Embrey v. Holly

Gilbert, C. J., delivered the opinion of the Court. —Introduction— A jury in the Baltimore City Court, presided over by Judge Martin B. Greenfeld, concluded that a "joke” by James Embrey, Jr., known professionally as "Johnny Walker” (Walker), was not funny. In fact, the jurors decided that the "joke” was libelous, and they awarded Dennis P. Holly, a then television news commentator in Baltimore-and the butt of Walker’s "joke,” $25,000 in compensatory damages, $5,000 punitive damages against Walker, and $35,000 punitive damages against Walker’s employer, Baltimore Radio Show, Inc., the operator of radio station WFBR. Perhaps the jury agreed with Markel’s Law, "Humor is okay; wit can be dangerous; wise-cracking is disastrous,” 1 inasmuch as one man’s "joke” may be another man’s "choke.” —The Facts— To understand why a "joke” should prove to be such a costly remark, one must comprehend the backdrop of the comment. We shall set the scene.

A blizzard dumped 24 inches of snow on Baltimore City and environs in late February 1979. Mobility just about ceased during the storm, and public transportation, as well as police vehicles, was almost totally paralyzed. Alerted by the media to the immobility of the police, "looters” 2 took to the streets, and they broke and entered a number of commercial establishments. 3 After gaining ⁵⁷⁴ unlawful entry into the shops and stores, the hoodlums literally carried off just about anything that could be moved. While many of the police vehicles were practically immobile, vehicles of some television stations were not.

Some looters were actually photographed committing the reprehensible acts of theft. The City’s newspapers printed banner stories of the wholesale burglaries, and Baltimore City received nation-wide notoriety about the "looting.” Mayor William Donald Schaefer summed up the feeling of the overwhelming majority of the City’s population when he decried the looting as, "a very disgraceful exhibition.” Numerous arrests were made notwithstanding the difficulty the police experienced in traversing Baltimore’s snowladen, slippery streets. 4 The Sunday Sun, on February 25, 1979, in a front-page article by Mr. William Salganik, reported a "profile” of those arrested for looting. Mr. Salganik wrote: "Those arrested for looting in Baltimore last week are overwhelmingly young and poor. They are unemployed, or have been employed for only a brief time and at low wages.

The majority do not have prior criminal records, and those who have been convicted in the past were almost all found guilty of minor crimes. Most are black males. Most did not finish high school. Almost all are single or divorced.

Virtually none own homes.” As a part of his routine, Walker broadcasts what he terms, "Little News in the Morning.” During that segment of the program, Walker says "crazy and wild things about current events.” Simulated laughter and various other prerecorded sounds are played throughout the airing of "Little News in the Morning” as part of the response to Walker’s jokes. ⁵⁷⁵ A regular feature of "Little News” was the "Harry Horni Report.” In that "report,” Mr. Ron Matz assumed the fictitious role of "Harry Horni.” "Horni” would telephone Walker and the two of them would engage in an ad lib exchange about Hollywood personalities. Walker would endeavor to create jokes in response to "Horni’s” comments. Testimony disclosed that fact was sometimes mixed with fiction. The broadcast that led to this particular litigation occurred on the morning of February 28, 1979.

Apparently of the belief that the "Horni Report,” taped during the broadcast at 6:15 a.m., was lacking in humor, John Elder, an engineer at WFBR, and a part-time writer for Walker, suggested the addition of another comment for use on the 8:15 a.m. rebroadcast of the "Horni Report.” "Horni” had said in the 6:15 a.m. report that Dennis Holly was entering a hospital for surgery on his knee. Walker, seemingly in response to Elder’s suggestion, ad libbed about Holly, on the 8:15 a.m. broadcast: "Too bad about Dennis Holly, though. Hope that comes out okay. Wonder how he hurt his knee.

