs are actually “public figures,” Defenda nt can be held liable only if actual malice is sup p orted by clea

r and convincing evidence. A diffe rent, and rather controversial, standard of review is applicable on summary judg ment. In addressing this ver y issue, the Supreme Court of the United States, in Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 106 S.Ct. 2505; 91 L.Ed.2d 202, 255-56 (1986), held:

In sum, we conclude that the determination of whether a given

factua l dispute requires submission to a jurymust be guided by the substantive evidentiary sta ndards that apply to the ca se. This istrue at b oth the directed verdict and summary judgment stages

. Consequently, where the New York Times “clear and convincing” e vidence require me nt applies, the trial judge’s summary judgment inquiry as to whe ther a genuine issue exists will be whether the evidenc e pre sented is such that a jury applying that evidentiary standa

rd could reasonably

find for either the plaintiff or the defenda nt. Thus, where the factual dispute concerns a ctual malice, clearly

a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a re asonable jury f inding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.
In sum, a court ruling on a motion for summary judgment must be guided by the New York Times “clear a nd convin cing” evidentiary standard in determining whether a genu ine issu e of act

u al malice exists - - that is, whether the evidence presented is such tha

t a reasonable jury

might find that actual malice had been shown with convincing clarity

. This holding by the Court evoked two of the most vigorous dissenting opinions in print with Justice Br ennan ob serving : The Court today holds that “whether a given factual dispute requires su bmission to a jury must be g uided by the substantive evidentiar y standard s tha t apply to the case,” ante , at 255. I n my view, the Court’s a naly sis is deeply flaw ed, and rest s on a shak

y f oundation of uncon

nected a nd unsuppo

rted obse rvations , assertio ns, and conclusions. Moreover, I am unable to divine from th e Court’s opinion ho w these evide ntiar y standar ds are t o be co nsid ered, o r what a tria l jud ge is actua ll y s upposed to do in rulin g on a mo tion for su mmary judgmen

t. Accord ingly , I re spectfully d

issent.

. . . . In my view, if a plaintiff pr esents evidence which either direct ly or b y permissib le inference (and these infere nces are a product of the

substantive law of the underly ing cla im) suppor

ts all of the eleme

nts he needs to prove in order t o prevai l on his legal claim, the plaintiff has made out a prima fac ie case and a defendant’ s-8-

m otion for summa

ry judgmen t must fail r

egard less of the

burden o f proof t

h at th e plaintiff mu st mee t. In other wo

rds, whe ther evi dence is“clear and convincing,” or proves a point by a mere

preponderance, is for the factfinder to determine. As I read the case la

w, this is how it has b een, an d becau se of my concern that today ’s decision may erode the constitutionally enshr ined role of the jury, and also under mine the usefulness of summary judg ment procedure, this is how I believe it should remain. Anderson , 477 U.S. at 257-58, 268 (Brennan, J., dissenting). Justice Rehnquist observed:

The Court, ap

parentl y mo ved by

concer ns for inte lle ctual tidine ss, mistake

nly decides that the “clear

and convincing evidence” standar d governing finders of fa

ct in libel cas es must be

applied b y tr

ial cour ts in deciding a motion for summary judgment in such a case. The Court refers to this as a “substantive sta ndard,” but I think it is actually a procedural requirement engrafte d onto Rule 56, contrary to our statement in Calder v. Jones , 465 U.S. 7 83 (1984) , that “[w]e have alr

ead y declined in other c ontexts to grant special procedural protect

ions to defendants in libel and defamation actions in addition to

the const

itutional p

rotectio ns emb odied i n the substantive laws.” Id. , at 790-791. The Court, I

believe , makes a

n even g reater mi stake in failing

to apply its newly announced

rule to the facts of this case. I nstead of thus illustrating ho w t he rule works, it conten

ts itself w ith abstra

ctions an d paraph

rases of abstractions, sothat its opinion sounds much like a treatise about cooking by

someone who has never cooked before and has no intention of starting now. Id . at 268-69 (Rehnquist, J., dissenting).
Tennessee echoed to follow the Anderson majority in Trigg v. Lakeway Pub lishers, Inc. , wherein this Court held:

Plaintiff also contends that summary judg ment was inappropriate even if he was a public figure

because there is a genuine issue of fact of whether the Times and Thompson were guilty

of “actual malice.”

