Daniel Connaughton v. Harte Hanks Communications, Inc.

responsible for the review ap- of Howell’s guess second every factor an insurance plication, reveals that either or both company making uses in its coverage deci- misrepresentations would have caused the Instead, sions. under law, Tennessee application rejected. be application order to conclude that a misrepresentation distinctly separately requested infor- increases the risk loss a court only need regarding any mation homeowner’s insur- find that the matter misrepresented would past ance claim in years, three question reasonably affect the judgment. insurer’s number or whether the insured conduct- Broyles, 594 S.W.2d at 693. Such can be ed business activities premises, on the said of misrepresentation here. Ac- question number 15. questions The two cordingly the district court’s decision is AF- completely are unrelated and there is no FIRMED. believing basis for company that the would

not have issued the policy only if both had falsely.

been interpretation answered This

is confirmed the underwriter’s affida-

vit.1 While the affidavit does mention both

misrepresentations, that does not al- fact

low for the inference company

would have policy only issued the one misrepresentations Rather, existed. CONNAUGHTON, Daniel company insurance argu- made both Plaintiff-Appellee, ments strongest that was its posi- because tion. suggested, It never contrary to How- assertion, ell’s misrepresentation HARTE COMMUNICATIONS, HANKS prior history as to claim would have been INC., Defendant-Appellant. by itself an upon insufficient basis which to No. 86-3170. premise coverage. a denial of United States Court of Appeals, Finally, argues Howell the three Sixth Circuit. year period time used the insurance company arbitrary. He therefore be- Argued Jan. 1987. prior lieves that only since his loss was Decided Jan. 1988. days shy being outside the years three period, misrepresentation as to that Rehearing Rehearing En Banc fact cannot be said to increase the risk of April Denied 1988. loss as a matter of law and should held to void policy the insurance on summa-

ry judgment. admittedly argu- While

ment has some emotional appeal, cannot period

succeed. The time clearly and

specifically stated, duty had a Howell question answer the truthfully. By ar-

guing in essence that his answer was enough,”

“close Howell invites this court to

engage in arbitrary line drawing. We re-

fuse this invitation. Courts be tak- would

ing on an impossible task if they were to

1. The affidavit states: would be indicative an increased risk of loss, known, representations Mr. and had Howell’s that he had no such information been I prior years applica- within losses three would have Colonial rescinded offer of Penn’s tion being no business was conduct- coverage ongoing insurance insurance ed premises my judgment on the influenced coverage policy under homeowner’s would handling the insurance on behalf contract provided not have been to Mr. Howell. Penn, of Colonial contrary since information J.App. at 17. representation made Mr. Howell argued, imposed by Cincin- bench trial as Creighton, Jr. Fed.R.Civ.P.