Probably fell down carrying that TV during the blizzard last week, right?” 5 (Emphasis supplied.) There is a conflict in the testimony as to whether Walker’s ad lib was followed by the playing of a tape of "canned laughter.” Walker asserts that it was so followed, but witnesses for Holly stated that it was not. Mr. Charles Horich, Vice-president and Director of Broadcasting of WMAR-TV, told the jury that when he learned from WMAR-TV employees of the remark Walker made about Holly, he telephoned Mr. Harry Shriver, President and General Manager of Baltimore Radio Show, Inc. Horich complained to Shriver concerning the Walker remark in reference to Holly. Horich said that Shriver answered that "he would talk to Mr. Walker and respond ... in the morning.” Later, Horich received a telephone call directly ⁵⁷⁶ from Walker who asked Horich if he, Horich, "had a problem.” Horich related that he replied, "That’s right, .. . I. .. have a problem.

Did he [Walker] make the . .. quote involving Mr. Holly on the air.” Horich testified that he "asked Mr. Walker if he had said, on the radio, that Dennis Holly had hurt his knee while carrying a color television set in the streets, or something of that, something close to that, and . .. asked him if he had said that and he said he did and if I had a problem, he would give me his lawyer’s name and number, and then he hung up.” As events turned out, Mr. Horich’s problem was really Mr. Holly’s, which later became that of Walker and WFBR. Patently, failing to see the humor in Walker’s remark, Holly sued Walker and WFBR for libel. He acknowledged that his position as a television newscaster made him a "public figure” so that in order to recover from the appellants he carried the burden of proving that the allegedly libelous statement was uttered notwithstanding that it was "false and imperious,” and that Walker, as agent of WFBR, made the comment "knowing that the remarks ... would seriously injure and damage the character and reputation” of Holly. Holly also averred that the remarks were knowingly, maliciously and deliberately "done to defame . .. [him] by slander and/or libel.” At the conclusion of the evidence, Judge Greenfeld submitted the matter to the jury on issues.

Those issues were resolved by the jury in favor of Holly. Embrey (Walker) and Baltimore Radio Show, Inc. (WFBR) have, figuratively speaking, sailed to Annapolis, where they have fired a virtual broadside at the judgment of the Baltimore City Court. —The Issues on Appeal— Appellants aver that: "I. The trial court erred in denying Defendants’ Motions for Directed Verdicts and their Motions for Judgment N.O.V. where ⁵⁷⁷ the evidence showed that the remark was made with humorous intent and was understood by all witnesses who heard the remark to be a joke.

II

The trial court erred in permitting the jury to find Defendants liable for words spoken that were not actionable per se.

III

The trial court erred in permitting the jury to award punitive damages.

IV

The trial court erred in allowing the jury to award punitive damages against WFBR where WFBR neither ratified nor approved the complained of remark. V. The lower court erred in denying Defendants’ Suggestion for Removal from Baltimore City where Plaintiff stipulated that the jury would be composed of 12 black citizens and the evidence revealed that a large segment of Baltimore’s black community was sensitized to the events which would be the subject matter of this suit.

VI

The trial court erred in permitting Plaintiff to appeal to the racial sympathies of a majority of the jury through the use of racially inflammatory words and argument.

VII

The trial court erred in admitting into evidence the substance of remarks made by anonymous telephone callers.

VIII

The trial court erred in denying Defendants’ motion to reopen their case for the purpose of calling a newly discovered witness who possessed personal knowledge that Plaintiff had lied during his rebuttal testimony.” We shall consider each assignment of error in the order in which appellant has posited them to us, adding such addi ⁵⁷⁸ tional facts as may be necessary to the discussion. In passing upon the issues raised by the appellants, we bear in mind that we must view them in the light of the circumstances existent at the time the allegedly defamatory remarks were made. 6 I. When reviewing a ruling in a defamation case on a motion for directed verdict or a judgment N.O.V., we are required to make an independent examination of the facts submitted at the trial in order to insure that the constitutional right of free speech has been afforded adequate protection. Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6, 11 , 90 S. Ct. 1537, 1540 , 26 L. Ed. 2d 6, 13 (1970); New York Times, Co. v. Sullivan, 376 U.S. 254, 285 , 84 S. Ct. 710, 728 , 11 L. Ed. 2d 686, 709 (1964); A.S. Abell Co. v. Barnes, 258 Md. 56, 71 , 265 A.2d 207, 216 (1970), cert. denied, 403 U.S. 921 , 91 S. Ct. 2224 , 29 L. Ed. 2d 700 (1971). We "assume the truth of all credible evidence tending to sustain the contentions ..., as well as all credible inferences of fact reasonably and fairly deducible therefrom.” Kapiloff v. Dunn, 27 Md. App. 514, 523, n. 9 , 343 A.2d 251, 258 (1975), cert. denied, 426 U.S. 907 , 96 S. Ct. 2228 , 48 L. Ed. 2d 832 (1976).