. . . New York Times Co. v. Sullivan [376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)] makes actual malice a constitutional issue to be decided in the first instance by

the tr ial j udge applying the Times test of actual k nowledg e or rec

kless disreg ard of the truth [and] [u]nless the court finds, on the basis of pretria l affida vits, depo sitions, or other documentary

evidence, that the plaintiff can pro v e actua l malice i n the Times sense, it

should g rant summa

ry judgmen t.-9-

Wright, J., concurring, Wasserman v. Time, Inc. , 424 F.2d 920, 922 (D.C. Cir.), cert. denied , 398 U.S. 940, 90 S.Ct. 1844, 26 L.Ed.2d 273 (1970). “[A] public figure cannot resist a newspape r’s motion for summary judgme nt under Rule 56 by

arguing that th

ere is an issue for t he jury as to malice unless he makes some showing, of the kind contem plate d by the Rules, of facts from which malice may

be inferred.” Thompson v. Evening Star Newspaper Co. , 394 F.2d 774, 776 (D.C. Cir. 1968). Whether there is “actual malice” is a proper question to be decided on motion for a sum mary judgmen t. On motion for

summary judgmen t where p laintiff

, as in this c ase, is a

“public figure,” it is incumbent upon him to show “actual malice” with “convincing clar ity.” See New York Times Co. v. Sullivan , 376 U.S. at 285-286, 84 S.Ct. at 729, 11 L.Ed.2d at 710. Trigg , 720 S.W.2d a

t 74; see also Tomlinson v. Kelley , 969 S.W.2d 402 (Tenn. Ct. App. 1997).
It is, therefore, incumbent upon this Court, in reviewing this grant of summar y judgment a s to the iss ue of actual malice, to determine, not whether ther e is material evidence in the record supporting Plaintiffs, but whether or not the record discloses clear and convincing evidence upon which a trier of fact could find actual malice

. PUBLI CATION “Publication” as used in the tort of defamation has no relationship to the ordinary meaning of the t erm as used i n everyday lif e. In the l aw of de famat ion, it is a term of art meani ng t h e communication of defamatory matter to a third person. Qual ity A uto Parts , 876 S.W.2d at 821; Su llivan , 995 S.W.2d at 571-72. “Publication” is an element of the tort which the plaintiff m us t prove or suffer his complaint to be dismissed.

The term “publication” causes some confusion in a libel cas e such asthis becaus e it is both a business te rm meaning printi ng and d istributio n of writt

e n materia ls and a legal term

meanin g communication of libelous matter to a third person. Painter, “Republication Problems in the Law of Defa mation.” 47 Va.L.Rev. 1131 (1961); 62 Harv.L.Rev. 1041 (1949). Moreover, “publication” used as a leg al termin the Isenber

g case and in T.C.A. § 39-2702 does not det ermine how many causes of action are created by printing and distribution of a libelous book. Rather, us e of the legal term in those instances merely indicates that publication is an essential element of a libel action without which the complaint must be dismissed. Applewhite

v. Memp his State U

niversity , 495 S.W.2d 190, 192-3 (Tenn. 1973).
A distinctio n m ust, likewise, be drawn between the use of the term “ publication” in a criminal indictmen

t and its use

as an ele ment of the

civil tort

.-10-

It is proper to state that there is a marked differe nce between civil and criminal actions for libel, – so far, at least, as the question of publication is concerned. In the former, publicat

ion must be

made to so me third pe

rson, or in such public manner as to reach t hird per sons; but, in c riminal proceedings, publication may be made by communicating the printed matter a lone to th e p ar ty l ibeled. T he reas on for thi s difference

is that in a civil action of libel the gravamen of the action is the pecuniary damage to the cha

racter or cred it of th e p ar ty l ibeled, but in a criminal action the ground of the offe nse is the liability of the words written to provoke a breach of the peace. In the

civilaction the only publication that could injuriously affect thecredit and character

is that mad

e to third per sons, as no

damage to credit or char

acter c ould result from a letter or writing kno wn only to th e party to whom it is sent, and not communic ated to ot

hers. Fry , 33 S.W. at 57 1-72 (citations omitted); see also Insurance Research Service, Inc. v. Associates Financial Corp. , 134 F.Supp. 54, 61 (M.D. Tenn. 1955). While the undisputed facts show that thousands of copies of all editions of The Rattler were freely distributed in the Clarksville community by its publisher, Paul Avallone, and other s, the ca se before the Court a s to Cu

rtis M izeis limited to what the undisputed facts show to be his individual conduct. He is a political opponent of the Piper administration and makes no secret in deposition that his sy mpathies l