Richard L. 52(a), nati, Ohio, defendant-appellant. for which dictates [findings of fact shall not set Cincinnati, ... argued, Lloyd, Jr. John A. erroneous, clearly due aside unless Ohio, plaintiff-appellee. regard given opportunity shall be to the KEITH, KRUPANSKY Before judge court credibili- of the trial GUY, Judges. Circuit witnesses, ty of the impresses the judicial precedent KRUPANSKY, Judge. Circuit regard clearly erroneous and due identical challenge this to deter- Appellants Court appellate upon factual standard of review responsibility re- its mine the limits of see, findings jury, e.g., of a Strauss against publisher jury’s view a verdict (7th Stratojac Corp., 810 F.2d implicating important for libel this action Cir.1987) (“This court can overrule the pursuant First Amendment issues clearly jury’s only determination if it is mandating Supreme Court dictates of the erroneous.”); Nat’l Bank v. Cen- Jefferson independent appellate courts to conduct 1143, F.2d Chicago, tral Nat’l Bank in 700 entire record of the examination of the Cir.1983) (7th accept (“[W]e must the 1156 the judgment ensure that proceedings to findings findings jury unless those intrusion into pose a forbidden does not erroneous.”); clearly are accord Manufac- rights expression. of free First Amendment Drysdale turers Hanover Trust v. Sec. Union Unit- Corp. Bose v. Consumers 13, (2nd Cir.1986)(A Corp., 801 F.2d 27 n. 8 499, 485, States, Inc., 104 S.Ct. 466 U.S. ed “responses interrogatories to factual jury’s (1984); 1958, 1949, L.Ed.2d 502 St. 80 subject clearly erroneous ... 727, 732-33, [are] 390 U.S. Thompson, Amant v. appeal....”), sub rule on cert. denied 1326-27, 1323, 20 L.Ed.2d 262 88 S.Ct. nom. Arthur Andersen & Co. v. Sullivan, (1968); Times Co. v. New York Manufac — U.S. —, Trust, 107 turers Hanover 284-86, 710, 728-29, 254, 84 S.Ct. 376 U.S. (1987) 952, 93 L.Ed.2d 1001 S.Ct. (1964). 11 686 L.Ed.2d 1 command Supreme equally Court’s decisive impos- assignment gravamen involving in con- appellate courts cases explore the delicate es the commitment joining malice First siderations actual First Amendment relationship between indepen- issues to “make an Amendment and the common rights expression of free examination of the whole record” dent in interest protection law of an individual’s judgment does not consti- that “the insure Evans, F.2d reputation. 750 Ollman v. intrusion on the field tute a forbidden (en banc), 970, (D.C.Cir.1984) de 974 cert. York Times v. expression.” free New Co. 2662, 1127, nied, 105 S.Ct. 86 471 U.S. 285, Sullivan, at 729 376 U.S. at 84 S.Ct. (1985). L.Ed.2d 278 omitted) (footnote (quoting Edwards v. to the resolution of The threshold 229, 235, Carolina, 83 372 U.S. South complicated by an appellant’s challenge is (1963)). 680, 683, 9 L.Ed.2d 697 These imposing equally illusory conflict between reasoning in its rules the court’s probe clearly are the Juxtaposed rules of law. appellate of this review. disposition regard ap- standard of erroneous and due harmonizing in the rules con- Guidance accorded to the pellate review that shall be in its for a resolu- fronting the court search to assess the opportunity of the fact-finder pronouncements tion is afforded upon direct and credibility of the witnesses Corp.: examination, judge in a Bose cross either —Trust, U.S. v. Hanover clearly & Co. 1. Given erroneous standard Manufacturers 952, (1987), —, findings applies equally of a review to factual 93 L.Ed.2d 107 S.Ct. disposition, judge Supreme in or in a reasoning a bench trial and conclusions of the 679, Stratojac Corp., see F.2d Strauss v. particularly applicable in Bose are Court (7th Cir.1987); Hanover Trust v. jury’s verdict was ac- case wherein the Manufacturers instant (2nd Drysdale Corp., Sec. 801 F.2d 27 n. 8 findings by specific companied of fact. Cir.1986), Andersen cert. denied suh nom. Arthur During of review must be faith- November 1983. period Our standard the time 52(a) ful Rule rule of to both dispute relevant to this the defendant-ap- in independent applied review New York pellant, Harte Hanks Communications Inc. The conflict be- Times v. Sullivan. Co. (Hanks Journal), published owned and respects tween the two rules is some (Journal), daily Journal News after- apparent more than real. The New York newspaper enjoyed greatest noon emphasizes the need for an Times rule Hamilton, circulation Ohio area. The appellate independent make an court to Enquirer (Enquirer), Cincinnati a morn- record; Rule examination of the entire ing newspaper published Cincinnati, examination, 52(a) forbids such an never Ohio, competitor and a successful our seminal decision on the indeed Journal, threatening its circulation in contemplated a review of expressly Rule (Dolan), the area. James Dolan who had record, stating “finding that a the entire been the endorsed candidate of the Jour- although ‘clearly is erroneous’ when prior six-year nal to his election to his first it, support there is evidence to the re- office, judge term of was the incumbent court, viewing on the entire evidence is Connaughton sought replace at left with the definite and firm conviction forthcoming election. Since both candi- has been committed.” that a mistake prominent dates were Democrats and no Gypsum States United States United Republican candidacy declaration of Co., [364], [525], 333 U.S. Moreover, (1948)]. filed, Connaughton’s 92 L.Ed. 746 been announcement 52(a) regard” that Rule commands “due Independent caused to file an Dolan given judge’s oppor- trial shall be issues, primary avert a election. Without tunity demeanor of the to observe the campaign struggled through the sum- witnesses; constitutionally-based typical mer doldrums as a colorless and permits independent rule of this review judicial parties contest uneventful with given opportunity to he its due. extolling qualifications expe- own their 499-500, Corp., U.S. at 104 S.Ct. Bose 466 support. Septem- voter In rience to attract added). (emphasis at 1959 ber, however, campaign exploded into Corp. Mindful of the dictates of Bose the most notorious contest in Butler Coun- is, in the first in- court’s attention ty- stance, examination of the directed an operative Background probative for the subsidiary, operative entire or record of joined the constitutional issues facts which (hereinafter preliminary facts referred to presented in this case is best a resume of facts), operative as the however character- respective par- proofs developed by the of ized, jury’s findings if the determine during the course of the trial. ties clearly were The chimera of erroneous. respected discord between these rules of Plaintiff-appellant, at the outset of emerges befitting cyclorama law from a of case, “public he a conceded that was uncomplicated political campaign with an figure” Supreme in relevant as defined joining scenario that is a model for precedent. Court See Gertz Robert presented sensitive constitutional issues 323, 344-45, Welch, Inc., 418 94 S.Ct. U.S. precision. with clarity and 2997, 3009, (1974); 41 L.Ed.2d 789 New Connaughton (Connaughton), Daniel Sullivan, York Times v. U.S. plaintiff-appellee, highly reputable Thus, (1964). 11 L.Ed.2d 686 respected young attorney City of Connaughton charged burden Hamilton, Ohio, City a former Hamilton proving by convincing clear and evidence Prosecutor, County prose- Assistant Butler allegedly libelous November cutor, acting judge Municipal Court controversy pub 1983 article here Hamilton, practicing Ohio and successful malice,” is, “actual “with lished with lawyer, candidacy filed his declaration of —that knowledge it was false or with reck during February judgeship of 1983 for a on disregard that court to less of whether it was false be decided at an election on Sullivan, sister, Stevens and her Alice York Times v. not.” New See (Thompson), accompany who volunteered to at 726. at U.S. Stevens, were taken from their mother’s summarized, plaintiff’s proof Briefly residence, Connaughton home to the arriv- period of for a considerable disclosed that ing approximately a.m. on there at 12:30 announcement Connaughton’s time before Saturday, September 17. persist- rumors candidacy, unsupported brother-in-law, requested his Dave Ber- linking Billy County throughout Butler ed (Barnes), ry (Berry), Ernest Barnes a Ham- (New), of Court Services the Director New chief, (J. deputy ilton fire Janet Barnes for the Officer and Chief Administrative Barnes), and a former Barnes’ wife Jour- Court, Municipal a Dolan City of Hamilton campaign manager, employee, and his nal alleged corrupt practices appointee, with (Cox), meeting as to attend the Joe Cox of his offi- arising administration from the Connaughton also insisted that witnesses. Subsequent to his declaration position. cial tape-recorded. the conversations be during the ear- candidacy, Connaughton, hours Stevens For three and one half Dolan ly stages campaign, criticized of his revealing of events that related a series inordinately large disposition of an for the period of time occurred over extended in his chambers rather of cases number intermediary during she served as an court, as well as for the le- open than in accepting soliciting and for New who was (driving in DWI niency Dolan extended favorably from individuals for dis- bribes intoxicated) no time cases. He at while pending charges against posing of criminal unsupported rumors of cor- charged alluded to the in Dolan’s court. She them illegal Hamilton Mu- ruption associated with the New often transacted his business presence. in his Dolan’s chambers and nicipal Court. lenient treat- Thompson volunteered the 8, 1983, September June On or about from Dolan when ment she had received Taylor (Taylor), president South- represented by Matt Crehan she had been (Mothers MADD chapter ern Ohio (Crehan), po- and ardent personal friend Driving), advised Con- Against Drunk judge had de- supporter of the who litical Patty to contact naughton’s wife Martha against charges her of assault fended (Stevens) important infor- had Stevens who was her shoplifting in Dolan’s court. This concerning her former husband mation the information dis- only contribution to in the Hamilton treatment Jack Schreifer’s meeting. closed at Municipal was desir- Court which Stevens implications of the Stevens’ disclo- The On bringing public ous of attention. Connaughton and confronted sures stunned 15, Taylor’s re- September a result of as lawyer, he had him As a with dilemma. Stevens quest, Connaughton’s wife visited legal responsibility of imme- the ethical and and told her that Con- at her residence alleged criminal acts of diately bringing the if she naughton meet with Stevens would appropri- magnitude to the attention of the concerning had information the administra- consequence or suffer the ate authorities gave no indica- tion of the court. Stevens after the withholding disclosure until inti- personal tion of involvement and her Moreover, had no election. he November solici- knowledge mate of New’s extensive credibility gauging the of either basis for indi- acceptance tation and of bribes. She Thompson in his evaluation of Stevens or notify Martha Con- cated that she would considering his information. After their naughton in that she decided the event September 17 the weekend of position over disclosing information. On favor of 18, from proceeded to seek advice he 16, instructed Friday, September Stevens Monday County prosecutor on the Butler Connaughton’s telephone her mother to Prosecutor County 19. The September Connaugh- arrange meeting pro- wife to with tape interview suggested that the she, Stevens, Safety ton work at Di- through after finished the Hamilton cessed Department and that a p.m. night 11:00 time she and Police at which rector by those investigation be initiated routine would make her information available. poly- authorities. A of discrediting local law enforcement this article with favorable arranged graph responsive test was for the two wom- coverage news of his activities. suggested the test indicated Blount en. The results of that if Dolan scheduled a Thompson news respond any was truthful. refused conference to Enquir- Stevens story, er undergo examination. the Journal assign would a re- porter to be attendance. corruption As rumors of New’s became 27, In edition, its October prevalent, requested morning Dolan he more Enquirer published post page a front resign his as Director of Court Servic- article about Dolan’s 22, bearing court complied September the headline es. New on 1983. “Judge’s Closed-Door 27, Legal Cases Raise September credibility after On Stevens’ Eyebrows.” Enquirer The article criti- through polygraph verified been engaging cized Dolan for prac- in a routine examination, Connaughton delivered the disposing tice of of cases behind closed Stevens-Thompson tape to the Hamilton doors in the absence of prosecutor. Safety Director Public and Chief Police The article detailed “three instances where and, direction, upon complaint their filed a practice trial, led to abuse.” At Blount alleging accepted that New had monies reluctantly acknowledged Enquir- that the through intermediary from criminal de- er’s October 1983 article was “one of purpose disposing fendants “for the spectacular the most stories” that had ever provided cases a manner not law.” Municipal been written about the Court and ensuing police investiga- As a result of the widespread public had attracted notice. tion, Thompson in- both Stevens were plaintiff’s the local developed terviewed law enforcement au- evidence also prior Enquirer story thorities. New on was arrested October 3 October Joseph (Cocozzo), Blount and Cocozzo charged of bribery. three counts publisher Journal, had, on or subsequently He was indicted a Butler about October Billy conferred with County Jury. indignantly Grand Dolan counsel, (Ma- New’s defense Hank Masana publicly Connaughton’s characterized sana), request. at Masana’s Masana had charges against “dirty politics.” New advised Blount and Cocozzothat response In charges “dirty to Dolan’s promises wished reveal various Con- politics,” Connaughton, on October naughton had made to her and her sister 1983, authored a “letter to the editor” disclosing unfavorable information published which was in the on Journal Municipal about the Hamilton Court and letter, Connaughton October 20. In his how he intended to confront Dolan with the detailed the manner in which he had re- Stevens-Thompson tape and force him to supported ceived the information which he, resign Connaughton, so that could be- complaint against criminal New and the judge. explained come Masana the precautions verify that he had taken to the meeting being arranged request was at the charges by leveled his informants which long friend, Cretan, of Dolan’s time who resulted in New’s arrest on October incidentally requested Connaughton had to explained 1983. He how he had consulted judicial withdraw from the Dolan race to the local law enforcement authorities and re-election, assure Dolan’s and who had upon how he had acted their advice. represented Thompson also before Dolan 25, 1983, On October Dolan conferred shoplifting charges. on her assault and (Blount), with Jim Blount Editorial Director meeting in The Masana’s law office coinci- of the Journal whom he had known for dentally occurred on October the years, 25-30 and informed him that as a day Enquirer published same as the its complaint result of the criminal filed story meeting the Dolan court. about against by Connaughton Enquir- New the Masana, by Thompson, was attended er planning publish uncompli- was to an Blount, Long (Long), and Pamela a staff mentary concerning article his reporter tenure as for the At Journal. the time of Judge Municipal interview, of the Hamilton Court. the Blount of was aware the Dolan advised background arrangements Blount that he was desirous for the relationship par- totality and a “rat.” She the of

