Respondent was the unsuccessful challenger for the position of
Municipal Judge of Hamilton, Ohio, in an election conducted on
November 8, 1983. A local newspaper, the Journal News, published by
petitioner supported the reelection of the incumbent. A little over
a month before the election, the incumbent's Director of Court
Services resigned and was arrested on bribery charges, and a grand
jury investigation of those charges was in progress on November 1,
1983. On that day, the Journal News ran a front-page story quoting
a grand jury witness (Thompson) as stating that respondent had used
"dirty tricks" and offered her and her sister jobs and a trip to
Florida "in appreciation" for their help in the investigation.
Respondent filed a diversity action against petitioner for libel in
Federal District Court, alleging that the story was false, had
damaged his personal and professional reputation, and had been
published with actual malice. After listening to six days of
testimony and three taped interviews -- one conducted by respondent
and two by Journal News reporters -- and reviewing the contents of
56 exhibits, the jury was given instructions defining the elements
of public figure libel and directed to answer three special
verdicts. It found by a preponderance of the evidence that the
story in question was defamatory and false, and by clear and
convincing proof that the story was published with actual malice,
and awarded respondent $5,000 in compensatory damages and $195,000
in punitive damages. The Court of Appeals affirmed. It separately
considered the evidence supporting each of the jury's special
verdicts, concluding that neither the finding that the story was
defamatory nor the finding that it was false was clearly erroneous.
In considering the actual malice issue, but without attempting to
make an independent evaluation of the credibility of conflicting
oral testimony concerning the subsidiary facts underlying the
jury's finding of actual malice, the court identified 11 subsidiary
facts that the jury "could have" found, and held that such findings
would not have been clearly erroneous, and, based on its
independent review, that, when considered cumulatively, they
provided clear and convincing evidence of actual malice.
Page 491 U. S. 658
Held:
1. A showing of
"highly unreasonable conduct constituting an extreme departure
from the standards of investigation and reporting ordinarily
adhered to by responsible publishers"
cannot alone support a verdict in favor of a public figure
plaintiff in a libel action. Rather, such a plaintiff must prove by
clear and convincing evidence that the defendant published the
false and defamatory material with actual malice,
i.e.,
with knowledge of falsity or with a reckless disregard for the
truth. Although there is language in the Court of Appeals' opinion
suggesting that it applied the less severe professional standards
rule, when read as a whole, it is clear that this language is
merely supportive of the court's ultimate conclusion that the
Journal News acted with actual malice. Pp.
491 U. S.
663-668.
2. A reviewing court in a public figure libel case must
"exercise independent judgment and determine whether the record
establishes actual malice with convincing clarity" to ensure that
the verdict is consistent with the constitutional standard set out
in
New York Times Co. v. Sullivan, 376 U.
S. 254, and subsequent decisions.
See Bose Corp. v.
Consumers Union of United States, Inc., 466 U.
S. 485. Based on this Court's review of the entire
record, the Court of Appeals properly held that the evidence did in
fact support a finding of actual malice, but it should have taken a
somewhat different approach in reaching that result. While the jury
may have found each of the 11 subsidiary facts, the case should
have been decided on a less speculative ground. Given the trial
court's instructions, the jury's answers to the three special
interrogatories, and an understanding of those facts not in
dispute, it is evident that the jury must have rejected (1) the
testimony of petitioner's witnesses that Thompson's sister, the
most important witness to the bribery charges against the Director
of Court Services, was not contacted simply because respondent
failed to place her in touch with the newspaper; (2) the testimony
of the editorial director of the Journal News that he did not
listen to the taped interviews simply because he thought that they
would provide him with no new information; and (3) the testimony of
Journal News employees who asserted that they believed Thompson's
allegations were substantially true. When those findings are
considered alongside the undisputed evidence, the conclusion that
the newspaper acted with actual malice inextricably follows. The
evidence in the record in this case, when reviewed in its entirety,
is "unmistakably" sufficient to support a finding of actual malice.
Pp.
491 U. S.
685-693.
842 F.2d 825, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, O'CONNOR,
and KENNEDY, JJ., joined. WHITE, J., filed a concurring opinion, in
which
Page 491 U. S. 659
REHNQUIST, C.J., joined,
post, p.
491 U. S. 694.
BLACKMUN, J.,
post, p.
491 U. S. 694,
and KENNEDY, J.,
post, p.
491 U. S. 696,
filed concurring opinions. SCALIA, J., filed an opinion concurring
in the judgment,
post, p.
491 U. S.
696.
JUSTICE STEVENS delivered the opinion of the Court.
A public figure may not recover damages for a defamatory
falsehood without clear and convincing proof that the false
"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."
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S.
279-280 (1964).
See Curtis Publishing Co. v.
Butts, 388 U. S. 130,
388 U. S. 162
(1967) (opinion of Warren, C.J.). In
Bose Corp. v. Consumers
Union of United States, Inc., 466 U.
S. 485 (1984), we held that judges in such cases have a
constitutional duty to "exercise independent judgment and determine
whether the record establishes actual malice with convincing
clarity."
Id. at
466 U. S. 514.
In this case, the Court of Appeals affirmed a libel judgment
against a newspaper without attempting to make an independent
evaluation of the credibility of conflicting oral testimony
concerning the subsidiary facts underlying the jury's finding of
actual malice. We granted certiorari to consider whether the Court
of Appeals' analysis was consistent with our holding in
Bose. 488 U.S. 907 (1988).
Page 491 U. S. 660
I
Respondent, Daniel Connaughton, was the unsuccessful candidate
for the office of Municipal Judge of Hamilton, Ohio, in an election
conducted on November 8, 1983. Petitioner is the publisher of the
Journal News, a local newspaper that supported the reelection of
the incumbent, James Dolan. A little over a month before the
election, the incumbent's Director of Court Services resigned and
was arrested on bribery charges. A grand jury investigation of
those charges was in progress on November 1, 1983. On that date,
the Journal News ran a front-page story quoting Alice Thompson, a
grand jury witness, as stating that Connaughton had used "dirty
tricks" and offered her and her sister jobs and a trip to Florida
"in appreciation" for their help in the investigation.
Invoking the federal court's diversity jurisdiction, Connaughton
filed an action for damages, alleging that the article was false,
that it had damaged his personal and professional reputation, and
that it had been published with actual malice. After discovery,
petitioner filed a motion for summary judgment relying in part on
an argument that, even if Thompson's statements were false, the
First Amendment protects the accurate and disinterested reporting
of serious charges against a public figure. The District Court
denied the motion, noting that the evidence raised an issue of fact
as to the newspaper's interest in objective reporting and that the
"neutral reportage doctrine" did not apply to Thompson's
statements. [
Footnote 1] The
case accordingly proceeded to trial.
Page 491 U. S. 661
After listening to six days of testimony and three taped
interviews -- one conducted by Connaughton and two by Journal News
reporters -- and reviewing the contents of 56 exhibits, the jury
was given succinct instructions accurately defining the elements of
public figure libel and directed to answer three special verdicts.
[
Footnote 2] It unanimously
found by a preponderance of the evidence that the November 1 story
was defamatory and that it was false. It also found by clear and
convincing proof that the story was published with actual malice.
After a separate hearing on damages, the jury awarded Connaughton
$5,000 in compensatory damages and $195,000 in punitive damages.
Thereafter, the District Court denied a motion for judgment
notwithstanding the verdict, App. to Pet. for Cert. 83a, and
petitioner appealed.
Page 491 U. S. 662
The Court of Appeals affirmed. 842 F.2d 825 (CA6 1988). In a
lengthy opinion, the majority detailed why its "independent
examination of the entire record" had demonstrated that "the
judgment does not pose a forbidden intrusion into the First
Amendment rights of free expression."
Id. at 828. The
opinion identified the "core issue" as
"simply one of credibility to be attached to the witnesses
appearing on behalf of the respective parties and the
reasonableness and probability assigned to their testimony."
Id. at 839-840. It separately considered the evidence
supporting each of the jury's special verdicts, concluding that
neither the finding that the article was defamatory [
Footnote 3] nor the finding that it was false
[
Footnote 4] was clearly
erroneous.
The Court of Appeals' review of the actual malice determination
involved four steps. It first noted the wide disparity between the
respective parties' versions of the critical evidence, pointing out
that. if the jury had credited petitioner's evidence, it
"could have easily concluded that Thompson's
Page 491 U. S. 663
charges were true and/or that the Journal's conduct in
determining Thompson's credibility was not a highly unreasonable
departure from the standards of investigation and reporting
ordinarily adhered to by reasonable publishers."
Id. at 840. Second, it inferred from the jury's answers
to the three special interrogatories that
"it obviously elected to assign greater credibility to the
plaintiff's witnesses and proof [and that] the jury simply did not
believe the defendants' witnesses, its evidentiary presentations or
its arguments."
Ibid. Third, having considered what it regarded as the
"subsidiary or operative facts" that comprised the plaintiff's
theory of the case, it concluded that the jury's findings
concerning those operative facts were not clearly erroneous.
Id. at 843-844. Fourth, "in the exercise of its
independent judgment" based on its evaluation of the "cumulative
impact of the subsidiary facts," the court concluded
"that Connaughton proved, by clear and convincing evidence, that
the Journal demonstrated its actual malice when it published the
November 1, 1983, article despite the existence of serious doubt
which attached to Thompson's veracity and the accuracy of her
reports."
Id. at 846.
Judge Guy dissented. In his opinion, the admissions made by
Connaughton in his interview with Journal News reporters the day
before the story was published sufficiently corroborated Thompson's
charges to preclude a finding of actual malice.
Id. at
853-854. He was satisfied, as a matter of law, that respondent had
failed to prove actual malice by clear and convincing evidence,
regardless of whether determinations of credibility made by the
jury are subject to a
de novo standard of review.
Id. at 855.
II
Petitioner contends that the Court of Appeals made two basic
errors. First, while correctly stating the actual malice standard
announced in
New York Times Co. v. Sullivan, 376 U.
S. 254 (1964), the court actually applied a less
severe
Page 491 U. S. 664
standard that merely required a showing of
"'highly unreasonable conduct constituting an extreme departure
from the standards of investigation and reporting ordinarily
adhered to by responsible publishers.'"
842 F.2d at 845 (quoting
Curtis Publishing Co. v.
Butts, 388 U.S. at
388 U. S. 155
(opinion of Harlan, J.)). Second, the court failed to make an
independent
de novo review of the entire record, and
therefore incorrectly relied on subsidiary facts implicitly
established by the jury's verdict instead of drawing its own
inferences from the evidence.
