In his conversation with Lando, Harkleroad asked about the substance of the broadcast and attempted to persuade Lando that the meat Steaks Unlimited was selling was "quality" meat.
The broadcast went on the air as scheduled, with an introduction that Deaner had a "warning tonight." Deaner said that when she first looked at Steaks Unlimited's ad, she "had a feeling something was wrong." No mention in the ad of USDA quality grade was "a tip-off that something is being hidden," she said. What she found out at the Zayre store in East Hills was "totally deceptive and misleading." In the broadcast of the Aubrey Mills interview, Deaner said, "The truth of the matter is that they do everything possible to avoid telling you the price per pound, both in the ads and the sales pitch, because when you take the time to figure it out and compare prices, you'll find that the meat being sold here isn't that much cheaper than the meats being sold in local supermarkets or meat markets." Deaner went on to call Steaks Unlimited's statement that "commercial quality beef" is "fantastic" a "total misrepresentation." She went on to say that "every reputable supermarket or meat market in this area sells either choice or good quality beef. They would not even touch commercial quality meats." Deaner ended by saying "Today, Zayre's officials learned about the quality of the meat and the deceptive sales tactics, and decided to thoroughly end their endorsement of this big steak sale."
Motion for Summary Judgment
As a first basis for summary judgment, defendants argue that the broadcast was substantially true and hence not defamatory. We agree in large part. Whereas defendants have, by affidavit, substantiated the truth of most of the broadcast, plaintiff has offered only a modicum of evidence to place the truth of the statements in issue. Resolving all doubts in favor of plaintiff, the non-moving party, however, we think there still is an issue as to the truth of whether the sales tactics were misleading, whether other Pittsburgh area stores were carrying boxed, "commercial" grade steaks that were unadvertised, and whether Zayres terminated plaintiff's sales because of deceptive practices.
As a second basis for their motion, defendants assert that much of the statements complained in the broadcast constitute opinion, not facts. As the Supreme Court made clear in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), under the First Amendment there is no such thing as a false idea. See also Orr v. Argus Press Co., 586 F.2d 1108, 1114-15 (6th Cir. 1978). Only false statements of fact, accordingly, can be defamatory. While certain expressions in the broadcast, such as the announcement of a warning, may be considered opinion, we think that in substance what plaintiff complains of are factual statements.
As a third ground for the summary judgment motion, defendants contend that plaintiff was a "public figure" for purposes of the steak sale, and that plaintiff has put forth insufficient evidence that it can prove its case under the constitutional rules enunciated in the defamation area. We agree.
A. Public Figure
In the seminal decision of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the United States Supreme Court held that the Constitution restricted the imposition of liability for the publication of defamatory false statements made concerning public officials unless the plaintiff could establish "actual malice." The phrase "actual malice" is a term of art, which the Supreme Court defined in New York Times as publication "with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 279-80, 84 S. Ct. at 726.
Extending the rule of New York Times, the Supreme Court in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), extended the "actual malice" requirement to public figures. Subsequently, refining the notion of "public figures," the Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1976), described two types of public figures. Some individuals of "pervasive fame or notoriety" are public figures in all contexts. Id. at 351, 94 S. Ct. 2997, 3013. Alternatively, "an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." Id. The court went on to explain: "It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation." Id. at 352, 94 S. Ct. at 3013. It is this latter or "vortex" public figure that we are concerned with here.
In Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), the Supreme Court halted any further expansion of the public figure doctrine. There, the Court found that the Firestones' divorce dispute was "not the sort of "public controversy' referred to in Gertz," 418 U.S. at 454, 96 S. Ct. at 965, even though of interest to some people. The court expressly concluded that by their appearance in the divorce action the parties had not " "voluntarily exposed (themselves) to increased risk of injury from defamatory falsehood . . . .' " Id. at 456, 96 S. Ct. at 966.
Plaintiffs in a variety of situations have been deemed public figures within the meaning of the rule of Curtis Publishing Co., Gertz, and Firestone. See, e.g., Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 at 1280, 1281, (3d Cir., 1979); Orr v. Argus Press Co., 586 F.2d 1108 (6th Cir. 1978); Hutchinson v. Proxmire, 579 F.2d 1027 (7th Cir. 1978); rev'd, 443 U.S. 111, 99 S. Ct. 2675, 1 L. Ed. 2d 411 (1979); Vegod Corp. v. ABC, 88 Cal. App. 3d 95, 151 Cal.Rptr. 575 (Cal.App.1979), and cases cited therein. The determination when the plaintiff is a public figure is a question of law for the court. Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966); Chuy v. Philadelphia Eagles Football Club, supra, at 1281, Wolston v. Reader's Digest Ass'n, Inc., 188 U.S.App.D.C. 185, 187, 578 F.2d 427, 429 (1978), rev'd, 443 U.S. 157, 99 S. Ct. 2701, 61 L. Ed. 2d 450 (1979).
In this case, plaintiff is clearly a public figure. It advertised its steak sale to the public extensively by means of newspaper and radio advertisements and handbills distributed in the vicinity of the sale. Certainly a large-scale sale of meat to the public is a matter of legitimate public concern. By marketing its product in a somewhat unusual fashion, plaintiff voluntarily exposed itself to public comment and criticism. As demonstrated by its advertising campaign, plaintiff had the means to refute defendants' criticism by resorting to the media.
Plaintiffs argue that there was no public controversy until the defendants created one. This argument misses the mark, however. In the first place, it is far from clear what difference it makes who uncovers a "public controversy." Secondly, and related to the first, defendants cannot create a "public controversy" over a matter that does not involve public interest regardless of the number of customer complaints concerning the steak sale. See, e.g., Orr v. Argus-Press, supra; Hutchinson v. Proxmire, supra; Vegod Corp. v. ABC, supra.
We conclude, therefore, that plaintiff was a public figure within the meaning of Curtis Publishing Co. and Gertz since plaintiff, an otherwise private person, voluntarily involved itself in a large-scale steak sale, which was a matter of public interest, by its widespread advertising and its management of the sale. By inviting the public's attention to the sale, plaintiff thrust itself into the vortex of any public comment regarding its management of an unusual, large-scale sale involving the public's health. See, e.g., Orr v. Argus-Press, supra; Hutchinson v. Proxmire, supra; Vegod Corp. v. ABC, supra.
Having concluded that the plaintiff was a "public figure" and that it therefore may not recover for defendants' alleged defamation in this matter unless it can prove that defendants made the broadcast with "actual malice," we go on to consider defendants' assertion that plaintiff has failed to meet its burden concerning proof of "actual malice." In general, courts are more disposed to grant summary judgment in first amendment cases involving public figures. See, e.g., Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 35, 365 F.2d 965, 968 (1966), Cert. denied, 385 U.S. 1011, 87 S. Ct. 708, 17 L. Ed. 2d 548 (1967); Bon Air Hotel v. Time, Inc., 426 F.2d 858, 864-65 (5th Cir. 1970); Martin Marietta Corp. v. Evening Star Newspaper, 417 F. Supp. 947, 954 (D.D.C.1976); Aff'd, (D.C.Cir., March 31, 1978).
It appears that there is a split among the courts as to when summary judgment based on a failure to prove actual malice may be granted. One view is as follows:
"In my judgment New York Times Co. v. Sullivan makes actual malice a constitutional issue to be decided in the first instance by the trial judge applying the Times test of actual knowledge or reckless disregard of the truth. Cf. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Unless the court finds on the basis of pretrial affidavits, depositions or other documentary evidence, that the plaintiff can prove actual malice in the Times sense, it should grant summary judgment for the defendant."