*1 I reverse the order and Appeals’ would Court reinstate appeal.
Inc., Petitioner. No. 26031. Supreme Court of South Carolina.
Heard Nov. 2004. Aug. Decided 2005. Rehearing Sept. Denied 2005. *2 Hudson, Hull, Towill, Norman, Barrett,
David E. & *3 Hull, Norman, of M. of Salley, Augusta, Holly, and James Barrett, Aiken, of for Petitioner. Salley & Columbia, Kotti,
Douglas Respondent. Kosta of for Bender, Baker, Bender, Columbia, Ravenel for Jay & Amicus Curiae. Justice
Chief TOAL: a figure against This is a libel case a brought judge granted The trial a motion for directed newspaper. (the Chronicle).1 Petitioner, Augusta verdict for Chronicle appeals Augusta The court of reversed. Anderson Chroni- cle, 461, This Court (Ct.App.2003). S.C. 585 S.E.2d for to that granted petition the Chronicle’s certiorari review decision. We affirm. Background
Factual/Procedural (Anderson) 1996, Anderson Respondent In November Tom District 84. lost an election for a seat in South Carolina House Communications, codefendant, The Au- 1. Morris does business as gusta Chronicle. November, The following election, District 84 special had a and Anderson decided to run once again.2
In April Bray Chad (Bray), reporter for the Chroni- cle, called Anderson to him interview about the prior year’s campaign and election. parties dispute what exactly Anderson during said that interview. Anderson testified that he Bray told that during his 1996 he campaign had worked in North Carolina as an appraiser for a number of insurance companies after hurricanes Fran and Bertha. Anderson also that, testified Bray that he told Carolina, while in North he worked for the National Flood Program. Insurance But according Bray, Anderson said he was called away to the Guard, National not the National Flood Insurance Program. 6, 1997, April just On days after Bray interviewed Anderson, the Chronicle published an article about Anderson called being to serve in the National during Guard the 1996 campaign. On June the Chronicle second in article which Bray wrote that Anderson “felt cheated for
being away called to the National in Guard” the middle of his campaign. Anderson testified that he not was aware that the Chronicle had printed articles, known, two and had he he would have contacted someone at the Chronicle to notify them that they had made a mistake. Anderson first learned of the articles when he received call from another writer for Chronicle, Boyette (Boyette). John
Boyette called Anderson September 1997 to ask whether Anderson was going withdraw from the race because “it had been proven that he had not served the National Guard.” Anderson denied ever saying he was in the National interview, Guard. After the Boyette authored and the Chronicle published entitled, an article “GOP wants Anderson Out of House Race.”3 *4 special 2. The redistricting. election was ordered aas result of Standard, day, 3. On that same The Aiken newspaper, a rival local published misinformation,” an article responds entitled "Democrat which called the Chronicle's stories question. about Anderson into Later, The published Aiken Standard "Slithering an editorial entitled Facts,” outside the Reaches of the which accused the Chronicle of conspiring Republican Party help with the defeat Anderson in the special election. Willis, response, employee In Anderson sent Pat an of the Chronicle, a number of documents4 that he had revealing appraiser, as an not in the National worked Guard. documents, however, did not confirm Anderson actu- whether ally Bray told that he worked as an rather than appraiser in serving National Guard. 1, 1997, days
On October after Anderson sent five documentation of his and a month before the appraisal work election, special the Chronicle editorial following (Kent): entitled, by “Let the Liar Run” Phil Kent Anderson, Clearwater Democrat Tom in running Novem- ber’s special court-ordered election for South Carolina’s seat, House District 84 exposed has been as a liar.
He newspaper away told this he was called to National election, in the last duty Guard weeks the 1996 his first Smith, against race incumbent Rep. R-Lang- state Roland (Anderson ley. lost margin.) decisive out, however, It turns the state Guard has no record of serving Anderson ever then or any other time. —either Walker, Trey saying State GOP director Anderson has Guard, dishonored himself and the National demands that the Democrat from the race. right withdraw Walker’s dishonor, about the but what about the withdrawal? with,
If Anderson is the best the Democrats can come up still they every right have to run him. There’s nothing says political party election rules that can’t nominate effect, who, for office a candidate lies on his resume. are
We confident an informed electorate vote won’t all, into office a After proven prevaricator. he doesn’t even A1 long have the robes one of Gore’s Buddhist monks to hide behind! editorial,
After request Anderson read the he called Kent to call, that it be retracted. Kent not take would Anderson’s but he told his assistant to tell Anderson that if he sent letter, it printed. Accordingly, Chronicle would be certification, bills, phone 4. The documents included Anderson's work invoices, records, during hotel bank and checks he had written the time appraisals he did in North Carolina. *5 594 editor,
Anderson wrote letter to the and it printed was the day, next under the heading “Calls editorial ‘sensational’ accu- sations”; however, much of the letter was edited to exclude parts Anderson where criticized the editors.
