ANGELA ENGLE HORNE v. WTVR, LLC, d/b/a CBS6
No. 17-1483
United States Court of Appeals for the Fourth Circuit
June 18, 2018
PUBLISHED. Argued: March 21, 2018. Before KEENAN, WYNN, and FLOYD, Circuit Judges.
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-1483
ANGELA ENGLE HORNE, Plaintiff - Appellant, v. WTVR, LLC, d/b/a CBS6, Defendant - Appellee.
No. 17-1613
ANGELA ENGLE HORNE, Plaintiff - Appellee, v. WTVR, LLC, d/b/a CBS6, Defendant - Appellant.
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:16-cv-00092-JAG)
Argued: March 21, 2018 Decided: June 18, 2018
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion, in which Judge Keenan and Judge Wynn joined.
ARGUED: Richard F. Hawkins, III, THE HAWKINS LAW FIRM, PC, Richmond, Virginia, for Appellant/Cross-Appellee. Conrad M. Shumadine, WILLCOX & SAVAGE, PC, Norfolk, Virginia, for Appellee/Cross-Appellant. ON BRIEF: Brett A. Spain, WILLCOX & SAVAGE, PC, Norfolk, Virginia, for Appellee/Cross-Appellant.
FLOYD,
On February 13, 2015, WTVR, LLC (WTVR) aired a news story about a county school system hiring a felon in violation of a Virginia state law. The news story implied that the felon lied about a prior criminal conviction on a job application, thereby committing a Class 1 misdemeanor. However, Angela Engle Horne, the unidentified felon in question, had disclosed her prior felony on her job application for the Director of Budget & Finance for the county school system, and Dr. Bobby Browder, the then-superintendent, knew of her felony conviction when he hired her.
After the news story aired, Horne filed a defamation claim against WTVR. The district court granted WTVR‘s motion to have Horne considered a public official rather than a private citizen for this claim. It is well settled that a public official cannot recover[] damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice-that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). The district court granted WTVR‘s motion for a directed verdict, concluding that Horne failed to demonstrate that WTVR acted with actual malice in airing the allegedly defamatory news story. Horne now appeals, arguing that the district court erred in deeming her a public official, in granting WTVR‘s motion for a directed verdict, and also in denying her pre-trial motion to compel WTVR to disclose the identity of its confidential source. WTVR cross-appeals, arguing that the district court erred in denying its motion for summary judgment because the news story was not reasonably capable of defaming Horne and is protected by the fair report privilege as a report of an official action. For the reasons that follow, we now affirm the district court‘s decision and dismiss WTVR‘s cross-appeal.
I.
On July 19, 2014, Horne applied to be the Director of Budget & Finance for the Prince George County School Board by filling out an online application. Where the application asked whether she previously had been convicted of a felony, she answered Yes and, as requested on the application, provided a short paragraph explaining her prior conviction for conspiracy to possess with the intent to distribute methamphetamine. The application did not ask Horne to certify that she had never been convicted of a felony and did not indicate that felons were ineligible for employment.
Browder conducted a series of interviews with Horne, during which Horne specifically asked him several times about the impact of her felony conviction. Browder represented that her previous felony conviction was not a hindrance to being
On February 11 or 12, 2015, Wayne Covil, a senior reporter at WTVR, received a five-minute phone call from a familiar, confidential source who relayed that a felon had been hired and then fired from the school board office in Prince George County, and also may have provided a partial name of the felon. Covil then interviewed Browder, whom Covil had worked with for years on dozens of stories for WTVR. Browder told Covil that due to school system policy he could not discuss personnel matters, including that he could not confirm or deny that a felon was hired or fired.
The conversation then shifted to the hiring process. Browder conveyed that applicants are hired, then a background check is completed that can take up to eight weeks, and that prior convictions are sometimes discovered after the employee has begun working. Together, they reviewed Browder‘s copy of the Virginia School Law Deskbook-a book of school system policies and rules that includes a copy of the Virginia Code. Pointing to the relevant statute in the Deskbook, Browder stated that it was a Class 1 misdemeanor to provide false information on a school application.
Shortly after the interview, Covil received an email from an anonymous source. The email said:
I am a Prince George county resident. On Monday, I anonymously sent letters to each of the school board members informing them that a convicted felon was hired by the school board office. I know this because this person also lives in Prince George and I know they are a felon. I also know they work as a Director at the Prince George School Board Office. My concern is, how did this happen? Any state employee must have a background check when hired so how was this overlooked? Who allowed this to happen? Should not someone take responsibility? Who at the School Board gave the OK to hire a felon. Virginia law states that a school division can not [sic] hire a convicted felon. This also happens at the same time the Superintendent gets a $10,000.00 raise. Is he really doing his job.
