Jarrell E. Southall and Barbara J. Southall v. Little Rock Newspapers, Inc., and Bobbi Ridlehoover

Annotate this Case
Jarrell E. SOUTHALL and Barbara J. Southall
v. LITTLE ROCK NEWSPAPERS, INC., and 
Bobbi Ridlehoover

97-400                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 5, 1998


1.   Torts -- defamation -- public official or figure -- mixed question of fact
     and law. -- Whether a person is a public official or a public
     figure is a mixed question of fact and law to be determined by
     the trial court.

2.   Torts -- defamation -- "public figures" defined. -- Public figures
     normally enjoy greater access to effective channels of
     communication and thus have more realistic opportunities to
     counteract false statements than do private individuals; they
     are persons who have assumed roles of especial prominence in
     the affairs of society; some occupy positions of such
     persuasive power and influence that they are deemed public
     figures for all purposes; more commonly, those classed as
     public figures have thrust themselves to the forefront of
     particular public controversies in order to influence the
     resolution of the issues involved; in either event, they
     invite attention and comment.

3.   Torts -- defamation -- "private individual" defined. -- A private
     individual has not accepted public office nor assumed an
     influential role in ordering society; a private individual has
     not relinquished his interest in the protection of his own
     good name, and consequently has a more compelling case for
     redress of injury inflicted by defamatory falsehood.  

4.   Torts -- defamation -- public-figure question -- nature and extent of
     individual's participation in controversy provides meaningful context. --
     In some instances, an individual may achieve such pervasive
     fame or notoriety that he becomes a public figure for all
     purposes and in all contexts; more commonly, 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; in either case, such persons assume
     special prominence in the resolution of public questions;
     absent clear evidence of general fame or notoriety in the
     community, and pervasive involvement in the affairs of 
     society, an individual should not be deemed a public
     personality for all aspects of his life; 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.

5.   Torts -- defamation -- "public figure" construed narrowly. -- The term
     "public figure" has been construed narrowly, with an emphasis
     on the plaintiff's status in relation to the subject of the
     defamatory article.
6.   Torts -- defamation -- appellant was limited-purpose public figure on
     environmental issues. -- Where the evidence demonstrated that
     appellant enjoyed a prominent role in the creation and
     enforcement of environmental legislation in Arkansas; and
     where, by his own statements, appellant demonstrated that he
     had thrust himself into the vortex of the public controversy
     surrounding the subject of hazardous waste, the supreme court
     concluded that the trial court's assessment of appellant as a
     limited-purpose public figure on the subject of environmental
     issues was not erroneous.

7.   Torts -- defamation -- critical issue. -- An action for defamation
     turns on whether the communication or publication tends or is
     reasonably calculated to cause harm to another's reputation.

8.   Torts -- defamation -- elements. -- To establish a claim of
     defamation, a party must prove the following elements: (1) the
     defamatory nature of the statement of fact; (2) that
     statement's identification of or reference to the plaintiff;
     (3) publication of the statement by the defendant; (4) the
     defendant's fault in the publication; (5) the statement's
     falsity; and (6) damages.  

9.   Torts -- defamation -- limited-purpose public figure -- additional burden
     to prove actual malice. -- Where appellant was a limited-purpose
     public figure on environmental issues, appellants had the
     additional burden of proving that such false statements were
     made by appellees with actual malice.

10.  Torts -- defamation -- "actual malice" standard. -- Where the alleged
     defamatory statements are a matter of public concern, the
     plaintiff in such an action must prove that the defamatory
     publication was made with "actual malice," that is, with
     knowledge that it was false or with reckless disregard of
     whether it was false or not; reckless conduct is not measured
     by whether a reasonably prudent person would have published or
     would have investigated before publishing; there must be
     sufficient evidence to permit the conclusion that the
     defendant in fact entertained serious doubts regarding the
     truth of the publication; publishing with such doubts shows
     reckless disregard for truth or falsity and demonstrates
     actual malice; the defendant in such a defamation action
     cannot, however, automatically insure a favorable verdict by
     testifying that he published with a belief that the statements
     were true; the finder of fact must determine whether the
     publication was indeed made in good faith.