ie with the wr iter, publisher and editor of The Rattler . The same undisputed facts show, however, that his participation in any distribution of The Rattler was limite d to allowing a number of copies of the October 5, 2000 issue tobe placed on the co unter of his place of busine ss, along w ith other free newspapers, for his customers to take if they elected to do so. T here is n o evidence in the record that any copy of the October 5, 2000 edition of The Rattler ever reached the hands of a

third party by

any action of Curtis Mize, or that any third party ever took a copy

of The Rattler from the counter in his place of business. Donita Piper testified: Q. Okay . How many copies of the Rattle

r did Mr. M ize give

out? A. Again, I ha

ve no know ledge o f that. Q. Okay. To whom did Mr. Mize give copies of the Rattler? A. Again, I don’t know who his employ ees are. I don’ t know wh o his clien ts ar e. I do n’ t k no w w ho hi s f ri en ds ar e. Th ey w ou ld pr ob ab ly be able t o answer that better than I , but I don’t have any knowledge of who. When asked in deposition what third party ha d received a copy of The Rattler from either Curtis Mize or his place of business, Lori Turner c ould name no person , save a single individual named Roger Freeman, a nd as to this person, she testified: Q. Well, didn’tyou say Mr. Freeman didn’t - - he

tried to give him a copy and Mr. F reeman or Pastor Freema n didn’t ta

ke it? A. Correct

.-11- Q. So do you

have the names of any body who can c orrobor

ate that they received a copy

of the Rattler from Mr. Mize?

. . . . A. No. An unsuccessful effort

to deliver an alleged libelous document to a third p erson will not suffi ce to establish “publication.”

There appears to be no question in the law of defamation that liability is not established unless the allegedly defamatory

statement is in fact

understood by a third person as referring to plaintiff. Restatement of the L aw, Torts, Sec. 564 and comments; 53 C.J.S., Libel and Slander, § 82a, p. 133; 33 Am.Jur., Sec. 89, p. 102; Annotatio n 91 A.L .R., p. 117 1; Tompkins v. Wisener, 33 Tenn. 458.

“ * * * It is necessary

that the recipient of thedefamatory communication understand it as intended to refer to the plaintiff * * *. I f, however, the recipi ent does not understandthat the plaintiff is intended thereby , the fact that the defam er intended to refer to him is immater

ial.” Res tatement

of the L aw, Tort s, Sec. 564, Comment, paragraph a.
Insurance Research Service, Inc. , 134 F.Supp. at 61. In this same Restatement of Torts context, the Court of Appeals of Georgia held:

“In order to effect the publication of a libel there must be a reading of it. Not onlythat, there must be an understanding of its meaning by the person reading it

.

. . Since the gravamen of ci vil libel is injury to reputation, where the e vidence demands a finding that the li bel was n ot read b y th

ose to who m it was all eged to have been commu nicat ed, an d ther e is no evide nce aut horiz ing an infe rence that it was communicatedto anyone else w ho rea d it, or will be presumed to have read it, the case must fall.” (Emphasis supplied.) Allen v. Ame ri can Indem. Co. , 63 Ga.App. 894, 895-8 96, 12 S .E.2d 127 ( 1940). “ It is n ot enoug h that the langua ge use d is reasona bly capable of a def amatory interpre tatio n if the recipie

nt did not in

fact so understand it.” Restatement of the La w, Torts 2d, § 563, Comment c, p. 163. Sigmon v. Womack, 279 S.E.2d 254, 257 (Ga.Ct.App. 1981).
We are not

dealing , in this ap

peal, wit h a publishe

r of a newspaper

or maga zine wher e mass distr ibuti on wo uld a

uthor izea finding that the publication was read and understood by some third party within the context of Restatement (Second) of Torts section 563, but rather with a very limited posting of the Oc tober 5, 2 000 issu e of T he Rattler , by one wh o had n o part in th e writ ing, publ ishi ng, editing or actively disseminating the scandal sheet. No competent material evidence has3 The Rule was extend ed to “pub lic figures” by Cu rtis Pu blishin g C o. v. B utts , 380 U.S. 130 (1967) a nd by