There is language in the Court of Appeals' opinion that supports
petitioner's first contention. For example, the Court of Appeals
did expressly state that the Journal News' decision to publish
Alice Thompson's allegations constituted an extreme departure from
professional standards. [
Footnote
5] Moreover, the opinion attributes considerable weight to the
evidence that the Journal News was motivated by its interest in the
reelection of the candidate it supported and its economic interest
in gaining a competitive advantage over the Cincinnati
Page 491 U. S. 665
Enquirer, its bitter rival in the local market. [
Footnote 6] Petitioner is plainly correct in
recognizing that a public figure plaintiff must prove more than an
extreme departure from professional standards, and that a
newspaper's motive in publishing a story -- whether to promote an
opponent's candidacy or to increase its circulation -- cannot
provide a sufficient basis for finding actual malice.
The language in the Court of Appeals' opinion discussing
professional standards is taken from Justice Harlan's plurality
opinion in
Curtis Publishing Co. v. Butts, supra, at
388 U. S. 155.
In that case, Justice Harlan had opined that the
New York
Times actual malice standard should be reserved for cases
brought by public officials. The
New York Times decision,
in his view, was primarily driven by the repugnance of seditious
libel and a concern that public official libel "lay close" to
Page 491 U. S. 666
this universally renounced, and long-defunct, doctrine. 388 U.S.
at
388 U. S. 153.
In place of the actual malice standard, Justice Harlan suggested
that a public figure need only make
"a showing of highly unreasonable conduct constituting an
extreme departure from the standards of investigation and reporting
ordinarily adhered to by responsible publishers."
Id. at
388 U. S. 155.
This proposed standard, however, was emphatically rejected by a
majority of the Court in favor of the stricter
New York
Times actual malice rule.
See 388 U.S. at
388 U. S. 162
(opinion of Warren, C.J.);
id. at
388 U. S. 170
(Black, J., dissenting);
id. at 172 (BRENNAN, J.,
dissenting). Moreover, just four years later, Justice Harlan
acquiesced in application of the actual malice standard in public
figure cases,
see Rosenbloom v. Metromedia, Inc.,
403 U. S. 29,
403 U. S. 69-70
(1971) (dissenting opinion), and, by the time of the Court's
decision in
Gertz v. Robert Welch, Inc., 418 U.
S. 323 (1974), the Court was apparently unanimously of
this view. Today, there is no question that public figure libel
cases are controlled by the
New York Times standard, and
not by the professional standards rule, which never commanded a
majority of this Court.
It also is worth emphasizing that the actual malice standard is
not satisfied merely through a showing of ill-will or "malice" in
the ordinary sense of the term. [
Footnote 7]
See Beckley
Page 491 U. S. 667
Newspapers Corp. v. Hanks, 389 U. S.
81 (1967) (per curiam);
Henry v. Collins,
380 U. S. 356
(1965) (per curiam). Indeed, just last Term we unanimously held
that a public figure
"may not recover for the tort of intentional infliction of
emotional distress . . . without showing . . . that the publication
contains a false statement of fact which was made . . . with
knowledge that the statement was false or with reckless disregard
as to whether or not it was true."
Hustler Magazine, Inc. v. Falwell, 485 U. S.
46,
485 U. S. 56
(1988). Nor can the fact that the defendant published the
defamatory material in order to increase its profits suffice to
prove actual malice. The allegedly defamatory statements at issue
in the
New York Times case were themselves published as
part of a paid advertisement. 376 U.S. at
376 U. S.
265-266. If a profit motive could somehow strip
communications of the otherwise available constitutional
protection, our cases from
New York Times to
Hustler
Magazine would be little more than empty vessels. Actual
malice, instead, requires at a minimum that the statements were
made with a reckless disregard for the truth. And although the
concept of "reckless disregard" "cannot be fully encompassed in one
infallible definition,"
St. Amant v. Thompson,
390 U. S. 727,
390 U. S. 730
(1968), we have made clear that the defendant must have made the
false publication with a "high degree of awareness of . . .
probable falsity,"
Garrison v. Louisiana, 379 U. S.
64,
379 U. S. 74
(1964), or must have "entertained serious doubts as to the truth of
his publication,"
St. Amant, supra, at
390 U. S.
731.
Certain statements in the Court of Appeals' opinion, when read
in isolation, appear to indicate that the court at times
substituted the professional standards rule for the actual malice
requirement, and at other times inferred actual malice from the
newspaper's motive in publishing Thompson's story. Nevertheless,
when the opinion is read as a whole, it is clear that the
conclusion concerning the newspaper's departure
Page 491 U. S. 668
from accepted standards, and the evidence of motive were merely
supportive of the court's ultimate conclusion that the record
"demonstrated a reckless disregard as to the truth or falsity of
Thompson's allegations, and thus provided clear and convincing
proof of 'actual malice' as found by the jury."
842 F.2d at 847. Although courts must be careful not to place
too much reliance on such factors, a plaintiff is entitled to prove
the defendant's state of mind through circumstantial evidence,
see Herbert v. Lando, 441 U. S. 153,
441 U. S. 160
(1979);
Tavoulareas v. Piro, 260 U.S.App.D.C. 39, 66, 817
F.2d 762, 789 (en banc),
cert. denied, 484 U.S. 870
(1987), and it cannot be said that evidence concerning motive or
care never bears any relation to the actual malice inquiry. Thus,
we are satisfied that the Court of Appeals judged the case by the
correct substantive standard.
The question whether the Court of Appeals gave undue weight to
the jury's findings -- whether it failed to conduct the kind of
independent review mandated by our opinion in
Bose --
requires more careful consideration. A proper answer to that
question must be prefaced by additional comment on some of the
important conflicts in the evidence.
III
The most important witness to the bribery charges against the
Director of Court Services was Patsy Stephens, Alice Thompson's
older sister. In a tape recorded interview conducted in
Connaughton's home between 12:30 and 4:30 a.m. on September 17,
1983, Stephens explained how, on 40 or 50 occasions, she had
visited with the Court Administrator, Billy Joe New, in his office
and made cash payments to dispose of "DUI" and other minor criminal
charges against her former husband and various other relatives and
acquaintances. [
Footnote 8] On
September 22, pursuant to an arrangement
Page 491 U. S. 669
made by Connaughton at the suggestion of the county prosecutor,
Stephens took a lie detector test. After learning that she had
passed the test, Connaughton filed a written complaint against New.
In due course, New was arrested, indicted, and convicted.
Alice Thompson was one of the eight persons present at the tape
recorded interview on September 17. [
Footnote 9] One of the cases Patsy Stephens described was
a shoplifting charge against her sister. Thompson volunteered some
comments about the incident, but otherwise had little to say during
the long interview with Stephens. Thompson was also present on the
22d when Stephens took the polygraph test, but Thompson declined to
submit to such a test. App. 301. On that day, the two sisters spent
several hours in the company of Connaughton, his wife, and two of
his supporters. They discussed a number of subjects, including the
fact that Billy Joe New had just resigned, the question whether
there was reason to be concerned about the safety of the two
sisters, the fact that Martha Connaughton might open an ice cream
parlor sometime in the future, the possibility that the two sisters
might be employed there as waitresses, and a vacation in Florida
planned by the Connaughtons for after the election.
Page 491 U. S. 670
Late in October, New's lawyer, Henry Masana, met with Jim
Blount, the editorial director of the Journal News, and Joe
Cocozzo, the newspaper's publisher, to arrange a meeting with Alice
Thompson. Masana explained that Thompson wanted to be interviewed
about the "dirty tricks" Connaughton was using in his campaign.
Thereafter, on October 27, Blount and Pam Long, a Journal News
reporter, met with Thompson in the lawyer's office and tape
recorded the first of the two interviews that provided the basis
for the story that Long wrote and the Journal News published on
November 1.
The tape of Alice Thompson's interview is one hour and twenty
minutes long. Significant portions of it are inaudible or
incoherent. It is clear, however, that Thompson made these specific
charges:
-- that Connaughton had stated that his purpose in taping the
interview with Patsy Stephens was to get evidence with which he
could confront New and Judge Dolan and "scare them into resigning"
without making any public use of the tapes; [
Footnote 10]
Page 491 U. S. 671
-- that he would pay the expenses for a 3-week vacation in
Florida for the two sisters; [
Footnote 11]
-- that he would buy a restaurant for the two sisters' parents
to operate; [
Footnote
12]
Page 491 U. S. 672
-- that he would provide jobs for both Patsy Stephens and Alice
Thompson; [
Footnote 13]
-- that he would take them out to a victory dinner at an
expensive French restaurant after the election; [
Footnote 14] and
-- that Connaughton would not allow knowledge of the sisters'
involvement to become public. [
Footnote 15]
Page 491 U. S. 673
During the course of the interview, Thompson indicated that she
had told her story to the Cincinnati Enquirer, which declined to
print it,
id. at 284, and that the local police likewise
were not interested,
id. at 310. [
Footnote 16] Thompson indicated that she was
"against" Connaughton's becoming a judge.
Id. at 311. She
also asserted that, since Connaughton had made public that she and
her sister had provided evidence against New, friends had accused
her "of being a snitch and a rat" -- epithets to which she took
great offense -- and that one reason she came to the Journal News
was "to get that cleared up." [
Footnote 17] In her description of the interview in
Connaughton's home on September 17, Thompson stated that
Connaughton had frequently turned off the tape recorder, [
Footnote 18] that his voice would
not be heard
Page 491 U. S. 674
on the tape, [
Footnote
19] and, somewhat inconsistently (and in response to a leading
question), that most of her comments had been made in response to
leading questions by Connaughton. [
Footnote 20]
Toward the end of the interview, Blount made two significant
comments. He announced that "Pam will, of course, write the story,"
id. at 314, and he asked "[w]hat would happen if we called
your sister,"
id. at 316. In response to the first
comment, Thompson volunteered a somewhat improbable explanation for
her motivation in seeking the interview, [
Footnote 21]
Page 491 U. S. 675
and, in response to the second, she gave an equivocal answer,
[
Footnote 22] even though
she had previously assured Blount that Stephens would confirm
everything she had said. [
Footnote 23]
On Sunday, October 30, an editorial appeared in the Journal News
under the headline "Municipal Court Race will have More than One
Loser." [
Footnote 24] App.
to Pet. for Cert. 45a. In the column, Blount observed that the
campaign "battle has been all it was expected to be and more," and
predicted that "[a] lot could still happen in the next eight to
nine days."
Ibid. He went on to discuss the charges
pending against New, stating that the "array of charges and
countercharges probably has taken some votes from Dolan."
Ibid. He cautioned, however, that the race was still
wide-open, and quoted an unidentified voter as saying, "I resent
voting for a person who I later find has been deceitful or
dishonest
Page 491 U. S. 676
in campaigning."