interview and the attributed Thompson knew that had predicament ties. He also her to whom she appear as a witness subpoenaed lying breaching charged prom- been with Jury. Masana Grand before the anonymity. Thompson ise to ensure her interrogation entire present during the background admitted her criminal on a number occasions Thompson and psychiatric Blount had an awareness of leading ques- memory with refreshed her instability treatment for emotional suggestions. tions and problems mental that she had received at Hughes Hospital. Thompson’s statements were re- Before corded, had an off-the-record parties the sought Thompson to credit her state- during Long Blount and discussion through ments verification Stevens who tape Thompson that of her assured Thompson’s you would in “tell about words made available accusations would never Maisonette, trips, the dinner at the including Connaughton. Under anyone, jobs everything. you She’ll tell Thompson related incrimina- questioning, truth, they because was offered to her allegedly inducements ting promises and trial, however, too.” At Stevens denied the during Connaughton to the sisters made promises lying. and accused her sister of meeting at the Con- September During Thomp- the course of the interview tape recorder naughton residence while significant son made two statements that at other unrecorded was turned off and upon credibility. reflected her related She meetings with the Con- and unwitnessed Enquirer how she had advised the of her charged Connaughton naughtons. She charges against Connaughton and that the being who had tricked her and with a liar Enquirer, assertions, considering after her making their disclosures and her sister into print refused to her accusations. She also during meeting first asserted brought charges she stated that Connaughton home at the which occurred impropriety against Connaughton to the at- 17, 1983, Connaughton had September on tention of the Hamilton Police who also promised a Florida af- the sisters vacation against Connaugh- refused take action election, ter the an invitation Cincinnati’s in- Thompson's ton. At the conclusion restaurant, employment in Maisonette terview, assigned Long Blount to write a restaurant or at the court and further story upon informa- based guaranteed anonymity in ex- them absolute tion. change information for unfavorable about interview, Municipal Subsequent Do- con- the Hamilton Court and/or Blount damaging meeting lan. Her most accusation was attended vened which was Connaughton, allegation Walker, after be- managing reporter Long, editor incriminating coming highly that, aware himself decided where information, that he intended to con- stated Long’s assignment apart from to “write tapes the threat front Dolan with the with story,” no action tak- further would be he, Dolan, making public if refused them afternoon, following Friday en until the resign Connaughton's favor. Her al- Thompson’s questionable October 28. legations against Connaughton implicated credibility was discussed. On October grave as serious ethical breaches well instruction, managing at Blount’s edi- suborning extortion and criminal acts of meeting city edi- tor scheduled a penury. tor, editor, Long, eight and or the news During reporters. nine the course of the Connaughton’s dis- evidence further managing assigned meeting, the editor the apparent present at closed that it was all reporters on a one-on-onebasis to interview Thompson the that she was a interview of the who had been each individuals agitation and dis- highly emotional state of meetings present at the attended tress, various disgruntled and vindic- that she was Thompson, including by and the Stevens subpoenaed tive because she had been Sep- Connaughton the residence on testify one at Jury before the Grand and because Stevens-Thompson her 17 when the being friends her of a “snitch” tember accused reporters statements were recorded. Mindful of the fact that Blount and the Journal, Cocozzo, publisher of the interrogation instructed to conduct an were in were possession of the volatile October 27th pre- of the witnesses accordance with a Thompson tape charging Connaughton questions list of that had determined been extortion, deception, lying, gener and Long signifi- is by devised and Blount. It conduct, al unethical recog Cocozzo assigned cant to note that no one was nized and acknowledged highly to be de witness, Stevens, key interview the who famatory damaging and Connaughton present with her sister at each of the personally, professionally, and politically; meetings incriminating where the Con- and mindful of the fact that no one at the made, naughton allegedly statements were Journal had made an effort to listen to the single and who was the witness who could Stevens-Thompson tape September 17, Thompson’s credibility, attest to the extent which Blount had described as worthless instability, propensity of her emotional junk; and Thompson’s that credibility was lying, psychiatric for and her condition and questionable Cocozzo, and of concern to the Blount treatment. also decided at publisher, Blount, director, the editorial meeting assigned that the interviews were Walker, editor; and managing the and following not to commence until the Mon- that, mindful of the juncture fact at this day day which was he developments, October the after the Thompson’s credibility column, investigated verified, had not published Sunday been or “Editors No- Blount, in his column “Editor’s Notebook” tebook.” written on or Saturday before October 29 Apart from the consistent favorable cov- published on Sunday October dis erage the Journal by accorded to Dolan blueprint closed a from which the throughout campaign the as contrasted to could have concluded that the Journal generally unflattering negative cover- by already that date intentionally and irrev age Connaughton, accorded it was not until ersibly decided to discredit Enquirer story after the October 27 printing Thompson charges im thereby interview that an intention Enquirer pugning image and its in the Journal of the Connaughton, to discredit own, Hamilton area to enhance its Enquirer, appeared through him Journal’s, expense circulation at the Enquirer2 to materialize.

2. In just voters want to be sure ple voting thing voters consider it most honorable and cleanest most familiar the most votes. Dolan. But it isn’t certain if it Connaughton’s prestige. ting deceitful or dishonest in charges court charges pending against Billy Another As According to our recent As the heat Complicating Last week's pertinent parts, I know the one with the most tougher. my one voter ****** ^[******] employee. for a probably vote won't happens said may person increases, name, array remarked, "I lose an has taken some votes from don’t mind after the election is over.” campaign who I later find has been tough be discredited the most article read: they charges election, it also campaigning.” appealing “I want to be sure observations, decision—and will are the voting New, candidate, advertising appears and counter has boosted but I support a former face, bribery resent some- most most peo- get- also should be stressed that of Dolan at the question. ity participated indicted. threatening members of deaths of more than 225 U.S. Marines in á terrorist after the while the nation was still presumed weighed by the fire. action was New hasn't been morning, er can charged Judge Stories on the But in the Some observers are Of Enquirer of the Cincinnati course, justify Jim Dolan legality explosion Oct. innocent until questioned In a in the invasion of process, Delaney, last week page Congress it should be grand jury. suggested fact, Dolan-Connaughton fight placement top tried, one smear two last the motives and credibil- necessity an his case asking newspaper or condemned certainly helped days Sunday. and U.S. and that a Enquirer page an answer when he proven guilty. of a New hasn’t been emphasized after U.S. forces angered by how the Thursday Grenada, one story hasn’t been also are in editor, allies, Thursday person military Enquir- critical to fuel morn- some with day It is have concluded naughton The could and “a wealthy, influential link 30 Editor’s Notebook col- decisionmakers,” Blount’s October to Enquirer which umn, headlined “Municipal was Blount knew be untrue because it had More Have Than One Los- Court Race Will during been denied a direct confrontation er,” carefully designed and contrived Connaughton.3 Having established a public Thompson to condition the Connaughton fictitious link between and published charges to be two which were Enquirer, the questioned Blount’s article days November 1st. It could have later on the motives the integrity and of the En- article was calculated to decided that the quirer story of through October 27 and in the role of the project the Journal Dolan’s words labeled it as a Dolan smear interest, courageous- guardian public political calculated to dirty advance the ly Connaughton’s “dirty politics” disclosing campaign waged by Connaughton. The Enquirer and motives the the cabalistic jury could have further concluded from the promote candidacy Connaughton evidence Journal’s action after by smearing Dolan. The thrust of the arti- October 27 interview was cle, headline, including predicted nothing more than a charade to cloak its result in more than one the election would true publishing motives for its November loser; urged support voters to “the it defamatory story. 1st candidate”; most and cleanest honorable Between October 31 and the elec shopworn speculated through the cliche of tion, appeared the actions of the Journal quoting a concerned undisclosed source implement prophecies Blount’s of Octo “voting person I who resented for a who through ber 30. Its November article in later find has deceitful or dishonest been Thompson’s charges Connaughton branded campaigning,” precise environment and liar, extortionist, as a an op an unethical image characterizations Journal article portunist waging very type who was impress upon November would Con- “deceitful” naughton’s campaign personal, pro- generally and his and “dishonest” and “dirty” political reputation; campaign anony fessional and it at- which Blount’s tempted Enquirer story to discredit the of mous citizens were fearful would result 27,1983 by reporting mysterious person public October a election of a unfit to hold relationship, rumored to exist between Con- office.4 ing judge cooperate absurdity if the didn’t with the 3. The of Blount’s unfounded accusa- (Karen Garloch), newspaper reporter clearly and its tion was reflected record his judge mindset, press capsulized and if the didn’t cancel a confer- own statement which ence, media, open during to all scheduled for Thurs- response cross-examination in to the fol- day lowing question: afternoon. surfacing through periodically Also you anything verify "Did do whether this unproven campaign suggestion has been the column?”, you true before wrote it in this wealthy, that the forces have a to which he stated: Enquirer influential link to decision makers. certainly "The rumor was true. I did not Meanwhile, facing the dilemma the Journal verify many have to it. I heard it times.” is do News what to about an endorsement suggesting Dolan-Connaughton question race. 4. This court is not "that newspaper play skip plaintiff Should the it safe and actual malice arises ‘whenever libel post-election newspaper vigor- for fear introduces endorsement that the evidence that the ously pursues high-impact alleged disclosures could embarrass or discredit the stories of Piro, newspaper? wrongdoing."’ Tavoulareas v. 817 F.2d (D.C.Cir.1987) (en banc) (McKin simply Or should a News editorial 835 n. 48 Journal voters, earlier, non, J., dissenting) (quoting (majority remind as was mentioned id. at — denied, U.S. —, everyone that, proven guilty opinion)), 200, is innocent until cert. fact, (1988). charges pending Clearly, newspa- there are no 98 L.Ed.2d 151 against judge? pers may investigate report about issues relating hard-fought taking self-serving campaigns allega- But a safe course would shirking responsibility potential part held tions of misconduct on the sacred newspaper. candidates. The media should be accorded the complete widest latitude and freedom to endorse Editor's Notebook column of Oc- 30th, A, promote choosing designated Appendix tober is at- candidates and issues of their as, majority’s opinion. judgment, tached to the within their is warranted. end of the Journal Monday, edi- subsequent

