Appeal by plaintiff from Collier, Judge. Order entered 18 June 1981 in Superior Court, Guilford County. Heard in the Court of Appeals 30 April 1982.
Wells, Judge. Judges Webb and Whichard concur.
The dispositive question before us is whether defendant's G.S. 1A-1, Rule 56(c) motion was properly granted. In its recent decision in Lowe v. Bradford, N.C. , 289 S.E.2d 363 (1982), our Supreme Court reiterated the rules regarding the burden of proof upon a motion for summary judgment, as follows:
A party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). Generally this means that on "undisputed aspects of the opposing evidential forecast," where there is no genuine issue of fact, the moving party is entitled to judgment
as a matter of law. 2 McIntosh, North Carolina Practice and Procedure § 1660.5, at 73 (2d ed. Supp. 1970) . . . .
If the moving party satisfies its burden of proof, then the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Rules of Civil Procedure (emphasis added). The non-moving party "may not rest upon the mere allegations of his pleadings." Id.
Within these well-established rules of procedural law, we now turn to the substantive law of defamation. In the seminal case of New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), a Montgomery, Alabama City Commissioner whose official duties included supervising the Montgomery Police Department, brought a civil libel action against defendant, alleging that the New York Times had published an advertisement which contained false allegations of brutal conduct by the Montgomery police against civil rights activists. Although Sullivan's name was not specifically mentioned in the advertisement, he contended that the libel had in fact damaged his professional reputation. Weighing the right of an individual not to be libeled against the First Amendment's protection of freedom of the press, especially in light of the public's right of vigorous debate as to the conduct of public officials in the performance of their duties, the Supreme Court held:
The constitutional guarantees require, we thik, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not. (Emphasis added).
Later cases have shown that this basic approach is not limited to public officers or to the performance of official duties, or even to conventional civil libel suits. See Annot., 20 A.L.R.3d 988. In Garrison v. Louisiana, 379 U.S. 64, 13 L. Ed. 2d. 125, 85 S. Ct. 209 (1964), a district attorney was convicted for criminal libel of Louisiana state judges. The Supreme Court held that the rule applies equally to criminal and civil libel suits, and that "The New York Times rule is not rendered inapplicable merely because an
official's private reputation, as well as his public reputation, is harmed."
In Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967), reh. denied, 389 U.S. 889, 19 L. Ed. 2d 197, 198, 88 S. Ct. 11, 12 (1967), the supreme Court Extended the Application of the New York Times rule to include "public figures" as well as public officials. Plaintiff Butts, a well-known football coach and university athletic director, was accused in a newspaper article of "fixing" the outcome of a football game. Plaintiff Walker, a politically prominent private citizen, was alleged to have encouraged ...