                           IN THE SUPREME COURT OF MISSISSIPPI




                                       NO. 2000-CA-01914-SCT

REX P. ARMISTEAD
v.
BILL MINOR



DATE OF JUDGMENT:                                     9/14/2000
TRIAL JUDGE:                                          HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:                            HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                               WILLIAM E. SPELL
ATTORNEYS FOR APPELLEE:                               LUTHER T. MUNFORD

                                                      MARK DAVID FIJMAN
NATURE OF THE CASE:                                   CIVIL - OTHER
DISPOSITION:                                          AFFIRMED - 05/09/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                       5/30/2002



     BEFORE SMITH, P.J., DIAZ AND EASLEY, JJ.

     SMITH, PRESIDING JUSTICE, FOR THE COURT:




¶1. On April 12, 1999, Rex P. Armistead ("Armistead") filed this defamation suit for damages in the Circuit
Court of the First Judicial District of Hinds County against newspaper columnist, Bill Minor ("Minor"), and
several Mississippi newspapers. Armistead claimed that he was defamed by an April 1998 newspaper
column authored by Minor. The defendants moved for summary judgment. On April 18, 2000, the circuit
court granted the defendant newspapers' motion for summary judgment. Armistead then voluntarily
dropped the newspapers from the case. On September 11, 2000, the circuit court granted defendant
Minor's motion for summary judgment. Aggrieved by this ruling, Armistead now seeks review in this Court.

¶2. We hold that summary judgment was proper because the gist or substance of the article was
substantially true and because Armistead, a public figure, offered no evidence of actual malice by Minor.
We, therefore, affirm the trial court.
                                                  FACTS

¶3. Bill Minor writes a column entitled "Eyes on Mississippi," which is regularly published in newspapers
around the State. In April of 1998, Minor devoted his column to a discussion of Armistead's history of
being involved in scandals and investigations. This column was sparked by a report in The Commercial
Appeal (a Memphis newspaper) discussing Armistead's involvement in "The Arkansas Project."(1) The
article had noted that Armistead had been paid $250,000 to act as an investigator for the Project.
Armistead claims that Minor's column contained false statements that damaged his reputation.

                                       STANDARD OF REVIEW

¶4. This Court applies a de novo standard of review of a trial court's grant or denial of summary judgment.
Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss. 2001); Jenkins v. Ohio Cas. Ins. Co.,
794 So.2d 228, 232 (Miss. 2001); Heigle v. Heigle, 771 So.2d 341, 345 (Miss. 2000). Our appellate
standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial
court under Rule 56(c) of the Mississippi Rules of Civil Procedure, which states that summary judgment
shall be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together
with affidavits, if any, show that there is no genuine issue as to any material fact..." Hudson, 794 So.2d at
1002; Jenkins, 794 So.2d at 232; Heigle, 771 So.2d at 345. The burden of demonstrating that no
genuine issue of fact exists is on the moving party. Id. "The presence of fact issues in the record does not
per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a
material one, one that matters in an outcome determinative sense...[T]he existence of a hundred contested
issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material
issues of fact." Hudson, 794 So. 2d at 1002 (quoting Simmons v. Thompson Mach. of Miss., Inc., 631
So. 2d 798, 801 (Miss. 1994)). Cases that deal with first amendment issues, such as libel cases call for
closer scrutiny upon review. As this Court has observed,

     In cases of this constitutional character, the Court employs a heightened standard of review. In
     determining the sufficiency of the evidence to pass constitutional muster, the appellate court must
     make an independent review of the evidence. "We must 'make an independent examination of the
     whole record,' ... so as to assure ourselves that the judgment does not constitute a forbidden intrusion
     on the field of free expression." Gulf Publ'g Co., Inc. v. Lee, 434 So.2d 687, 696 (Miss.1983)
     (quoting New York Times v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).
     See also Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); Greenbelt
     Coop. Publ'g Ass'n, Inc. v. Bresler, 398 U.S. 6, 11, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970);
     Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967);
     Long v. Arcell, 618 F.2d 1145, 1147 (5th Cir.1980) ("our duty is to make an independent
     examination of the evidence and determine whether there was a clear and convincing showing of
     actual malice"); Meridian Star, Inc. v. Williams, 549 So.2d 1332, 1335 (Miss.1989), overruled
     on other grounds, Roussel v. Robbins, 688 So.2d 714 (Miss.1996).