We follow that cqurse to be sure that there was sufficient evidence to enable the jury to find, by clear and convincing proof, 7 that the publication was defamatory. Examination of the evidence in the light of the clear and convincing standards leads us to conclude that the issue of whether Walker’s statement was defamatory was correctly submitted to the jury, and they properly rendered a verdict for Holly. ⁵⁷⁹ We perceive no need to rehash extensively the law of libel and slander as it presently exists in this State. 8 A brief review, however, of the three requisite elements of a prima facie case of defamation is helpful. Firstly, the alleged defamatory statement or activity, whether oral (slander) or written (libel), must expose a person to "public scorn, hatred, contempt or ridicule” and, thus, be injurious to his reputation. Thompson v. Upton, 218 Md. 433, 437 , 146 A.2d 880, 883 (1958).

See American Stores Co. v. Byrd, 229 Md. 5, 13 , 181 A.2d 333, 337 (1962). See also Restatement (Second) of Torts 559 (1977); Prosser, Law of Torts § 111 (4th ed. 1971). A publication is libelous per se and presumed to be injurious to one’s reputation if, on its face, the "words themselves impute the defamatory character. . ..” Metromedia, Inc. v. Hillman, 285 Md. 161, 172 , 400 A.2d 1117, 1123 (1979). 9 The defamatory nature of a publication is, of course, not always apparent on its face. In that event, it is termed a defamation per quod. 10 Id. at 172-173 , 400 A.2d at 1123 .

To support a per quod action, ⁵⁸⁰ extrinsic circumstances must be introduced through inducement, colloquium, and innuendo. 11 Secondly, the alleged defamatory publication must be publicized to a third party, and that party must reasonably understand the publication to be defamatory. Werber v. Klopfer, 260 Md. 486, 496 , 272 A.2d 631, 635 (1971); Great Atlantic and Pacific Tea Co., Inc. v. Paul, 256 Md. 643, 648 , 261 A.2d 731, 734-35 (1970). The third and final requirement of a prima facie case of defamation is that damages to the individual’s reputation must be proven. The old axiom that libel and slander per se equals damages, has, in the manner of the "old soldier,” just "fadefd] away.” 12 The Supreme Court, in a triology of decisions, administered the coup de grace to the per se equals damages apothegm as follows: 1) In New York Times v. Sullivan, supra, per se damages, insofar as "public officials” are concerned, have disappeared from the law, 2) Curtis Publishing Co. v. Butts, 388 U.S. 130 , 87 S. Ct. 1975 , 18 L. Ed. 2d 1094 (1967) eradicated the per se damage concept with respect to public figures, 13 and 3) Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S. Ct. 2997 , 41 L. Ed. 2d 789 (1974), eliminated the awarding of per se damages where a private individual was defamed.

All three.cases make clear that even some defamatory speech is protected under the First and Fourteenth Amendment. Therefore, presumed ⁵⁸¹ damages and strict liability are no longer viable in defamation cases. Where a public figure is the injured party, damages will be awarded if the source of the defamation acted with actual malice. The term "actual malice” is held to mean publishing the comment while knowing of its falsity or acting with reckless disregard for the truth.