Id. at 46a. Significantly, this
unidentified person did not express indignation at dishonesty in
the administration of the Municipal Court -- a concern one would
think the arrest of New might have prompted -- but rather, a
distaste for dishonesty in campaigning -- a concern that the
then-uninvestigated and unwritten November 1 story would soon
engender. After questioning the Cincinnati Enquirer's coverage of a
story critical of Dolan and suggesting that "the Connaughton forces
have a wealthy, influential link to Enquirer decisionmakers," the
column indicated that the Journal News had not yet decided which
candidate it favored, but implied that an endorsement was
forthcoming.
Id. at 48a.
On October 31, a reporter for the Journal News telephoned
Connaughton and asked him to attend a meeting with Jim Blount,
stating "that the endorsement may hang in the balance." Tr. 457
(Aug. 9, 1985). Connaughton met with the reporter, Blount, and
Cocozzo that afternoon, and discussed a variety of subjects. One of
the subjects was the rumor that Connaughton had an influential link
to the Cincinnati Enquirer. Connaughton asserted that he had "no
extraordinary pull or any inside track to anybody down there," and
that any rumor to the contrary was "a lie."
Id. at 458.
Another subject was Connaughton's participation in the
investigation of Billy Joe New. Connaughton provided a chronology
of the events that led to his filing of the complaint against New,
and explained that he believed that he had an obligation "as an
attorney and officer of the court to report [New's] crimes."
Id. at 458-459. No mention was made of Thompson's
interview or her charges against Connaughton.
Id. at 460.
After about an hour, Jim Blount received a telephone call and then
told Connaughton that a reporter wanted to interview him.
Id. at 462.
Connaughton then went to another office where Blount and Long
advised him that they had interviewed Alice Thompson
Page 491 U. S. 677
and were "trying to find out . . . how much of her statement was
true." App. 256. The ensuing tape-recorded interview lasted 55
minutes. Connaughton acknowledged that the meetings that Thompson
described had taken place and that there had been some speculative
discussion about each of the subjects that Thompson mentioned. He
stated, however, that Thompson's account of their meetings was
"obviously shaded and bizarre,"
id. at 276, and that there
was "absolutely" no "
quid pro quo for information."
[
Footnote 25]
Thus, while categorically denying
Page 491 U. S. 678
that he intended to confront New and Judge Dolan with the tape
of the Stephens interview to scare them into resigning, Connaughton
admitted that he might well have speculated about what they would
say or do if they heard the tapes. [
Footnote 26] Similarly, while denying that he had
promised Stephens and Thompson anonymity, he agreed that he had
told them that he had hoped that they could remain anonymous.
[
Footnote 27] He also
categorically denied that he had promised Thompson a job as a
waitress, promised Stephens a job at the Municipal Court, or
promised to set their parents up in a restaurant, although he did
acknowledge a general conversation in which his wife had discussed
the possibility that if her dream of opening "a gourmet ice cream
shop" should materialize, the sisters might work there. [
Footnote 28] There were similar
acknowledgments of references
Page 491 U. S. 679
to a possible Florida trip and post-election victory dinner, but
denials of any promises. [
Footnote 29] At the end of the interview, Long went back
-- stressing that Thompson's charge was a "hefty"
Page 491 U. S. 680
one -- and asked for a second time whether Connaughton had
promised Stephens a job at the Municipal Court if he was elected.
He once again unequivocally denied the allegation. [
Footnote 30]
The following day, the lead story in the Journal News -- under
the headline "Bribery case witness claims jobs, trip offered" --
reported that
"[a] woman called to testify before the . . . Grand Jury in the
Billy Joe New bribery case claims Dan Connaughton, candidate for
Hamilton Municipal Judge, offered her and her sister jobs and a
trip to Florida 'in appreciation' for their help. [
Footnote 31]"
Id. at 329. The article, which carried Pam Long's
byline, stated that Thompson accused Connaughton of using
"
dirty tricks'" to gain her cooperation in investigating New,
and that Connaughton, although admitting that he did meet with
Thompson, "denied any wrongdoing." Ibid. Each of
Thompson's allegations was accurately reported, including her
claims that Connaughton had promised to "protect her anonymity,"
id. at 330, that he had promised Stephens "a municipal
court job" and Thompson some other sort of work, that he had
invited both sisters on "a post-election trip to Florida," and that
he had offered "to set up Thompson's parents . . . in the
restaurant business," id. at 333. The article conveyed
Thompson's allegation that "the tapes were turned off and on during
a session [that] lasted until 5:30 a.m.," and that these promises
were
Page 491 U. S. 681
made "[w]hen the tape was turned off."
Ibid. In
addition, Long wrote, "Thompson claimed Connaughton had told her
the tapes he made of her . . . statement . . . were to be presented
to Dolan" with the hope that Dolan might resign, thereby allowing
Connaughton to assume the municipal judgeship.
Id. at 335.
Connaughton's contrary version of the events was also accurately
reported.
As the Court of Appeals correctly noted, there was evidence in
the record -- both in the Thompson tape and in the Connaughton tape
-- that would have supported the conclusion that Thompson was
telling the truth and that Connaughton was dissembling.
See 842 F.2d at 840. On the other hand, notwithstanding
the partial confirmation of Thompson's charges in the Connaughton
tape, there remained a sharp conflict between their respective
versions of the critical events. There was unquestionably ample
evidence in the record to support a finding that Thompson's
principal charges were false, either because she misinterpreted
remarks by Connaughton and his wife or because Thompson was
deliberately lying.
The jury listened to the tape recordings of the two conflicting
interviews and also observed the demeanor of the two witnesses as
they testified in open court. They found that Connaughton was
telling the truth and that Thompson's charges were false. The fact
that an impartial jury unanimously reached that conclusion does
not, however, demonstrate that the Journal
Page 491 U. S. 682
News acted with actual malice. Unlike a newspaper, a jury is
often required to decide which of two plausible stories is correct.
Difference of opinion as to the truth of a matter -- even a
difference of 12 to 1 -- does not alone constitute clear and
convincing evidence that the defendant acted with a knowledge of
falsity or with a "high degree of awareness of . . . probable
falsity,"
Garrison, 379 U.S. at
379 U. S. 74.
The jury's verdict in this case, however, derived additional
support from several critical pieces of information that strongly
support the inference that the Journal News acted with actual
malice in printing Thompson's false and defamatory statements.
IV
On October 27, after the interview with Alice Thompson, the
managing editor of the Journal News assembled a group of reporters
and instructed them to interview all of the witnesses to the
conversation between Connaughton and Thompson with one exception --
Patsy Stephens. No one was asked to interview her, and no one made
any attempt to do so.
See App. 56-57, 61, 83-85. This
omission is hard to explain in light of Blount's and Long's
repeated questions during the Connaughton and Thompson interviews
concerning whether Stephens would confirm Thompson's allegations.
See id. at 277, 313, 316. It is utterly bewildering in
light of the fact that the Journal News committed substantial
resources to investigating Thompson's claims, yet chose not to
interview the one witness who was most likely to confirm Thompson's
account of the events. However, if the Journal News had serious
doubts concerning the truth of Thompson's remarks, but was
committed to running the story, there was good reason not to
interview Stephens -- while denials coming from Connaughton's
supporters might be explained as motivated by a desire to assist
Connaughton, a denial coming from Stephens would quickly put an end
to the story.
The remaining six witnesses, including Connaughton, were all
interviewed separately on October 31. Each of them denied Alice
Thompson's charges and corroborated Connaughton's version of the
events. Thus, one Journal News reporter testified at trial that
Jeanette and Ernest Barnes denied that any promises, offers, or
inducements were made, and that he had known the Barneses for
several years and considered them both credible.
Id. at
89-90. Another reporter testified that she interviewed Dave Berry,
and that Berry stated that absolutely no promises or offers were
made.
Id. at 91-92. By the time the November 1 story
appeared,
Page 491 U. S. 683
six witnesses had consistently and categorically denied
Thompson's allegations, yet the newspaper chose not to interview
the one witness that both Thompson and Connaughton claimed would
verify their conflicting accounts of the relevant events.
The newspaper's decision not to listen to the tapes of the
Stephens interview in Connaughton's home also supports the finding
of actual malice. During the Connaughton interview, Long and Blount
asked if they could hear the tapes.
Id. at 259.
Connaughton agreed,
ibid., and later made the tapes
available,
id. at 48, 142. Much of what Thompson had said
about the interview could easily have been verified or disproven by
listening to the tapes. Listening to the tapes, for example, would
have revealed whether Thompson accurately reported that the tape
recorders were selectively turned on and off and that Connaughton
was careful not to speak while the recorders were running.
Similarly, the tapes presented a simple means of determining
whether Stephens and Thompson had been asked leading questions, as
Thompson claimed. Furthermore, if Blount was truly in equipoise
about the question whether to endorse the incumbent judge for
reelection -- as he indicated in the column that he published on
Sunday, October 30 -- it is difficult to understand his lack of
interest in a detailed description of the corrupt disposition of 40
to 50 cases in Judge Dolan's court. Even though he may have
correctly assumed that the account did not reflect on the integrity
of the judge himself, surely the question whether administrative
shortcomings might be revealed by the tapes would be a matter in
which an editor in the process of determining which candidate to
endorse would normally have an interest. [
Footnote 32] Although simply one piece of
Page 491 U. S. 684
evidence in a much larger picture, one might reasonably infer in
light of this broader context that the decision not to listen to
the tapes was motivated by a concern that they would raise
additional doubts concerning Thompson's veracity.
Moreover, although also just a small part of the larger picture,
Blount's October 30 editorial can be read to set the stage for the
November 1 article. Significantly, this editorial appeared before
Connaughton or any of the other witnesses were interviewed. Its
prediction that further information concerning the integrity of the
candidates might surface in the last few days of the campaign can
be taken to indicate that Blount had already decided to publish
Thompson's allegations, regardless of how the evidence developed
and regardless of whether or not Thompson's story was credible upon
ultimate reflection.
Finally, discrepancies in the testimony of Journal News
witnesses may have given the jury the impression that the
Page 491 U. S. 685
failure to conduct a complete investigation involved a
deliberate effort to avoid the truth. Thus, for example, Blount's
superiors testified that they understood that Blount had directed
reporter Tom Grant to ask the police whether Thompson had repeated
her charges against Connaughton to them and whether they considered
her a credible witness.
Id. at 86-87 (Walker), 95
(Cocozzo). Blount also so testified.
Id. at 37-38. Grant,
however, denied that he had been given such an assignment.
