On September 20, 1975, Fielding Haas, recently-
resigned city attorney of Norman, Oklahoma,
made libelous accusations against me, in regard
to my antiwar activities during the Vietnam
years, in a letter published by the OU student
newspaper. In response to this I brought a
libel lawsuit against Haas.
It was dismissed by his crony, Judge Elvin
Brown, on grounds that I was a "public figure."
As a "public figure" my case had to rise to
a higher standard of evidence than that required
for other plaintiffs, to sustain a libel accusa-
Appended is a copy of the Oklahoma Supreme
Court's decision to reverse this dismissal.
One of the individuals named in Haas' letter
was John Neal, whose successful election to the
City Council I had earlier promoted, by recommending
to the NCCR steering committee that they endorse
Neal responded to the Haas accusations by publicly
revealing that he had been an FBI informant on the
OU campus during the Vietnam years. He was a rat
who was betraying his associates to the Thought
Police. He also had been a member of the Young
Socialist Alliance, youth affiliate of the Socialist
Workers Party. This gave him access for surveillance
activities against the SWP.
Of course I did not know these things about
Neal when I asked the NCCR to endorse him.
I just thought of him as an old comrade from
the antiwar movement.
Back to the lawsuit, I found it rather chilling
that I, as a private citizen criticizing the
conduct of a public official in a letter to
the editor, became legally defined as a "public
figure," and therefore not entitled to full
protection against retaliation by false and
In direct contradiction to his decision in my
case, Judge Brown allowed former Norman Police
Chief Bill Henslee -- not only a public figure
but a public official -- to bring a lawsuit to
court against an Oklahoma City TV station, which
had exposed his lenient treatment of horse ranch
operators bringing in undocumented workers from
Mexico to work for slave wages and sleep in the
barns. Interestingly, Henslee's lawyer was none
other than Fielding Haas, who enjoyed seeing my
lawsuit dismissed on "public figure" grounds
I would like to hear from anyone who was involved
with or studied the SWP lawsuit against the FBI.
Neal was subpoenaed to give a deposition for it.
Michael WRIGHT, Appellant v. Fielding HAAS, Appellee
Supreme Court of Oklahoma
1978 OK 109; 586 P.2d 1093; 1978 Okla. LEXIS 467
June 18, 1978
PRIOR HISTORY: [**1]
Appeal from the District Court of Cleveland County,
Oklahoma, Honorable Elvin J. Brown, Trial Judge.
Action brought for defamation of character based on
libel contained in a letter addressed to the editor
of, and published in a newspaper. Trial court granted
summary judgment to defendant letter writer, determined
plaintiff to be a public figure, and applied a qualified
privilege. Plaintiff appeals.
DISPOSITION: REVERSED AND REMANDED.
COUNSEL: Peter Clinton Moore, Norman, Oklahoma,
Robert L. Bailey, Sam Whitlock, Norman, Oklahoma,
JUDGES: Lavender, V.C.J., wrote the opinion.
OPINION: [*1094] Michael Wright (Wright), a Norman,
Oklahoma, resident, brought a libel suit against
Fielding Haas (Haas), a former Norman city attorney.
The alleged defamatory statements were contained in
a letter n1 written by Haas that was addressed to
[*1095] the editor of, and published in, The Oklahoma
Daily, the University of Oklahoma newspaper. The Haas
letter was in response to a letter n2 written by
Wright similarly addressed and published in the same
newspaper a few days before the Haas response. These
letters were preceded by a background of controversy
[**2] involving a local issue concerning utility rates
of the municipally owned utility and swirling around
the city council, an organization called Norman Citizens
for Civic Responsibility (NCCR), the city attorney,
his voluntary resignation, and subsequent rehiring.
- - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
[NOTE: The decision as recorded uses asterisks in place
of names of other individuals named by Haas.]
n1 Text of Haas letter follows:
"To the editor:
A letter appeared in the issue of September 16, 1975,
from Mike Wright, claiming to be a member of the
Norman Citizens for Civic Responsibility (NCCR). Since
he apparently desires to continue the attack on behalf
of himself, his cohorts in the NCCR and the other
radicals who run that organization, perhaps you will
accommodate my reply thereto.