Journal Publ'g. Co. v. McCullough 743 So.2d 352, 359 (Miss. 1999).

                                              DISCUSSION

¶5. Armistead designates three issues on appeal. First, he argues that there was a genuine issue of material
fact, and thus summary judgment was inappropriate. Second, he contends that the trial court made findings
of fact and invaded the province of the jury. Third, he asserts that the trial court abused its discretion. Minor
contends that summary judgment was appropriate. First, he asserts that Armistead presented no evidence
of actual malice to the trial court. Second, he avers that the statements qualify as substantially true. Finally,
Minor argues that Armistead was not defamed by these statements. Armistead's issues can all be summarily
discussed within the general topic of whether summary judgment was appropriate.

¶6. Armistead cites the following statements, which appeared in Minor's column, as being libelous:(2)

      Armistead's odoriferous background in Mississippi, ranging all the way from head-bashing of black
      civil rights workers to concocting a bizarre homosexual scandal in an attempt to defeat a gubernatorial
      candidate.

      He gained notoriety around 1960 by leading a posse of heavily armed officers who riddled the farm
      house of a holed-up black farmer alleged to have earlier waved his shotgun to chase a deputy off his
      land.

      Armistead was banished from the patrol headquarters by new Gov. Bill Waller in 1972 and put on the
      road in north Mississippi.

      There, Armistead was involved in an ugly incident in which some black civil rights workers in the
      Marshall County area were beaten up at a highway roadblock.

      What was not said, however, was that Armistead as a paid private eye, had dredged up the
      transvestites and had them relate their story of having had sex with Allain.

¶7. To establish a claim for defamation, a plaintiff must prove the following elements:

      (1) a false and defamatory statement concerning plaintiff;

      (2) unprivileged publication to third party;

      (3) fault amounting at least to negligence on part of publisher;

      (4) and either actionability of statement irrespecitve of special harm or existence of special harm
      caused by publication.

Franklin v. Thompson, 722 So. 2d 688, 692 (Miss. 1998) (citations omitted). Due to his status as a
public figure, Armistead is faced with the challenge of proving the additional burden of proving actual malice
by clear and convincing evidence. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111
S.Ct. 2419, 2428, 115 L.Ed. 2d 447 (1991); Franklin, 722 So. 2d at 692. As he does not contest this
status, there is no need for this Court to question it. "Actual malice is defined as a statement made 'with
knowledge that it was false or with reckless disregard of whether it was false or not.'" Id. (citations omitted)
. The circuit court made various findings in granting Minor's summary judgment motion. This Court agrees
that the trial court invaded the province of the jury, in some of these findings. This, however, was harmless
as the right result was reached based on other findings.

¶8. In applying the libel-proof doctrine to Armistead, the trial court inappropriately stepped into the role of
the jury. "The libel-proof plaintiff doctrine reasons that when a particular plaintiff's reputation for a particular
trait is sufficiently bad, further statements regarding that trait even if false and made with malice, are not
actionable because, as a matter of law, the plaintiff cannot be damaged in his reputation as to that trait."
Church of Scientology Int'l v. Timer Warner, Inc., 932 F. Supp. 589 (S.D.N.Y. 1996) (citing
Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir. 1986); Cardillo v. Doubleday &
Co., 518 F.2d 638, 639-40 (2d Cir. 1975), aff'd sub nom. Church of Scientology v. Behar, 238 F. 3d
138 (2d Cir. 2001)). As the trial court noted, some courts have found that granting summary judgment
based on the libel-proof doctrine is appropriate. See Kevorkian v. American Med. Assoc., 602 N.W.2d
233 (Mich. Ct. App. 1999). Other courts, however, have found that such action is not appropriate because
"it requires the Court to make factual findings regarding plaintiff's reputation for a particular trait." Timer
Warner, 932 F. Supp. at 594. This Court adopts the latter approach, as the libel-proof doctrine requires a
look at the plaintiff's current reputation. While it may be said that some reputations are easily assessed, it
still requires consideration of credibility issues, and this is not something the trial judge should undertake.
Stegall v. WTWV, Inc., 609 So. 2d 348, 352-53 (Miss. 1992), See also Zerangue v. TSP
Newspapers, 814 F.2d 1066, 1074 (5th Cir. 1987) ("[S]ummary judgment is not an appropriate stage at
which to resolve credibility questions."). Thus, the trial court's finding that Armistead was libel-proof was an
abuse of its discretion.