Id. at 88. Similarly, at the early stages of the
proceeding, there was testimony that, on October 31, Pam Long had
tried to arrange a meeting with Patsy Stephens over the telephone,
id. at 94, that Blount was standing at her desk during the
conversation and overheard Long talking to Stephens,
id.
at 36-37, and that Connaughton had volunteered that he would have
Stephens get in touch with them,
id. at 57. Connaughton
categorically denied that the issue of getting in touch with
Stephens was even discussed,
id. at 142, and ultimately
Blount and Long agreed that there was no contact -- and no attempt
to make contact -- with Stephens on the 31st or at any other time
before the story was published,
id. at 48-49 (Blount),
56-57 (Long).
V
The question whether the evidence in the record in a defamation
case is sufficient to support a finding of actual malice is a
question of law.
Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. at
466 U. S.
510-511. This rule is not simply premised on common law
tradition, [
Footnote 33] but
on the
Page 491 U. S. 686
unique character of the interest protected by the actual malice
standard. Our profound national commitment to the free exchange of
ideas, as enshrined in the First Amendment, demands that the law of
libel carve out an area of "
breathing space'" so that protected
speech is not discouraged. Gertz, 418 U.S. at 418 U. S. 342
(quoting NAACP v. Button, 371 U.
S. 415, 371 U. S. 433
(1963)); New York Times Co., 376 U.S. at 376 U. S. 272
(same). The meaning of terms such as "actual malice" -- and, more
particularly, "reckless disregard" -- however, is not readily
captured in "one infallible definition." St. Amant v.
Thompson, 390 U.S. at
390 U. S. 730. Rather, only through the course of
case-by-case adjudication can we give content to these otherwise
elusive constitutional standards. Bose, supra, at
466 U. S. 503.
Moreover, such elucidation is particularly important in the area of
free speech for precisely the same reason that the actual malice
standard is itself necessary. Uncertainty as to the scope of the
constitutional protection can only dissuade protected speech -- the
more elusive the standard, the less protection it affords. Most
fundamentally, the rule is premised on the recognition that
"[j]udges, as expositors of the Constitution," have a duty
to
"independently decide whether the evidence in the record is
sufficient to cross the constitutional threshold that bars the
entry of any judgment that is not supported by clear and convincing
proof of 'actual malice.'"
Bose, supra, at
466 U. S.
511.
There is little doubt that
"public discussion of the qualifications of a candidate for
elective office presents what is probably the strongest possible
case for application of the
New York Times rule,"
Ocala Star-Banner Co. v. Damron, 401 U.
S. 295,
401 U. S. 300
(1971), and the strongest possible case for independent
Page 491 U. S. 687
review. As Madison observed in 1800, just nine years after
ratification of the First Amendment:
"Let it be recollected, lastly, that the right of electing the
members of the government constitutes more particularly the essence
of a free and responsible government. The value and efficacy of
this right depends on the knowledge of the comparative merits and
demerits of the candidates for public trust, and on the equal
freedom, consequently, of examining and discussing these merits and
demerits of the candidates respectively."
4 J. Elliot, Debates on the Federal Constitution 575 (1861).
This value must be protected with special vigilance. When a
candidate enters the political arena, he or she "must expect that
the debate will sometimes be rough and personal,"
Ollman v.
Evans, 242 U.S.App.D.C. 301, 333, 750 F.2d 970, 1002 (1984)
(en banc) (Bork, J., concurring),
cert. denied,
471 U. S. 1127
(1985), and cannot "
cry Foul!' when an opponent or an
industrious reporter attempts to demonstrate" that he or she lacks
the "sterling integrity" trumpeted in campaign literature and
speeches, Monitor Patriot Co. v. Roy, 401 U.
S. 265, 401 U. S. 274
(1971). Vigorous reportage of political campaigns is necessary for
the optimal functioning of democratic institutions and central to
our history of individual liberty. [Footnote 34]
Page 491 U. S. 688
We have not gone so far, however, as to accord the press
absolute immunity in its coverage of public figures or elections.
If a false and defamatory statement is published with knowledge of
falsity or a reckless disregard for the truth, the public figure
may prevail.
See Curtis Publishing Co. v. Butts, 388 U.S.
at
388 U. S. 162
(opinion of Warren, C.J.). A "reckless disregard" for the truth,
however, requires more than a departure from reasonably prudent
conduct.
"There must be sufficient evidence to permit the conclusion that
the defendant in fact entertained serious doubts as to the truth of
his publication."
St. Amant, 390 U.S. at
390 U. S. 731.
The standard is a subjective one -- there must be sufficient
evidence to permit the conclusion that the defendant actually had a
"high degree of awareness of . . . probable falsity."
Garrison
v. Louisiana, 379 U.S. at
379 U. S. 74. As
a result, failure to investigate before publishing, even when a
reasonably prudent person would have done so, is not sufficient to
establish reckless disregard.
See St. Amant, supra, at
390 U. S. 731,
390 U. S. 733.
See also Hunt v. Liberty Lobby, 720 F.2d 631, 642 (CA11
1983);
Schultz v. Newsweek, Inc., 668 F.2d 911, 918 (CA6
1982). In a case such as this, involving the reporting of a third
party's allegations, "recklessness may be found where there are
obvious reasons to doubt the veracity of the informant or the
accuracy of his reports."
St. Amant, supra, at
390 U. S.
732.
In determining whether the constitutional standard has been
satisfied, the reviewing court must consider the factual record in
full. Although credibility determinations are reviewed under the
clearly erroneous standard because the trier of fact has had the
"opportunity to observe the demeanor of the witnesses,"
Bose, 466 U.S. at
466 U. S. 499-500, the reviewing court must
"examine for [itself] the statements in issue and the
circumstances under which they were made to see . . . whether they
are of a character which the principles of the First Amendment . .
. protect,"
New York Times Co., 376 U.S. at
376 U. S. 285
(quoting
Pennekamp v.
Florida, 328 U.S.
Page 491 U. S. 689
331,
328 U. S. 335
(1946)). [
Footnote 35] Based
on our review of the entire record, we agree with the Court of
Appeals that the evidence did in fact support a finding of actual
malice. Our approach, however, differs somewhat from that taken by
the Court of Appeals.
In considering the actual malice issue, the Court of Appeals
identified 11 subsidiary facts that the jury "could have" found.
[
Footnote 36] 842 F.2d at
843-844. The court held that such
Page 491 U. S. 690
findings would not have been not clearly erroneous,
id.
at 844, and, based on its independent review, that, when considered
cumulatively, they provide clear and convincing evidence of actual
malice,
id. at 847. We agree that the jury may have found
each of those facts, but conclude that the case should be decided
on a less speculative ground. Given the trial court's instructions,
the jury's answers to the three special interrogatories, and an
understanding of those facts not in dispute, it is evident that the
jury
must have rejected (1) the testimony of petitioner's
witnesses that Stephens was not contacted simply because
Connaughton failed to place her in touch with the newspaper; (2)
the testimony of Blount that he did not listen to the tapes simply
because he thought they would provide him with no new information;
and (3) the testimony of those Journal News employees who asserted
that they believed Thompson's allegations were substantially true.
When these findings are considered alongside the undisputed
Page 491 U. S. 691
evidence, the conclusion that the newspaper acted with actual
malice inextricably follows.
There is no dispute that Thompson's charges had been denied not
only by Connaughton, but also by five other witnesses before the
story was published. Thompson's most serious charge -- that
Connaughton intended to confront the incumbent judge with the tapes
to scare him into resigning and otherwise not to disclose the
existence of the tapes -- was not only highly improbable, but
inconsistent with the fact that Connaughton had actually arranged a
lie detector test for Stephens and then delivered the tapes to the
police. These facts were well known to the Journal News before the
story was published. Moreover, because the newspaper's interviews
of Thompson and Connaughton were captured on tape, there can be no
dispute as to what was communicated, nor how it was said. The
hesitant, inaudible, and sometimes unresponsive and improbable tone
of Thompson's answers to various leading questions raise obvious
doubts about her veracity. Moreover, contrary to petitioner's
contention that the prepublication interview with Connaughton
confirmed the factual basis of Thompson's statements, Brief for
Petitioner 47, review of the tapes makes clear that Connaughton
unambiguously denied each allegation of wrongful conduct.
Connaughton's acknowledgment, for instance, that his wife may have
discussed with Stephens and Thompson the possibility of working at
an ice cream store that she might someday open hardly confirms the
allegations that Connaughton had promised to buy a restaurant for
the sister's parents to operate, that he would provide Stephens
with a job at the municipal court, or even that he would provide
Thompson with suitable work. [
Footnote 37] It is extraordinarily unlikely that the
Page 491 U. S. 692
reporters missed Connaughton's denials simply because he
confirmed certain aspects of Thompson's story.
It is also undisputed that Connaughton made the tapes of the
Stephens interview available to the Journal News, and that no one
at the newspaper took the time to listen to them. Similarly, there
is no question that the Journal News was aware that Patsy Stephens
was a key witness, and that they failed to make any effort to
interview her. Accepting the jury's determination that petitioner's
explanations for these omissions were not credible, it is likely
that the newspaper's inaction was a product of a deliberate
decision not to acquire knowledge of facts that might confirm the
probable falsity of Thompson's charges. Although failure to
investigate will not alone support a finding of actual malice,
see St. Amant, 390 U.S. at
390 U. S. 731,
733, the purposeful avoidance of the truth is in a different
category.
There is a remarkable similarity between this case -- and in
particular, the newspaper's failure to interview Stephens and
failure to listen to the tape recording of the September 17
interview at Connaughton's home -- and the facts that supported the
Court's judgment in
Curtis Publishing Co. v. Butts,
388 U. S. 130
(1967). In
Butts, the evidence showed that the Saturday
Evening Post had published an accurate account of an unreliable
informant's false description of the Georgia athletic director's
purported agreement to "fix" a college football game. Although
there was reason to question the informant's veracity, just as
there was reason to doubt Thompson's story, the editors did not
interview a witness who had the same access to the facts as the
informant, and did not look at films that revealed what actually
happened
Page 491 U. S. 693
at the game in question. [
Footnote 38] This evidence of an intent to avoid the
truth was not only sufficient to convince the plurality that there
had been an extreme departure from professional publishing
standards, but it was also sufficient to satisfy the more demanding
New York Times standard applied by Chief Justice Warren,
[
Footnote 39] JUSTICE
BRENNAN, and JUSTICE WHITE. [
Footnote 40]
As in
Butts, the evidence in the record in this case,
when reviewed in its entirety, is "unmistakably" sufficient to
support a finding of actual malice. The judgment of the Court of
Appeals is accordingly
Affirmed.
