Opinion
No. 9.
Argued November 25, 1969. —
Decided December 19, 1969.
APPEAL from a judgment of the circuit court for Milwaukee county: ROBERT F. PFIFFNER, Circuit Judge of the Nineteenth circuit, Presiding. Affirmed.
For the appellants there were briefs by Stan T. Pelecky and Grant D. Waldo, both of Milwaukee, and oral argument by Mr. Pelecky.
For the respondents there was a brief by Foley, Sammond Lardner and James P. Brody, all of Milwaukee, and oral argument by Mr. Brody.
The plaintiffs in this libel action, Grant D. Waldo, an attorney in Milwaukee, Manuel Gottlieb, a professor of economics at the University of Wisconsin-Milwaukee, and Joseph T. Petska, the executive secretary of the Milwaukee County Property Owners Association, initiated a taxpayers' suit in the circuit court for Milwaukee county on April 1, 1965, seeking a declaratory judgment regarding the constitutionality of various provisions of the Urban Redevelopment Law, which permitted municipal governments to grant redevelopment corporations limited term property tax exemptions on large construction projects. The city of Milwaukee, as defendant in that case, demurred to the complaint.
On December 14, 1965, the circuit court for Milwaukee county sustained the city's demurrer and dismissed the case, finding that the law was constitutional.
On subsequent appeal, this court reversed the circuit court's sustaining of the demurrer and held the law to be unconstitutional. See Gottlieb v. Milwaukee (1967), 33 Wis.2d 408, 147 N.W.2d 633.
On December 15, 1965, the Milwaukee Journal published the following editorial:
"Big Victory Over Blight
"Circuit court validation of the assessment freeze law, the most serviceable and efficient single weapon in Milwaukee's downtown blight fight, is a great relief to city hall and should give the community great satisfaction.
"The challenging suit, started six years after the city began using the law, was a sort of nuisance action, apparently meant to harass the city administration, in part at least. It almost had to turn out as it did, yet it made a nervous interlude. Its effect may be desirable anyway if it now silences lingering doubters and complainers and spurs more enthusiastic use of the law.
"The central issue was over the state constitutional provision that `the rule of taxation must be uniform.' Judge Leo Hanley has affirmed that this permits reasonable classification of taxpayers and different provisions for different classes, so long as the rule is uniform within each class. And he finds it reasonable to classify private redevelopers who contribute major replacements of blight with modernity and high tax base, in a way that the freeze makes possible.
"The most compelling argument of Deputy City Atty. Harry Slater was that such a redeveloper is being induced to serve a public purpose, which the city would need to serve with public funds directly if he didn't. The corporation that he must form for the purpose is under such stringent city control of its management and profits that it is almost a public service agency during the freeze period. This is the `quid pro quo,' the tit for tat, that makes the freeze a proper stroke of business, not a give-away.
"The challengers had argued that other methods of blight fighting were available, and that not everybody can meet the qualifications for freeze projects. Slater correctly retorted that these were merely expressions of personal preference for something different, they were not judicial issues, and the forum for seeking changes in the law and public policy was the legislature.
"Another assessment freeze law that the city is using to advantage is for firms forced to move by public projects like freeways; it is an inducement to relocate within the city in new and bigger quarters. This was not involved in the Hanley decision but the rationale is reassuring about its validity, too. Surely this law, too, makes a reasonable classification and serves a public interest." (Emphasis added.)
Subsequently, on December 14, 1967, the plaintiffs commenced the instant action alleging that the underscored portion of the above editorial libeled each of them separately. Defendants demurred to the complaint and the trial court sustained the demurrer and dismissed the complaint without leave to plead over. The plaintiffs appeal.
One issue is dispositive of this appeal. It is whether the language complained of could reasonably be construed in its proper context as being defamatory to the plaintiffs.
We must first consider whether the language complained of is defamatory within the meaning of the Restatement test which this court has often quoted with approval:
See Ranous v. Hughes (1966), 30 Wis.2d 452, 460, 141 N.W.2d 251, and cases cited therein; Lathan v. Journal Co. (1966), 30 Wis.2d 146, 153, 140 N.W.2d 417.
"A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."
Restatement, 3 Torts, p. 140, sec. 559. See also Prosser, Law of Torts (hornbook series, 3d ed.), p. 756, sec. 106.
To sustain the demurrer, it must be determined as a matter of law that the language complained of is incapable, under the circumstances pleaded, of harming the reputation of the plaintiffs as defined within the above-quoted test.
Lathan v. Journal Co., supra, footnote 2, at page 153.
In determining whether the language complained of is defamatory, the words must be reasonably interpreted and must be construed in the plain and popular sense in which they were used and the circumstances under which they were uttered. The demurrer only admits that the words were published as alleged, not the meaning which the plaintiffs have given to them.
Frinzi v. Hanson (1966), 30 Wis.2d 271, 140 N.W.2d 259; Meier v. Meurer (1959), 8 Wis.2d 24, 98 N.W.2d 411; Leuch v. Berger (1915), 161 Wis. 564, 155 N.W. 148.