¶9. While the finding that Armistead was libel-proof was inappropriate, the ultimate conclusion reached by
the trial court is still correct. Summary judgment was appropriate under Mississippi's law regarding libel.
This Court has defined a defamatory statement as "[a]ny written or printed language which tends to injure
one's reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society,
lessen him in public esteem or lower him in the confidence of the community." Id. (quoting Fulton v.
Mississippi Publishers Corp., 498 So. 2d 1215, 1217 (Miss. 1986) (citation omitted)). Further, "[t]he
statement must have clearly been directed toward the plaintiff, and 'the defamation must be clear and
unmistakable from the words themselves and not be the product of innuendo, speculation, or conjecture.'"
Id. (quoting Ferguson v. Watkins, 448 So. 2d 271, 275 (Miss. 1984)).

¶10. The issue of whether the offending words are defamatory may be decided by the trial court without
submission to the jury. Lawrence v. Evans, 573 So. 2d 695, 697 (Miss. 1990) (citing Fulton v.
Mississippi Publishers Corp., 498 So. 2d at 1217). "The threshold question in a defamation suit is
whether the published statements are false." Franklin, 722 So. 2d at 692 (citing McCullough v. Cook,
679 So. 2d 627, 631 (Miss. 1996)). Truth is a complete defense to an action for libel. Blake v. Gannett
Co., 529 So. 2d 595, 602 (Miss. 1988) (collecting authorities). The plaintiff bears the burden to prove
such falsity. Id. (Reaves v. Foster, 200 So. 2d 453 (Miss. 1967)). This Court only requires that the
statements be "substantially true." Id. at 603 (citing Smith v. Byrd, 225 Miss. 331, 83 So. 2d 172, 174
(1955)). As the United States Supreme Court has noted, "[m]inor inaccuracies do not amount to falsity so
long as 'the substance, the gist, the sting, of the libelous charge be justified.' Put another way, the statement
is not considered false, unless it 'would have a different effect on the mind of the reader from that which the
pleaded truth would have produced.'" Masson v. New Yorker Magazine, Inc., 501 U.S. at 517, 111
S.Ct. at 2433 (1991) (citations omitted). The trial court found that Minor's statements regarding Armistead
were substantially true. As the trial court stated, "Minor's assessment concluding that Armistead's law
enforcement and race relations reputation for nearly 40 years...were fundamentally accurate." Further, the
court noted that "[i]f there were any mischaracterizations of Armistead's activities and reputation by Minor,
they appear to be little more than editorial form, rather than substance." Following a review of the record,
this Court finds that the trial court was correct at least as to the bulk of the statements.

      Armistead's odoriferous background in Mississippi, ranging all the way from head-bashing of black
      civil rights workers to concocting a bizarre homosexual scandal in an attempt to defeat a gubernatorial
      candidate.

¶11. This statement is a general summary of Minor's take on Armistead's history. The first portion regarding
treatment of civil rights workers is supported by various published statements, including Armistead's own
report submitted to former Governor Paul Johnson. These statements include reports regarding Armistead's
involvement in the 1970 Jackson State University stand-off between police and student protestors. Further,
Armistead submitted his own report to Johnson regarding the beating of an African-American student by a
white student at the University of Mississippi. In this report, Armistead suggests that the Campus Chief of
Security, who arrested the white student, only listened to liberals and that the University would be benefitted
by his removal. As to the portion of the statement regarding the concocting of a scandal, this allegation has
been reported numerous times in various publications. While Armistead denies this allegation, he has
admitted involvement in the situation, and this Court finds that this portion of the allegation is substantially
true.