On October call to which immediately he tors to the Con- knew that all witnesses terminated the conference and advised Con- naughton/ Stevens/Thompson meetings, naughton Berry that two of report- his categorically exception, without had denied briefly ers were desirous of speaking with Thompson’s allegations. Blount testified Connaughton them. and Berry accompa- 31st, that on he knew that no one October nied Blount to the second floor of the build- however, charges, Thompson’s had credited ing. They separated were at point personal opinion it was she was being Berry with directed into a room with personally because he credible verified Campbell Laurel (Campbell), reporter, through (Grant), credibility her Tom Grant Connaughton while and Blount entered the assigned Journal’s reporter po- editor, office of managing Walker. beat, lice whom he had instructed to inter- They joined by Long. were Connaughton investigating view the detectives the New was not then or thereafter advised of the case. he He also stated that had verified accusations of October nor credibility through certain other detec- permitted was he to listen to tape-re- tives whose names he could not The recall. cording of that A tape interview. recorder disclosed, however, evidence that Grant during was early stages activated and contradicted Blount’s statements and testi- interrogation Connaughton was fied that he was never instructed to con- promised asked if he had Stevens and and, fact, Thompson’s credibility firm Thompson anonymity they provided if him assignment never did so. The extent of his with adverse information about the admin- inquiry if determine the New was Municipal istration of the Hamilton Court continuing ongoing investigation. as an Dolan, promised or and if he had the wom- On October 31st the Journal arranged victory Maisonette, en a jobs dinner at the Connaughton an interview with under the in a restaurant or at the courthouse and a pretext conducting a final endorsement Although Connaughton Florida vacation. Blount, Cocozzo, evaluation. and Jeanne surprised at the line inquiry, new he (Houck), reporter, Houck were in attend- emphatically denied each of the incidents Connaughton ance when and his brother-in- incorporated questions. into various direct law, Berry, arrived at the offices of the if He was asked he had ever indicated to Journal. general A discussion ensued dur- anyone he intended to confront Dolan ing Connaughton, response which time Stevens/Thompson tape with the with the Cocozzo, questions from Blount and re- making public if threat Dolan refused chronology viewed events that had resign. characterized the September occurred since 17. This initial accusation as absurd and denied it. There- perfunctory interview disclosed no informa- after, requested respond he was to a already tion that was not within knowl- hypothetical questions series of were edge Journal. conversation tape-recorded. designed speculative to elicit answers as to During was not the course meeting, telephone Blount received a the mental and motivational stimuli that (1988); suggesting We are not that there is some- 98 L.Ed.2d 151 accord 817 F.2d at 796 thing wrong aggressive investigative re- protec- nn. 49 & 50. These first amendment porting, especially public corporations where not, however, imply publish tions do a license to public exposure or officials are involved. The ignore elementary pre- known falsehoods or to individuals, wrongdoing by especially highly cautions which are demonstrative of un- individuals, by public highest is one of the reasonable conduct that constitutes an extreme press society. functions of the papers provided in our News- investigation departure from the standards of by acting a vital service reporting ordinarily by respon- adhered to watchdog public. pro- for the This interest is publishers in- sible even under circumstances tected The New York Times actual malice volving public public figures. or Nor is officials protected by standard. It is not further re- liability the media immunized from for inten- quiring to blind itself to evidence of tionally recklessly published falsehoods or pressure editorial for sensationalistic stories. merely they happen reporting because to be Tavoulareas, (D.C.Cir. 759 F.2d 121 n. 39 potential campaigns political about election 1985), banc, (D.C.Cir. rev’d en 817 F.2d 762 misconduct. — 1987), denied, U.S. —, cert. credibility infer within the context of the Con- person a from prompted may have the accusations. The Journal also naughton remarks at meet- his, Connaughton’s, be- 17th and thereafter ing September of Connaughton knew that had denied each of Connaugh- Stevens, Thompson, and tween Thompson allegations it sched- the when promising the that he was ton and others legal styled prepublication uled what it as a the Maiso- dinner at anonymity, women lawyer, its James Irwin conference with nette, and a Florida vacation employment 1st, (Irwin), on the for 9:00 a.m. November it was his or for their information following day. resigning Dolan into intention to blackmail Cocozzo, meeting by attended The was replace him as he, Connaughton, could so Blount, Walker, Long and Irwin before the Connaughton’s to these answers judge. con- Journal 10:30 a.m. deadline. Irwin of record and when a matter questions are Sep- that he had not listened to the ceded support the Jour- do not read in context Stevens/Thompson tape, the Oc- tember any he admitted to nal ’s conclusions accusations, tape Thompson’s tober 27 of charges which he had Thompson of the Connaughton or the interview of October during early the unequivocally denied 31st. He admitted that he had not been stages of the interview.5 that no one at the Journal advised summarize, evening of October To the September the 17 Ste- listened the the Journal knew that everyone inter- vens/Thompson tape; that admissions by Cocozzo’s accusations were viewed, exception, discredited without that it was confront- defamatory. It knew Thompson’s charges and that the Journal credibility problem with ed with a serious Thomp- support or of had no verification that, excep- Thompson. It knew without credibility; and that no one at the son’s tion, interviewed its all of the witnesses Long the Journal except Blount and knew Thompson’s accusations staff disclaimed Connaughton tape of content of the Octo- charges. It knew that and discredited although he 31st. He admitted that ber interviewing deliberately avoided it had Connaughton’s inter- had not listened to sister, Stevens, who the Thompson’s accepted Blount’s view of that date he had person present at all of the single Connaughton had admitted assurances that Connaughton meetings between charges. He conceded that he Thompson’s Thompson, intimately and who was aware credibility of the issue that was was aware in- Thompson’s emotional of the extent of Thompson. Irwin testified presented by problems, psychiatric stability, mental that he only the documents further that he had not treatment. Blount knew that approving publication of investigation Thompson's of reviewed before any conducted erroneous, dissent, requires the by characterizing because it is a case that as admissions 5. The reporter's Connaughton’s conflicting testimony to the Journal as to answers evaluation of factual during questions hypothetical the interview credibility single involving the of wit- issue 31st, questions were calculated October sum, jury the In in the instant case nesses. conjec- speculative purely answers and to elicit tures, findings clearly conveyed in its answers to its considering Connaughton’s ex- without interrogatories by assigning greater specific questions concerning pressed denials to direct testimony credibility and evidence testimony Thompson’s and her controversial Connaughton than to the evi- and his witnesses Connaugh- subjective understandings purely testimony of defendants' witness- the dence statements, any evidentiary of the other ton’s credibility having assigned evaluations es after conflicting testimony, clearly of the evaluations witnesses. to those Supreme the demonstrates the wisdom theory jury of the refused to believe The Bose, designed teachings Court's which were testimony The of its witnesses. defense and rights jury protect plaintiffs to a trial in a decision, from majority, has refrained in its against jury's defamation case invasion invading province of fact finder sub- credibility fact-finding perogatives anchored in testimony stituting interpretations its only to the assessments of witnesses available merely attempt- party. It has evidence of either actual trier of fact. findings jury’s emphasize as to ed perfect vehicle for instant case affords clearly were not operative facts of this case reflecting implementation of both case law taken in its of the record in view 52(a) jury’s erroneous assigning and Rule findings deference to a entirety. findings clearly of fact unless such are galley- were the tion. The thrust of testimony 1 article its November endeav- him at presented to sheets which were ored to convince the that the Journal beginning meeting. He stated that pursued totally impartial fair and course Thompson was him that Blount assured throughout campaign, conduct the entire credible, however, never made in- Irwin including period Sep- critical between scope or extent of the quiry as to the attempted tember 17th and the election. It Thompson’s Journal’s investigation into develop thoroughness of its investi- credibility it concerned the gation upon legal and its reliance advice although the accusations. He stated that publishing before the November 1st article offensive, appeared article it was not libel- Connaughton. about The defendants incorporated by denials Con- ous because it sought prove implemented it estab- naughton. Although he knew extortion guidelines lished accuracy to ensure perjury criminal and subornation of were verifying balance in its article and in allegations Thompson that the offenses and credibility its of sources of information. conduct, may inferred unethical have Defendants contended that at the conclu- was, opinion, in his proposed article at least investigation sion of its it was satisfied of Connaughton. politically advantageous to Thompson’s credibility. They presented ev- however, not, explain He did this conclu- idence that was intended to refute the approv- sion. He conceded further that plaintiff’s contention that the Journal’s primari- publication al of the article for motivation for the November 1st Con- line of ly premised upon his line review naughton competition article was its sheets, unconfirmed galley Blount’s Enquirer circulation with the within the personal opinion Thompson’s credibility, of greater affirmatively Hamilton market. It Connaughton and his assurances that had plausibility of Thompson’s asserted the Thompson charges. In any admitted the charges promises anonymity, scenario, event, within this the Journal dinner, victory jobs the Maisonette and a published the article. vacation, Florida as well as the threat Connaughton occupied during himself Dolan, against by Connaughton made were campaign by denying the remainder of the during deliberately unrecorded Thompson’s incriminating accusations. Stevens/Thompson September 17 interview The Journal published his denials which during other unrecorded and/or unwit- through merely emphasized, repetition, the meetings Stevens/Thomp- nessed between magnitude Predictably, of the accusations. Journal, Connaughtons. son and the The charade, the Journal as a finale to its through witnesses, testimony its offered days endorsed Dolan two before the elec- prove that it had no intention to defame or tion. Connaughton personally, either discredit The results of the election were not sur- professionally, politically and that it had prising. The Journal’s endorsed candi- responsibility public publish Connaughton date Dolan lost. The won. accusations, Connaughton to- newsworthy the Journal’s campaign upon effect of It contended that gether with his denials. Enquirer probed circulation of the was not credibility investigation Thompson’s its legal since it issue of was not an adequate. The defendants was more than action. urged 1st also that the article November article in that it carried was a balanced Journal’s pri evidence relied Connaughton’s Thompson denials marily upon testimony publisher, Jour- charges, which demonstrated management personnel, most of and other nal impartiality ’s fairness and and a lack already whom had testified as if on cross Connaughton.6 during plaintiff’s presenta- injure of intent to examination manner, argued pub- could not be found to have 6. The defendant that since it had and thus However, plaintiff responding is lished a one with actual malice. it clear letter from acted articles, publication "mere of a denial the de- defendant’s earlier it had therefore reported subject does not absolve a defendant this case in a balanced and neutral famed evidence came to a dra- direct The defendants’ examination but was foreclosed from when defense counsel re- leading matic conclusion the witness. Plaintiff’s counsel de- in-chambers conference quested had, veloped fact, that Stevens been plaintiff’s counsel where the court and urged by her sister and mother to seek 10% previous on the was announced that eve- any recovery. Stevens further testified ning counsel received a tele- defendants' previous night that on the she had learned requesting phone from Stevens a meet- call from another of her sisters that ing. advised the court Defense counsel mother were to be witnesses be- signed an affidavit where- Stevens had fore the and that both of them would in she attested to a conversation with Con- by testifying alleged prom- lie to an written naughton previous Tuesday on the while by Connaughton ise to pay Stevens 10% courthouse, during driving to which she any recovery that he would as a receive suggested that her friends result of his if lawsuit she continued to urged that she was entitled to receive support him disclaiming Thompson’s ac- recovery at least of whatever resulted 10% cusations. She testified further that she from the She stated that Con- lawsuit. did not wish to have her sister and mother naughton “take care of her and offered to criminally involved as lying a result of un- all of his friends” and that she should der oath was by antago- and troubled by story. continue to stand her Defense displayed against by nism her her mother counsel the affidavit also indicated and sister and was desirous of further charges against stated that her sister’s aggravating widening rift between Connaughton were true. Defendants’ examination, Upon them. further she ad- counsel that the Stevens advised the court Connaughton mitted that had never offered being placed before the court affidavit was any money; her that her affidavit un- plaintiff’s plain- counsel to afford the true and that she had testified truthfully opportunity tiff an to dismiss the lawsuit. during appearance her first when she dis- plaintiff’s say, Needless to court and against credited her sister’s accusations by counsel were stunned the revelation. Connaughton. Plaintiff’s his counsel conferred with client sum, In she recanted her affidavit to the and advised the court that his client insist- defendants. upon proceeding ed the trial. with The Connaughton supported on rebuttal right plaintiff’s court refused counsel the testimony any and disclaimed offer of mon- privately confer Stevens she before ey testimony. or other consideration for her presented aas witness. note, On this the evidence concluded and by the defense as if

