Perspectives: Recent deaths recall key Minnesota defamation cases

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“A million deaths is a statistic; a single death is a tragedy.”

— Attributed to Soviet dictator Joseph Stalin

The deaths late last year of a couple of notable Minnesotans evoked memories of their roles more than two decades ago in the evolution of defamation law in this state.

One of the decedents was the redoubtable Sid Hartman, the centenarian sports writer and broadcaster, who passed away in late October, about eight weeks before the death, at age 85, of Gus Chafoulias, a well-known Rochester businessman, although of less renown than the long-time Twin Cities journalist who was a national figure in the sports world.

The elder was the defendant in a groundbreaking defamation lawsuit arising out of his long-running popular Sunday morning radio show in Hunter v. Hartman, 545 N.W. 2d 699 (Minn. Ct. App. 1996). About the time that case was decided, the Rochester entrepreneur was becoming embroiled in a dispute that ultimately earned him a prominent place in the law and lore of libel in Minnesota, due to his role as a plaintiff in the landmark case of Chafoulias v. Peterson, 668 N.W.2d 643 (Minn. 2003). The two cases shared some similarities, while also differing in certain key respects.

The recent deaths of the two marque litigants provide an opportune occasion to review those cases and their role in Minnesota defamation law.

‘Malice’ matter

The venerable sports writer, Hartman worked his way up from an impoverished newsboy selling papers during the Great Depression to a career spanning nearly eight decades with the Star Tribune newspaper and is predecessor as a cub reporter, columnist, and editor. But it was another medium, radio, that threw the legendary scribe and commentator into the throes of libel litigation.

The star of the Sunday talk show on WCCO radio made a number of deprecatory comments about the former team physician and surgeon for the University of Minnesota Gophers football team, questioning his motivation for being critical of ex-coach Lou Holtz, among those sports figures deemed a “close personal friend” of Hartman, and impugning the surgeon’s competence as a physician and surgeon in operating upon some of the squad’s players.

The doctor sued, but a Hennepin County District Court tossed the case on grounds that the doctor was a “limited purpose public figure” and could not establish that Hartman spoke with the requisite “actual malice,” consisting of knowing falsity or reckless disregard for the truth under the venerable New York Times standard. New York Times Co. v. Sullivan, 376 U. S. 254 (1964).

The Court of Appeals affirmed, referencing the lower court ruling that the claimant was linked to the three elements of limited public figure status due to the “existence of a public controversy” about medical treatment of players on the team, the doctor voluntarily had “thrust himself” into the dispute by statements he made in a book written about the coach’s treatment of injured players, and the relationship between the former and the latter.

Different direction 

But after framing those issues, the appellate court veered off in a different direction, holding that the defamation claims were not actionable due to “three pertinent doctrines of law”: the broadcaster’s comments were “mere rhetorical hyperbole” protected under the First Amendment and were not efforts at “stating actual facts” that could be deemed defamatory; that they were constitutionally protected “statements of opinion”; and they were “substantially true” as ‘“supportable interpretations’ of ambiguous underlying situations.”

In doing so, the court repeatedly pointed to the “context of sports talk,” which it viewed as an “inherently ambiguous” forum for “often exaggerated and uncareful (sic) exchange of vehemently held options” in an “atmosphere of overstatement.”

Having created a relatively libel-free zone for sports talk banter, the court intimated in dicta that there was insufficient evidence of “actual malice” that Hartman “knew the falsity of his statements,” which would have justified the limited public figure defense as well.

Hotel harassment 

The Chafoulias case arose out of harassment incidents more than two decades ago at Radisson Plaza Hotel, a large 212 room facility that employed about 185 people, in the downtown area of that medically-based community.

The claimant, Chafoulias, was born in Rochester in 1935 and raised there. After graduating from high school and a couple of years in the U.S. Army, he returned to his hometown, where he took over Andy’s Liquor, a liquor store owned by his father, a Greek immigrant, who also owned a diner where the future entrepreneur had worked as a youth, washing dishes and stocking shelves.

He subsequently became a staple in the Rochester community, as they owner and manager of The Plaza. He also helped develop other hotels among some 50 properties in the area, as well as introducing the skyway system to Rochester.

During his life, he received many local awards and recognitions, including the National Ellis Island Medal of Honor for exemplary individuals “who have made it their mission to share with those less fortunate, their wealth of knowledge, indomitable courage, boundless compassion, unique talents, and selfless generosity,“ while recognizing their “debt to their ethnic heritage.”

But he claimed his stellar reputation was impugned by a Twin Cities attorney in connection with a sexual harassment lawsuit against him and others for events that occurred at the hotel in the early 1990s. He sued the attorney for the sex harassment claimants and a national television network that broadcast the lawyer’s remarks about his involvement in the alleged wrongdoing.

The litigation was as contentious as the incidents underlying the case. It started in Olmsted County District Court, and wound its way to the Court of Appeals and ultimately reached the state Supreme Court, which rendered a split decision in 2003, upholding dismissal of the claim against the television station, on grounds that it did not act with “actual malice,” meaning knowing falsity or reckless disregard for the truth, as required under New York Times v. Sullivan, while maintaining the viability of the lawsuit against the attorney.

The litigation arose out of incidents that happened at the hotel in a two-year span in the early 1990s, centering on complaints by five female employees to management that they were being subjected to sexual harassment and improper behavior by certain Arab male hotel guests. After cancellation of scheduled meeting to talk to Chafoulias about the matter, the women eventually quit.