Page 491 U. S. 694
[
Footnote 1]
The District Court explained that the neutral reportage
doctrine, as defined by the Ohio Court of Appeals,
see J. V.
Peters & Co. v. Knight Ridder Co., 10 Media L.Rptr. 1576
(1984), and the United States Court of Appeals for the Second
Circuit,
see Edwards v. National Audubon Society, Inc.,
556 F.2d 113,
cert. denied, 434 U.S. 1002 (1977),
"immunizes from liability the accurate and disinterested
reporting of serious charges made against a public figure by a
responsible, prominent organization."
App. to Pet. for Cert. 78a. Because the court was convinced that
Thompson did not qualify as "a responsible, prominent organization
on a par with the State Attorney General's Office in
J. V.
Peters or the National Audubon Society in
Edwards,"
it concluded that the defense was unavailable.
Ibid.
Petitioner did not argue in its petition for a writ of
certiorari, and does not now argue, that the neutral reportage
doctrine immunized its coverage of Thompson's allegations.
Accordingly, we do not review this aspect of the District Court's
judgment.
[
Footnote 2]
The jury was asked:
1. "Do you unanimously find by a preponderance of the evidence
that the publication in question was defamatory toward the
plaintiff?"
2. "Do you unanimously find by a preponderance of the evidence
that the publication in question was false?"
3. "Do you unanimously find by clear and convincing proof that
the publication in question was published with actual malice?" App.
201.
There is some debate as to whether the element of falsity must
be established by clear and convincing evidence or by a
preponderance of the evidence.
Compare Firestone v. Time,
Inc., 460 F.2d 712, 722-723 (CA5) (Bell, J., specially
concurring),
cert. denied, 409 U.S. 875 (1972),
with
Goldwater v. Ginzburg, 414 F.2d 324, 341 (CA2 1969),
cert.
denied, 396 U. S. 1049
(1970).
See also Tavoulareas v. Piro, 260 U.S.App.D.C. 39,
63-64, n. 33, 817 F.2d 762, 786, n. 33 (en banc),
cert.
denied, 484 U.S. 870 (1987); Franklin & Bussel, The
Plaintiff's Burden in Defamation: Awareness and Falsity, 25 Wm.
& Mary L.Rev. 825, 863-865 (1984). We express no view on this
issue.
[
Footnote 3]
The Court of Appeals observed that
"the article was defamatory in its implication that Connaughton
was an unethical lawyer and an undesirable candidate for the
Hamilton Municipal judgeship who was capable of extortion, who was
a liar and an opportunist not fit to hold public office,
particularly a judgeship."
842 F.2d at 840-841.
[
Footnote 4]
As to the finding of falsity, the Court of Appeals wrote:
"Equally apparent from the jury's answer to the second special
interrogatory is that it considered the published Thompson charges
to be false. Its finding is understandable in light of the
plaintiff's proof which disclosed that the Journal's effort to
verify her credibility ended in an avalanche of denials by
knowledgeable individuals; [and] its inability to produce a single
person who supported Thompson's accusations. . . . "
"Moreover, the jury obviously refused to credit the Journal's
construction of Connaughton's interview of October 31. It accepted
Connaughton's express denials of each Thompson charge and
considered the significant language interpreted by the Journal to
constitute his admissions of those charges, when read in context,
as nothing more than conjecture elicited by structured questions
calculated to evoke speculation. Thus, upon reviewing the record in
its entirety, this court concludes that the jury's determinations
of the operational facts bearing upon the falsity of the article in
issue were not clearly erroneous."
Id. at 841.
[
Footnote 5]
The Court of Appeals wrote:
"In
Curtis Publishing Co. v. Butts, the Supreme Court
accorded public figures as well as public officials recovery of
damages for the publication of"
"defamatory falsehood whose substance makes substantial danger
to reputation apparent, on a showing of highly unreasonable conduct
constituting an extreme departure from the standards of
investigation and reporting ordinarily adhered to by responsible
publishers."
"388 U.S. at
388 U. S. 155."
Id. at 845. At another point, the court wrote:
"Accordingly, this court concludes that the Journal's decision
to rely on Thompson's highly questionable and condemning
allegations without first verifying those accusations through her
sister [Stephens], and without independent supporting evidence
constituted
an extreme departure from the standards of
investigation and reporting ordinarily adhered to by responsible
publishers which demonstrated a reckless disregard as to the
truth or falsity of Thompson's allegations, and thus provided clear
and convincing proof of 'actual malice,' as found by the jury.
Butts, 388 U.S. at
388 U. S.
153."
Id. at 847 (emphasis supplied).
See also id.
at 840.
[
Footnote 6]
As to the newspaper's motives, the Court of Appeals
asserted:
"A review of the entire record of the instant case discloses
substantial probative evidence from which a jury could have
concluded (1) that the Journal was singularly biased in favor of
[the incumbent] and prejudiced against Connaughton as evidenced by
the confidential personal relationship that existed between [the
incumbent] and Blount, the Journal Editorial Director, and the
unqualified, consistently favorable editorial and daily news
coverage received by [the incumbent] from the Journal as compared
with the equally consistent unfavorable news coverage afforded
Connaughton; (2) that the Journal was engaged in a bitter rivalry
with the Cincinnati Enquirer for domination of the greater Hamilton
circulation market, as evidenced by Blount's vituperous public
statements and criticism of the Enquirer; (3) that the Enquirer's
initial expose of the questionable operation of the [incumbent's]
court was a high profile news attraction of great public interest
and notoriety that had 'scooped' the Journal and, by Blount's own
admission, was the most significant story impacting the . . .
campaign[;] (4) that, by discrediting Connaughton, the Journal was
effectively impugning the Enquirer, thereby undermining its market
share of the Hamilton area."
Id. at 843. Later in the opinion, the court again
stressed that
"the evidence adduced at trial demonstrated that the Journal was
motivated to publicize Thompson's allegations not only by a desire
to establish its preeminence in the reporting of Hamilton political
news, but also by a desire to aid the [incumbent's] campaign."
Id. at 846.
[
Footnote 7]
The trial judge correctly instructed the jury that "[a]ctual
malice may not be inferred alone from evidence of personal spite,
ill-will or intention to injure on the part of the writer."
App. 199.
The phrase "actual malice" is unfortunately confusing, in that
it has nothing to do with bad motive or ill-will.
See
Rosenbloom v. Metromedia, Inc., 403 U. S.
29,
403 U. S. 52, n.
18 (1971) (opinion of BRENNAN, J.). By instructing the jury "in
plain English" at appropriate times during the course of the trial
concerning the not-so-plain meaning of this phrase, the trial judge
can help ensure that the
New York Times standard is
properly applied.
Tavoulareas, 260 U.S.App.D.C. at 84, 817
F.2d at 807 (R. B. Ginsburg, J., concurring).
See also
Westmoreland v. CBS Inc., 596 F.
Supp. 1170, 1172-1173, n. 1 (SDNY 1984) (suggesting that jury
confusion can be minimized if a less confusing phrase, such as
"state-of-mind," "deliberate or reckless falsity," or
"constitutional limitation" is used in the jury's presence).
[
Footnote 8]
Early in September, Connaughton's wife Martha was advised that
Patsy Stephens was willing to disclose important information about
the special treatment her former husband had received in the
Hamilton Municipal Court. The source of this advice was the
president of the local chapter of Mothers Against Drunk Driving.
Martha Connaughton and her brother then visited with Patsy Stephens
in her mother's home for about 30 minutes and arranged for a later
interview with Connaughton. Alice Thompson was present at a part of
that meeting, as well as at the subsequent interview. Shortly
before midnight on September 16, after Patsy Stephens and Alice
Thompson had returned home from work, two of Connaughton's
supporters (Berry and Cox) picked the two sisters up and drove them
to Connaughton's home, where they remained until about 4:30 a.m. on
September 17.
[
Footnote 9]
The other seven were: Patsy Stephens, Dan and Martha
Connaughton, Martha Connaughton's brother Dave Berry, Connaughton's
campaign manager, Joe Cox, and two of Connaughton's neighbors,
Jeanette and Ernest Barnes.
[
Footnote 10]
"A. They started asking me a bunch of questions, so I asked Dan
Connaughton. . . . I said why are you doing this. . . . And of
course, he turned off the tape recorder. And he said, I'll tell you
the truth. He said, all I want is to get enough evidence on Billy,
he said, and have Billy resign. And he said, of course, if Billy
resigns, Dolan will resign, and he said, then I can just step up on
the bench. . . . But he said right out of his own mouth, all I want
to do is to get a story in evidence on them, to meet them face to
face, and show them what evidence he had against him, or whatever,
to get them to resign, and no more would be said about it."
"Q. Okay. So in other words, based on what he said to you, you
believed him?"
"A. Blackmail. I mean, you know, the way he phrased it, the way
he said it, you know. He said all he wanted to do was get enough
evidence on Billy, and he also used Dolan's name, which I don't
know what he was going to get on Dolan -- to scare them into
resigning. I said what happens when they resign? Nothing more will
be said about anything. He said, when I take the bench, nothing
will be said."
App. 291-292.
[
Footnote 11]
"A. . . . I asked them what I was going to get out of it."
"Q. What did they promise you? Or what did they say when you
asked them?"
"A. They said my help would be deeply appreciated. And they went
on to talk about the three-weeks' vacation they was planning on
taking when the election was . . ."
"Q. He was planning to take three weeks' vacation?"
"A. Yes, the family -- Dave Berry and Martha, and Dan."
"MR. BLOUNT: They wanted you to go along?"
"A. Me and my sister would be welcome to go along with Dave . .
."
(By Mrs. Long)
"Q. Did they say they would pay your expenses?"
"A. Yeah. I made it clear to them that I couldn't afford a trip
to Florida."
"MR. BLOUNT: Was the tape recorder on at that time?"
"A. Oh, no."
(By Mrs. Long)
"Q. Now where were they going to go?"
"A. Three weeks in Florida."
"Q. And they added Disneyworld?"
"A. (Inaudible) a three weeks' trip to Florida. And they had a
friend in Florida that wouldn't be home at the time, that we could
stay at their condominium."
Id. at 293-294.
[
Footnote 12]
"A. . . . [Connaughton] said he was thinking about putting a
restaurant in there, and he was wanting to know if my mother and
father [Zella and Brownie Breedlove] would run it for him. And I
said oh yeah, my mother would love to get back into the restaurant
business. He said good, when the lease is up, he said, we'll tear
the inside out and put a restaurant in there, and he said, your
mother and father can run it, and he said that way, he said you
girls can help run it too, and put your sisters in there working
too; he said just . . . he even made up a name -- Breedlove's Lunch
or something like that. Ma Breedlove's Cooking, you know. He had
the names figured out and everything. He offered to buy us a
restaurant, you know, and put us in that building."