Stevens was recalled jury upon the case was submitted to the on in ac- cross examination testified part the court’s instruction. As a of its cordance with the defendants’ in-chambers instruction, comprehensive the court disclosures. At the conclusion of the de- ad- Stevens, upon fendants’ cross examination of vised the that the burden rested plaintiff’s permitted plaintiff prove counsel was further the element of actual Tavoulareas, (McKinnon, liability publishing knowing from for or reck- 817 F.2d at 831 n. 42 Tavoulareas, J., less falsehoods.” 759 F.2d at 133. dissenting). published plaintiffs The fact that de- Furthermore, defendant printing a denial of accusations nial dispositive in its of inferences contained articles is not necessarily made in an article does not insulate printed of whether defendant newspaper liability a from since it fails to cor-

falsehoods with actual malice. damage already done rect the the dissemina- published [plain- The fact that [defendant] Tavoulareas, tion of the falsehood. 817 F.2d at any way not in denial ... does vitiate tiffs] J., (McKinnon, dissenting) ("[Merely print- the value of the evidence that [defendant] ing redeeming a falls far short of a denial] published charge disregard with reckless pattern displays, clearly of behavior that falsity.... Surely for the First truth convincingly, disregard a reckless for truth or finding prevent Amendment does not falsity.”). publishes actual malice whenever a defendant defamatory accompanied false statements denials. convincing good evidence deed by clear and made faith.” The pro- malice court concisely simple and in thereafter by explaining ceeded to elaborate that suf- phrase defined the “clear and con- terms proof support ficient must the conclusion At of its vincing evidence.” the conclusion that the defendant in fact entertained seri- deliberations, jury returned a verdict in ous as to publication doubts the truth of its plaintiff favor of and that $200,- damages in the amount of awarded [professions good faith will be unlike- verdict, conjunction In with its 000. ly prove persuasive, example, special interroga- jury, in answer to written story where a is fabricated the de- tories, (1) that the November concluded fendant, product imagina- is the of his (2) page defamatory; front article was tion, wholly or is based on an unverified false; (3) the article was anonymous telephone they call. Nor will published article had been with actual mal- likely prevail publisher’s be when the ice. allegations inherently improbable are so The defendant Hanks-Joumal filed a mo- only man put reckless would have notwithstanding judgment tion for the ver- Likewise, them in circulation. reckless- (j.n.o.v.) dict district court denied may ness where there are ob- found upon finding properly impaneled that “a vious reasons to veracity doubt the instructed, jury, correctly awarded a ver- accuracy or the informant against supportable Defendant that is dict reports. from the evidence adduced.” added) (footnote (emphasis omitted). Id. Gertz, In York Times and the Su- New emphasized depend- Court that malice preme Court enunciated the burden of upon showing ed that the defendant act- proof upon imposed public figure pur- in improper ed evidentiary with motive—an suing defamatory a claim of falsehood as subjective pursuit probe calculated to the by “actual malice” clear and established of mind in an defendant’s state effort to convincing defamatory evidence that the purpose publi- for disclose the intent or the published knowledge falsehood was with which, turn, depended squarely in cation falsity disregard its or with reckless for the upon credibility assessments best deter- opinion truth. Justice Harlan’s in Curtis jury by mined as ultimate factfinders Butts, 130, 153, Publishing 388 Co. U.S. observing upon visually after the witnesses 1975, 1991, (1967) 87 S.Ct. 18 L.Ed.2d 1094 direct and cross examination evaluat- and public figures permit- observed that “were ing testifying, their manner of the reason- only they ted to recover in libel when could probability testimony, of their ableness and prove publication that the involved was de- accuracy memory, opportu- the the their falsified, liberately published recklessly or see, hear, they and the nity had to know despite publisher’s proba- the awareness of testified, things they their can- about which falsity. Investigatory ble failures alone candor, lack of their interest and dor and satisfy were held insufficient to this stan- bias, any, together if with all other circum- dard.” surrounding testimony.7 their stances decision, following year the Butts present multi- The instant case did not Supreme the Court in St. Amant v. possibilities interpretation 732, faceted Thompson, 390 U.S. at 88 at ambiguity.” The 1326 declared the with core issue “finder of fact must “bristled publication simply credibility determine in- whether the one be attached evidence, Supreme drawing recently weighing 7. The Court has reaffirmed of the and the action, principle credibility the the jury that in a libel is legitimate inferences from the facts are by jury, a factual assessment to be made and functions, judge, not those of a whether he is judge. not the ruling summary judgment or on a motion holding clear-and-convincing Our standard of count the for a directed verdict. proof should into ac- be taken Inc., 242, Liberty Lobby, Anderson v. 477 U.S. ruling summary judgment in on mo- 2505,2513, (1986). 91 L.Ed.2d 202 106S.Ct. denigrate tions does not the role of the determinations, jury.... Credibility the 840 appearing to the witnesses on behalf of the see Publishing Co. v. Afro-American