They later retained a Twin Cities attorney to pursue sexual harassment claims under the Federal Civil Rights Act, include one against Chafoulias, who asserted lack of culpability because he was not involved in the day-to-day operation of the facility. As the parties proceeded to mediation, the women’s lawyer distributed “wanted” posters to publications in Rochester featuring pictures of two Arab men, identified by name, and asking information about them to be furnished to the lawyer.

Shortly thereafter, a Twin Cities based television station, affiliated with the ABC network, broadcast the first of a two-part series concerning alleged sexual harassment of Rochester women by Arab men in who were in the city in connection with treatment at Mayo, either as patients or as part of the patient’s retinue. The TV expose was part of a series of media stories about the topic, particularly in the local Rochester Post Bulletin newspaper, which preceded the filing of a lawsuit in federal court on behalf of the women, alleging sexual harassment and other inappropriate behavior, including a rape. They claimed that Chafoulias, as the employer, was vicariously liable for the conduct of his subordinates, who ignored, condoned, or contributed to the illegalities and that he himself knew about the offensive behavior but did not notify police or take other appropriate action.

Further media stories ensued, including a broadcast on ABC’s popular Prime Time Live television program, which included segments of interviews of Chafoulias and with women’s lawyer, who stated that Chafoulias “has known for years that these women were being attacked, harassed, and raped.”

The federal litigation was settled about a year later, a few months before Chafoulias sued the lawyer and ABC for defamation. A central issue in the case, as in the Hartman litigation, was whether the claimant was a “limited purpose public figure,” which would require him to prove “actual malice” by ABC and the attorney under the rigorous New York Times standard. The women’s lawyer and ABC both moved for summary judgment, which was granted on grounds that there was insufficient evidence to establish actual malice on the part of either. The Court of Appeals affirmed, holding the Olmsted County District Court’s determination that Chafoulias was a limited purpose public figure at the time of the broadcast and that because he had “actively and voluntarily” participated in the broadcast, it upheld summary judgment in favor of both ABC and the lawyer.

Setting stage

That set the stage for the decision by the Supreme Court, which was focused on two issues: 1) whether Chafoulias was a limited purpose public figure to invoke the New York Times rule, or a private figure, subject to a lesser standard of negligence; and 2) if he was, if sufficient “clear and convincing evidence” existed of “actual malice” to maintain the claims against both ABC and the lawyer.

Unlike the appellate court in the Hunter-Hartman hubris, the Supreme Court did address this issue on the merits. Conducting its legal analysis separately for both ABC and the lawyer, the court concluded that Chafoulias was a “limited purpose public figure,” as to ABC, and that he failed to establish that it knew or recklessly disregarded the truth in its broadcast with “clear and convincing evidence,” warranting dismissal of the claim against it.

As to the attorney, however, the court concluded that there were genuine issues of fact as to whether the lawyer’s conduct created such a public controversy, which Chafoulias voluntarily interjected himself into in order to treat him as a limited public figure. The court remanded those issues to the District Court for further determination.

The court’s analyses of the issues provided a periscopic view of defamation law as it was existed at the time, and for that matter, still exists to a large extent today.

Viewing the question of Chafoulias as a limited public figure as a question of law for the court to decide, it addressed three separate questions: (1) whether a public controversy existed; (2) whether Chafoulias played a meaningful role in it; and (3) whether the alleged defamatory statement “related to [that] controversy.” The court concluded in the affirmative on each of the questions.

The claimed sexual harassment of the women hotel workers by male Arabs was a matter of public interest, but the matter “had expanded [to] … whether the allegations were being sufficiently investigated” by management and local law enforcement authorities. The role of Chafoulias in that controversy qualified as a limited public figure because he did thrust himself into the controversy and there was a “relationship between [the attorney’s] statements… and the public controversy.”

ABC was deemed not liable because there was no “clear and convincing evidence that [it] acted with actual malice,” knowing falsity or reckless disregard for the truth, as there was nothing in the record to evidence an awareness by ABC of the probable falsity of the statements made by the attorney, which it “attempted to verify.” Accordingly, summary judgment was appropriate as to ABC.

The attorney, however, was subject to liability because she made use of the media to create the public controversy, which would disqualify her from asserting the limited purpose public figure privilege. But the case was remanded in order to determine whether the attorney acted with “actual malice” to uphold a defamation claim, although a dissenting opinion joined by two of the justices lamented that the majority decision inappropriately placed the television station in a “different position” than the lawyer, who also should have been granted summary judgment because she had no “obvious reason” to doubt the veracity of one of the claimants, and had conducted an intensive investigation into the allegations made against the hotel personnel.

Remand rulings

But, in a highly unusual rehearing, the court revised its direction, sending the matter back to the Court of Appeals to determine other privilege issues raised by the attorney, including defenses of the “judicial action” privilege, the public official privilege and a qualified privilege.

Upon remand, the appellate court ruled against the attorney, holding that the statements made in the TV broadcast were “not privileged under any of [those] doctrines.” The “judicial action privilege” did not apply because the attorney’s statements were not made “in furtherance of the litigation or to promote the interest of justice.”

Nor did the attorney’s statement invoke the public official privilege because the attorney was not a public official, performing a governmental function, in making the statement to ABC.

Finally, the attorney’s statements were not entitled to a qualified privilege because they were not made on a proper occasion for the purpose to invoke the qualified privilege, since they were not part of an official proceeding of investigation nor necessary to fulfill a “legal obligation” to serve the public interest.

Thus, television station was not liable, but the attorney could be, which resulted in sending the case back to the lower court, where it ultimately was resolved.

In their notable lifetimes, both Sid Hartman and Gus Chafoulias contributed a great deal to Minnesota, and they will be greatly missed by their communities, colleagues, family members, and others. But they also made indelible marks on the law of libel that also will be long remembered.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.