Respondent brought this action in a West Virginia circuit court
alleging that. three editorials in petitioner's newspaper
criticizing his official conduct as court clerk had libeled him.
The jury had been instructed in part that it could find for
respondent if it were shown that petitioner had published the
editorials "with bad or corrupt motive," or "from personal spite,
ill-will or a desire to injure plaintiff." Respondent contended
that there was sufficient proof for the jury to find that
petitioner published the statements with reckless disregard of
whether they were false or not. The jury awarded respondent damages
and the State Supreme Court of Appeals denied appellate review.
Held: The Court's independent examination of the whole
record does not reveal that any failure of petitioner to make a
prior investigation constituted proof sufficient to present a jury
question whether the statements were published with reckless
disregard of whether they were false or not.
Cf. New York Times
Co. v. Sullivan, 376 U. S. 254,
376 U. S.
287-288 (1964).
Certiorari granted; reversed and remanded.
PER CURIAM.
The petition for certiorari is granted.
Respondent Hanks is the elected Clerk of the Criminal and
Circuit Courts of Raleigh County, West Virginia. He brought this
libel action in the West Virginia Circuit Court, Wyoming County,
alleging that, during his reelection campaign he was libeled by
three editorials, highly critical of his official conduct, which
appeared in petitioner's morning newspaper. The jury returned a
verdict for respondent and awarded him $5,000 damages.
Page 389 U. S. 82
The State Supreme Court of Appeals denied petitioner's
application for appellate review.
Although this action was tried subsequent to the decisions of
this Court in
New York Times Co. v. Sullivan, 376 U.
S. 254 (1964);
Garrison v. Louisiana,
379 U. S. 64
(1964);
Henry v. Collins, 380 U.
S. 356 (1965), and
Rosenblatt v. Baer,
383 U. S. 75
(1966), and despite the fact that it was recognized at trial that
the principles of
New York Times were applicable, the case
went to the jury on instructions which were clearly impermissible.
The jury was instructed in part that it could find for the
respondent if it were shown that petitioner had published the
editorials "with bad or corrupt motive," or "from personal spite,
ill will or a desire to injure plaintiff." Because petitioner
failed to object to this erroneous interpretation of
New York
Times at trial, and, in fact, offered instructions which were
themselves inadequate, the issue of these instructions is not
before us. However, since it is clear that the jury verdict was
rendered upon instructions which misstated the law, and since
petitioner has properly challenged the sufficiency of the evidence,
we have undertaken an independent examination of the record as a
whole "so as to assure ourselves that the judgment does not
constitute a forbidden intrusion on the field of free expression."
New York Times Co. v. Sullivan, supra, at
376 U. S. 285.
See Curtis Publishing Co. v. Butts, 388 U.
S. 130,
388 U. S.
156-159 (1967) (opinion of MR. JUSTICE HARLAN);
id. at
388 U. S.
168-170 (opinion of THE CHIEF JUSTICE).
In
New York Times, we held that the Constitution
forbids recovery of damages in a civil libel action by a public
official, such as respondent,
"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
Page 389 U. S. 83
disregard of whether it was false or not."
376 U.S. at
376 U. S.
279-280. Our examination of the whole record satisfies
us that "the proof presented to show actual malice lacks the
convincing clarity which the constitutional standard demands. . .
." 376 U.S. at
376 U. S.
285-286.
We put aside the question whether the proofs show that the
allegedly libelous statements were false. If false, respondent did
not and does not contend that petitioner published the statements
with knowledge of their falsity. His contention was and is that the
proofs were sufficient for the jury to find that petitioner
published the statements with reckless disregard of whether they
were false or not. However, virtually the only evidence we find
bearing on that question relates to one of the editorials critical
of the opposition of respondent and another public official, Mrs.
Elinor Hurt, president of the county board of health, to
fluoridation of the local water supply. That editorial, captioned
"The Fluoridation Situation Remains Unchanged," was directed
primarily at Mrs. Hurt's opposition,
389 U.S.
81dast|>* but also included the following:
"Here, again, [Mrs. Hurt] seems to want to follow in the
footsteps of Hanks. For it was Hanks who ordered over the telephone
once that he did not want his name to appear in the Beckley
Post-Herald again. He backed up this order with an inexplicit
threat -- one merely intended to frighten those who are easily
intimidated."
"The only conclusion to which we can come is that either Hanks
and Mrs. Hurt have been in league toward the fanatic end, believing
all the wild-eyed
Page 389 U. S. 84
ravings against fluoridation despite decades of experience to
disprove them, or that
perhaps his blustering threats were able
to intimidate the lady."
(Emphasis added.)
Respondent's argument is that, since both he and Mrs. Hurt
testified and denied any threats or intimidation, the following
testimony of petitioner's president and general manager on
cross-examination provides "convincing proof" of the absence of
prior investigation which entitled the jury to find that the
"offending charges" were published with reckless disregard of
whether they were false or true:
"Q. But you can't tell this jury that any specific investigation
was made before this man was attacked in any of these articles, can
you?"
"
* * * *"
"A. We watch the activities of the public servant. You don't
have to make an investigation. His whole life is out in front of
everybody."
"Q. Those editorials were not written by anybody who wanted to
find out whether or not he threatened Mrs. Hurt, were they?"
"A. There was cause on their part to feel there was that
possibility."
"Q. That possibility? "
"A. That's right. 'Perhaps,' they said."
"
* * * *"
"A. It was our opinion that that was as near the facts and truth
as we could get."
(Tr. 121-122.)
We reject respondent's contention. Neither this passage nor
anything else in the record reveals "the high degree of awareness
of . . . probable falsity demanded by
New York Times. . .
."
Garrison v. Louisiana, 379 U. S.
64,
379 U. S. 74; it
cannot be said on this record that any failure of petitioner to
make a prior investigation constituted
Page 389 U. S. 85
proof sufficient to present a jury question whether the
statements were published with reckless disregard of whether they
were false or not.
Cf. New York Times Co. v. Sullivan,
supra, at
376 U. S.
287-288;
Time, Inc. v. Hill, 385 U.
S. 374,
385 U. S.
388-389 (1967).
See also Curtis Publishing Co. v.
Butts, supra, at
388 U. S.
153-154 (opinion of MR. JUSTICE HARLAN).
The judgment is reversed, and the case remanded to the Circuit
Court of West Virginia, Wyoming County, for further proceedings not
inconsistent with this opinion.
It is so ordered.
MR. JUSTICE BLACK, whom MR. JUSTICE DOUGLAS joins, concurs in
the result for the reasons stated in his concurring opinions in
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 293,
and
Garrison v. Louisiana, 379 U. S.
64,
379 U. S.
79.
MR. JUSTICE FORTAS took no part in the consideration or decision
of this case.
|
389 U.S.
81dast|
* When asked whether she had ever brought suit against
petitioner for these or other statements, Mrs. Hurt replied, "No,
sir, I have big broad shoulders." (Tr. 49.)