"Q. Okay. So it would just be your parents being a manager, they
wouldn't have to buy -- did you understand him that they wouldn't
have to . . . "
"A. Oh, they was going to do everything, you know. They was just
going to put us in there to work, or to run it. They wanted my
mother to run the business for them."
Id. at 307.
[
Footnote 13]
"Q. Did he promise you to find a job?"
"A. Yeah."
"Q. Why did he offer to find you a job?"
"A. Because the day at the house, going back to the first time I
met them, Martha was asking me did I work or anything, and I was
telling her I was looking for work. I had been out of a job.
Evidently she must have talked to her husband about it, and that
night, over at his home, he said are you employed now, you know, .
. . and I said no. So he said, we'll see if we can't do something
about that. I told him I wanted away from bartending and stuff; he
said we'll see if we can't do something about it. You know, a
decent job."
Id. at 295-296.
"MR. MASANA: I'm going to interject. What about the job you were
promised?"
"A. Oh, when they promised me, you know, the secure job and
everything, they also promised -- they promised Patsy a job
too."
(By Mrs. Long)
"Q. That she would be in with Breedlove's Lunch, or cafe?"
"A. No, they promised Patsy a decent job, you know."
"Q. That she would be (inaudible)."
"A. That she would be good up in Court. That come out of his own
mouth. That come out of Dan's mouth; he said we need somebody like
you up at the courthouse. Municipal Court."
Id. at 309.
[
Footnote 14]
"A. . . . And he said he wanted me and Pat to definitely be
there, and for a victory dinner he wanted to take me and Patsy to
dinner at the Maisonette."
"Q. This would be after he wins the election?"
"A. Ummm-hmmm."
Id. at 306.
[
Footnote 15]
"A. . . . But as far as anybody else, the public, or anything
like that -- or it going to Court, we wouldn't have to worry about
it; we wouldn't have to go to Court, and our names wouldn't be on
there."
Id. at 296.
"A. [T]hey had already promised that our names wouldn't be
mentioned, that nobody would know about us. . . ."
Id. at 302.
[
Footnote 16]
The transcript of the interview quotes Thompson as saying: "I
explained to them the whole story, how it got off to this, or that,
you know. They was embarrassed evidently."
Id. at 310.
However, the tape recording of the interview, which the jury heard,
makes clear that Thompson actually stated: "I explained to them the
whole story, how I got offered this and that, you know. They wasn't
interested in this evidently." Defendant's Exh. J.
[
Footnote 17]
"A. . . . Can't get any worse than what Dan (inaudible). Makes
it sound like I'm the bad guy."
"Q. Have you had any repercussions from this?"
"A. I've been under a lot of (inaudible) strain, I guess."
"Q. Other people calling you besides the Enquirer?"
"A. Yeah. I've had people that I thought were my friends call me
and accuse me of being a snitch and a rat. I don't like to carry
that name, and that's what a lot of people is thinking. That knows
me."
"MR. BLOUNT: They were just mad, they didn't threaten you?"
"A. (inaudible) a snitch. You name it, and I'm that. I just want
to get that cleared up."
App. 320.
[
Footnote 18]
"A. . . . I said, what's the whole deal? And of course, he
turned off the tape recorder. . . ."
"
* * * *"
"MR. BLOUNT: Was being questioned by the Connaughtons tougher
than going to Court?"
"A. Ummm-hmmm. They turned that tape recorder on and off so many
times, you know, left out what they wanted to."
"
* * * *"
"MR. BLOUNT: Was the tape recorder on at that time?"
"A. Oh, no."
Id. at 291-293.
[
Footnote 19]
"MR. BLOUNT: They had it on when you were talking and off when
they were talking?"
"A. I don't think Dan Connaughton's voice is on it."
Id. at 293.
"MR. BLOUNT: Was it Dan Connaughton himself who talked about the
trip?"
"A. Yeah. He did most of the talking in the living room. Like I
said, though, the tape recorde[r] was off when Dan spoke."
Id. at 295.
[
Footnote 20]
"MR. MASANA: Off the record -- you were saying something about
Dan was encouraging you to say things in a certain way?"
"A. Oh, yeah. He was leading me in questions, you know."
(By Mrs. Long)
"Q. Can you give us an example?"
"A. Well, he kept on trying to get me to say that Dolan had
something to do with this, you know?"
"Q. Would he phrase it in a question? Like, did Judge Dolan have
anything to do with it?"
"MR. BLOUNT: Wasn't it true that Judge Dolan did this, or
something?"
"A. Yeah, you know, and so on. But like I say, if you listen to
the tapes, you're not going to hear it, because his voice ain't on
the tape. . . ."
"Q. Sure. So it was a yes, no, situation for you, in that he'd
phrase it a certain way and all you had to do was yes or no?"
"A. Ummm-hmmm. And then, you know, he'd say to repeat that."
Id. at 296-298.
[
Footnote 21]
"A. I just want people to know. Because they shouldn't vote for
a man that is this dirty, you know, because I call it blackmail,
what he was trying to do."
Id. at 314. There is some tension between this civic
interest in fair procedure and Thompson's reluctant participation
in the exposure of the corrupt procedures at the municipal court,
her assertion that, although she realized that Connaughton's offers
were improper, she would have accepted them if her name had never
been mentioned, because "that's the way [the system] works,"
id. at 315, and her displeasure at being called a "snitch
and a rat,"
id. at 320.
[
Footnote 22]
"A. I think she's scared right now to talk to anyone, because
the Cincinnati Enquirer has been trying to get her to talk to them.
She's getting scared now, since this is all reality. My sister is .
. . she's kind of weak-minded when it comes to anything like that.
She won't do nothing for nobody unless she thinks she's benefiting
from it. And she honestly thought she was a getting a job out of
this, and would make something of herself out of this. And the
Connaughtons just used her all the way. And now, since she's seeing
that it's coming down to where she ain't going to get nothing out
of it, she's brought up in the middle of all this and everything,
she's scared."
Id. at 316.
[
Footnote 23]
"MR. BLOUNT: Obviously, we can't quote your sister from you
(inaudible). What's your sister's position in this, would she
support you or would she support him? In other words, if somebody
said to her, who's telling the truth here?"
"A. She'll tell you about the trips, the dinner at the
Maisonette, the jobs and everything. She'll tell you that's the
truth, because they was offered to her too."
Id. at 313.
[
Footnote 24]
The full text of this editorial is reprinted as Appendix A to
the Court of Appeals' opinion. 842 F.2d at 848-849.
[
Footnote 25]
The transcript of the Connaughton interview states:
"MR. CONNAUGHTON: No, and it had nothing to do with (inaudible)
for information or something, i[f] that's what the point of this
question is. That's absolutely no, if that's that question. Well,
the tape will speak for itself."
App. 265. The tape recording of this interview makes clear that
Connaughton said, "No, and it had nothing to do with a
quid pro
quo for information. . . ." Defendant's Exh. I.
[
Footnote 26]
"A. . . . I think it would be fair to say, sometime during those
three or four hours that they were there, that I probably made a
remark along the lines that I just can't believe what I'm hearing,
and, you know, I would think if they could hear what we're hearing,
they would probably resign. I mean, I thought the allegation was
that serious. But to tell her that -- to answer that -- and if
she's saying that was my announced purpose of what I had them there
for and what we were going to do with the information, my answer
would be no."
"MR. BLOUNT: You didn't tell her you were going to take the
tapes to him? And play them for them?"
"A. No. No. What I might have said is, boy, I'd sure like to let
them hear these tapes and see what they've got to say for
themselves, you know, in a fashion such as that."
"MR. BLOUNT: In an expression of shock."
"MR. CONNAUGHTON: Yeah. Yeah, as I almost fell off of the
fireplace. Right."
App. 262-263.
[
Footnote 27]
"Q. Did you ever promise Alice Thompson anonymity?"
"A. That question was discussed, and I was hoping to her, and I
told her it would be my intention and hope that she could remain
anonymous, yes. But did I promise her anonymity, the answer would
be no. Did we discuss it, we sure did, and I expressed to her my
desire as well as her desire that she could remain anonymous."
Id. at 264.
[
Footnote 28]
"Q Did you ever talk to Alice about getting a job for her in
appreciation for her help with your investigation of New and
Dolan?"
"A. No."
"Q. Not a waitress job?"
"A. No."
"Q. Did you promise a Municipal Court job for her sister Patsy
Stephens?"
"A. No."
"Q. Did you offer to have the sisters go on a post-election trip
to Florida with you and your family to stay in a condominium?'"
"A. No."
"Q. Did you offer to set up Thompson's parents, the Breedloves,
in what is now Walt's Chambers, which you own and lease?"
"A. Absolutely not."
"Q. Why would she say this to us?"
"A. What was discussed in an off-handed way, the people who own
that bar, who we're not very pleased with, their lease expires next
September. My wife has the idea that she wants to open an ice cream
type shop like Graeters, or some such thing as that, and I heard
her discussing with them that maybe, since Patty had run this
Homette Restaurant or something of that nature, that maybe she
would help out and participate in the operation of this -- whatever
you want to call it -- deli shop or gourmet ice cream shop. Yes,
and I was present when that took place."
"Q. And when was that?"
"A. Well, I don't think it was that night. As I recall, this was
a later time that we had seen them."
"Q. But that would only be for Patty (unclear)?"
"A. I guess Alice was there, and the offer may have been
extended to her in that fashion, that she could work there or
something -- I wouldn't be surprised if that was said."
Id. at 264-265.
[
Footnote 29]
"Q. What about this post-election trip to Florida? . . ."
"MR. BLOUNT: Did you talk about anything like that?"
"A. Ummm-hmmm. After getting over the initial shock, it became a
little clearer to me of -- kind of how scary this thing was with
the information they gave to us, as far as, if their personal
safety was at stake. . . . I do remember in an off-handed way it
being discussed . . . they could go down to Hilton Head or Florida,
or something like that, or maybe hide out or something like that, I
don't know. But I own no property, and have nothing to offer
them."
"Q. But there was talk about a friend that had a condominium
that would be vacant, and it was in terms of a full-blown trip, you
know, you, the Berrys, the whole group going down to Florida, and
they were welcome to go along. . . ."
"A. No. The only conversation I remember along those lines was
in connection with, if their personal safety might be in question
because of going out on the line and making these serious
allegations. . . ."
Id. at 266.
"Q. One last statement. At lunch, Thompson said that you
promised to take her and her sister out to a post-election victory
dinner at the Maisonette?"
"A. I promised to take them to the Maisonette? Hell, I haven't
been to the Maisonette for years."