      He gained notoriety around 1960 by leading a posse of heavily armed officers who riddled the farm
      house of a holed-up black farmer alleged to have earlier waved his shotgun to chase a deputy off his
      land.

¶12. There are newspaper accounts, and reports prepared by Armistead and other officers regarding this
incident. Armistead admits being involved in the stand-off and firing his weapon. It appears the only thing
that he would have to object to is the wording, however, this does not alter the fact that this statement is
substantially true.

      Armistead was banished from the patrol headquarters by new Gov. Bill Waller in 1972 and put on the
      road in north Mississippi.

¶13. An article from The Commercial Appeal reported this same fact, and quoted Governor Waller as
saying "I did it, but I don't know why I did it." Armistead submitted a note to the trial court from him to a
supervisor regarding a need for a transfer due to his mother's illness.

      There, Armistead was involved in an ugly incident in which some black civil rights workers in the
      Marshall County area were beaten up at a highway roadblock.

¶14. Armistead discusses this allegation in his affidavit to the trial court. In it, he describes an incident on a
public highway, which followed a traffic stop.

      What was not said, however, was that Armistead as a paid private eye, had dredged up the
      transvestites and had them relate their story of having had sex with Allain.

¶15. As noted above, it was widely reported in books and newspapers that 1983 gubernatorial candidate
Bill Allain stated Armistead was a key player in this scandal. Further, Minor submitted an affidavit from a
former producer of the television show 20/20, in which the producer stated Armistead had approached him
regarding a story on this scandal. In it, he states that Armistead intimated that he was the contact person to
interview the prostitutes. Thus, while disputed by Armistead, this statement has the ring of substantial truth.

¶16. This Court finds that while not all of the statements made by Minor have an adequate basis of fact in
the record, the burden to disprove these statements rests not on Minor, but rather on Armistead. Armistead
relies on his own denials to serve as proof that the statements are false. This does not counteract the bulk of
articles and reports regarding the majority of the incidents discussed within the alleged libelous statements.
Further, taking into consideration the entire article and the reported truth regarding Armistead's actions as a
member of law enforcement in Mississippi, and as a private investigator, it cannot be said that the
questionable statements would have "a different effect on the mind of the reader" from the unvarnished truth.

¶17. Beyond this, due to his public figure status, Armistead carries the added burden of showing actual
malice by Minor. "A person's ill will or personal spite will not, standing alone, support a finding of actual
malice." Franklin, 722 So. 2d at 693 (citation omitted). Armistead must have presented evidence that
Minor made a false publication with a "'high degree of awareness of...probable falsity,' or must have
'entertained serious doubts as to the truth of his publication.'" Id. (citations omitted). In the case at bar,
Minor is the author of a column, which appears regularly in several newspapers across the state. This
column discusses issues and events, but clearly encompasses the author's opinion regarding such things.
While it may be evident that Minor does not hold Armistead in high regard, such feelings do not amount to
actual malice. Armistead put forth no evidence before the trial court to suggest actual malice. Further, ample
publications support the gist of what Minor caused to be published regarding Armistead.

                                               CONCLUSION

¶18. This Court finds that summary judgment was proper because the bulk of the published statements are
substantially true, and Armistead put forth no evidence of actual malice. The trial court's judgment is
affirmed.

AFFIRMED.

      PITTMAN, C.J., WALLER, COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ.,
      CONCUR. McRAE, P.J., NOT PARTICIPATING.

1. "The Arkansas Project" was a project devoted to investigating information regarding former President
Bill Clinton. The majority of its financing appears to have come from right-wing millionaire, Richard Mellon
Scaife, who headed up the American Spectator Foundation.

2. In his initial complaint, Armistead cited the statement that "Armistead had created himself as a pistol-totin'
town marshal of Lula" as libelous. In his brief on appeal, however, Armistead does not mention the
statement characterizing him as a "pistol-totin' town marshal." In its place, he divides the first statement into
two separate statements.