11.  Torts -- defamation -- summary-judgment motion under "actual malice"
     standard. -- Where a motion for summary judgment is made in a
     defamation case involving the "actual malice" standard, the
     trial court must determine whether the evidence presented
     could support a reasonable jury's finding that actual malice
     was shown by clear and convincing evidence.

12.  Torts -- defamation -- First Amendment concerns -- standard of review. --
     Where the First Amendment is involved, the supreme court is
     obligated to make an independent examination of the whole
     record to make sure that the judgment does not constitute a
     forbidden intrusion on the field of free expression.

13.  Torts -- defamation -- actual malice -- sufficiency of evidence is question
     of law. -- The question whether the evidence in the record in
     a defamation case is sufficient to support a finding of actual
     malice is a question of law.

14.  Torts -- defamation -- First Amendment implicated -- heightened standard
     of review applied. -- Because appellees' right to free expression
     was at stake, the supreme court applied the heightened First
     Amendment standard of review, which only applies to a review
     of the issue of actual malice and not to the determination of
     libel.   

15.  Torts -- defamation -- appellant admitted truth of statements in newspaper
     article -- no defamatory implication. -- Where appellant admitted the
     truth of statements contained in a newspaper article, the
     supreme court was unable to see how the statements amounted to
     defamatory statements of fact concerning him; neither did the
     court view the article as having a defamatory implication;
     instead, it implied nothing more than that appellant went to
     a hazardous-waste plant on a private plane when a spill
     occurred and that health-department officials attempting to
     investigate the spill were not allowed past the locked gate;
     it did not imply that appellant was standing at the gate
     preventing the officials from entering or that he had
     conspired to keep them out.  

16.  Torts -- defamation -- no clear and convincing evidence that article was
     published with actual malice. -- Even assuming that the statements
     in the newspaper article possessed a defamatory implication,
     appellants offered no clear and convincing evidence that
     appellees published the article with actual malice; the fact
     that the statements were true and that appellant was given the
     opportunity to state his view of the events that occurred at
     the plant refuted the allegation that appellees published the
     article with actual malice. 

17.  Torts -- defamation -- no evidence that appellees had serious doubts or
     published article with reckless disregard for truth. -- There was no
     evidence that appellees entertained serious doubts concerning
     the truth of the article in question or that they published it
     with a reckless disregard for the truth.

18.  Torts -- defamation -- failure to investigate information later published
     is not evidence of actual malice. -- The failure to investigate
     information later published is not, without more, evidence of
     actual malice; there must be clear and convincing evidence
     that the parties entertained serious doubts regarding the
     truth of the story. 

19.  Torts -- defamation -- evidence did not show that reporter had serious
     doubts about truth of statements in article -- summary judgment affirmed. -
     - Concerning a subsequent article, where appellee reporter
     stated that her source for information concerning an
     environmentalist's suit involving appellant in his official
     capacity was the newspaper's "clip file," the evidence did not
     rise to the level of demonstrating that appellee entertained
     serious doubts about the truth of the statements when she
     published the article; accordingly, the supreme court affirmed
     the trial court's summary-judgment ruling.


     Appeal from Pulaski Circuit Court, Third Division; John Ward,
Judge; affirmed.
     R. David Lewis, for appellants.
     Williams & Anderson, by: Leon Holmes, for appellee Little Rock
Newspapers, Inc.
     Kaplan, Brewer & Maxey, P.A., by: Philip E. Kaplan, for
appellee Bobbi Ridlehoover.