First, let me state that my advice to the city council
was based upon what I, and others, consider to be sound
legal grounds The releasing of the tapes to the council,
thence to the media, thence to the public, would have
been a serious breach of the city charter. I have never
permitted vilification from radical or revolutionary
quarters to deter me in the practice of my profession.
If I did, I would voluntarily relinquish my license
to practice law. I would also like to add, in this
regard, that I do not relish answering people such as
Wright, but the public should be aware for whom he
Wright, it is true, is one of the organizers and
principle leaders of the so-called NCCR. He, along
with people named * * * * and others created the
organization using the issue of the increase in
utility rates in July, 1974. Of course, no organization
was needed to create that issue; it was, as subsequently
proven, a universal issue Wright admits in his letter
that has 'radical' views. He, at least in 1969 and
1970, had more than radical views; he effectuated
those views by participating in activities on the
campus which, but for the protection of highway
patrol troopers and the national guard, would have
resulted in the fire-bombing of at least one book
store and the armory. As background on Wright and
some of his comrades in the NCCR, your readers and
the public should consider the following:
During the late 1960's a rag was published entitled
'The Jones Family Grandchildren.' Principally, it
was the mouthpiece of the Students for Democratic
Society, but its membership also included members of
something called the 'OU Committee to End the War.'
Wright was a member of both organizations. The sheet
published by these radicals openly advocated the
destruction of the government; advised and counseled
its readers on how to beat the draft; how to beat
the 'Pigs' on interrogations should they be arrested
Its membership included notorious drug pushers and
users and radical activists who advocated the burning
of university buildings; who flew the Viet Cong flag;
interfered with ROTC ceremonies and generally created
havoc on an innocent facility of the State of Oklahoma
* * * * now a member of the city council, has his
name among the membership of this sheet. Obviously,
their colors haven't changed, for they are still in
association with one another. Some of your readers
might recall that people were arrested for selling
the so-called newspaper.
As another example of Wright's 'views,' I note that
he also held meetings, or 'workshops' on such things
as 'Imperialism' and the university 'ROTC.' And in
May, 1970, along with some 10 other radicals, voted
to commence violence and confrontations with the
police and national guard. The question one might
ask, is, why create violence? Personally, I look to
the columns of the Jones Family Grandchildren for
my answer: the overthrow of the government by any
means. The sad part of that avocation is that they
had nothing in mind to replace the old institutions
of government. They merely wanted to destroy the
'establishment' for destruction's sake. In this I
am reminded of the past four months, having personally
observed their tactics; dissension and distrust in
the police department of Norman, in the city
administration, even as to the council. And for
* * * * was the chairman of the OU Committee to
End the War. He was high in the planning of the
radical march on Washington during that time. He
advocated interferring with judicial procedures on
campus, ROTC ceremonies and other lawful functions
of that state institution. He seemed to be proud of
the fact that he was a member of the Jones Family
Grandchildren. It could logically follow that he, too,
advocated what the other radicals advocated, destroying
the 'establishment.' As an example of * * * * activities,
the JFG held a dance on the South Base in December,
1969. Neal called this dance to the attention of a
meeting of the Committee to End the War and then
encouraged everyone to talk to the GI's who would be
present. We might wonder just what the soldiers
from Fort Sill were to be told or encouraged to do.
Another 'leader' of the NCCR is * * * *. * * * *
had been a resident of Norman for only five or six
weeks prior to the increase in rates last July 30,
1974. * * * * was a Hall flunkie; appointed to a
minor political job in the Capitol. He is a paid
political organizer; he has done political work in
Texas, Oklahoma, Virginia and Rochester, NY. We
wonder just what attracted him to Norman. Perhaps,
the NCCR's ultimate goal of forcing the city to
purchase the various public utilities in Norman
has something to do with it.
* * * * is another leader of the NCCR. * * * *
can tell us about radical activities involving
Tinker Field He is one of the 'Tinker 12.'
And * * * * former wife, * * * *, who as the
spokesman for the NCCR, demanded a grand jury
to investigate city administration. Then when
the city administration requested the council to
try to get a grand jury called, * * * * and the
members of the leadership of NCCR were the first
to run for cover. They didn't want a grand jury,
no more than they want it public knowledge that
the transcripts of the police investigation
conducted by the city manager were turned over
to both the Cleveland County District Attorney's
office and the United States District Attorney's
office for the purpose of determining if a crime
had been committed by anyone.