respective parties and the reasonableness Jaffe, (D.C.Cir.1966), 366 F.2d 654 assigned probability testimony. and to their court seeks pronounce- direction from the Washington ments of Post Co. v. Chalon- disparity proof The wide between the er, 290, 293, 448, 448, 250 U.S. plaintiff in and the defendants this case (1919) L.Ed. (quoting Commercial clarity jury demonstrated with that the ver- Smith, Publishing v.Co. 149 F. firmly exclusively dict was if not anchored (6th Cir.1907)),wherein Supreme Court credibility in evaluations and assessments. instructed “publication that a claimed to be jury If the had credited the defendants’ defamatory must be read and construed evidence, it would have concluded that the the sense in which the readers to whom it publish was not motivated to Journal is addressed would ordinarily understand page November front article a desire Implicit it.”8 in the Court’s admonition is promote its Dolan as candidate for the judge direction to only plain Municipal judgeship by Hamilton Court dis- publication, text of the compo- but also the crediting thereby and indi- sition story; syntex context; its rectly discrediting Enquirer for com- timing; prominence its the article is petitive easily reasons. It could have con- placement accorded paper; its in the Thompson's charges cluded that were true Journal’s, neutral, positive negative or thrust of the and/or that the conduct de- article; material factual omissions or dis- termining Thompson’s credibility was not a tortions; image subject that the highly departure unreasonable from the publication project seeks to all other investigation reporting standards of may upon facts that reflect publisher’s ordinarily pub- adhered to reasonable intent purpose publicly disseminate Co., lishers. Publishing Curtis 388 U.S. the information of the article controver- at 87 S.Ct. at 1991. From its written sy. Other factors to be scrutinized are interrogatories special answers to the three conversations between the editor and/or verdict, obviously attached to its elected management other personnel report- assign greater credibility plain- ers, article, or the author of the sum, concerning proof. tiff’s witnesses In development research and of a contro- simply did not believe defendants’ witnesses, story; versial decisions and presentations its reasons relat- evidentiary ing arguments. its to selective interviews and selective investigations; implement- the manner of apparent It is jury’s from the an ing interviews; importance the and veraci- swer to interrogatory the first that ty upon developing information relied in adopted plaintiff's proof the and Cocozzo’s article, always the mindful of the caveat deciding in admission that the Journal’s publication the words of the should page November 1st front article de isolation, not be considered in but rather famatory. generally Mindful accept of the within the context of the entire article and ed rule that false do statements not consti thoughts the that the through article its tute merely actionable defamation because implications structural and connotations is they are proof false and that the burden convey to calculated to the reader to whom upon rested plaintiff the to demonstrate it is addressed. was, fact, publication the in defam atory Considering the injure plaintiff publica- because it tended to in November 1st trade, against in profession, community entirety or tion its stand the standards ing, or Supreme Court, lower him in the enunciated estimation of the the the arti- scorn, community, subject or him defamatory implication to ridi cle was in its cule, shame, embarrassment, contempt, or lawyer was an unethical Piro, (D.C.Cir. However, appear 8. In Tavoulareas v. 817 F.2d 762 it would that the court in fact — 1987) (en banc), denied, U.S. —, ignored cert. 108 the standard and instead elected to se- 200, (1988), lectively S.Ct. 98 L.Ed.2d 151 the District of re-examine the evidence to arrive at purported apply thought Columbia Circuit to this stan what the court would be a more itself See, e.g., dard. interpretation 817 F.2d at 780 n. 19. reasonable of the facts. for the Hamilton 104 S.Ct. at candidate 1955. The court an undesirable affirmed capable of Municipal judgeship who was the reasoning: First Circuit’s extortion, opportun- and an was a liar who first review of the [the circuit’s] office, particularly, public hold ist not fit to malice” “actual determination was not Accordingly, this court con- judgeship. clearly-erroneous “limited” to the stan- findings opera- jury’s cludes that the 52(a); instead, dard of Rule it stated that they upon as bear the defam- tional facts review, perform it “must a de novo inde- atory of the article here in issue character pendently examining the record to en- clearly were not erroneous. applied sure that the district court has jury’s the Equally apparent from answer properly governing the constitutional law special interrogatory to the second is that it plaintiff and that had indeed satisfied Thompson published considered added, proof.” however, its burden of It finding charges false. Its is under- to be position that it in no to consider “[was] light plaintiff’s proof standable in credibility of witnesses and must effort disclosed that the Journal’s questions of leave demeanor to trier credibility in an verify ended ava- of fact.” knowledgeable of denials individ- lanche Bose, (quoting at at Id. uals; single per- inability produce its (1st Cir.1982)).9 692 F.2d supported Thompson’s accusations son who deliberately apparent and its decision to Unfortunately, explain Bose did not interviewing avoid Stevens. scope review,” of its articulated “de novo Moreover, obviously refused to appellate independent the extent of “the construction of Con- credit Journal's “independent judg- review” and/or naughton’s of October 31. It interview by appellate judges ment” to be exercised Connaughton’s express denials of accepted determine, basis, on if an ad hoc charge each and considered proves record on review actual malice with significant language interpreted by the convincing clarity. Nor did the decision to constitute his admissions Journal guidance reviewing in afford courts re- context, charges, read in those when solving the accorded factu- treatment nothing conjecture more than elicited findings credibility inextricably al rooted questions structured calculated to evoke resulting from visual observa- assessments Thus, reviewing speculation. upon factfinder, jury, court or tions of a either entirety, record its this court concludes during or indirect exami- manifested direct opera- jury’s that the determinations of the nation of witnesses. bearing upon falsity of the tional facts Bose, this court’s probing In the intent of clearly article issue were not erroneous. instance, is, in the first attracted attention addressing perplexing Before issue distinction opinion’s discussion of the action, impacts of “actual malice” as it “subsidiary facts” and between the terms would, juncture appellate it at this of this “purely and the terms fac- “ultimate fact” review, appropriate be for this court to find- findings” and “ultimate factual tual upon teachings Supreme reflect the óf the ings.” “subsidiary facts” alluded to The in Corp. Court Bose v. Consumers Union pro- operative facts that are apparently are States, Inc., 485, 104 United 466 U.S. of S.Ct. 1949. background circumstanc- of the and bative granted in Certiorari was Bose issues of the join the substantive es appeals “to consider whether the court of developed by testimony litigation which are apply clearly- erred when it refused to the other before the 52(a) of witnesses and evidence the erroneous standard of Rule to factfinder, jury, court or and which ‘finding’ district court’s at either of malice.” Id. Cir.1986), 52(a) Arthur Andersen clearly The cert. denied sub nom. 9. erroneous standard of Rule —Trust, U.S. equally applicable jury's findings. is & Co. v. Hanover to a factual Manufacturers —, 952, (1987); 679, Stratojac 107 S.Ct. 93 L.Ed.2d 1001 Corp., See Strauss v. F.2d 685 810 (7th Cir.1987); Natl Bank in Nat'l Bank v. Central Hanover Trust v. Manufacturers Jefferson 1143, Cir.1983). (7th 13, (2nd Drysdale Chicago, Corp., F.2d 1156 Sec. 801 27 n. 8 700 F.2d 842 credibility dispositive

invoke assessments and determi- mate fact or ultimate conclusion nations. of actual malice or if it should limit the independent judgment exercise of its contrast, In “ultimate facts” or conclu- reviewing jury’s findings factual to de- as those sions are defined which “more totality termine if the of those factual find- application clearly impl[y] the of standards ings Bose, 16, by record, reflected the entire of 466 U.S. at 500 n. as a law.” Simply stated, law, support S.Ct. at 1959 n. 16. Bose jury’s matter of ultimate distinguished questions between of fact to conclusion convincing proof of clear and of factfinder, by be resolved either the actual malice. applying jury, credibility court or the as- Logic and reason dictate that the Bose purview come within the sessments which directed de novo review did not apply to clearly erroneous standard of review preliminary, operative, or subsidiary factu- questions by to be law decided al credibility determinations anchored in de- court. terminations but rather was limited to a The Bose court framed the issue before review of the ultimate conclusion of clear following it terms: convincing proof of actual malice. A question The whether evidence contrary usurp conclusion would the role of record in a case is defamation jury appellate burden the courts convincing clarity required strip original jurisdiction with in libel actions protection utterance First Amendment impinging plaintiff’s right constitutional is merely question not for the trier of to a trial.10 Judges, expositors fact. of the Con-