Anderson the brought underlying against action the Chroni- that, cle for defamation. Anderson testified as a result of the editorial, concentrate, damaging he cannot has suffered de- pression, and has missed out on business opportunities, includ- an ing opportunity to head an insurance claims branch office in Aiken. judge
The trial that ruled Anderson failed to show that the (Kent) responsible editor for publishing the article that knew and, information in therefore, the article false was there was no issue of fact as to whether the editor acted with “actual reversed, malice.” The court of appeals that holding the record included circumstantial evidence creating question of fact as to whether Kent acted with “actual malice.” granted
This Court certiorari on the following issue: Did the court of appeals err in the reversing trial court’s order directing a verdict in favor of the Chronicle?
Law/Analysis Standard of Review When an reviewing verdict, order granting directed must Court view the light facts the most favorable to the nonmoving party. Elam v. South Carolina Dep’t of 9, 27-28, (2004) 361 Transp., 772, S.C. 602 S.E.2d 782 (citing Strange v. South Carolina Dep’t & Highways Pub. Transp., 427, (1994)). 314 445 S.C. S.E.2d 439
Discussion argues Chronicle the court of appeals erred in reversing the directed verdict because there is no evidence that the article was published with actual malice. We dis- agree.
In addition to the common law elements of defama
tion, a public official has the constitutional burden
proving
that the defendant published
alleged
defamatory material
Sullivan,
“actual malice.” New York Times v.
376 U.S.
with
(1964).
prove
To use a find “actual the court must belief of the “publisher’s good tive standard to test the faith or Spartan truth of his her statements.” Peeler v. Radiocast Inc., 266, (1997). 261, 282, In ing, 324 S.C. 478 S.E.2d 284 addition, plaintiff provide the must evidence the defendant had ... “high degree probable falsity.” of awareness of Elder v. (2000) 114, 899, 108, Gaffney Ledger, 341 S.C. 533 S.E.2d 902 Louisiana, 64, 209, 74, (citing v. 379 U.S. 85 S.Ct. 13 Garrison (1964)). addition, may recklessly L.Ed.2d 125 In one disre gard falsity defamatory by failing the material alleged the truth of the material “there are obvious investigate when reasons to doubt the of the informant.” Id. veracity (citing St. 731, 1323, 727, Amant v. 390 88 20 Thompson, U.S. S.Ct. (1968)). L.Ed.2d 262
Anderson does not
that he
official. The
dispute
is
parties
arguments
pub-
focus their
on whether the Chronicle
Accordingly,
lished the article with “actual malice.”
our dis-
malice” alone.
cussion focuses on the element
“actual
Disregard
of the Truth
Reckless
any
The central issue of this case is whether
evidence
prove
recklessly disregarded
exists
that Kent
tending
Liar Run.” If
published
truth when he
the article “Let the
exists,
malice is a
question
ques
such evidence
of actual
of fact for a
find that
the record includes
jury.
tion
We
supported by
of stare decisis
5. This test has been
virtue of the doctrine
Welch, Inc.,
following
v. Robert
418
several cases
Sullivan: Gertz
323, 325,
2997,
(1974);
41
v.
U.S.
94 S.Ct.
L.Ed.2d 789
Curtis Pub. Co.
Butts,
130,
1975,
(1967);
388 U.S.
87 S.Ct.
sufficient circumstantial evidence that Kent recklessly disre- garded the truth when he the article to place the question of actual malice before jury.
The U.S. Supreme
recognized
Court has
that failure to
alone,
investigate,
is insufficient to support
finding
that a
“recklessly
defendant
disregarded”
falsity
of a published
Times,
286-288,
article. See New York
376
at
U.S.
84 S.Ct.
710 (holding that the actual malice standard cannot be met
simply by using
objective
an
standard to find failure to
investigate). South Carolina has also declined to impose rigid
investigatory duties on members of the press. This Court has
recklessness,
held that to “establish
there
be an
must
extreme
departure from the standards of investigation and reporting
ordinarily
by
Peeler,
adhered to
reasonable publishers.”
Further,
S.C. at
at
S.E.2d
285.
this Court held that
the “reckless conduct contemplated by the New York Times
standard is not
measured
whether a reasonably prudent
man would have ...
investigated before publishing.” George,
(internal
at
S.C.
Nevertheless,
the Supreme
recognized
Court has
plaintiff
that a
rarely
will
find
in proving
success
awareness
that a statement
is false “from the mouth of a defendant
Lando,
153, 171-72,
himself.” Herbert v.
441 U.S.
99 S.Ct.
(1979).
Therefore,
L.Ed.2d 115
any direct or indirect
evidence relevant to the defendant’s state of mind is admissi
prove
ble to
actual
plaintiff
malice. A
may present competent
circumstantial evidence of bad faith to establish actual malice
despite a defendant’s contention that
publication
was made
“with
belief the statements were true.” St. Amant v.
