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Garrard v. Charleston County School District

Court of Appeals of South Carolina

November 6, 2019

Amy Garrard and Lee Garrard, Guardians Ad Litem for R.C.G., A Minor; and Dean Frailey and Kathryn Frailey, Guardians Ad Litem for C.F., A Minor, Richard Nelson and Cheryl Nelson, Guardians Ad Litem for D.G.N., A Minor; Adam Olsen Ackerman; and A.E.P., III, Plaintiffs,
v.
Charleston County School District, Kevin Clayton, Axxis Consulting Company, and Jones Street Publishers, LLC, Defendants, And Eugene H. Walpole, Plaintiff,
v.
Charleston County School District, Kevin Clayton, Axxis Consulting Company, and Jones Street Publishers, LLC, Defendants, Of Whom Eugene H. Walpole, Amy Garrard and Lee Garrard, Guardians Ad Litem for R.C.G., A Minor; and Dean Frailey and Kathryn Frailey, Guardians Ad Litem for C.F., A Minor, Richard Nelson and Cheryl Nelson, Guardians Ad Litem for D.G.N., A Minor; Adam Olsen Ackerman; and A.E.P., III, are the Appellants, And Of Which Jones Street Publishers, LLC, is the Respondent. Appellate Case No. 2016-002525

          Heard April 1, 2019

          Appeal From Charleston County Jean H. Toal, Circuit Court Judge

          John E. Parker and William F. Barnes, III, of Peters, Murduagh, Parker, Eltzroth, & Detrick, P.A., of Hampton, for Appellants.

          Wallace K. Lightsey and Meliah Bowers Jefferson, of Wyche, PA, of Greenville, for Respondent.

          GEATHERS, J.

         In this defamation action, Appellants-six members of the 2014-2015 Academic Magnet High School (AMHS) football team and their head coach, Eugene Walpole (Coach Walpole)-appeal the circuit court's order granting summary judgment to Respondent Jones Street Publishers. Appellants contend the circuit court erred in (1) finding the statements of fact in certain articles published by Jones Street Publishers are protected by the fair report privilege, (2) finding the opinions expressed in the articles are not actionable, (3) finding Appellants have not shown proof of injury to reputation, (4) finding the alleged defamatory statements were not "of and concerning" the students, and (5) finding Coach Walpole has not shown that Jones Street Publishers acted with actual malice. We affirm.

         FACTS/ PROCEDURAL HISTORY

         Appellants initiated this defamation action against Jones Street Publishers following its publication of two opinion editorials in the Charleston City Paper (City Paper)[1] concerning a post-game watermelon ritual performed by the AMHS football team. News regarding the watermelon ritual began on October 21, 2014, when the superintendent of Charleston County School District (the School District), Dr. Nancy McGinley, issued a press release stating,

There was an allegation related to inappropriate post game celebrations by the Academic Magnet High School (AMHS) Football Team. An investigation was conducted and, as a result of the investigation, the head football coach will no longer be serving as a coach for Charleston County School District.

         Following this press release, Superintendent McGinley held a press conference in which she described the post-game ritual that prompted the investigation. Superintendent McGinley stated that "allegations" were brought to her attention by one of the School District's board members who indicated AMHS's football team was practicing a watermelon ritual that involved students making "monkey sounds" as part of their post-game celebration. She expressed that the board member was concerned about the "racial stereotypes related to this type of ritual." Superintendent McGinley contacted AMHS's principal to investigate the matter. The principal indicated that "the coaches were aware of the ritual following the victories[, ] but they did not observe any cultural insensitivities." The principal reported back to Superintendent McGinley that it was an "innocent ritual." However, Superintendent McGinley decided that further investigation was necessary because the board member stated that the football team engaged in a "tribal-like chant that [was] animalistic or monkey-like."

         Superintendent McGinley asked the School District's diversity consultant, Kevin Clayton and Associate Superintendent Louis Martin to conduct the investigation. Mr. Clayton and Mr. Martin interviewed the students on the football team and the coaches. The investigation revealed that "players would gather in a circle and smash the watermelon while others were either standing in a group or locking arms and making chanting sounds that were described as 'Ooo ooo ooo,' and several players demonstrated the motion." Superintendent McGinley stated the AMHS team named the watermelons "Bonds Wilson"[2] and drew a face on each watermelon "that could be considered a caricature." A copy of the caricature that was drawn on the watermelons was shown at the press conference.[3] Superintendent McGinley concluded the press conference by stating that it was "our conclusion that the accountability lies with the adults" and that the Charleston County School District (the School District) had "taken action to relieve the head coach of his responsibilities." No students were named during the press conference.

         After the press conference, several news media outlets ranging from national publications to the AMHS's newspaper reported on the firing of Coach Walpole, and numerous commentators expressed their opinions concerning the post-game ritual.

