As discussed above, defamatory content consists of words that damage an individual’s reputation. The N.C. Supreme Court has recognized three categories of libelous content: 1) libel per se, consisting of “obviously defamatory” publications; 2) “publications which are susceptible of two reasonable interpretations, one of which is defamatory and the other is not”; and 3) libel per quod, “publications which are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium and explanatory circumstances.”[30]
The last two categories recognized by the N.C. Supreme Court might seem rather frightening at first glance because they imply a journalist could be held liable for words she never suspected of being harmful or for a meaning she never intended to impart. Fortunately, the state’s high court has imposed restrictions on the last two types of libel, making it difficult for plaintiffs to succeed in such cases. There are no reported North Carolina cases in which a claim based on either libel per quod or libel resulting from a publication susceptible of two meanings succeeded.
In a case involving words that are susceptible of two meanings, the plaintiff must prove the “defamatory meaning was intended and was so understood by those to whom the publication was made.”[31] In a 1985 case, a boutique claimed a cartoon in an advertising supplement had two meanings, one of which defamed the business. The cartoon pictured a cat saying, “Look what I got at Cathy’s Boutique . . . a designer flea collar!” The Court of Appeals saw only one meaning in the ad, one that was humorous and not defamatory.[32]
In cases of libel per quod, the plaintiff must prove the innuendo, that is, must prove the special circumstances that make a seemingly innocent statement defamatory. It is up to the judge to determine if the statement is capable of having a defamatory meaning. If so, then the jury determines whether the audience understood the defamatory implication or connotation. “The circumstances of the publication are pertinent, as well as the hearers’ knowledge of the facts which would influence their understanding of the words used.”[33] In addition, in cases of libel per quod, plaintiffs must prove special damages, that is, actual monetary loss as a result of the libel.[34]
The first category, libel per se, accounts for the vast majority of libel actions. It consists of statements that are harmful on their face. The reader or listener needs no additional information to understand the charge, nor is the meaning of the statement unclear or subject to interpretation.[35] “The general rule is that publications are to be taken in the sense which is most obvious and natural according to the ideas that they are calculated to convey to those who see them. . . . The question always is how would ordinary men naturally understand the publication. . . . The fact that super-sensitive persons with morbid imaginations may be able, by reading between the lines of an article, to discover some defamatory meaning therein is not sufficient to make it libelous.”[36]
The N.C. Supreme Court has identified four specific types of libel per se: 1) accusing a person of having committed “an infamous crime”; 2) charging that a person has “an infectious disease”; 3) impeaching a person in his or her trade or profession; and 4) a catchall category consisting of communication that “tends to subject one to ridicule, contempt, or disgrace.”[37] According to the state Supreme Court, “[I]t is not essential that the words should involve an imputation of crime, or otherwise impute the violation of some law, or moral turpitude, or immoral conduct.” Libel encompasses any message that tends “to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule or cause him to be shunned and avoided.”[38]
The first type of defamatory statement listed by the court — accusing a person of having committed an infamous crime — is one of the most common bases for libel suits. It includes reporting a person was charged with, arrested for or convicted of a serious criminal act.[39] However, in 1999, the Court of Appeals said that not every felony constitutes an “infamous crime” sufficient to meet the libel per se definition. An unsuccessful candidate for the Black Mountain Board of Aldermen sued a citizen who publicly accused the candidate of not living in the town when he filed to run for office. Because it is a Class I felony “to swear falsely with respect to any matter pertaining to any primary or election,”[40] the plaintiff contended the accusation constituted libel per se. Noting that throwing rocks at railroad cars, offering prizes of more than $50 for beach bingo games and taking polluted shellfish at night are also Class I felonies, the appellate court disagreed. “[I]t cannot be seriously contended that this particular felony carries with it the infamy accorded to those such as murder and treason,” the court said in determining that at most the accusation could be libel per quod.[41] The plaintiff could not win on a per quod claim either, though, since the court held that loss of an election does not constitute special damages.[42]
Because North Carolina, as well as other states, deemed sodomy a felony,[43] individuals falsely labeled homosexuals sometimes claimed that allegation constituted libel per se because it accused them of a crime. In a 1994 slander case, the N.C. Court of Appeals said that calling someone “gay and bisexual” did not constitute accusing a person of “‘a crime or offense involving moral turpitude,’” one of the three types of slander per se.[44] Referring to the decisions of other courts in other states, the state appeals court said, “[T]he label of ‘gay’ or ‘bisexual’ does not carry with it an automatic reference to any particular sexual activity; indeed, . . . it does not necessarily connote sexual activity at all, but rather inclination or preference.”[45] While this was a slander, not a libel, case, it is reasonable to assume that the Court of Appeals would have reached a similar decision in a libel per se case based on the “infamous crime” category.