Gertz v. Robert Welch, I nc. , 418 U.S. 323 (1974). -12- been offered that Curtis Mize “published” the October 5, 2000 issue of The Rattler within the meaning of the “publication” element of the tort of defamation. Summary judgment

was prop erly granted by

the trial court. PUBLI C FIGURES The “actual malice” requirements of the landmark case of New York Times Co. v. Sullivan do not a pply to Doni ta Piper a

nd Lor i Turner unless it isfirst det

ermined that they are “pu blic figure s” within the meaning of New York Times . Tennessee adopted standards in sections 580A and 580B of the Res tatement

(Second) of Tort s (1977) in establis hing the distinctio n between def

amation as to a public official or public figure and def amation of a private person. As to a public official or public figure , one ca

n only be held li able if

he knows that the statement is false and that it defames another pe rson, or if he acts in reckless disregar d of such matters. As to a private person, he may be held liab le if he k

nows that t

he state ment is fa lse and th at it defa

mes the pe

rson, acts in reck

less disregard of these matters, or acts negligently in failing to ascertain them. Press, Inc. , 569 S.W.2d 435. The disparity

in treatme

nt of thes e two cla sses of c itizenry is inextric ably

interwov en with freedom of the press as defined in the First Amendment to the Constitution of the United States and in Article 1, section 19 of the Constitution of Tenn esse e. The rig

ht of t he news me dia to

crit icize official conduct i s the basis for the distinction between public figures and private persons. In the co lo rf ul wo rd s o f C hi ef

Ju st ic e H en ry: From the days of the

lonely pamphlet eer ope rating clandes tinely

in Colonial America and crying

out against the usurpations of theCrown, we have elected to reap the benefits and bear the burdens of a free and courag eous press. It may disturb our tr an qu il it y; i[t] may

vex our pea

ce of min d; it may

outrag e our sen sibilities; it may shock our conscience; and it may even momentar

ily shake our beliefs in the right of freedom of the press ; but so dee ply gr ounded is our national commitment to a free p res s that we as a nation tolerate its abuses. The Quid pro quo is that we profit by the very f reedom that sometimes causes us to squirm. Press, Inc. , 569 S.W.2d at 442. The heart of the New York Times ’ rule says, “The c onstitutional guarantees require, we think, a federal rule that prohibits a public of ficial 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 , 376 U.S. at 279-80. 3-13-

In determining the “public figure” sta tus of Appellants, the TennesseeSupreme Court gives guidance: The term“public figure” has been defined variously by the courts as r

eference to the above

cases w ill indica

te. I ncluded withinth is classif ication mu st be those who have thrust themselves into the vortex of important

public co ntrover sies; those who achieve such per

vasive f ame or no toriety

that they become p ublic fig ures for all purposes , and in all contexts; those who voluntarily inject themselves, or aredrawn into public controversies, and become p ublic fig ures for a limited r

ange o f issues; and those who assume special prominence in the re solution of

public que stions. There, no doubt, are other involvements that would invoke the “public figures” designation. Fi na ll y, we think

that a critical concern must be the nature and extent of the individual’s participation in the particular controversy . See Gertz, supra. The status of the individual and the nature and extent of h

is involve ment must be

consider ed in those cases wherein the defamed party is involved in an activity affecting the public, butmay not prec isely

fit in to th e pa tt ern of a pub li c offic ial or p ubl ic figu re. It is a fact of life that one may

be a public officia

l today, a public fig

ure tomorrow and a nonentity the next. His status must, in the last analysis, be dependent not only upon title or some

convenient nomenclature, but also upon the characte r, nature, purpose, intent and extent of his participation in the particular controversy

. Press, Inc. , 569 S.W.2d at 441. The undisputed facts show that Donita Piper, at the time of the events involved in this case, was the wife of

the Mayor of

the City of Clarksville, that she traveled e xtensively out of the state and outof the country a s the spouse of the May or, and that she has writt en storie s and has b een a g uest commentator

for The Leaf-C

hronicle newspaper. Lori Turner

was the incumbent Grants Writer for the City of Clarksville. She had been a c andidate for May or of the City of Clarksville; had been the subject of numerous articles in both the Our City newspaper and The Leaf-C hronicle newspaper; had been a featured

speaker at

various civic groups in the past seven y ears; and had been host of a local radio talk show. Both Donita Piper and Lori Turner a re “publ ic figu res” wit hin the pa rameter s laid do wn by Press, Inc. v. Verran