         City Paper's editor, Chris Haire, watched Superintendent McGinley's press conference by a live television broadcast from the School District's public hearing room. After viewing the press conference, Mr. Haire wrote an opinion editorial about the events described entitled, "Melongate: Big toothy grins, watermelons, and monkey sounds don't mix," which was published in the City Paper on October 21, 2014. The article, in its entirety, provided,

Today, Charleston was consumed by one story and one story only: the removal of Academic Magnet football coach Bud Walpole amid allegations that his players more or less behaved like racist douchebags. And if there's one lesson to be learned from all of this[, ] it's this: big toothy grins, watermelons, and monkey noises don't mix. Any sensible person can see that.
Apparently not. And apparently not the coaching staff and the players on the Academic Magnet Raptors.
Somewhere along the way in this year's unexpectedly successful season, the Raptors took a liking to buying watermelons before their games. They apparently drew a face on it each time-a big toothy, grinning face. The first time the watermelon was named Junior. The next time it was Bonds Wilson, the name of the campus the AMHS shares with School of the Arts. That name stuck.
But here's where the things get even worse. At the close of each game, the players smashed the watermelon on the ground while reportedly making the monkey-like sounds of 'ooh ooh ooh ooh.' Apparently, the players did this after four or five games, each time evidently after the largely white Raptor squad beat one of their opponents, each one largely an African-American team. Parents of players on one of the opposing teams reportedly brought this to the attention of African-American Board member Michael Miller last week.
That the coaching staff of the Academic Magnet Raptors and none of its players, including at least one African-American, didn't see the trouble with this toxic combination of monkey sounds, toothy grins, and watermelons is at best baffling and at worst indicative of the casual acceptance of racism in Charleston today, even among the best and brightest that the county has to offer. After all, AMHS is not only the No. 1 ranked school in the state, it's one of the tops in the nation[].
Seriously, did everyone at AMHS forget the last 100 years of American history? Did they forget about blackface, Buckwheat, and Birth of a Nation? Did they forget about minstrel shows? Did they forget about Coons Chicken, lawn jockeys, golliwogs, and the like? Apparently so. I don't know about you, but I think it's time to reconsider Academic Magnet's rankings because clearly they are producing nothing more than grade-A dumbas[***].
Even more troubling is the degree to which Raptor Nation has circled the wagons around Walpole and the team. Frankly, this has nothing to do with the fact that the coach is by all accounts a good man. Walpole's merits are meaningless.
The point is that an entire team of players thought it was OK to draw a grinning face on a watermelon, smash it on the ground each time they beat a largely black team, and make monkey noises-and no one apparently told them to stop.
No one said, "Hey guys, I know not a single one of you has a racist bone in your body, you know, because that's a bad thing, and well, you're an Academic Magnet kid, and you come from a good middle-class white family and you're going to college, and there's no way in hell you'd, you know, draw a racist caricature on a watermelon and make monkey noises and do it fully aware of, like, what all that stuff means, because if you did, knowing all that stuff, then yikes, people might start thinking you're racists. Hell, I'd think you're a racist, and, well, I just don't know if I can deal with the fact that Charleston's best and brightest students are racist douchebags. I mean, it's just a joke right? Right?"
Actually, it's not. It's the sad truth about life here in Charleston, SC today.

         In a reversal, Superintendent McGinley issued a press statement on October 22, 2014 indicating she was reinstating Coach Walpole as head coach and that he would resume his coaching duties on October 23, 2014. Shortly thereafter, the Charleston County School Board announced the resignation of Superintendent McGinley.[4] Following this announcement, Mr. Haire wrote a second article entitled, "Mob Rules: School district forces out superintendent who fired coach who condoned racist ritual." This article was published in the City Paper on November 5, 2014.

         Later that month, six members of the AMHS football team filed a defamation complaint against Jones Street Publishers, the School District, Kevin Clayton, and Axxis Consulting Company.[5] In December 2014, Coach Walpole also filed a defamation complaint against the same defendants. Both cases were consolidated on October 23, 2015.[6]

         Appellants alleged the two opinion editorials contained defamatory statements. Specifically, as to the article "Melongate," Appellants argued the reference to the students as "racist douchebags" was defamatory, and as to the article "Mob Rules," Appellants argued the title of the article itself was defamatory because it stated Coach Walpole "condoned a racist act." Appellants also alleged Jones Street Publishers damaged their reputations "by publishing articles that accused [Appellants] of participating in racially-motivated post-game celebration rituals." Essentially, Appellants argued the articles implied that the football team and the coach were racist.