J.A. 910-11. WTVR‘s News Director, Sheryl Barnhouse, emailed Covil and told him [w]e need to pursue the story and to find out the name of the felon. J.A. 910. Covil and Michael Bergazzi, an Executive Producer at WTVR, then tried unsuccessfully to confirm the felon‘s identity by searching the internet. After finding a woman Bergazzi
On February 13, 2015, in its lead story for the 5:30 PM newscast, WTVR ran Covil‘s news story. It was titled, Source: Convicted felon worked at school board office in Central Va., and a banner across the bottom of the screen for the duration of the broadcast read, Felon Hired, Then Fired. J.A. 928. A print version of the story was also posted online. The story described that a felon had been hired to work in the school board office, and was no longer employed. Then, Covil held a copy of the Virginia School Law Deskbook that includes the law regarding the school system‘s hiring policy, and shifted to a segment of the recorded interview with Browder explaining that the background check occurs after the applicant is given a job offer, and that the background check can reveal disqualifying information, including a felony conviction. The screen then displayed a copy of the online application‘s yes and no questionnaire for applicants to identify whether they have been convicted of various crimes. The news story ended by stating that it is a Class 1 misdemeanor to misrepresent one‘s criminal past in a school application while displaying the text of the relevant Virginia Code provision. See
Two months later, Horne filed suit against the school system and Browder. On February 16, 2016, Horne filed this action against WTVR in federal court under diversity jurisdiction pursuant to
Horne now appeals, arguing that the district court erred in deeming her a public official, in granting WTVR‘s motion for a directed verdict, and also in denying her pre-trial motion to compel WTVR to disclose the identity of its confidential source. WTVR cross-appeals, arguing that the district court erred in denying its motion for summary judgment because the news story was not reasonably capable of defaming Horne and is protected by the fair report privilege as a report of an official action. We address each of the parties’ arguments in turn.
II.
A.
We first turn to Horne‘s argument that the district court erred in granting
The Supreme Court has held that the public official designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966) (citations omitted); see also Robert D. Sack, Sack on Defamation § 5:2.1, at 5-7 (5th ed. 2017) (The public official category is by no means limited to upper echelons of government. All important government employees are subject to discussion by the people who employ them and by others who would comment on their behavior. (citations omitted)). Thus, a plaintiff
with either actual or apparent substantial responsibility can be deemed a public official for purposes of a defamation claim. See Rosenblatt, 383 U.S. at 85.
In determining whether a plaintiff had apparent substantial responsibility, courts examine whether the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees .... Id. at 86. In other words, to find apparent authority, [t]he employee‘s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy. Id. at 86 n.13. This inquiry is guided by the facts of the case.
Nevertheless, we find it helpful to review this Court‘s interpretations of the Supreme Court‘s guidance, and, because we have infrequently faced this issue, we supplement this understanding with the non-precedential decisions of other courts. In Baumback v. American Broadcasting Companies, Inc., 161 F.3d 1, 1998 WL 536358, at *4 (4th Cir. 1998) (unpublished table decision) (per curiam), an unpublished case, this Court concluded that a plaintiff was a public official with apparent substantial responsibility
Conversely, in Arctic Company, Ltd. v. Loudoun Times Mirror, 624 F.2d 518, 522 (4th Cir. 1980), this Court concluded that a company employed as a consultant to the county water authority for a total of six months was not a public official because it made no recommendations [and] participated in no policy determinations and was purely a fact-finder exercising no judgment or discretion . . . . Similarly, the First Circuit concluded that a psychologist working at a Veterans’ Administration hospital who did not routinely supervise, manage, or direct government operations was not a public official. Kassel v. Gannett Co., Inc., 875 F.2d 935, 940 (1st Cir. 1989); see also Jenoff v. Hearst Corp., 644 F.2d 1004, 1006 (4th Cir. 1981) (police informant was not a public official, even disregarding his lack of formal governmental affiliation, because he played a very minor role in governmental activities); Richmond Newspapers, Inc. v. Lipscomb, 362 S.E.2d 32, 37 (Va. 1987) (public school teacher was not a public official because there had been no showing that she had either influenced or even appeared to influence or control any public affairs or school policy).