New York Times, supra; Curtis Publishing Co., supra; A.S. Abell Co., supra. The rule with respect to private persons is less stringent. A private person who is the object of a defamatory publication need only show that the source of the defamation acted negligently in failing to ascertain its defamatory character. Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580, 596-97 , 350 A.2d 688, 697 (1976).

The law of Maryland is that the trial judge initially has the duty to determine whether a statement is capable of conveying a defamatory meaning. Metromedia, supra; Cheek v. J.B.G. Properties, Inc., 28 Md. App. 29 , 344 A.2d 180 (1975). Should the judge find that the publication is amphibolous in that it is capable of both defamatory and non-defamatory meanings, the resolution of the question must be put to the jury. General Motors Corp. v. Piskor, 277 Md. 165 , 352 A.2d 810 (1976); Werber v. Klopfer, supra.

Similarly, whether a statement was a harmless joke or a harmful injury to reputation is for the trier of fact to determine. Werber v. Klopfer, supra. See Arno v. Stewart, 245 Cal. App. 2d 955 , 54 Cal.

Rptr. 392 (1966); Powers v. Durgin-Snow Publishing Co., Inc., 154 Me. 108 , 144 A.2d 294 (1958); Myers v. Boston Magazine Co., Inc., 403 N.E.2d 376 (Mass. 1980); Salomone v. MacMillan Publishing Co., Inc., 97 Misc. 2d 346 , 411 N.Y.S.2d 105 (1978); Hanson v. Feuling, 160 Wis. 511 , 152 N.W. 287 (1915). See also 77 A.L.R.2d 612 (1961). It is of no importance that the joke was intended to be humorous because the test is not intention, but how it was reasonably understood by a third person. Arno v. Stewart, supra; Menefee v. Codman, 155 Cal.

App. 2d 396 , 317 P.2d 1032 (1957). The line between "non-actionable humor” and "compensable libel” is not only ⁵⁸² vague but dependent upon the audience who hears it and the context in which it was made. Werber v. Klopfer, supra, is the only previous defamation case in this State to have dealt with humor as actionable defamation. Werber, a well-known alumnus of Duke University, published a lampoon, 14 which was a spoof on a legitimate university report concerning student unrest following the assassination of the Rev. Dr. Martin Luther King.

The lampoon allegedly identified Klopfer, a very visible and vocal university professor, as one of the "sex deviates, communists, advocates of narcotics” who was on "campus to harangue the student body. ...” 260 Md. at 487 , 272 A.2d at 632 . Werber distributed the lampoon to a select few, all of whom were knowledgeable of Duke University affairs. Klopfer sued Werber for libel. At trial, the court found that the lampoon, although intended as humorous, was defamatory in nature.

On appeal the Court of Appeals held otherwise and reversed the judgment on the basis that the recipients of the lampoon could not reasonably have interpreted the publication as defamatory inasmuch as they were intimately aware of Duke University affairs and the notoriety of Professor Klopfer. The Court rested its decision on its determination that the audience that received the lampoon was a small, controlled group who implicitly understood Werber’s humor. The Supreme Court of New York, in Salomone v. MacMillan Publishing Co., Inc., supra, decided that humor had gone "too far” and had transformed itself into actionable defamation. Although Salomone involved the defaming of a private individual, it, nevertheless, demonstrates that well-intended humor may not always be readily perceived as such, and when that happens, there may be injury to an innocent individual’s reputation.

The facts in Salomone were that the defendants published a book which was an update of an old, fictitious comic-strip character, "Eloise,” ⁵⁸³ who, as a child, played in the Park Plaza Hotel where she often irritated the hotel manager, Mr. Salomone. In actual fact, the real manager of the Park Plaza was a Mr. Salomone. The defendant’s book recreated "Eloise” as a young woman, returning to the hotel to haunt the manager. In the first episode, Mr. Salomone was called a "child molester.” Refusing to abide the "child molester” label, Salomone sued for defamation.