As long as your readers know who the Wrights
and * * * * are, I don't mind what they have to
say about me. I did not spend my time advocating
the burning of the flag, or state buildings, or
destroying my government. I served it. And with
honor." Fielding D. Haas, Former City Attorney."
n2 Text of Wright letter follows:
"To the editor:
For the past year the Norman Citizens for Civic
Responsibility (NCCR) has encouraged the people
of Norman to exercise their democratic rights.
Predictably, in recent weeks local anti-progressive
forces have made a concerted effort to create a
backlash against NCCR, in order to erode its
The Oklahoma Daily has been a willing instrument
in the anti-NCCR campaign. Two weeks ago the paper
ran an editorial which stated that the NCCR was
'running the city.' Shortly thereafter, the Daily
gave heavy coverage to municipal counsel Fielding
Haas' hysterical claims that NCCR was controlled
by 'radicals' and the building-burning 'antiwar
types.' Following Haas' resignation, the Daily
'congratulated' itself for having brought out a
councilman's denial that NCCR was 'pulling his
In all likelihood, the ridiculous statement that
NCCR was running the city was planted at the
Daily by an anti-NCCR source, as part of a calculated
effort to create a backlash.
For the record, the NCCR is not a shadow government,
but it has been an effective citizens' lobby. There
are individuals in the group who have radical opinions
on a number of contemporary social issues: I include
myself in this category. There are also moderates,
liberals and conservatives. NCCR people are united
on certain local issues, such as support for reasonable
utility rates and ward representation. We respect one
another's differences in viewpoint, and no single bloc
controls the group.
The recent attempts to intimidate NCCR members and
supporters with the 'radical' label reminds one of
the man who made a political career out of redbaiting:
Richard Nixon. Nixon's famous "Pink Lady" smear
campaign against Helen Douglas set a trend which
dominated his style for years. Two decades later, he
was finally revealed as a crook. There are lessons in
Nixon's game finally ended when the tapes which he
fought so hard to conceal were finally heard. Recently,
Norman residents have seen a similar effort to suppress
tape-recorded evidence by a man who has also indulged
in red scare tactics. The parallels do not escape notice.
Unfortunately, the city council saw fit to rehire
Fielding Haas after he made his attack on NCCR. One
would like to believe that they were merely being
magnanimous. Another ugly hypothesis raises its head;
could it be that the council sought to satisfy Haas
in order to prove that they are not 'radical'? If this
is so, what kind of precedent is set? Will anyone be
able to bludgeon the council into taking unwise actions
by merely yelling 'radical'?
After the Council's appeasing treatment of Haas, his
aggression continued. Alst week he insulted them after
his rehiring by publicly stating that the city was run
by 'dingalings.' How long must this continue? Hopefully,
the council members will soon restore their tarnished
esteem, by quickly severing all ties between Fielding
Haas and the City of Norman. Mike Wright."
- - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Here, in seeking to determine the characterization of
Wright, the defamed party, as eight a public or private
personality, we follow the understanding of Gertz v.
Robert Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed.
2d 789 (1974) as expressed by this court in Martin v.
Griffin Television, Inc., Okl., 549 P.2d 85 (1976).
Gertz, supra, allowed the designation of the defamed
party as a "public figure" to rest on either of two
alternative [*1096] bases. First, one may become a
public figure for all purposes and in all contexts.
This may be achieved through pervasive fame or
notoriety. Second, and more commonly, an individual
becomes a public figure for a limited range of issues.
This is achieved by an individual voluntarily injecting
himself into a particular public controversy. Both
Gertz and Martin were determined to be private
individuals. Neither had voluntarily injected himself
into a particular public controversy; neither had
thrust himself into the vortex of a public issue, nor
had either attempted to engage the public's attention
to influence the outcome of a public issue.
We find present case to be a corollary to Martin, supra.
Wright voluntarily [**5] injected himself into the
vortex of the public controversy by writing his letter
addressed to the editor with the intent it be published.
Wright's letter sought to engage the public's attention
to influence public issues. He defended the NCCR. He made
an issue of its composition. He makes himself an issue
through his own labeling of himself as "an individual
having radical opinions on a number of contemporary
social issues." Other issues easily identifiable in
the Wright letter include, but are not limited to,
Haas for his opposition to the NCCR, and his rehiring
by the city council.