     Donald L. Corbin, Justice.
     Appellants Jarrell E. and Barbara J. Southall filed an action
for defamation against Appellees Little Rock Newspapers, Inc. (the
Newspaper), and Bobbi Ridlehoover in the Pulaski County Circuit
Court.  The trial court granted summary judgment to both Appellees. 
Appellants raise three points for reversal, which necessarily
involve questions on the law of torts.  As such, our jurisdiction
is pursuant to Ark. Sup. Ct. R. 1-2(a)(15).  We find no error and
affirm.
                              Facts
     Appellant Jarrell Southall was the executive director of the
Arkansas Department of Pollution Control and Ecology (PC&E) from
1977 through January 28, 1983, though he had actually worked for
PC&E as a chemist beginning in 1965.  In 1983, Southall opened his
own consulting service, during which time Ensco, Inc., was one of
his main clients.  In 1986, Southall went to work directly for
Ensco until 1993.  According to his deposition, Southall took the
lead in trying to draft this state's hazardous-waste legislation
and in getting the issue into the public debate.  He indicated that
there was a lot of controversy surrounding the subject of hazardous
waste.  He stated that it was part of his responsibility as both a
member and executive director of PC&E to attend legislative
committee meetings and give testimony on these issues.  He stated
further that he had conducted interviews with the media, had talked
to reporters on radio and television, had served as a registered
lobbyist with the Arkansas General Assembly, and had been fairly
prominent in the debate over the regulation of hazardous waste.
     On December 16, 1990, the Newspaper ran several articles about
Ensco, one of which Appellants argue defamed Jarrell Southall.  The
article, written by Appellee Ridlehoover, consisted of eighty-four
paragraphs and was entitled "The watchers now watched in El
Dorado."  The relevant portions are as follows:
          [Jack] Forrest and other Ensco employees were able
     to name seven former state and federal regulators who now
     work for the company.  Another former PC&E employee was
     at one time under contract with the company.  
          The list includes former PC&E director Jarrell E.
     Southall, who went to work for the company as a
     consultant in 1983.  At the time, Southall said he
     approached Ensco for the job.
          Southall has denied that he negotiated with Ensco
     for the job while he was the state's top pollution
     control regulator.
          Southall has since become a full-time Ensco
     employee.  He is the contract administrator for the
     company's proposal to build a hazardous waste incinerator
     facility in Arizona.

          The Arkansas Democrat reported in 1983 that Southall
     had official dealings with Ensco less than a month before
     he went to work for the company.
          In addition, Melvyn Bell, Ensco's former president
     and now board chairman, provided Southall a private plane
     ride to Ensco on January 13, 1983 when hazardous material
     spilled at the plant.  State Health Department officials
     trying to investigate the spill were not allowed past a
     locked gate.

          Southall acknowledged that he flew down with Bell on
     his plane, and he blamed a "mix-up" in communication for
     Health Department officials Don Wise and Martin Tull not
     being admitted inside the gate.  
          
          The Health Department shares responsibility with
     PC&E for investigating such spills, but the PC&E official
     who should have notified the Health Department failed to
     do so.

     The second article which Appellants argue is defamatory to
Jarrell Southall was published in the Newspaper on July 13, 1992,
and was entitled "Environmentalists see liquid-waste regulations as
best bet."  The story consisted of twenty-eight paragraphs and
described the work of Clyde Temple of Warren, Arkansas, in the area
of environmental issues.  The relevant portions of the article are
as follows:
          Temple, 62, has worked on environmental issues for
     more than a decade.  He is past president and vice
     president of the Arkansas Wildlife Federation and has
     been chairman of the group's water committee for 11
     years.
          He won one of his earliest battles -- which Arkansas
     environmentalists know is no small feat.
          It was over water quality.  The group he formed, the
     Committee for a Clean Saline, won a successful citizens'
     suit in federal court in July 1981 against Jarrell
     Southall, then director of the state Department of
     Pollution Control and Ecology, and the City of Warren. 
     The suit forced the cleanup of pollution in the lower
     Saline River.
     On appeal, Appellants argue that the trial court erred in
granting Appellees' motion for summary judgment and in making the
following findings:  (1) that Jarrell Southall was a public
official as well as a limited-purpose public figure with regard to
environmental issues; (2) that the December 16, 1990 article
contained no false or defamatory statement of fact of and
concerning Jarrell Southall, and that there was not sufficient
evidence showing that Appellees had acted with actual malice; and
(3) that, as to the July 13, 1992 article, there was not sufficient
evidence that Appellees had acted with actual malice.  
     We note that Appellants have failed to abstract the articles
in their entirety, as is required for this court's review of
whether the articles are libelous.  See Little Rock Newspapers,
Inc. v. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914 (1997); Pigg v.
Ashley County Newspaper, Inc., 253 Ark. 756, 489 S.W.2d 17 (1973). 
Appellees have, however, supplied us with sufficient portions of
those articles in their supplemental abstract.  As such, we will
address the merits of the arguments on appeal.
                 Public Figure / Public Official
     For their first point on appeal, Appellants argue that Jarrell
Southall was neither a public official nor a public figure at the
time of the articles' publication.  We disagree.
     Whether a person is a public official or a public figure is a
mixed question of fact and law to be determined by the trial court. 
Fitzhugh, 330 Ark. 561, 954 S.W.2d 914 (citing Gertz v. Robert
Welch, Inc., 418 U.S. 323 (1974) and Cornett v. Prather, 293 Ark.
108, 737 S.W.2d 159 (1987)).  We recently discussed the issue of
when an individual is considered to be a public figure:
     In Gertz, the Supreme Court held that public figures
     normally enjoy greater access to effective channels of
     communication and, thus, have more realistic
     opportunities to counteract false statements than do
     private individuals.  The Court described public figures
     as those persons who:

               have assumed roles of especial
               prominence in the affairs of
               society.  Some occupy positions of
               such persuasive power and influence
               that they are deemed public figures
               for all purposes.  More commonly,
               those classed as public figures have
               thrust themselves to the forefront
               of particular public controversies
               in order to influence the resolution
               of the issues involved.  In either
               event, they invite attention and
               comment.

     Id. at 345.   A private individual, on the other hand,
     has not accepted public office nor assumed an
     "influential role in ordering society."  Id. (citing
     Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967)
     (Warren, C. J., concurring in result)).  A private
     individual has not relinquished his interest in the
     protection of his own good name, and consequently has a
     more compelling case for redress of injury inflicted by
     defamatory falsehood.  Id.  Holding that the designation
     of a public figure may rest on either of two alternative
     bases, the Court stated:

               In some instances an individual may
               achieve such pervasive fame or
               notoriety that he becomes a public
               figure for all purposes and in all
               contexts.  More commonly, 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.  In
               either case such persons assume
               special prominence in the resolution
               of public questions.
                    . . . Absent clear evidence of
               general fame or notoriety in the
               community, and pervasive involvement
               in the affairs of  society, an
               individual should not be deemed a
               public personality for all aspects
               of his life.  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.

Fitzhugh, 330 Ark. 561, 579-80, 954 S.W.2d 914, 924 (emphasis
added) (quoting Gertz, 418 U.S. at 351-52).  Since the Court's
decision in Gertz, courts have construed the term "public figure"
narrowly, with an emphasis on the plaintiff's status in relation to
the subject of the defamatory article.  Id.    
     This court has held that neither a former United States
Attorney nor a private attorney were public figures, (see Fitzhugh,
330 Ark. 561, 954 S.W.2d 914; Dodrill v. Arkansas Democrat Co., 265
Ark. 628, 590 S.W.2d 840 (1979), cert. denied, 444 U.S. 1076
(1980)).  This court has, however, held that an assistant law
school dean was a public figure (see Gallman v. Carnes, 254 Ark.
987, 497 S.W.2d 47 (1973)), as were a sheriff, a deputy sheriff, a
city police officer, (see Pritchard v. Times Southwest
Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982); Hollowell
v. Arkansas Democrat Newspaper, 293 Ark. 329, 737 S.W.2d 646
(1987); Lancaster v. Daily Banner-News Publishing Co., Inc., 274
Ark. 145, 622 S.W.2d 671 (1981)), and a chairman of the board of
governors of a county memorial hospital (see Drew v. KATV
Television, Inc., 293 Ark. 555, 739 S.W.2d 680 (1987)).  
     In Fitzhugh, 330 Ark. 561, 954 S.W.2d 914, the plaintiff's
photograph appeared in an article about the Whitewater
investigation in which it was reported that another man named
Fitzhugh was indicted by a federal grand jury.  We determined that
the plaintiff, a former United States Attorney for eight years, was
neither a public official nor a public figure, because the
substance of the defamatory article bore no relation to his
position as a federal prosecutor.  We held that, as to the category
of limited-purpose public figure, there was no evidence that
Fitzhugh had "thrust himself into the vortex of the Whitewater
controversy, or that he had engaged the public's attention in an
attempt to influence the outcome of the controversy."  Id. at 582,
954 S.W.2d  at 926.  We held further that Fitzhugh had not, "by
virtue of his having been a federal prosecutor for eight years,
occup[ied] a position of persuasive power and influence or one of
especial prominence in the affairs of society, such that he could