. ACTUAL

MALI CE
In this case, the Complaint does not allege, and the record doe s not contain, any evidenc e of a conspira cy . Whilethe Complaint alleges joint and several liability as to all Def endants, the proof offered does not establish joint acti vity , at leas t as to Def endant/A ppellee Curtis Mize. He must, therefore, be judged on this Summary Judgment Motion on the basis of his individual activity. Evidence of “act

ual malic e” within

the New York Times - Verran standar d is, at be st, weak as to Mize and certainly does not rise to the dig nity of “clear and convincing evidence.” Summary ju dg me nt fo r M iz e i s m an da te d b y Tomlinson v. Kelley.-14- Public figures who desire to pursue defamation actions bear a heavy burden of proof because of

our socie ty’ s commitme

nt to the pr

inciple that “de bate on pu

blic issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan , 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). In or der to recover damages, they

must prove with con vinc ing clarity that the defendant acted withactual malice. See Press, Inc. v. Verran , 569 S.W.2d 435, 551 (Tenn. 197 8 ); Moore v. Bailey , 628 S.W.2d 431, 433 (Tenn.Ct.App.1981). The concept of actual malice in defamation cases con notes more than personal ill will, hatred, spite, or desire to insure. Se e Masson v. New Yorker Magazine, Inc. , 501 U.S. 496, 510, 111 S.Ct. 2419, 2429, 115 L.Ed.2d 447 (1991); McCluen v. Roane County Times, Inc. , 936 S.W.2d at 939; Windsor v. Tennessean , 654 S.W.2d 680, 688 (Tenn.Ct.App.1983). Rather, it is limited to statements made withknowledg e that the

y a re false or with reckless di sr eg ar d t o t he ir tr ut h o r f al si ty. See Press, Inc. v. Verran , 569 S.W.2d at 441; Cloyd v. Press, Inc. , 629 S.W.2d 24, 27 (Tenn.Ct.App.1981); Restatement (Second) of Torts § 580A (1977). Determining whet her a defendant act

ed with reckless di srega

rd requi res the f inder of fact to determine whether the defendant “in fact ente rtained serious doubts as to the truth of his [or her] publication.” Trigg v. Lakeway Publi shers, Inc. , 720 S.W.2d at 75 (quoting St. Amant v. Thompson , 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968)). Tomlinson , 969 S.W.2d at 405-06.
It is admitted by Plaintiffs that rumors of an affair between May

or Piper andLori Turner wer e rampant in the community long

before the October 5, 2000 edition of The Rattler . The best that can be said of the proof i s that it establishes that, Mize did not subjectively believe the rumors, that he didnot investigate the validity of the rumors, and that he was a political opponent of Mayor Piper

. These facts fall considerably

short of being “clear and convinc ing evidence” of actual malice on the part of Curtis Mize. Summary judgment was prop erly

granted. See Sullivan , 376 U.S. 2 54; Gertz , 418 U.S. 323; Liberty Lobby, Inc. , 477 U.S. 2 42; Press, Inc. , 569 S.W.2d 435; Trigg , 720 S.W.2d 69; Tomlinson , 969 S.W.2d 402. As to the allegations of outrageous conduct a nd false light inv asion of p

rivacy , no proof

is offered that the conduct of Curtis Mize “has been so outra geou s in char acter, and so extr

eme in degree, as to go bey

ond the pa

le of dec ency , and tobe reg arded a s atrocio us and utte

rly intolera ble in a civilized society.” Major v. Charter Lakeside Hosp., Inc. , 1990 WL 125538, at * 3 (Tenn. Ct. App. Aug. 31, 1990). The rumors contained in the October 5, 2000 issue of The Rattler were already prevalent in the Clar

ksville co mmunity

long before Oc tober 5, 2 000. No ba sis exists fo r a claim of false light inv asi on of pr ivacy. Langford v . Vanderb ilt Unive rsity , 287 S.W.2d 32 (Tenn. 1956); Fann v. City of Fairview , 905 S.W.2d 167 (Tenn. Ct. App. 19 94); West v. Media Gen. Conve rgence, Inc. , 53 S.W.3d 640 (Tenn. 2001).-15-

CONCLUSION Whatever may be the rig

hts and responsibilities between and among parties s till before the trial court is not material to this appeal. On this Rule 54.02 designation of finality and the appeal of the Plaintiffs as to Curti s Mize, we are called upon to adjudge whether or not the trial court correctly grant ed summary judgme nt to Curtis Mize. We find summary judgment to have been properl y g ranted a nd, in all r

espects , affirm

the judg ment. Costs of thi s cause a

re asse ssed to the

Appellan ts.

___________________________________ WILL IAM B. CAI

N, JUDGE