Though the lack of rebuttal opportunities may be
considered in seeking to distinguish between public
and private defamation plaintiffs, there are more
important distinctions. Gertz, supra. Here, both
Wright and Haas had established a likelihood of
rebuttal through their letter writing to the editor
and the publishing of both their letters. Wright
is a public defamation plaintiff for the limited
range of issues encompassed within his letter.
Martin, supra; Gertz, supra.
With Wright determined to be a public defamation
plaintiff, the New York Times standard must be
applied. Martin, [**6] supra, p. 87; Weaver v.
Pryor Jeffersonian, Okl., 569 P2d 967, 973 (1977).
That standard requires actual malice to be an
essential element of libel as applied to a public
figure. Actual malice is defined as "with knowledge
that it was false or with reckless disregard of
whether it was false or not."
In granting summary judgment to Haas, the trial
court applied a "qualified privilege." It has been
suggested that common law imposes strict liability
for the publishing of a false and defamatory statement
about another, but also allows a "conditional privilege"
to protect certain defined interest if that privilege
was not abused. n3 Libel and slander case law in this
jurisdiction appears to recognize two bases for a
"qualified privilege." One base stems from statutory
law. n4 German-American Ins. Co. [*1097] v.
Huntley, 62 Okl. 39, 161 P. 815 (1916); Bland v.
Lawyer-Cuff Co., 72 Okl. 128, 178 P. 885 (1918);
Reininger v. Prickett, 192 Okl. 486, 137 P.2d 595
(1943). The other base accepts a "conditional privilege"
without reference to statute Beshiers v. Allen, 46
Okla. 331, 148 P. 141 (1915); Johnson v. Inglis,
190 Okl. 316, 123 P.2d 272 (1942) See also [**7]
Fawcett Publications, Inc. v. Morris, Okl., 377
P.2d 42, 52 (1962).
- - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Restatement of the Law, Second, Torts 2d, Special
Note on Conditional Privileges and the Constitutional
Requirement of Fault, at p. 259, reads in part:
"At common law strict liability was imposed for the
publishing of a false and defamatory statement about
another. The publisher was held liable even though he
had used all due care to check the accuracy of his
statement and thus reasonably believed it to be true.
This has now been changed as a result of Supreme
Court interpretation of the First Amendment to the
Constitution. * * * *
"At common law, a defendant was privileged to make
a statement about another party even though it was
defamatory, so long as he was making the statement
to protect certain defined interests and he did not
abuse the privilege. These are called conditional
privileges, * * * *."
n4 Modern statutory sections of 12 O.S. 1971, 1443
and 1445 establish a statutory presumption of malice
on the part of one publishing a defamatory or injurious
statement. 12 O.S. 1971, 1443 provides:
"A privileged publication or communication is one made:
First In any legislative or judicial proceeding or
any other proceeding authorized by law;
Second. In the proper discharge of any official duty;
Third. By a fair and true report of any legislative
or judicial or other proceeding authorized by law, or
anything said in the course thereof, and any and all
expressions of opinion in regard thereto, and criticisms
thereon, and any and all criticisms upon the official
acts of any and all public officers, except where the
matter stated of and concerning the official act done,
or of the officer, falsely imputes crime to the officer
In all cases of publication of matter not privileged
under this section, malice shall be presumed from the
publication, unless the fact and the testimony rebut
the same. No publication which, under this section,
would be privileged, shall be punishable as libel."
12 O.S. 1971, 1445 provides:
"An injurious publication is presumed to have been
malicious if no justificable motive for making it
is shown." (Emphasis added.)
Like presumptions were held to be unconstitutional
by the United States Supreme Court in Gertz v. Welch,
418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974).
In Martin v. Griffin Television, Inc., Okl., 549 P.2d 85
(1976) this court following the dictates of the United
States Supreme Court in Gertz, supra, held that the
legislative created presumption of malice under the
Oklahoma libel and slander statutes to be unconstitutional.
In doing so, we found portions of 12 O.S. 1971, 1443
and 1445, supra, to be unconstitutional. Additionally,
we found portions of 12 O.S. 1971, 1444 to be
unconstitutional. Section 1444 of Title 12 dealt with
pleadings and proof and defenses in libel and slander
actions. The portion of the statute held unconstitutional
by this court dealt with the plaintiff's burden of proof;
that portion read:
"* * * * and the plaintiff to recover shall only be
held to prove that the matter was published or spoken
by the defendant concerning the plaintiff."