The second category listed by the court — charging a person with having an infectious disease — reflects societal views of an earlier era when smallpox, diphtheria, tuberculosis and other communicable diseases were leading causes of death. Today an accusation of this sort seldom is the basis for a libel action, but journalists need to be very careful about identifying an individual as having AIDS or some other sexually transmitted disease. In a 1912 N.C. Supreme Court slander case involving the “infectious disease” category, the court ruled it was slander per se to say someone had “a loathsome venereal disease.”[46]
Statements tending to harm a person’s occupational or professional reputation are another common basis for libel suits. Allegations of incompetence, unethical behavior, lack of integrity or occupational crime are all actionable. In the 2002 campaign ad case mentioned above in the section on identification, the N.C. Court of Appeals found the following content “directly maligned plaintiffs in their profession by accusing them of unscrupulous and avaricious billing practices”[47]:
I’m Roy Cooper, candidate for Attorney General, and I sponsored this ad.
····
Dan Boyce-his law firm sued the state, charging $28,000 an hour in lawyer fees to the taxpayers.
The Judge said it shocks the conscience.
Dan Boyce’s law firm wanted more than a police officer’s salary for each hour’s work.
Dan Boyce, wrong for Attorney General.[48]
In 1970 a court ruled it was libelous for Sports Illustrated to report that Neil Johnston, an assistant basketball coach at Wake Forest University and former NBA player, “was at one time during his career as a professional player destroyed psychologically, practically run out of organized basketball, and playing so ludicrously that the players on the bench were laughing.” According to the court, “It seems that this would tend to subject him to ridicule, contempt and/or disgrace; and, since the plaintiff is presently an assistant basketball coach at Wake Forest University, this might also tend to impeach him in his trade or profession.”[49] In 2005, a dispute over a billboard resulted in the N.C. Court of Appeals upholding a jury’s decision that calling one of the plaintiffs a “lease jumper,” “bitch” and “billboard whore” and accusing her of “unprofessional, unethical and despicable” actions constituted libel.[50]
Even though it is difficult for a public official to win a libel suit because of the constitutional fault requirement (discussed below), accusing a government employee of corruption, dereliction of duty, incompetence or illegal conduct in the performance of his or her job can result in a libel suit. In an unusual case resulting from a “heavily edited” video of Greensboro police officers arresting a rapper at the Four Seasons Mall in 2005, the court ruled that portraying the officers as racists who illegally arrested rapper Jayceon Taylor “caused plaintiffs significant harm in their personal lives and in their careers as police officers, [and] that this harm will continue throughout the remainder of plaintiffs’ careers.”[51] The video was included as a bonus feature on Taylor’s documentary’s DVD “Stop Snitchin’ Stop Lyin’,” which the trial court found earned Taylor and his co-defendants in excess of $40 million. The trial court awarded each of the five police officers $1 million in compensatory damages and $2 million in punitive damages, but in 2012 the Court of Appeals remanded the case for reconsideration of the punitive damages amount.[52]
Other North Carolina cases have resulted from an editorial accusing a sheriff of having “openly lied to the public” when he denied having sex with a jail inmate’s girlfriend;[53] letters to state officials and news media accusing county election officials of election fraud;[54] a report that an assistant district attorney was fired for incompetence;[55] allegations that a deputy sheriff may have violated federal law and been involved in a conspiracy in connection with the fatal shooting of a burglary suspect;[56] and, in 1904, an article in The News & Observer charging the director of the state prison with illegally profiting from the state prison’s purchase of over-priced horses and mules.[57]