stitution, independently must decide Appeals The Court of for the Ninth Cir- whether the evidence in the record is cuit in directly Guam addressed the man- the constitutional .cross ner in preliminary which the sufficient facts should entry any threshold that bars the judged to determine if the ultimate con- judgment supported that is clear clusion of supported by actual malice is convincing proof of “actual malice.” convincing proof. clear and Guam Fed’n Id. at at (emphasis Teachers, Ysrael, Local 1581 v. 492 F.2d added). (9th Cir.), denied, cert. 419 U.S. (1974). 42 L.Ed.2d 111 Thus, determining the issue of upon The court appeal concluded that “actual malice” within the context of the jury finding resolving conflicting sub- bar, libel case at upon this court is called sidiary operative facts judged should be if apply independent determine it should its by the same judgment rules and accorded the facts, to each of the same subsidiary more deference as appropriately j.n.o.v., motions for opera characterized as directed facts, tive without of credibility benefit verdict or other summary dispositions.11 as sessments, probative which are of the ulti- The court stated: 10. The rationale of opportunity the Tavoulareas en banc witnesses without the of visual ob- majority servations, placed squarely paradoxi- has credibility in the it evaluated both the evidence, position discarding jury weight cal plaintiff trials in actions and denied the thereby denying plaintiff along libel his entitlement to of his have the evidence right reasonably all jury. Seventh Amendment inferences trial drawn therefrom to be light plain- viewed in the most favorable to the majority 11. opinion Tavoulareas en banc opinion appears tiff. The to have accorded no appears presented to have evaded the core issue pronouncements deference to the of the Su- appeal and refused to address or decide defamation, preme addressing Court issues of judicial the jury’s deference to be accorded a falsity, and malice enunciated in New York conflicting credibility resolution of facts and progeny; Times v. Sullivan and its St. Amant v. assessments. Butts; Thompson; Corp. Curtis v. Bose v. Con- appeal Mindful of the fact that the States, Inc., resulted sumers Union the United 466 U.S. of grant j.n.o.v. from the trial court’s of 485, 1949; from a 104 S.Ct. and other milestone deci- jury plaintiff, verdict in have, favor of en the banc years, sions that over the addressed those court recognition rudimentary sum, afforded no keystone issues. In the en banc court principles applicable appellate appears review original of sum- juris- to have intruded into the mary dispositions. judged credibility jury. It the diction of a trial court

843 cases, case, the A review of the entire record of the as in other a libel [I]n probative instant case disclosed substantial a motion for a against whom ... party from which a could have con- evidence notwithstanding is the verdict judgment that the Journal was (1) singularly cluded have the evidence made is entitled to prejudiced in of Dolan biased favor him light in most favorable to the viewed against Connaughton by as evidenced the properly inferences that can and to all relationship personal confidential that ex- by trier of fact. drawn in his favor the Blount, Jour- isted between Dolan too, think, in cases it is not that such We Director, nal Editorial unqualified, and the judge, or this only duty not the daily consistently favorable editorial and weigh credibility appeals, court of coverage by Dolon from the news received evidence, inferences in or to draw equally Journal compared as with the con- moving party (except, of favor of the sistently coverage news af- unfavorable course, contrary inference can when no (2) Connaughton; that the Journal forded drawn) but that neither legitimately be engaged rivalry in a was bitter with appeal on has judge nor this court Enquirer for domination of the Cincinnati credibility or to authority weigh greater circulation market as evi- Hamilton among legitimate choose inferences by vituperous public Blount’s state- denced cases. such (3) Enquirer; ments and criticism of the Teachers, Local 1581 v. Guam Fed’n of Enquirer’s, expose initial that the (9th Cir.), Ysrael, cert. 438, 441 492 F.2d operation questionable of the Dolan court 132, denied, 872, 42 95 L.Ed. 419 U.S. great high profile news attraction of was added). (1974)(emphasis The analo- 2d 111 notoriety public interest and that little, any, if controver- gy should stimulate Journal “scooped” the Blount’s event, any this court sy. In subscribes significant most admission was the own logic analysis. Connaughton-Dolan story impacting the previ- on its The same court elaborated (4) by discrediting campaign, that Con- following year during the ous observations im- the Journal naughton effectively Inc., Communications, in Alioto v. Cowles Enquirer thereby undermin- pugning denied, Cir.), cert. 777, (9th 780 519 F.2d area; ing share of the Hamilton its market 280, 96 S.Ct. 46 L.Ed.2d U.S. instability (5) Thompson’s emotional (1975): obviously vindictive and coupled with her judgment judge A district on motion toward antagonistic attitudes review, n.o.v., appellate judge or an on during on Octo- displayed an interview evidence to see wheth- must examine the 27, 1983, arranged by Billy de- New’s ber er, permissible if all inferences were attorney, afforded the Journal fense and all plaintiff’s drawn in the favor accomplish objectives; its ideal vehicle questions credibility were resolved Thomp- (6) was aware of that the Journal behalf, dem- the evidence then would report- prior criminal convictions son’s convincing proof onstrate clear and infirmities and the treat- psychological ed published that the libelous material for her mental condi- received ment she had with actual malice. tion; (7) every witness interviewed Thompson’s reporters discredited Journal turning In consideration of actual accusations; (8) intention- Journal must, that the case, this court malice the instant interviewing Stephens record, between ally first avoided from an examination of the 27, 1983, the date of its initial jury’s if of the October determine resolution Thompson, November meeting with clearly subsidiary operative facts was story printed first even erroneous; is, if, reviewing its 1983 when after Stephens could either though it knew that evidence, reviewing entire court was statements; Thompson’s or discredit that a credit left with the definite firm conviction publication (9) knew that Journal mistake had been made. United States charging Co., allegations Con- Thompson’s Gypsum United States U.S. crimi- conduct and 525, 542, (1948). naughton unethical L.Ed. 746 844 nal extortion other equally and her damag- The Supreme Court in Lando, Herbert v. ing completely statements would discredit 153, 441 U.S. 1635, 60 L.Ed.2d 115

and irreparably damage Connaughton per- (1979)charted this court’s course to resolu- defamation action dence reflected by the entire stitutional cated on misunderstanding mine the ultimate conclusion of federal con- rors of ing States, infected so called mixed findings of law review of the entire record to correct er- were review jury’s finding of New York Times v. Sullivan of and Bose flected by the entire record of the evidence are not clearly erroneous. Corp. v. Consumers Union cordingly this court concludes that mistake has been with a definite and firm conviction that a arriving rated court is unable to conclude that it “is left Co., rested ing ment of actual United tion mindful of the trial court’s model instruc- regard” serve the erative facts as reflected in the entire record of the evidence and assigning “due credit Connaughton and mediately before the election in an effort to maximize the effect of ments in a date follow-up stories and editorial com- lease sham; (11) that the Journal sonally, professionally Having decided Having considered the subsidiary rule evidence fact, simple not clearly its prepublication into of the initial proceeds upon law, Inc. States at U.S. to the demeanor of the law, jury law, definition of that its subsidiary findings including those by conducting manner coupled at malice instructions, namely, whether the evi- advising it that the burden if any jury’s plaintiff committed” erroneous, implement United story is of fact calculated to with the operative 68 S.Ct. at 542. Ac- exist, its and politically; legal opportunity to ob- so as to accommo- clear and convinc- factual the convincing campaign its States jury’s that are witnesses, this prove this record term review was a Enquirer. clear, timed independent facts as re- of may reviewing teachings appellate to deter- findings. findings peak govern- incorpo- Gypum the ele- United concise the predi- to dis- or have (10) op- im- re- Lando, in Publishing persons commanding justified 87 S.Ct. at 1990. First Amendment protections. Curtis not and without guaranteeing tant their accuracy dent legally committed to existing legal prece of tween well as cumulation of ant’s guage, 2d 789 U.S. (quoting tion of plate and does dom speech known to be false or probably false, this is no more than what our cases contem- for damages which in turn discourages with the balance struck by our prior deci- sions. well as indirect evidence is consistent Herbert to material reputation. Permitting plaintiffs such as ing also ever, hoods Those value in false statements of fact.” dentials. itself carries no First Amendment cre- libel, Spreading false information in and of express interest, that, 323, 340, subjective publication not freedom Jft of to deter (1974)). 441 U.S. at Appreciative of the antithesis be Apparent through are its which limit a should not Gertz Robert plaintiff If only who threatening quest Co. v. subject certain such s}{ cases a finding “[Tjhere prove to compensate circumstantial this of v. publish state publication direct evidence. requisite of erroneous information or in the following passage: speech proof Butts, involving may prove the defend from the ^[*] 171-72, their cases by direct as court strip sentiments, of mind some publisher’s abridge liability, is no constitutional injury to individual defamatory false- results in liability and the elements ^[*] falsity is, Welch, culpability, how- 99 S.Ct. at 1646 of legal press. materials and nevertheless, publisher U.S. evidence, through unprotected above either free- the aim be- sft alone injury at Inc., proof of 41 L.Ed. freedom at impor least, >jc will lan but clarity required strip publisher In the instant it is case conceded that First protection. Amendment although public official, not a