"MR. BLOUNT: Was it discussed? . . ."
"A. It may have been. It may have been. I won't deny that some
loose discussion in a kidding way was . . ."
"A. . . . If she says that I made a firm statement that we were
going to definitely plan a party at the Maisonette, that's not
true. . . ."
Id. at 272-273.
[
Footnote 30]
"Q. So her sister Patty, again getting back and going over the
promises -- pardon me for going back to them, but that seems to be
a hefty charge against you."
"A. That's alright."
"Q. Her sister Patty is not going to get a job in the Municipal
Court if you're elected?"
"A. Not that I know of."
"Q. And she's not going to be disappointed to find that out,
right?"
"[A. She's not going to be disappointed at that. Right.]"
Id. at 277. The bracketed response does not appear in
the written transcript, but can be heard on the tape recording.
Defendant's Exh. I.
[
Footnote 31]
The full text of this article is reprinted as Appendix B to
Judge Guy's dissenting opinion. 842 F.2d at 858-859.
[
Footnote 32]
Blount testified at trial as follows:
"Q. . . . Did you listen to any of the tapes of the interview
conducted by Dan Connaughton with Miss Stephens and Miss Thompson
on the 17th of September? Did you listen to any of those tapes
before you approved and published the article about Dan Connaughton
on the figures of November 18, 1983?"
"A. No, because we had from several sources what was on the tape
-- there was several sources including Mr. Connaughton, that there
was no mention of things we were exploring at this time[.]"
"Q. You were, I presume, concerned that you were dealing with a
credible person in Alice Thompson, were you not?"
"A. Correct."
"Q. Wouldn't one of the simplest ways to determine her
credibility be to play the tape to see whether her statement that
Dan's voice is not on it is true?"
"A. No, because we had been told from other sources that this
matter, as I previously said, saying it was not on the tape. This
was not discussed on the tape. We had been told by other persons
that the tape was junk as far as evidence."
"Q. The tape was what?"
"A. Junk."
App. 30-31. Blount further testified that, by the time of trial,
almost two years after he received the tapes, he had only listened
to 15 minutes of the 2 1/2 hours of tape.
Id. at 33.
[
Footnote 33]
The following cases are illustrative of this tradition:
Bose, 466 U.S. at
466 U. S. 510-511 (actual malice);
Jenkins v.
Georgia, 418 U. S. 153,
418 U. S. 161
(1974) (obscenity);
Hess v. Indiana, 414 U.
S. 105,
414 U. S.
108-109 (1973) (per curiam) (incitement);
Miller v.
California, 413 U. S. 15,
413 U. S. 25
(1973) (obscenity);
Time, Inc. v. Pape, 401 U.
S. 279,
401 U. S. 284
(1971) (actual malice);
Greenbelt Cooperative Publishing Assn.,
Inc. v. Bresler, 398 U. S. 6,
398 U. S. 11
(1970) (defamation);
Street v. New York, 394 U.
S. 576,
394 U. S. 589,
394 U. S. 592
(1969) (fighting words);
Beckley Newspapers Corp. v.
Hanks, 389 U. S. 81,
389 U. S. 83
(1967) (per curiam) (actual malice);
New York Times Co. v.
Sullivan, 376 U. S. 254,
376 U. S. 285
(1964) (actual malice);
Edwards v. South Carolina,
372 U. S. 229,
372 U. S. 235
(1963) (peaceful assembly);
Niemotko v. Maryland,
340 U. S. 268,
340 U. S. 271
(1951) (failure to issue license for religious meeting in public
park);
Pennekamp v. Florida, 328 U.
S. 331,
328 U. S. 335
(1946) (clear and present danger to integrity of court).
[
Footnote 34]
Of course, the protection of "calculated falsehoods" does not
promote self-determination. As we observed in
Garrison v.
Louisiana, 379 U. S. 64
(1964):
"At the time the First Amendment was adopted, as today, there
were those unscrupulous enough and skillful enough to use the
deliberate or reckless falsehood as an effective political tool to
unseat the public servant or even topple an administration.
Cf. Riesman, Democracy and Defamation: Fair Game and Fair
Comment I, 42 Col.L.Rev. 1085, 1088-1111 (1942). That speech is
used as a tool for political ends does not automatically bring it
under the protective mantle of the Constitution. For the use of the
known lie as a tool is at once at odds with the premises of
democratic government and with the orderly manner in which
economic, social, or political change is to be effected."
Id. at
379 U. S.
75.
[
Footnote 35]
Petitioner concedes that,
"when conducting the independent review mandated by
New York
Times and
Bose, a reviewing court should properly
hesitate to disregard a jury's opportunity to observe live
testimony and assess witness credibility."
Brief for Petitioner 36, n. 45. It contends, however, that this
Court did reject the trial court's credibility determination in
Bose. We disagree with this reading of
Bose. In
Bose, we accepted the trial court's determination that the
author of the report at issue did not provide credible testimony
concerning the reason for his choice of words and his understanding
of the meaning of the word "about." 466 U.S. at
466 U. S.
511-512. Unlike the District Court, however, we were
unwilling to infer actual malice from the finding that the witness
"refused to admit [his mistake] and steadfastly attempted to
maintain that no mistake had been made -- that the inaccurate was
accurate."
Id. at
466 U. S. 512.
[
Footnote 36]
The Court of Appeals asserted:
"A review of the entire record of the instant case disclosed
substantial probative evidence from which a jury could have
concluded (1) that the Journal was singularly biased in favor of
Dolan and prejudiced against Connaughton, as evidenced by the
confidential personal relationship that existed between Dolan and
Blount, the Journal Editorial Director, and the unqualified,
consistently favorable editorial and daily news coverage received
by Dolan from the Journal, as compared with the equally
consistently unfavorable news coverage afforded Connaughton; (2)
that the Journal was engaged in a bitter rivalry with the
Cincinnati Enquirer for domination of the greater Hamilton
circulation market, as evidenced by Blount's vituperous public
statements and criticism of the Enquirer; (3) that the Enquirer's
initial
expose of the questionable operation of the Dolan
court was a high profile news attraction of great public interest
and notoriety that had 'scooped' the Journal and by Blount's own
admission was the most significant story impacting the
Connaughton-Dolan campaign[;] (4) that, by discrediting
Connaughton, the Journal was effectively impugning the Enquirer,
thereby undermining its market share of the Hamilton area; (5) that
Thompson's emotional instability, coupled with her obviously
vindictive and antagonistic attitudes toward Connaughton as
displayed during an interview on October 27, 1983, arranged by
Billy New's defense attorney, afforded the Journal an ideal vehicle
to accomplish its objectives; (6) that the Journal was aware of
Thompson's prior criminal convictions and reported psychological
infirmities and the treatment she had received for her mental
condition; (7) that every witness interviewed by Journal reporters
discredited Thompson's accusations; (8) that the Journal
intentionally avoided interviewing Stephens between October 27,
1983, the date of its initial meeting with Thompson, and November
1, 1983 when it printed its first story, even though it knew that
Stephens could either credit or discredit Thompson's statements;
(9) that the Journal knew that publication of Thompson's
allegations charging Connaughton with unethical conduct and
criminal extortion and her other equally damaging statements would
completely discredit and irreparably damage Connaughton personally,
professionally and politically; (10) that its prepublication legal
review was a sham; (11) that the Journal timed the release of the
initial story so as to accommodate follow-up stories and editorial
comments in a manner calculated to peak immediately before the
election in an effort to maximize the effect of its campaign to
discredit Connaughton and the Enquirer."
842 F.2d at 843-844.
[
Footnote 37]
Nor can petitioner claim immunity from suit because portions of
Thompson's account of the relevant events were confirmed by
Connaughton. "[T]he defamer may be [all] the more successful when
he baits the hook with truth."
Afro-American Publishing Co. v.
Jaffe, 125 U.S.App.D.C. 70, 76, 366 F.2d 649, 655 (1966) (en
banc).
See also Tavoulareas, 260 U.S.App.D.C. at 64, 817
F.2d at 787. Of course, the press need not accept
"denials, however vehement; such denials are so commonplace in
the world of polemical charge and countercharge that, in
themselves, they hardly alert the conscientious reporter to the
likelihood of error."
Edwards v. National Audubon Society, Inc., 556 F.2d at
121.
[
Footnote 38]
As Justice Harlan observed in
Butts:
"Burnett's notes were not even viewed by any of the magazine's
personnel prior to publication. John Carmichael who was supposed to
have been with Burnett when the phone call was overheard, was not
interviewed. No attempt was made to screen the films of the game to
see if Burnett's information was accurate, and no attempt was made
to find out whether Alabama had adjusted its plans after the
alleged divulgence of information."
388 U.S. at
388 U. S. 157.
In this passage, "Stephens" might easily be substituted for
"Carmichael," "Thompson" for "Burnett," and "the tapes" for
"Burnett's notes" and "the films of the game."
[
Footnote 39]
Chief Justice Warren wrote:
"The slipshod and sketchy investigatory techniques employed to
check the veracity of the source and the inferences to be drawn
from the few facts believed to be true are detailed at length in
the opinion of MR. JUSTICE HARLAN. Suffice it to say that little
investigative effort was expended initially, and no additional
inquiries were made even after the editors were notified by
respondent and his daughter that the account to be published was
absolutely untrue. Instead, the Saturday Evening Post proceeded on
its reckless course with full knowledge of the harm that would
likely result from publication of the article."
Id. at
388 U. S.
169-170.
[
Footnote 40]
Although concluding that the case should be remanded for a new
trial, JUSTICE BRENNAN, joined by JUSTICE WHITE, agreed with Chief
Justice Warren that the evidence presented at the original trial
"unmistakably would support a judgment for Butts under the
New
York Times standard."
Id. at
388 U. S.
172.
JUSTICE WHITE, with whom THE CHIEF JUSTICE joins,
concurring.
In my view, in cases like this the historical facts --
e.g., who did what to whom and when -- are reviewable only
under the clearly erroneous standard mandated by Federal Rule of
Civil Procedure 52. Credibility determinations fall in this
category, as does the issue of knowledge of falsity. But as I
observed in dissent in
Bose Corp. v. Consumers Union of United
States, Inc., 466 U. S. 485,
466 U. S. 515
(1984), the reckless disregard component of the
New York Times
Co. v. Sullivan "actual malice" standard is not a question of
historical fact. A trial court's determination of that issue
therefore is to be reviewed independently by the appellate
court.
As I read it, the Court's opinion is consistent with these
views, and -- as JUSTICE KENNEDY observes -- is consistent with the
views expressed by JUSTICE SCALIA in his concurrence. Based on
these premises, I join the Court's opinion.