The N.C. Supreme Court’s fourth catchall category of libelous statements can include charging someone with immoral, bizarre or socially unacceptable behavior; saying a person is of bad character or lacks personal integrity; suggesting a person engages in deviant sexual conduct; or accusing a person of holding radical political beliefs or being associated with generally discreditable organizations, such as the Nazi Party or Ku Klux Klan. In 1969 the N.C. Court of Appeals ruled it was libelous for the Winston-Salem Journal to erroneously report that a woman’s husband divorced her for adultery.[58] Three decades earlier, the N.C. Supreme Court held that an article in The State magazine asserting that a woman’s home was unsanitary and her manner of living indecent because of the numerous dogs she kept could be considered defamatory.[59]
However, not every statement that upsets or embarrasses a person is defamatory. In the 1994 slander case discussed above, the Court of Appeals said, “[A]s North Carolina progresses through the mid 1990’s, we are unable to rule the bare allegation that an individual is ‘gay’ or ‘bisexual’ constitutes today an accusation which, as a matter of law and absent any ‘extrinsic, explanatory facts,’ . . . per se holds that individual up to ‘disgrace, ridicule or contempt.’”[60] Similarly, in one of the state’s classic cases, decided in 1938, the N.C. Supreme Court said it was not defamatory to incorrectly identify a woman as a member of a vaudeville troupe. “To do so would in effect hold that such type of entertainment is disreputable and those connected therewith are persons of ill-repute. This would constitute an unwarranted reflection upon and condemnation of many young ladies who earn their living in this manner.”[61] In a 1987 case, the Court of Appeals ruled a letter sent to the media attacking two women who had complained about working conditions at a chicken processing plant was neither libel per se nor libel per quod. The letter called the women’s complaints “a bunch of hog wash” and added, “The two ladies . . . have always been out of work for numerous reasons. . . . We are not saying there is nothing wrong with these ladies, we definitely think there is.”[62]
Businesses also can sue for libel. Recall that in the campaign ad case discussed above, the law firm itself was a plaintiff along with the individual attorneys.[63] Charging that a business engages in deceptive practices; has ties to organized crime; is financially unstable or insolvent; intentionally sells dangerous or shoddy products; mistreats its employees; violates labor, tax, health and safety or other laws; or is otherwise disreputable can all damage a corporate reputation. In 1990 Ellis Brokerage Co. won a libel suit against another company that had sent letters to Ellis customers accusing Ellis of sending out unauthorized price lists. The N.C. Supreme Court held that the disputed passage, in the context of the entire letter, “can only be read to mean that Ellis Brokerage Company, acting in its capacity as broker for Northern Star, did an unauthorized act.” This, said the court, “impeaches Ellis Brokerage in its trade as a food broker.”[64] An attack on a product, as opposed to the business producing the product, is known as product disparagement or trade libel. In a product disparagement suit, the plaintiff must prove all the usual elements of the offense, plus monetary loss resulting from the defamation.[65] Product disparagement suits against the media are rare; they usually result from battles between competitors and involve other issues, such as unfair competition and deceptive trade practices.[66]
[30] Flake v. Greensboro News Co., 212 N.C. at 785.
[31] Renwick v. News & Observer Publ’g Co., 310 N.C. 312, 317, 312 S.E.2d 405, cert. denied, 469 U.S. 858 (1984).
[32] Cathy’s Boutique, Inc. v. Winston Salem Joint Venture, 72 N.C. App. 641, 325 S.E.2d 283 (1985).
[33] Tyson v. L’Eggs Prods., Inc., 84 N.C. App. 1, 13, 351 S.E.2d 834 (1987).
[34] See Jolly v. Academy Collection Serv., Inc., 400 F. Supp. 2d 851, 863-64 (M.D.N.C. 2005); Flake v. Greensboro News Co., 212 N.C. at 785.
[35] Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 28, 588 S.E.2d 20, 27 (2003).
[36] Flake, 212 N.C. at 786.
[37] Id. at 787.
[38] Id. at 786.
[39] See, e.g., Woody v. Catawba Valley Broad. Co., 272 N.C. 459, 158 S.E.2d 578 (1968); Greer v. Skyway Broad. Co., 256 N.C. 382, 124 S.E.2d 98 (1962); Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d 67 (1962); Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775 (1891); Taylor v. Greensboro News Co., 57 N.C. App. 426, 291 S.E.2d 852 (1982); Walters v. Sanford Herald, Inc., 31 N.C. App. 233, 228 S.E.2d 766 (1976).
[40] N.C. Gen. Stat. §163-275 (4) (2005).
[41] Aycock v. Padgett, 131 N.C. App. 164, 167, 516 S.E.2d 907, 909-10 (1999).
[42] Id. at 168.
[43] N.C. Gen. Stat. § 14-177 (2011). But see State v. Whiteley 172 N.C. App. 772, 616 S.E.2d 576 (2005) (limiting applicability of the statute in light of Lawrence v. Texas, 539 U.S. 558 (2003)).