The defendants asserted that the book was humor. It failed to tickle the Court’s "funny bone” because the judges found for Mr. Salomone. The Court observed that, "[h]umor is a protected form of free speech, just as much to be given full scope, under appropriate circumstances, as the political speech, the journalistic exposé, or the religious tract.” (Emphasis supplied.) 411 N.Y.S.2d at 108 . The "humor” of the book eluded Salomone as well as some other persons who did not perceive the publication as a joke.

Implying that the communication of all humor involves a risk, the New York Court stated: "Parody . . . shuns subtlety. Its aim is to amuse and expose by imitating life, but larger than life. Its essence is distortion and exaggeration. Hence, like the warped and curved mirrors in a carnival fun house, it depends upon the grotesque for its effect.” Id. at 109.

Sharply contrasting with Salomone is Arno v. Stewart, supra. There, a professional singer appeared in a television variety show where he was introduced as an "iron-clad singing member of the Mafia.” The tone of the program following that introduction was jocular with the defendant thereafter referring to the plaintiff in a favorable and warm manner. Noting that the humorous intent of the defendant was irrelevant if the audience reasonably understood the statement as being defamatory, the court proceeded to find that the comment was non-defamatory inasmuch as the audience could only have reasonably received the statement as a joke. Walker and WFBR asseverate that a prima facie case of defamation was not proven against them because the ⁵⁸⁴ publication must be reasonably construed by third persons as defamatory, and, appellants aver that proof of that interpretation was lacking.

Walker and WFBR further claim that all who heard the publication in regard to Holly on the "Little News of the Morning” could reasonably interpret the publication only as a joke. Appellants’ argument presupposes that all who heard the remark had listened to the entire "Little News” segment of the program and were familiar with the Walker brand of humor. We think it safe to say, in light of Mr. Shriver’s testimony, that the Walker show was not highly rated and had about 27,000 listeners, that not all persons who heard the remark had heard the entire segment, and that not all persons tuned to the station were attuned to the Walker wit. The exact size or composition of the audience which heard Walker’s remark about Holly is difficult to determine.

Unlike the very small, controlled group who received the lampoon in Werber v. Klopfer, supra, 15 the radio audience may vary from second to second by a simple twist of the dial or a push of a button. To demonstrate the unpredictable reactions of a radio audience, Holly adduced testimony that Walker, at one time, had "humorously” told his listeners that Elvis Presley was registered at Johns Hopkins Hospital. The result of that remark was that the hospital was inundated with inquiries about Presley to the point that it had to issue a press release in denial of the Walker comment. Holly, in the instant case, produced evidence that some people believed Walker’s statement relative to Holly’s slipping while carrying a TV set during the blizzard.

Walker was asked: "Wasn’t really the humor, Mr. Walker that for days there had been newspaper and television coverage of three hundred and fifty or so black people involved in a series of lootings and that Dennis Holly, being black, was linked with this minute ⁵⁸⁵ portion of the black population and, therefore, there was a propensity on his part to loot because he is black. Wasn’t that what you mean, that was the alleged humor?” He responded: "It could have been taken that way, also. That would be another way. ” (Emphasis supplied.) Mr. Walter Dixon, a prospective juror who was disqualified because he heard the program involving the remark out of which this litigation arose, was called as a witness on behalf of Holly. Mr. Dixon suggested that the humor of the statement was not clearly discernible.

He said he had a Delphic reaction to it. Dixon inferred from the broadcast that, "Dennis Holly hurt his knee escaping the police during the looting, something to that effect.” Judge Greenfeld then asked, "Did you have any particular reaction at that time?” Dixon replied, "First, I laughed. ... I wondered about it for a second, what was the substance of it. Was it for real or was it a joke, because . .. [appellant] is always joking, and, then, I was wondering about it. ...” Several telephone statements by anonymous callers were admitted into evidence for the purpose of demonstrating that some people believed Walker’s comment to be true. 16 Calls to the television station were received by Holly on the evening of February 28, 1979.