- - - - - - - - - - -End Footnotes- - - - - - - - - - - - - -
With the holding in Martin, supra, of presumed malice under
Oklahoma libel and slander statutes n5 being unconstitutional,
there can be no presumption for rebuttal to act upon as a
statutorially carved out "conditional privilege."
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Portions of 12 O.S. 1971, 1443, 1444, and all of 1445,
Martin, supra, p. 90.
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As already indicated, a "conditional privilege" created at
common law is lost through abuse. One such identified abuse
is knowing the defamatory matter to be false, or acting in
reckless disregard as to its truth or falsity. n6 That is
the same standard as imposed upon Wright as a "public
figure." With the required proof of actual malice, then
the abuse, and resulting loss, of any common law "conditional
privilege" is also proven.
- - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
N6 Restatement of the Law, Second, Torts 2d, Subtitle III.
Abuse of Privilege, 600 reads in part:
"b. One consequence of the holding ( Gertz, supra) is that
mere negligence as to falsity, being required for all
actions of defamation, is no longer treated as sufficient to
amount to abuse of a conditional privilege. Instead,
knowledge or reckless disregard as to falsity is necessary
for this purpose The policy upon which the conditional
privilege is based then no longer applies, and * * * * the
publisher is not given the protection that the privilege
will otherwise afford, if the matter turns out to be
false. * * * *.
"Reckless disregard as to truth or falsity exists when
there is a high degree of awareness of probable falsity
or serious doubt as to the truth of the statement. The
standard here is the same whether liability will be imposed
for a defamatory communication about a public official or
a public figure * * * *." (Explanation and emphasis added.)
- - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**9]
We hold there is no longer a "conditional privilege" available,
either by statute or common law, as a defense to a public
The Haas letter must be viewed as measured by the Times
standard. The trial court granted summary judgment and
found no evidence that Haas in fact entertained serius
doubts as to the truth contained in the Haas letter, or
that the letter was written by Haas with reckless disregard
for the truth or falseness of the statements therein
Weaver, supra, p. 973, discusses the application of Rule
13 n7 authorizing summary judgment to libel cases requiring
actual malice, saying:
"* * * * on motion for summary judgment all inferences
and conclusions to be drawn from underlying facts contained
in such materials as affidavits, admissions, depositions,
pleadings, exhibits [*1098] and the like, must be viewed
in a light most favorable to party opposing the motion.
Northrip v. Montgomery Ward & Co., Okl, 529 P.2d 489 (1974).
"While ordinarily the burden of proving actual malice is
upon the official who complains of defamation, it was held
in Tagawa v. Maui Publishing Co., 49 Haw. 675, 427 P.2d 79
(1967), that on [**10] a motion by defendant for summary
judgment in a libel action, the defendant has the burden
of showing there is no issue of actual malice in the case.
"Motion for summary judgment should be denied if the
facts concerning any issue raised by the pleadings and
affidavits thereinafter filed in the case are conflicting,
or if reasonable men, in exercise of fair and impartial
judgment, might reach different conclusions from undisputed
facts concerning any issue as set forth in such instruments.
Northrip v. Montgomery Ward & Co., supra."
- - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Rules-District Courts, 12 Okl.St.Ann.Ch.2-App., Rule 13.
- - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Haas deposition given in present case indicates the
sources, kinds of knowledge he acquired about Wright and
his interpretation of that knowledge. Included were
conversations with various security officials and much
reliance on contents of an "intelligence log" with
references to Wright. These, along with other information
in affidavits, were the principal bases for many of the
statements made in Haas's [**11] letter. Viewing that
evidence in the light most favorable to Wright, the
party opposing the motion for summary judgment, we find
reasonable men might reach a different conclusion as to
whether Haas wrote his letter with actual malice, as
heretofore defined in this opinion. We cannot find that
there is no substantial controversy as to any material
facts so as to sustain the summary judgment.
The trial court is reversed in granting summary judgment
to Haas and cause is remanded. The trial court was correct
in, and this cause requires, the application of the "Times
standard," for Wright is a public defamation plaintiff.
Reversed and remanded.
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