         Jones Street Publishers moved for summary judgment, and a hearing was held on October 11, 2016. Jones Street Publishers argued the following facts were reported by the City Paper in its publications: "the fact that watermelons were smashed as part of this ritual, that there was a face drawn on them, that there was a caricature, that monkey sounds were made, [that] the ritual took place and that a watermelon was named Bonds Wilson." Jones Street Publishers maintained that these facts were protected by the fair report privilege because "all of the facts came from the press conference that the Charleston County School District held to report its finding of its investigation of the ritual." As for the remaining content in the articles, Jones Street Publishers argued that "[the] City Paper gave its editorial view of those facts, its view of what had happened." Specifically, Jones Street Publishers indicated the following to be its editorial viewpoint of those facts:

That the football players had behaved like racist douchebags, that if they did not realize that their actions would be perceived as racially offensive, that that was indicative of the casual acceptance of racism in Charleston today, that the school had not taught its students about the history of the watermelon trope, and it was turning out a bunch of grade A dumbas[***] and not the best and brightest and that this was a racist ritual, a racist behavior, on the part of the people [who] participated in it.

         Jones Street Publishers argued the opinions were protected by the First Amendment.[7]Additionally, Jones Street Publishers produced affidavits from two of its editors indicating that they had no reason to doubt the truth of the statements made by Superintendent McGinley at the press conference.

         Appellants opposed Jones Street Publishers' motion for summary judgment, arguing Jones Street Publishers acted with actual malice by "labeling" the students and coach "as racist douchebags without any investigation, without any evidence, without anything to come to that conclusion . . . ." Appellants argued Jones Street Publishers was negligent "because they made no effort to find the truth," and "made up the fact that the students and coaches are racist douchebags." Instead, Appellants asserted the players' motives were not racially based but more akin to the movie Castaway where Tom Hanks drew a face on a volleyball and named it "Wilson;" here, the football players drew a face on the watermelon and named it "Bonds-Wilson." Appellants argued the testimony in their case would prove "their intentions."

         First, the circuit court found that all of the factual statements in the articles were "accurate reproductions of comments made publicly by School District officials, and thus [were] protected by the fair report privilege." Next, the circuit court found the remaining statements in the articles were "merely expressions of the writer's opinions and ideas on a matter of public concern. Under established First Amendment jurisprudence, Jones Street [Publishers] cannot be held liable for such statements." The circuit court stressed that the "subject of the Jones Street publications addressed a matter of public concern." To this point, the circuit court stated,

The AMHS football team's ritual, the School District's investigation into the AMHS football team's ritual, and Coach Walpole's removal as head coach of the team were subjects of great interest to the Charleston Community and garnered widespread coverage from media outlets both locally and throughout the United States. The controversy involved allegations of racial insensitivity in a city steeped with a historical legacy of racial tension. When viewing the record as a whole, there is little doubt that the speech at issue in this case was addressed to a matter of public concern.

         The court indicated that it was "settled law that expressions of opinion on matters of public concern are immune from liability for defamation." The court noted that once the factual statements in the articles that summarized the statements made by the School District are removed, none of the remaining statements "assert[] any verifiable, objectively provable fact. They are expressions of the editorial writer's ideas and opinions, using rhetorical hyperbole to emphasize his views." The court further stated,

Whether the football players acted like "racist douchebags," whether the team's failure to perceive the negative racial connotations of their actions is "indicative of the casual acceptance of racism in Charleston today," whether the watermelon ritual was an act that "any sensible outside observer" would "perceive[] as racist," or an example of "inadvertently . . . hurtful racially offensive behavior"-these are all statements on which different persons could have different views and sentiments. In fact, many people did express different views on the matter[, ] and it was a highly contested issue for the School District. None of the statements, as expressed in the Jones Street publications, are statements of fact that can be objectively proved or disproved in a court of law.

         Lastly, the circuit court found that Appellants failed to produce any evidence of either special damages or general damages arising from an injury to their reputations as a result of the City Paper publications. Specifically, the court noted that the alleged defamatory statements were not "'of and concerning' [Appellants], in that they refer to the entire football team and not to any of [Appellants] individually." In regard to Coach Walpole, the court found that he was a public official and noted that "public school teachers and athletic coaches have been held to be public officials." Therefore, Coach Walpole was required to prove that Jones Street Publishers acted with actual malice. The circuit court determined that Coach Walpole failed to prove actual malice. The court noted that there was evidence from Jones Street Publishers' editors indicating that "they had no reason to doubt that the reported information was anything other than completely true and accurate." The court found that Coach Walpole failed to "direct the [c]ourt to a single line of testimony in the depositions or any passage of the publications that constitutes evidence that anyone at Jones Street [Publishers] knew of any false statement in the editorials or articles or in fact entertained serious doubts as to the truthfulness of them." The circuit court granted Jones Street Publishers' motion for summary judgment and this appeal followed.

         ISSUES ON APPEAL

         1. Did the circuit court err in finding the statements of fact in the articles were protected by the fair report privilege?

         2. Did the circuit court err in finding the opinions expressed in ...


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