One unidentified telephone caller is quoted by Holly as having said, " 'You pushed George Rogers out of his job and now you have stolen a television set and you are getting what you deserve.’ ” (Emphasis supplied.) Another unidentified caller asked Holly, " 'Why don’t you and the rest of those looters swing back in the trees where you came from?’ ” (Emphasis supplied.) WMAR-TV’s receptionist and switchboard operator, ⁵⁸⁶ Bernadette Hearn, related to the jury that from the evening of February 28, 1979, to March 8, 1979, anonymous phone calls were received from persons inquiring about the truth of Walker’s remark. Mrs. Hearn said: "[Ejvery call was an individual, you know, remark. None were exactly the same.... The callers, to the best of my recollection, . .. were asking me, I heard, or either by rumor, or on the radio, the remark thát... [Holly] had taken a television set during the looting in the street.

Was this true?” There was conflict in the testimony of the witnesses over whether a laugh track was played following Walker’s remark about Holly. The absence of simulated laughter, Holly asserted, supported his argument that a listener could reasonably interpret the remark as true. Holly did not personally hear the Walker program, but when his deposition was taken by the appellant, he testified that Susan White Bowden, a fellow employee who initially informed him of Walker’s comment, said that laughter followed the remark. At trial, however-, Holly told the jury that Mrs. Bowden stated that there was no laughter following the remark.

Additionally, Holly testified that Jack Bowden, another employee at WMAR-TV who also heard the Walker broadcast, had said that "[Walker] . . . made his remark and sounded as though he had said something wrong and went straight into a record.” Mr. Bowden, however, testified that he did not know whether a laugh track was played, but "he knew .. . [Holly] was laughing.” Mrs. Bowden informed the jury that she heard "music and laughter and a cheer and applause and ha, ha, ha, ha and all that sort of stuff.” She subsequently qualified her statement by saying, "To be honest with you, Jack [Bowden] and I were laughing and saying 'Oh, God’ 'Ha, ha’ and trying to keeping the car on the road, so I really don’t know what, if anything followed after ... [the remark].” Mr. Walter Dixon said he did not hear laughter following Walker’s comment about Holly. After viewing the evidence in a manner most favorable to Holly, and assuming the credibility of all witnesses, we think that Judge Greenfeld properly submitted to the jury ⁵⁸⁷ the question of whether Walker’s remark was received as a defamation or as a joke. The evidence, tested by the clear and convincing standard, was such as to allow the jury to conclude reasonably that Walker’s remark conveyed to the minds of some listeners that Holly, a black man, was associated with the looting that occurred during the blizzard, and that he injured his knee while carrying the pilfered television set while he simultaneously endeavored to elude capture by the police. Inasmuch as the overwhelming majority of those apprehended for looting were youths and black males, the Walker remark was particularly offensive to Holly who, along with many other black citizens of Baltimore, was sensitive to that type of comment at that particular time.

The timing of Walker’s remark could hardly have been worse. Under other circumstances, and at a different time, Walker’s "humor” might be received differently by all the listeners. That, of course, is a question about which we need not speculate.

II

Appellants suggest the Supreme Court’s holdings in Curtis Publishing Co. v. Butts, supra, and Gertz v. Robert Welch, Inc., supra, limit the liability of the media in "public figure” cases to defamation per se. In short, they advance the argument that defamation per quod is not actionable if the defamed person is a public official or a public figure. The appellants did not raise this nascent issue in the trial court where even constitutional issues must first be raised and decided. Md. Rule 1085.

Divine Seafood, Inc. v. Attorney General of Maryland, 37 Md. App. 439 , 377 A.2d 1194 (1977), aff'd, 282 Md. 482 (1978); Braun v. Ford Motor Co., 32 Md. App. 545 , 363 A.2d 562 , cert. denied, 278 Md. 716 (1976). As intriguing as appellants’ polemic may be, we shall leave exploration and discussion of the question to a time when it is properly before us. In their reply brief, Walker and WFBR maintain that their argument relative to defamation per se vis-a-vis defa ⁵⁸⁸ mation per quod was presented to the trial court. They assert that it was embodied in their memorandum of law which supplemented a request for a directed verdict at the conclusion of Holly’s evidence.