Here, given her title and job description, Horne had apparent substantial responsibility over the school system‘s finances. Although titles are not dispositive, the title Director of Budget & Finance implies substantial control over the school system‘s budget and finances and, indeed, this position appears to be the top financial position in a school system with a nearly $60 million budget. The Director of Budget & Finance job description includes the overarching job goal [t]o manage the financial,
We are convinced that serving as the Director of Budget & Finance, thus, created the appearance that Horne‘s governmental responsibilities were significant and necessarily involved discretion regarding several tasks as she managed the school system‘s financial affairs. This would, we believe, invite public scrutiny and discussion of the person holding it, and provide independent interest in the qualifications and performance of the person in that position. Rosenblatt, 383 U.S. at 86, 86 n.13.
Horne argues that she lacked actual and apparent substantial responsibility and control over governmental affairs because she did not make decisions about how to spend funds but merely completed administrative functions in carrying out the budget created by the superintendent and the school board, and also because she did not complete all the functions proscribed in the job description. See also Appellant Br. 38 (stating that she had no access to the public purse, did not handle funds, and did not have the power to change the budget line items); id. at 41 (stating that she only made one comment at a school board meeting and did so as an adjunct to Browder).3 This argument is unavailing. It is unnecessary for each task that the Director of Budget & Finance must complete to invite public scrutiny, and it is sufficient under these facts that the position itself invites scrutiny, regardless of whether Horne completed each anticipated task in her brief four months in the job. Consequently, we conclude that Horne is a public official because she has apparent substantial responsibility and control over the school system budget and finances.4
Having determined that Horne is a public official, we must determine whether the allegedly defamatory statements relate
(1974) (stating that society‘s interest in a public official is not strictly limited to the formal discharge of official duties). The Supreme Court expanded on this holding in Monitor Patriot Co. v. Roy by asserting that a criminal charge can never be irrelevant to an official‘s fitness for office for purposes of applying the actual malice standard in defamation cases. 401 U.S. 265, 277 (1971); see also Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 300 (1971) (holding that a perjury charge against a local mayor and candidate for a county elective post is relevant to his fitness for office). Thus, the statement that Horne committed a Class 1 misdemeanor by lying on her job application relates to her official conduct because this criminal charge is relevant to her fitness for office.
Therefore, we hold that the district court did not err in determining that Horne was a public official for this defamation claim, that the defamatory statements related to her official conduct, and that consequently Horne was required to prove that WTVR acted with actual malice to succeed on her claim.5
B.
Next, Horne argues that the district court erred in concluding that she presented insufficient evidence that WTVR made the defamatory statements with actual malice and, thus, erred in granting WTVR‘s motion for a directed verdict on that basis. We disagree.
This Court reviews the grant of a Rule 50(a) motion for a directed verdict de novo. Malone v. Microdyne Corp., 26 F.3d 471, 475 (4th Cir. 1994). In considering a motion for a directed verdict, the court must construe the evidence in the light most favorable to the party against whom the motion is made. Parker v. Prudential Ins. Co. of Am., 900 F.2d 772, 776 (4th Cir. 1990) (citation omitted). Unless there is substantial evidence to support the verdict asked of the jury, the reviewing court must direct the verdict upon request. As a consequence, the case should be withdrawn from the jury when any verdict in favor of the nonmoving party necessarily will be premised upon speculation and conjecture. Gairola v. Va. Dep‘t of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985) (citations & internal quotation marks omitted).
This Court also reviews whether there was sufficient evidence of
Horne asserts that WTVR published the news story with actual malice by publishing the story with reckless disregard for the truth. Horne‘s arguments can be distilled as follows: (1) that WTVR failed to properly investigate whether the felon lied on her job application, and, (2) alternatively, that WTVR intentionally ignored a better story-that the superintendent knew of her felony and hired her in violation of state law-in order to avoid having to redo the completed story implying she lied. Neither argument is convincing.
We conclude that Horne did not provide sufficient evidence of actual malice to allow this claim to proceed to a jury. WTVR had a history of working with Browder and receiving accurate information from him on dozens of stories over several years, weighing in favor of his veracity and giving credence to Covil‘s testimony that he believed Browder implied that Horne lied on her application, and that he believed Browder was telling the truth. Covil also testified that the confidential source who provided the initial tip for this story was a trusted source. Thus, with no reason to doubt the accuracy of the sources used, WTVR‘s failure to investigate every potential lead cannot amount to reckless conduct. Church of Scientology Int‘l., 992 F.2d at 1334 (quoting Reuber, 925 F.2d at 716); see also CACI, 546 F.3d at 300.