be labeled an all-purpose public figure."  Id. at 582-83, 954 S.W.2d  at 926.  We concluded that Fitzhugh had not achieved such
general fame or notoriety throughout the area where the article was
published that would render him a public personality for all
purposes.  
     Here, in contrast to the factual situation presented in
Fitzhugh, we conclude that, in the present context, Jarrell
Southall was a limited-purpose public figure on the subject of
environmental issues.  The evidence demonstrated that he enjoyed a
prominent role in the creation and enforcement of environmental
legislation in this state.  Southall himself stated in his
deposition that he had conducted interviews with the media, had
talked to radio and television reporters, had been a lobbyist at
the state legislature, and had been fairly prominent in the public
debate over the regulation of hazardous waste.  By his own
statements, Southall has demonstrated that he had thrust himself
into the vortex of the public controversy surrounding the subject
of hazardous waste.  Accordingly, we conclude the trial court's
assessment of Southall as a public figure for the limited purpose
of environmental issues was not erroneous.  It is thus not
necessary that we reach the issue of whether Southall is considered
to be a public official for the purpose of construing the two
articles in question.  
                          Actual Malice
     For their remaining two points for reversal, Appellants argue
that the trial court erred in finding that the December 16, 1990
article was not defamatory and that there was not sufficient
evidence that Appellees had published either article with actual
malice.  Appellees do not concede that the articles contained false
information or that they were defamatory toward Jarrell Southall. 
Appellees do contend, however, that even if the articles were
factually incorrect and were defamatory, Appellants' claims must
nonetheless fail because there was no evidence presented below
showing that Appellees published the articles with actual malice. 
     An action for defamation turns on whether the communication or
publication tends or is reasonably calculated to cause harm to
another's reputation.  Fitzhugh, 330 Ark. 561, 954 S.W.2d 914;
Thomson Newspaper Publishing, Inc. v. Coody, 320 Ark. 455, 896 S.W.2d 897, cert. denied, 116 S. Ct. 563 (1995).  In order to
establish a claim of defamation, a party must prove the following
elements:  (1) the defamatory nature of the statement of fact; (2)
that statement's identification of or reference to the plaintiff;
(3) publication of the statement by the defendant; (4) the
defendant's fault in the publication; (5) the statement's falsity;
and (6) damages.  Fitzhugh, 330 Ark. 561, 954 S.W.2d 914; Minor v.
Failla, 329 Ark. 274, 946 S.W.2d 954 (1997).  Because Jarrell
Southall was a limited-purpose public figure on environmental
issues, Appellants have the additional burden of proving that such
false statements were made by Appellees with actual malice.  Coody,
320 Ark. 455, 896 S.W.2d 897.       
     In discussing the standard for actual malice, this court has
observed:
     [T]he plaintiff in such an action must prove that the
     defamatory publication "was made with `actual malice' --
     that is, with knowledge that it was false or with
     reckless disregard of whether it was false or not."

          . . . .

     These cases are clear that reckless conduct is not
     measured by whether a reasonably prudent man would have
     published, or would have investigated before publishing. 
     There must be sufficient evidence to permit the
     conclusion that the defendant in fact entertained serious
     doubts as to the truth of his publication.  Publishing
     with such doubts shows reckless disregard for truth or
     falsity and demonstrates actual malice.

          . . . .

          The defendant in a defamation action brought by a
     public official cannot, however, automatically insure a
     favorable verdict by testifying that he published with a
     belief that the statements were true.  The finder of fact
     must determine whether the publication was indeed made in
     good faith.