The memorandum to which appellants refer does not, in our view, address the issue now posed. Rather, the memorandum speaks in terms of punitive damages. Only by a convoluted interpretation can we read the memorandum as being concerned with the issue for which appellants now assert it stands.

III

Appellants’ argument is bimanous. On the one hand, they aver that punitive damages for defamation per quod can never be awarded. On the other hand, they assert that if punitive damages can be awarded, the evidence at trial did not rise to the New York Times standard of knowing falsity or reckless disregard. We must, before reaching the contentions, surmount the barrier that Holly has erected to prevent discussion of appellants’ issue.

Holly maintains that neither part of the appellants’ dichotomous argument is properly before us inasmuch as the matter was not preserved for appellate review. Md. Rule 1085. From the record, we learn that at the close of all the evidence in the case, the appellants moved for a directed verdict. Md. Rule 552.

It was stated in the motion that "New York Times v. Sullivan, Gertz v. Robert Welch, Inc., Jacron Sales Co. v. Sindorf and Marchesi v. Franchino, [ 283 Md. 131 , 387 A.2d 1129 (1978)] all contemplate and require a more stringent test for punitive damages where the plaintiff is a public figure. [Furthermore,]... . [Holly] has failed ... [to prove] that ... [Walker and WFBR] acted in reckless disregard.” We think the motion preserved the issue for our consideration, despite the fact that the subsequent exception to the jury instructions relative to punitive damages, Md. ⁵⁸⁹ Rule 554, was made solely by WFBR. The assigned grounds for the exception were alleged First Amendment violations. 17 Having razed the roadblock, we advance to a consideration of the merits of appellants’ arguments. Once again, we are required to make an independent review of the record, assuming the credibility of all witnesses and construing the facts in the light most favorable to Holly. We think the appellants’ assertion that punitive damages cannot be awarded for defamation per quod is contrary to the law.

The Court of Appeals and this Court have held punitive damages to have a deterrent effect on tortious conduct. See Wedeman v. City Chevrolet Co., 278 Md. 524 , 366 A.2d 7 (1976); Meleski v. Pinero International Restaurant Inc., 47 Md. App. 526 , 424 A.2d 784 (1981); Cheek v. J.B.G. Properties, Inc., supra. The Supreme Court has endorsed the award of punitive damages in defamation cases involving private persons so long as the actual malice standard of knowing falsity or reckless disregard is satisfied. Gertz v. Robert Welch, Inc., supra.

Liability for compensatory damages in defamation cases may be predicated upon a standard lower than actual malice, see Jacron Sales Co., Inc. v. Sindorf, supra. 18 The defendant’s First and Fourteenth Amendment right of free speech must, however, be shielded from abusive and excessive punitive damages via the use of the actual malice standard. Id. The Supreme Court has not thus far addressed the question of whether punitive damages may be awarded in public official-public figure defamation cases, but it has not ⁵⁹⁰ precluded such awards. Nevertheless, other courts, applying the New York Times standard of actual malice, have permitted punitive damage awards to public officials and public figures.

See e.g., Appleyard v. Transamerican Press, Inc., 539 F.2d 1026 (4th Cir. 1976), cert. denied, 429 U.S. 1041 , 97 S. Ct. 740 , 50 L. Ed. 2d 753 (1977); Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969), cert. denied, 396 U.S. 1049 , 90 S. Ct. 701 , 24 L. Ed. 2d 695 (1970); Bindrim v. Mitchell, 92 Cal. App. 3d 61 , 155 Cal. Rptr. 29 , cert. denied, 444 U.S. 984 , 100 S. Ct. 490 , 62 L. Ed. 2d 412 (1979). We believe, with respect to punitive damages in defamation cases, that the paramount concern of the Supreme Court of the United States and other courts as well is that the First Amendment is afforded due consideration irrespective of whether the defamation is per se or per quod, or whether the claimant is a public official, a public figure, or a private citizen.

The