727, 732,
Thompson,
390 U.S.
88 S.Ct.
Second, on September 26 Anderson received a call from Pat Willis, an employee The Chronicle. Anderson testified specifically Willis requested proof that he a federally- was approved adjuster insurance and that he had worked in North Willis, Carolina. Anderson faxed to other among things, a letter from the supervisor of National Flood’s claims field operations and a resume he prepared and used during his campaign for House Seat 84. The information contained in Anderson’s resume directly contradicted Bray’s initial reports in The Chronicle. As recited the Court of in Appeals its 1) opinion, the resume noted Anderson had been commended for supervising 2) flood projects states; restoration in four for responsible contractors, “approximately 200 workmen and damage assessors efforts to house 4500 flood inundated 8) families;” a program Johnstown, chief in Pennsylvania 4) flood; following destructive a contract coordinator in Los 5) Angeles 1979; after mudslides in a work supervisor follow- Winslow, 6) ing Arizona; flooding and an appraiser “property for damage various insurance companies gov- and ernment agencies Andrew, following Alicia, hurricanes Hugo, Freddie, Camille, Betsy....” [and] particular
Of interest is the fact that Anderson’s resume referred to military War, his service in the specifically Korean but made no mention of the National Guard. Military records are and easily verifiable. A jury could have concluded The Chronicle should have realized purported Anderson’s *8 statement highly questionable, was in particularly light of his facts, advanced age.6 These to known The Chronicle before publication run,” of “Let the liar could lead a jury reasonable to infer The Chronicle had “obvious reasons to doubt” Bray’s recollection of his conversation -withAnderson. sixty-seven
6. Anderson was at the time of trial. an editorial publish- Anderson entered into evidence Finally, 21, 1997. September Aiken on Senior ed in the Standard Langley Writer Carl wrote: elections, the November ago, shortly
A and before year Anderson, adjuster, a insurance claims was semi-retired companies insurance to group independent asked in damage claims from hurricane North Car- help process number of the claims were made under large olina. A which Anderson re- Program, National Flood Insurance me and told me to in his conversations with which he ferred (He only to another not gave reporter. he furnished after I last but June year, again past information him he did not before the 1996 elec- why campaign asked tion). added).
(emphasis from the clip Anderson also introduced into evidence on 1996 headlined published September Aiken Standard area to Fran victims.” The article help “Candidate leaves off campaign help stated that Anderson had to break his to claims from Hurricane Fran’s process resulting insurance evidence, in on this a jury destruction North Carolina. Based infer that Anderson had in fact said he was reasonably could Flood, that he in the serving National not was working with National Guard. we hold that circumstantial evidence exists as
Accordingly, truth, recklessly and there- disregarded Kent whether malice, acted actual he the article fore with when the Liar Run.” “Let
Conclusion reasons, affirm the court of foregoing appeals’ For the we evidence, light that the viewed most holding decision Anderson, question is sufficient to submit the favorable a jury. actual malice to
MOORE, WALLER, JJ., and D. Acting Justice MARION MYERS, BURNETT, J., concurring separate concur. opinion. *9 BURNETT, concurring:
Justice however, result; I and majority’s opinion in the I concur case questions to address the serious separately write and journalists of to the about the responsibilities raises audiences. their of this case are hold the facts egregious
Were we to
that Anderson
jury finding
a reasonable
support
insufficient to
all
malice,
foreclose
essentially
actual
we would
has shown
officials.
liability
against public
for defamers
a failure to
in arguing
The
discounts the evidence
Chronicle
a
alone,
finding
for a
that
defendant
is insufficient
investigate
article.
the
of a
“recklessly disregarded”
falsity
Supreme
jurisprudence
a line of
Court
ignores
The Chronicle
what
determining
and lower federal courts
guiding state
of actual malice. The Su
finding
relevant to a
evidence is
that,
a failure to investi
although
has concluded
preme Court
malice,
of actual
the
finding
not alone
a
gate
support
will
entirely
in an
different
avoidance of the truth is
purposeful
Sullivan,
254, 84
New York Times
376 U.S.
category. See
(1964).
could
jury
A reasonable
demands social of a social recognition higher upon is conditional dom itself systemat- justice. A publication to truth and duty pursue at ex- degradation to and ically sensationalism panders society a free to high too for presents the truth cost pense of tolerate.
I freedom press greatest believe of the is one safeguards liberty. safeguard This is in demo- grounded promoting vigorous cratic thought ideals free and debate. truth, When elevated deception deliberate is perceived very a free are press preserve values seeks to compromised. justice, In publication the interests of will not go we allow *10 so as to promote tyrannical imposition unchecked of false misleading and information —the our very concern forefathers to sought demanding eliminate be free. press Our liberty be but guarded cannot a free and independent press. deceptive A reckless and media poses greatest freedom danger we so cherish. reasons, evidence,
For the I foregoing agree the viewed Anderson, the light most favorable to is sufficient submit the question of actual to the jury. malice
Submitted 2005. Aug. Decided 2005. Rehearing Sept. Denied 2005.