Fuller v. Russell, 311 Ark. 108, 112, 842 S.W.2d 12, 14-15 (1992)
(footnote omitted) (emphasis added) (quoting St. Amant v. Thompson,
390 U.S. 727, 728, 731, 732 (1968)).  
     Where a motion for summary judgment is made in a defamation
case involving the "actual malice" standard, the trial court must
determine whether the evidence presented could support a reasonable
jury's finding that actual malice was shown by clear and convincing
evidence.  KATV Television, Inc., 293 Ark. 555, 739 S.W.2d 680
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). 
Where the First Amendment is involved, we are "obligated to make an
independent examination of the whole record to make sure the
judgment does not constitute a forbidden intrusion on the field of
free expression."  Fuller, 311 Ark. at 112, 842 S.W.2d  at 14
(citing Bose Corp. v. Consumer's Union of United States, Inc., 466 U.S. 485 (1984)).  The question of whether the evidence in the
record is sufficient to support a finding of actual malice is a
question of law.  Id. (citing Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657 (1989)).  Accordingly, because Appellees'
First Amendment right to free expression is at stake in this case,
we apply the heightened standard of review.  This heightened
standard only applies to a review of the issue of actual malice,
not to the determination of libel.  Coody, 320 Ark. 455, 896 S.W.2d 897 (citing Bose, 466 U.S. 485).   
     We consider first the December 16, 1990 article reporting
Jarrell Southall's connection with Ensco and his having received a
plane ride to Ensco's El Dorado location from the company's
president.  Appellants do not contend that the story was factually
false; rather, they assert that the implication from the story was
defamatory.  The portion of the article that Appellants find
defamatory is as follows:
          The Arkansas Democrat reported in 1983 that Southall
     had official dealings with Ensco less than a month before
     he went to work for the company.
          In addition, Melvyn Bell, Ensco's former president
     and now board chairman, provided Southall a private plane
     ride to Ensco on January 13, 1983 when hazardous material
     spilled at the plant.  State Health Department officials
     trying to investigate the spill were not allowed past a
     locked gate.