Horne‘s argument that WTVR intentionally ignored the better story also fails. Her assertion hinges on the claim that the email from the anonymous source caused WTVR to entertain doubts as to the truth of the story that the felon lied on her application, and doubts as to Browder‘s credibility, either of which she claims is sufficient for finding actual malice. However, within the context of the story‘s creation from trusted sources, the email from the anonymous source does not provide
Horne also argues that the email from Barnhouse, WTVR‘s News Director, telling Covil to pursue the story and find out the name of the felon, and the email from Bergazzi, an Executive Producer at WTVR, telling Covil to ask his source whether the underlying felony was from Tennessee, both indicate that WTVR either should have investigated further or had doubts about the truth of the story. These emails do not provide clear and convincing evidence that the allegedly defamatory statements were made with [a] high degree of awareness of [its] probable falsity. CACI, 546 F.3d at 300 (quoting Garrison, 379 U.S. at 74). Additionally, as both parties have noted, the truth is a better news story-that the school system knowingly hired a felon in violation of state law. Without evidence to the contrary, common sense counsels that WTVR did not purposely avoid researching the better story to simply avoid having to re-do their already completed story. Appellant‘s Br. 51.
In sum, Horne has not submitted evidence indicating that WTVR acted with reckless disregard for the truth, or evidence that WTVR entertained any doubts as to the veracity of the story or Browder‘s credibility. Thus, even viewed in the light most favorable to Horne, no reasonable jury could find, by clear and convincing evidence, that WTVR made the defamatory statements with actual malice. Therefore, we hold that the district court did not err in granting WTVR‘s motion for a directed verdict.
Because our affirmance of the district court‘s grant of WTVR‘s motion for a directed verdict is dispositive in this case, we decline to address WTVR‘s argument on cross-appeal that the district court erred in denying its motion for summary judgment because the news story was not reasonably capable of defaming Horne, see Hatfill v. N.Y. Times Co., 416 F.3d 320, 330 (4th Cir. 2005); Carwile v. Richmond Newspapers, Inc., 82 S.E.2d 588, 591 (Va. 1954), and decline to address WTVR‘s contention that the district court erred in determining that the fair report privilege did not apply to the news story, see Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993) (stating that the fair report privilege applies to press reports of official actions or proceedings, so long as the report was accurate and either complete or fairly abridged (citing Restatement (Second) of Torts § 611 (1977))).
C.
Horne also asserts that the district court erred in denying her pre-trial motion to compel WTVR to disclose the identity of its confidential source. We again disagree. This Court reviews a denial of a motion to compel for abuse of discretion. See Ashcroft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir. 2000).
This Court recognizes a qualified journalist‘s privilege that protects the media from revealing confidential sources, including in public official defamation cases. See LaRouche v. Nat‘l Broad. Co., Inc., 780 F.2d 1134, 1139 (4th Cir. 1986); see also Brown v. Commonwealth of Virginia, 204 S.E.2d 429, 431 (Va. 1974). A plaintiff must satisfy the three-part balancing test set forth in LaRouche to overcome this privilege: (1) whether the information is relevant, (2) whether the
Horne argues that the district court should have compelled WTVR to reveal the confidential source that provided Covil the initial tip that a felon was hired and then fired by the school system. The district court denied the motion after determining that Horne failed to provide a sufficiently compelling interest in the source‘s identity because [t]he plaintiff admits her conviction, her hiring, and her firing, and [h]er allegations of defamation come not from the underlying facts provided by the confidential source, but from how the defendant told the story. J.A. 592. Horne counters by alleging that revealing the identity of the confidential source may provide evidence of actual malice in that the source may have known that Horne did not lie on her job application or the source may be untrustworthy. However, there is no evidence that disclosure of the source would reveal this information-it is merely speculation.
Therefore, we conclude that the district court did not abuse its discretion in denying Horne‘s motion to compel disclosure of the confidential source because Horne did not provide a sufficiently compelling interest in the identity of the source to overcome the competing First Amendment concerns.
III.
For the aforementioned reasons, the judgment of the district court is hereby
AFFIRMED.
Notes
As a condition of employment for all of its public school employees, whether full-time or part-time, permanent, or temporary, every school board shall require on its application for employment certification (i) that the applicant has not been convicted of a felony or any offense involving the sexual molestation, physical or sexual abuse or rape of a child; and (ii) whether the applicant has been convicted of a crime of moral turpitude. Any person making a materially false statement regarding any such offense shall be guilty of a Class 1 misdemeanor . . ..