[44] Donovan v. Hunter, 114 N.C. App. 524, 528, 442 S.E.2d 572, 575 (1994) (quoting Williams v. Freight Lines, 10 N.C. App. 384, 388, 179 S.E.2d 319, 322 (1971)). The other two types of slander per se are impeaching a person in his or her trade or profession and imputing to a person a loathsome disease. Id.
[45] 114 N.C. App. at 531, 442 S.E.2d at 577.
[46] Hamilton v. Nance, 159 N.C. 56, 74 S.E. 627 (1912).
[47] Boyce & Isley, PLLC v. Cooper (Boyce I), 153 N.C. App. 25, 32, 568 S.E.2d 893, 899 (2002). But see Hugh Stevens, Boyce & Isley, PLLC v. Cooper and the Confusion of North Carolina Libel Law, 82 N.C.L. Rev. 2017, 2026-28 (2004) (questioning the appeals court’s designation of the statements as libel per se). In a subsequent review of the same case, a different panel of the Court of Appeals referenced the Stevens article, noting it too had concerns about whether the Boyce I panel “misapplied defamation law.” Boyce & Isley, PLLC v. Cooper (Boyce II), 710 S.E.2d 309, 316 n.2 (N.C. Ct. App. 2011), cert. denied, No. 11-979, 2012 WL 425178 (U.S. May 14, 2012).
[48] 153 N.C. App. at 27, 568 S.E.2d at 897.
[49] Johnston v. Time, Inc., 321 F. Supp. 837, 849 (M.D.N.C. 1970), aff’d in part, vacated in part, 448 F.2d 378 (4th Cir. 1971).
[50] Beroth Oil Co. v. Whitehart, 173 N.C. App. 89, 100-01, 618 S.E.2d 739, 747 (2005), cert. denied, 633 S.E.2d 674 (2006). See also Bell v. Simmons, 247 N.C. 488, 495, 101 S.E.2d 383 (1958); Badame v. Lampke, 242 N.C. 755, 757, 89 S.E.2d 466 (1955); Lay v. Gazette Publ’g Co., 209 N.C. 134, 137, 183 S.E.2d 416 (1936).
[51] Nguyen v. Taylor, 723 S.E.2d 551, 555, 560 (N.C. Ct. App. 2012).
[52] Id. at 560-64.
[53] Proffitt v. Greensboro News & Record, Inc., 91 N.C. App. 218, 371 S.E.2d 292 (1988).
[54] Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d 67 (1962).
[55] Clark v. Brown, 99 N.C. App. 255, 393 S.E.2d 134, cert. denied, 327 N.C. 426, 395 S.E.2d 675 (1990).
[56] Cline v. Brown, 24 N.C. App. 209, 210 S.E.2d 446 (1974), cert. denied, 286 N.C. 412, 211 S.E.2d 793 (1975).
[57] Osborn v. Leach, 135 N.C. 628, 47 S.E. 811 (1904).
[58] Littlejohn v. Piedmont Publ’g Co., 7 N.C. App. 1, 171 S.E.2d 227 (1969).
[59] Harrell v. Goerch, 209 N.C. 741, 184 S.E. 489 (1936).
[60] Donovan v. Hunter, 114 N.C. App. at 538, 442 S.E.2d at 580 (quoting Badame v. Lampke, 242 N.C. at 757, 89 S.E.2d at 467 (1955); West v. King’s Dept. Store, Inc., 321 N.C. 698, 703, 365 S.E.2d 621, 624 (1988)).
[61] Flake v. Greensboro News Co., 212 N.C. at 789.
[62] Tyson v. L’Eggs Prods., Inc., 84 N.C. App. 1, 11-14, 351 S.E.2d 834 (1987). See also Robinson v. Nationwide Ins. Co., 273 N.C. 391, 159 S.E.2d 896 (1968).
[63] Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 568 S.E.2d 893 (2002).
[64] Ellis v. Northern Star Co., 326 N.C. 219, 224, 388 S.E.2d 127 (1990).
[65] See Am. Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).
[66] See, e.g., id.; Pinehurst, Inc. v. O’Leary Bros. Realty, Inc., 79 N.C. App. 51, 338 S.E.2d 918, cert. denied, 316 N.C. 378, 342 S.E.2d 896 (1986).