Specifically, Appellants assert that the article is defamatory in
that it implied that Southall, who was then director of PC&E, was
at Ensco's plant when health department officials trying to
investigate the spill were not allowed past the locked gate, and
that he had something to do with those officials being denied
entrance to the plant.    
     Considering that Southall admitted the truth of the statements
contained in the article, namely that he had accepted a plane ride
from Melvyn Bell and that the health department officials were not
allowed past the gate because of a "mix-up" in communication, we
fail to see how such true statements amount to defamatory
statements of fact concerning Southall.  Nor do we view the article
as having a defamatory implication.  Instead, we agree with the
trial court that the article implies nothing more than that
Southall went to the plant on a private plane when the spill
occurred and that the health department officials attempting to
investigate the spill were not allowed past the locked gate; it
does not imply that Southall was standing at the gate preventing
the officials from entering or that he had conspired with Ensco to
keep them out of the plant.  
     Furthermore, even assuming that those statements possessed a
defamatory implication, Appellants have offered no clear and
convincing evidence that Appellees published the article with
actual malice.  Appellants merely contend that Ridlehoover knew the
implication of the article was false because she had reported in
1983 that Southall had said that he was no longer at the Ensco
plant at the time that the health department officials had arrived. 
Appellants argue that the reason Ridlehoover only made this
implication, rather than stating outright that Southall was at the
plant at the time the officials were prohibited entrance, was to
avoid a libel suit, which demonstrates actual malice.  We are not
persuaded by this argument.  The fact that the statements were true
and Southall was given the opportunity to state his view of the
events that occurred at the Ensco plant refute the allegation that
Appellees published the article with actual malice.      
     Appellants further argue that the words "in addition"
contained in the December 16, 1990 article referred to more than
one "official dealing" that Southall had with Ensco prior to his
departure from PC&E.  Appellants offer no convincing argument as to
how the fact that Southall may or may not have had more than one
"official dealing" with Ensco prior to his departure from PC&E is
necessarily defamatory to him.  Appellees contend, on the other
hand, that even if there were some defamatory implication from
those words, there was no evidence presented by Appellants that
would show by clear and convincing evidence that they published the
article with actual malice.  In support of this contention,
Appellees point to an article published in the Newspaper in 1983
reporting that Southall had some communication with Ensco president
Melvyn Bell, either directly or indirectly through PC&E staff.  The
article, published on April 19, 1983, reflected:
          Records on file at the department show ENSCO has had
     extensive dealings with the agency almost up to the time
     when Southall stepped down in January, and some of these
     dealings involve Southall personally.
          For example, in December ENSCO sought permission to
     run a test burn of the hazardous waste in a mobile
     incinerator at the company's El Dorado plant.  The
     company had no permit, however, and the request was
     denied.   
          Sandra Perry, hazardous waste coordinator at the
     Pollution Control and Ecology Department, sent a memo on
     the ENSCO request to Southall and two other officials. 
     Dated Dec. 13, the memo concludes:
          "Mr. Bell can, however, burn natural gas or fuel oil
     . . . in his new incinerator without a permit for a
     period of four hours in December.  If his goal is to
     secure the tax break for pollution control equipment that
     expires in December, perhaps this would meet his needs."
          Beside this paragraph a handwritten note appears,
     which states:  "Melvin (sic) said this was fine & would
     suit him OK.  I told him to notify JES (Southall) before
     he began as per JES's (request.)"  The note wasn't
     signed, but apparently was written by Ms. Perry.
          A spokesman for the Pollution Control and Ecology
     Department said the agency wasn't giving free tax advice
     to Ensco and never sent this memo to the company.  "It
     was strictly an internal document," the spokesman said.
          When asked about the memo in a recent interview,
     Southall said he couldn't recall the circumstances.
     Appellants respond that this memo does not qualify as an
"official dealing" between Southall and Ensco, and that the article
is thus false and defamatory.  Such contention does not advance
Appellants' position on appeal, because the fact that Appellees
relied on this prior article in support of the December 16, 1990
article contravenes the argument that the article was published
with actual malice.  In short, there is no evidence that would
permit the conclusion that Appellees in fact entertained serious
doubts as to the truth of the December 16, 1990 article or that
they published the article with a reckless disregard for the truth. 
     As to the July 13, 1992 article, Appellants assert that the
statement that Clyde Temple won a suit against Jarrell Southall,
then director of PC&E, was false and defamatory.  Appellants assert
that Southall had been dismissed as a party to the suit prior to
the time that it was settled by the City of Warren.  Appellants
argue that actual malice is apparent from Ridlehoover's failure to
read the official court file prior to publishing the article in
order to verify whether Southall was a party at the time of the
suit's disposition.  
     Appellees argue that even if the statement that Clyde Temple
won a suit against Southall and the City of Warren is not
substantially true, there is nothing defamatory about a statement
that the director of a state agency was sued in his capacity as
director of that agency.  They argue further that Appellants'
argument regarding malice amounts to no more than an allegation of
a failure to investigate, which does not meet the definition of
actual malice.  We agree with this argument.
     The foregoing case law demonstrates that the failure to
investigate information later published is not, without more,
evidence of actual malice.  There must be clear and convincing
evidence to permit the conclusion that Ridlehoover and the
Newspaper in fact entertained serious doubts as to the truth of the
story.  There was no such evidence presented below.  In fact,
Ridlehoover stated that her source for the information was the
Newspaper's "clip file."  Appellants do not rebut this assertion
with any proof to the contrary.  As such, the evidence does not
rise to the level of demonstrating that Ridlehoover entertained
serious doubts about the truth of the statements when she published
the July 13, 1992 article.  Accordingly, we affirm the ruling of
the trial court.
     Holly Lodge Meyer, Spl. J., joins in this opinion.
     Thornton, J., and Keith N. Wood, Spl. J., concur.  
     Brown and Imber, JJ., not participating.


     Ray Thornton, Justice, concurring.  I concur in the decision to
affirm, but, in my opinion, it is only necessary to decide whether
the trial court erred in determining that Jarrell Southall was a
limited-purpose public figure who failed to show that appellees
published the allegedly inaccurate news stories about him with
actual malice.  Southall's charges, if proven, would not reach the
threshold of actual malice required by the landmark case of New
York Times v. Sullivan, 376 U.S. 254 (1964).  I agree with the
majority that the trial court did not err in granting summary
judgment and that the case should be affirmed. 
     Special Justice Keith N. Wood joins in this concurrence.