Meier v. Meurer, supra, footnote 5, at page 30; Kassowitz v. Sentinel Co. (1938), 226 Wis. 468, 476, 277 N.W. 177.
This court has said:
"If the alleged communication is capable of a defamatory meaning, the demurrer must be overruled; and if the language is of such a character that it is capable of a nondefamatory meaning as well as a defamatory meaning, then a jury question is presented whether such communication was understood in fact in a defamatory sense by the persons to whom it was published. . . . If the communication cannot reasonably be considered defamatory or to be so understood, the demurrer must be sustained."
Frinzi v. Hanson, supra, footnote 5, at pages 275, 276.
As is often true in cases such as this, the difficulty is not so much to ascertain the law as correctly to apply it.
The plaintiffs contend that the editorial was libelous to them in two respects: (1) By characterizing their taxpayers' suit as ". . . a sort of nuisance action, apparently meant to harass the city administration, in part at least," and (2) by referring to the silencing of "lingering doubters and complainers. . . ."
Appellants and respondents agree that the editorial must be considered as a whole in determining whether the language contained therein is defamatory. Considering the entire editorial here, it is difficult to understand how any defamatory meaning could be ascribed to the words objected to. In fact, even considering the words alone, they would not appear to be defamatory, notwithstanding the detailed and involved definition and derivation of the words "nuisance" and "harass" as set out in the plaintiffs' briefs.
See Schoenfeld v. Journal Co. (1931), 204 Wis. 132, 235 N.W. 442.
The trial court, in sustaining the demurrer, said, inter alia:
"The comment in the second paragraph that the suit was `a sort of nuisance action' is an expression of opinion of the writer about the suit, namely, that he didn't think it had great merit. A `nuisance' is ordinarily and in a popular sense thought of as something being irritating and a `nuisance suit' as one having little value but nonetheless an irritant. . . . The judge had just ruled that the facts alleged in the complaint [in the taxpayers' suit] were not sufficient to constitute a cause of action. No innuendo can establish that this phrase is a statement that plaintiffs knew or felt the action was without merit when commenced or even that it had no merit and certainly is not capable of being understood as ascribing a bad motive in bringing the action.
"The next comment in the second paragraph that the suit was `apparently meant to harass the city administration in part at least' likewise is an expression of opinion. The phrase, `in part at least', indicates that even in his opinion the suit was brought for reason or reasons in addition to harass the city administration. Even though this comment expresses an opinion that part of the motivation or reason for the suit was harassment, it falls far short of conveying the meaning that the suit had no chance of success from the beginning and that the plaintiffs knew it and had had low motives in bringing the suit. Any suit is either with or without merit and either a harassment or not depending upon whose glasses are being looked through or whose opinion is being given or sought."
This is an entirely correct and reasonable interpretation of the phrase "sort of nuisance action, apparently meant to harass the city administration, in part at least." It is not unreasonable to say that every lawsuit tends to harass the defending party, and if the defending party should be victorious it is not unusual to describe the other side's action as a nuisance. To impart any defamatory meaning to these words would result in a strained and unnatural construction, and give effect to innuendoes that are neither apparent directly from the language nor arise by clear implication. Nothing in this language could reasonably be construed as harming the reputation of the plaintiffs, lowering them in the estimation of the community, or deterring third persons from associating or dealing with them.
See Puhr v. Press Publishing Co. (1946), 249 Wis. 456, 461, 25 N.W.2d 62.
See Luthey v. Kronschnabl (1942), 239 Wis. 375, 1 N.W.2d 799.
Similarly, the phrase "lingering doubters and complainers" cannot reasonably be construed as being defamatory. The trial court well said concerning this phrase:
"I can find nothing defamatory in the use of the words `lingering doubters and complainers.' That the plaintiffs were both doubters and complainers is manifest (and successful ones too) but these words convey no defamatory meaning either in themselves or reading them in context with the paragraph in which they are located or in the entire editorial. The sense of the sentence conveys the meaning that the suit itself may now have the desirable effect of silencing all those who doubt and complain of the law and the further purpose of putting the law to wider immediate use."
Plaintiffs argue that sustaining the demurrer in this case would have the effect of deterring future beneficial taxpayer suits since it would give newspapers permission to defame initiators of taxpayers' suits with impunity. This argument is wide of the mark. Even if a nexus between the bringing of a taxpayer's suit and the knowledge that a plaintiff in such suit would be protected from defamation were assumed, a decision adverse to the plaintiffs in the instant case would not jeopardize taxpayer suits' favored position. Only if the instant plaintiffs' premise is accepted, i.e., that the words of this editorial are defamatory, could an adverse decision be possibly interpreted as a deterrent. There simply was no defamation here. Had there been, whether it related to plaintiffs in a taxpayers' suit or in an ordinary suit, redress could still be achieved through a properly pleaded libel action.
We conclude that the words complained of here cannot in any ordinary meaning be reasonably construed as being defamatory. The trial court must be affirmed in sustaining the demurrer.
By the Court. — Judgment affirmed.
HANLEY, J., took no part.