JUSTICE BLACKMUN, concurring.
I agree with the majority's analysis and with the result it
reaches. I write separately, however, to stress two points.
First, the case reaches us in an odd posture, one which stands
in the way of giving full consideration to aspects of the content
of the article under attack that perhaps are of constitutional
significance. Petitioner has abandoned the defense of truth,
see Philadelphia Newspapers, Inc. v. Hepps, 475 U.
S. 767 (1986), despite the fact that there might be some
support for that defense. We therefore must presume that the jury
correctly found that the article was false,
see ante at
491 U. S. 681,
and decide whether petitioner acted with knowledge or reckless
disregard of its falsity. In addition, petitioner has eschewed any
reliance on the "neutral reportage" defense.
Cf. Edwards v.
National Audubon Society, Inc., 556 F.2d 113, 120 (CA2),
cert. denied, 434 U.S. 1002 (1977). This strategic
decision appears to have been unwise in light of the facts of this
case. The article accurately reported
Page 491 U. S. 695
newsworthy allegations that Daniel Connaughton, a political
candidate, had used "dirty tricks" to elicit information from Alice
Thompson and her sister, information that had become central to the
political campaign, and also accurately reported Connaughton's
response, which confirmed the existence of discussions with
Thompson that touched upon the subject matter of her allegations,
but claimed that Thompson's version of these discussions was
incorrect. Were this Court to adopt the neutral reportage theory,
the facts of this case arguably might fit within it. That question,
however, has also not been squarely presented.
Second, I wish to emphasize that the form and content of the
story are relevant not only to the falsity and neutral reportage
questions, but also to the question of actual malice. In the past,
this Court's decisions dealing with actual malice have placed
considerable emphasis on the manner in which the allegedly false
content was presented by the publisher.
See Greenbelt
Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S.
6,
398 U. S. 12-13
(1970) (truthful and accurate reporting of what was said at public
meeting on issues of public importance not actionable);
Time,
Inc. v. Pape, 401 U. S. 279,
401 U. S.
290-292 (1971) (erroneous interpretation of Government
report not "actual malice"). Under our precedents, I find
significant the fact that the article in this case accurately
portrayed Thompson's allegations as allegations, and also printed
Connaughton's partial denial of their truth. The form of the story
in this case is markedly different from the form of the story in
Curtis Publishing Co. v. Butts, 388 U.
S. 130 (1967), where the informant's description of the
events was presented as truth, rather than as contested
allegations. These differences in presentation are relevant to the
question whether the publisher acted in reckless disregard of the
truth: presenting the content of Thompson's allegations as though
they were established fact would have shown markedly less regard of
their possible falsity.
Page 491 U. S. 696
Several aspects of the majority's opinion in this case might be
interpreted as breaking with our practice of considering the form
and content of the article in making malice determinations. The
majority notes the form of the story,
see ante at
491 U. S.
680-681, but its account of the evidence it finds
probative of actual malice,
ante at
491 U. S.
682-685, deals exclusively with evidence extrinsic to
the story itself. The absence of any discussion of
Pape
and
Bresler also might be understood as a suggestion that
the manner in which the contested statements are presented is
irrelevant to the malice inquiry. Finally, the majority relies upon
Butts in the course of its discussion of petitioner's
purposefully incomplete investigation of its story,
ante
at
491 U. S.
692-693, in a manner that suggests it might not have
accorded significance to the difference between the forms of the
respective stories in
Butts and in this case.
I am confident, however, that these aspects of the majority's
opinion are omissions in explanation, rather than in analysis, and
that the majority's opinion cannot fairly be read to hold that the
content of the article is irrelevant to the actual malice inquiry.
Because I am convinced that the majority has considered the
article's content and form in the course of its painstaking "review
of the entire record,"
see ante at
491 U.S. 689, and because I conclude
that the result the majority reaches is proper even when the
contents of the story are given due weight, I concur.
JUSTICE KENNEDY, concurring.
I join the opinion of the Court, for in my view it is not
inconsistent with the analysis set out in JUSTICE SCALIA'S separate
concurrence.
JUSTICE SCALIA, concurring in the judgment.
I agree with the Court's disposition of this case, and with its
resolution of the second legal issue on which we granted
certiorari, namely whether "highly unreasonable conduct
constituting an extreme departure from ordinary standards of
investigation and reporting" is alone enough to establish
Page 491 U. S. 697
(rather than merely evidence of) the malice necessary to assess
liability in public figure libel cases.
I disagree, however, with the Court's approach to resolving the
first and most significant question upon which certiorari was
granted, which was the following:
"Whether, in a defamation action instituted by a candidate for
public office, the First and Fourteenth Amendments obligate an
appellate court to conduct an independent review of the entire
factual basis for a jury's finding of actual malice -- a review
that examines both the subsidiary facts underlying the jury's
finding of actual malice and the jury's ultimate finding of actual
malice itself."
That question squarely raised the conflict that the Sixth
Circuit perceived it had created with an earlier decision of the
District of Columbia Circuit, en banc, concerning the requirement
we set forth in
Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485
(1984), that judges "exercise independent judgment" on the question
"whether the record establishes actual malice with convincing
clarity,"
id. at
466 U. S. 514.
The nub of the conflict, which is of overwhelming importance in
libel actions against public figures, is whether this means, as the
Sixth Circuit understood the District of Columbia Circuit to have
held in
Tavoulareas v. Piro, 260 U.S.App.D.C. 39, 817 F.2d
762 (1987) (en banc), that the trial judge and reviewing courts
must make their own "independent" assessment of the facts allegedly
establishing malice; or rather, as the Sixth Circuit held here
(explicitly rejecting
Tavoulareas), that they must merely
make their own "independent" assessment that,
assuming all of
the facts that could reasonably be found in favor of the plaintiff
were found in favor of the plaintiff, clear and convincing
proof of malice was established.
Today's opinion resolves this issue in what seems to me a
peculiar manner. The Court finds it sufficient to decide the
present case to accept not all the favorable facts that the
Page 491 U. S. 698
jury
could reasonably have found, but rather only the
adequately supported favorable facts that the jury
did
find. Exercising its independent judgment just on the basis of
those facts (and the uncontroverted evidence), it concludes that
malice was clearly and convincingly proved. The crucial passage of
the Court's opinion is the following:
"Given the trial court's instructions, the jury's answers to the
three special interrogatories, and an understanding of those facts
not in dispute, it is evident that the jury
must have
rejected (1) the testimony of petitioner's witnesses that Stephens
was not contacted simply because Connaughton failed to place her in
touch with the newspaper; (2) the testimony of Blount that he did
not listen to the tapes simply because he thought they would
provide him with no new information; and (3) the testimony of those
Journal News employees who asserted that they believed Thompson's
allegations were substantially true. When these findings are
considered alongside the undisputed evidence, the conclusion that
the newspaper acted with actual malice inextricably follows."
Ante at
491 U. S.
690-691 (emphasis in original). This analysis adopts the
most significant element of the Sixth Circuit's approach, since it
accepts the jury's determination of at least the necessarily found
controverted facts, rather than making an independent resolution of
that conflicting testimony. Of course the Court examines the
evidence pertinent to the jury determination -- as a reviewing
court always must -- to determine that the jury
could
reasonably have reached that conclusion. But the Court does
not purport to be exercising its own independent judgment as to
whether Stephens was not contacted simply because Connaughton
failed to place her in touch with the newspaper, whether Blount did
not listen to the tapes because he thought they would provide no
new information, or whether the Journal News employees believed
Thompson's allegations to be substantially true.
Page 491 U. S. 699
While I entirely agree with this central portion of the Court's
analysis, I do not understand the Court's approach in conducting
that analysis only on the basis of the three factual determinations
the Court selects. To begin with, I am dubious of the Court's
conclusion that the jury
must have made all three of those
findings in order to bring in the verdict that it did under the
judge's instructions, and in order to answer as it did the only
relevant "special interrogatory," which was "Do you unanimously
find by clear and convincing proof that the publication in question
was published with actual malice?" It seems to me, for example,
that even if one believed Blount's explanation of why he did not
listen to the tapes, it would still be reasonable to find (and I
would find) clear and convincing proof of malice from the utterly
inexplicable failure to interview Stephens plus the uncontroverted
evidence.
More important, however, even if each of these factual findings
happened to be
necessary to the verdict and interrogatory
response, I see no reason to make them the exclusive focus of our
analysis, instead of consulting (as the Sixth Circuit did, and as
courts invariably do when reviewing jury verdicts) all the
reasonably supported findings that the jury could have made. It may
well be true that "we need only consider those factual findings
that were essential to the jury verdict" in the sense that
referring to those alone is enough to decide the case --
i.e., those alone establish clear and convincing proof of
malice. But one could pick out any number of categories of
permissible jury findings that would meet that test. For example,
it might be true that we could find the requisite proof of malice
by considering, not all the evidence in its light most favorable to
the plaintiff, but only that evidence produced by a particular
witness. We could then say "we need only consider the findings the
jury might have made based on the testimony of Mr. Smith to decide
this case." I see no more logic in limiting the inquiry the way the
Court has done than in limiting it in this latter fashion.
Page 491 U. S. 700
That can be made plain by applying the Court's approach to a
situation in which the facts essential to the jury verdict happen
not to establish clear and convincing proof of malice.
Assume a case in which there are innumerable controverted
allegations, dozens of which, if the plaintiff's version is
credited, would suffice to establish malice; but in which only
one controverted allegation -- the defendant's allegation
that he knew firsthand the truth of the libelous charges -- could
not possibly have been found against the plaintiff if the jury was
to come in with the verdict that it did. If we applied today's
analysis to that situation, we would then proceed to ask whether
the fact that the defendant did not know firsthand the truth of the
charges, and that he lied about that, is alone enough to establish
clear and convincing proof of malice. It clearly would not be.
Surely, however, we would not reverse the judgment for the
plaintiff, when dozens of other disputed contentions which the jury
might have resolved in the plaintiff's favor
would
establish clear and convincing proof. We would, as the Sixth
Circuit did, assume that all those disputes were resolved in the
plaintiff's favor -- unless, of course, we again devised some
nonfunctional category of the remaining disputes that we could look
to, perhaps those pertaining to testimony by Mr. Smith.
In sum, while the Court's opinion is correct insofar as the
critical point of deference to jury findings is concerned, I see no
basis for consulting only a limited number of the permissible
findings. I would have adopted the Sixth Circuit's analysis in its
entirety, making our independent assessment of whether malice was
clearly and convincingly proved on the assumption that the jury
made all the supportive findings it reasonably could have made.
That is what common law courts have always done, and there is
ultimately no alternative to it.