845 conces- if may this found ‘there are public figure. a Aware of obvious sion, is directed veracity this court’s attention reasons to doubt the of the infor- * * * consti- addressing rigorous expressions accuracy reports’ mant or the of his to ac- requirements appropriate tutional significant, prefer ‘equally or to the veraci- ” conflicting interests be- commodate the ty of one source over another.’ Id. at press and defamation. tween freedom of 156-57, (citations omitted); 99 S.Ct. at 1639 Welch, Inc., 418 see also Gertz v. Robert Butts, v. Publishing In Co. Curtis 6, 2997, 6, 334 n. 94 S.Ct. 3004 n. U.S. figures as Supreme public Court accorded (1974); 41 L.Ed.2d 789 St. Amant v. recovery damages of public aswell officials 727, 731, Thompson, 88 390 U.S. S.Ct. “defamatory false- publication for the 1323, 1325, (1968). makes substantial L.Ed.2d Lando hood whose substance on show- danger reputation apparent, guidance identifying affords to also consti- ing highly unreasonable conduct type of evidence that offers substantive departure from the stan- tuting an extreme reviewing court in exercis- assistance to investigation reporting ordi- dards of ing independent judgment its to determine responsible publish- narily adhered bearing upon if the evidence the constitu- 155, 87 at 1991. ers.” 388 at S.Ct. U.S. sufficiently tional issue of actual malice is convincing support the clear and verdict. mandat- Adopting premises that Bose Lando, 441 160 n. at U.S. at appellate review of the independent ed an Lando, In the Court teaches 1641 n. 6. fact findings resolving the ultimate jury’s presence or absence of motive but did not conclusion of “actual malice” or heretofore of each and other circumstances as require a de novo assessment and/or operative may fact which of the article every subsidiary publication or discussed for disposition of supported publisher’s pur- the factfinder’s intent and upon reflect court, issue; and this the constitutional disseminate the article pose publicly findings having accepted jury’s of the controversy.

subsidiary operative facts that bear striking factual Because

upon “actual malice” as those the issue of the instant case and similarity between by the record in its facts are mirrored Butts, this Publishing having those factu- Co. entirety; and evaluated Curtis is, degree, simplified. findings all reasonable inferences mission to a al court’s therefrom, (Post) arising including Butts, Evening assessments Post Saturday In plaintiff, this credibility defamatory in favor of the ac article which published a appellate Butts, undertakes an overview or highly respected review cused Wallace prelimi- “second look” of the entire record former coach at the director and athletic independent nary to the exercise of its nationally rec Georgia and a University of proof as judgment to determine if the ranks, coaching of con figure in ognized supporting “actual mal- found game spiring “fix” a football between is, law, convincingly ice” as a matter Georgia and the Universi University of clear. As in the played in 1962. ty Alabama case, was con the Post Curtis instant Thus, liability in an for to attach primary highly questionable fronted with a libel, alleged defamer of a action for Burnett, who source named information public figure know or have reason to must in connection with bad probation on suspect publication that its is false. Her credibility was a charges, whose check Lando, bert v. 441 U.S. Post, although recog serious issue. (1979) 60 L.Ed.2d 115 advises “[u]nder investiga thorough nizing for a the need falsehood, rule, knowing liabili absent Butts, ignored charges against tion disregard ty requires proof of reckless to stan inherent elementary precautions truth, is, ‘in the defendant reporting ordi investigation and dards fact serious doubts as to the entertained * * * * responsible publica narily adhered publication.’ Such truth of his tions, Butts article on the published the falsity’ ‘subjective probable awareness of basis of Burnett’s affidavit without sub- mines probative that the facts considered independent support. stantial cumulatively are clear and convincing in nature, and therefore are legally Curtis, sufficient As in the front support the jury’s resolution of page story the dis- of November 1st was not “hot positive conclusions as in reflected in spe- news” it its meeting necessitated a cial Weighing verdict. publication the deadline. cumulative im- Publication could pact of the subsidiary have been withheld until later facts a date to enumerated above, thorough investigation accommodate a this court of concludes Connaugh- credibility implications proved, of ton magnitude by the clear and convincing evi- presented by Thompson’s dence, accusations that the Journal demonstrated its conspicuous which were of concern to Co- actual published malice when it the Novem- cozzo, Blount, the publisher, the editorial 1, ber 1983 despite article the existence of director, Walker, and the editor of the serious doubt which attached Thomp- Journal, unless of course the November son’s veracity and accuracy the of her re- publication 1st date was critical to the tim- ports. See St. Amant Thompson, v. 390 ing of the Journal’s campaign to further 727, 732, U.S. 1323, 88 1326, 20 the election of its by candidate Dolan dis- (1968). L.Ed.2d 262 crediting Connaughton before the forth- “It is well established that evidence that coming election and thereby fortifying its publisher a to investigate not, failed does reputation its within circulation area as the by itself, prove actual malice.” Hunt v. respected dominant and image influential Liberty Lobby, 631, (11th 720 F.2d 643 maker to Enquirer. the detriment of the Cir.1983) added) (emphasis (citing St. Am Curtis, As in wherein the Post was anxious ant, 732-33, 390 U.S. at 1326); 88 S.Ct. at change image by its instituting policy a see also Newsweek, Inc., Schultz 668 “sophisticated of muckraking” in an effort 911, (6th F.2d Cir.1982). 918 Although the to become competitive more in order to Journal attempted to characterize its fail- circulation, enhance its in present case, ure to Stephens contact as an act negli- jury could have found that the Journal gence that was insufficient to establish was ac- publish motivated to the controversial malice, tual its failure to by article interview her its efforts to preemi- its establish must be conjunction nence in considered in reporting political with oth- news in order to er further direct competitive its and position circumstantial evidence vis-a-vis the bear- Enquirer ing greater on in the issue “actual County Hamilton malice.” As geographical through area previously herein, the advance- discussed the evidence ment of Curtis, candidacy. Dolan’s As in adduced at trial demonstrated that confronted with vital concerns about the Journal publicize motivated to Thomp- credibility of its source, sole information allegations, son’s only by a desire to Journal ignored elementary precau- preeminence establish its reporting tions and highly demonstrated unreason- news, Hamilton political by but also a able conduct which constituted extreme desire to aid the Dolan campaign. Prior to departure from the investiga- standards of publishing article, the November 1983 tion and reporting ordinarily by adhered to the Journal aware that had responsible by publishers publication antagonized been public notoriety of the November 1st article solely upon based involvement bribery New contro- the Thompson statements without substan- versy and reproached had been by her tial independent support. peers as a “rat,” “snitch” all of Having considered the evidence she bearing resented and attributed Con- on the subsidiary naughton; factual light issues that Thompson history had a most favorable to the findings psychiatric emotional and instabilities for having defined considered the subsidi- which she had been treated professionally; ary facts developed by probative allegations evi- that her had been discredited dence trial, adduced at this court in every September 17, witness to the 1983 exercise of independent judgment its deter- subsequent meetings who had been

847 deliberately distorts staff; made others or who s newspaper by the contacted personal launch statements to at- independent affirma- these no the Journal accusations; public figure, cannot and that his own on a tack of for her support tive reportage’ rely privilege indict- neutral but key witness to New’s on Stevens responsibility discred- for the un- credited or ‘assumes have rather either could ment ” (quoting could have derlying accusations.’ Id. at statements her sister’s ited psychiatric Soc’y, emotional and National Audubon to her Edwards v. attested treatment; (2nd Cir.), professional Inc., cert. instability and 556 F.2d nevertheless, the November published denied, 434 U.S. court concludes Accordingly, (1977)).

article. L.Ed.2d 498 rely on decision to that Journal’s asserted that Finally, Journal and con- highly questionable Thompson’s expressions privilege the constitutional for verifying first allegations without demning opinion protected the statement sister, through Ste- her accusations those “Thompson said she believes Con supporting independent vens, and without municipal court naughton, a candidate departure extreme constituted evidence obtaining ‘dirty tricks’ judge, used investigation and from the standards investigation personal cooperation with respon- by ordinarily adhered reporting argued that conclusion of New.” It a reck- demonstrated publishers sible “dirty Connaughton guilty of falsity of or disregard to the truth less Thompson’s personal represented tricks” provided allegations and thus Thompson’s Connaughton’s How opinions of actions. of “actual mal- convincing proof clear and are ever, “[ojpinions on false facts Butts, U.S. based 388 jury. as found ice” against a who had 1991; Pep v. ... defendant 153, see also actionable at 87 S.Ct. at falsity 1000, falsity probable or knowledge 1003 Newsweek, Inc., F.Supp. 553 Ross, Davis v. facts.” investigate underlying or re- of the (S.D.N.Y.1983)(Failure to Cir.1985) (2nd (quoting 80, 86 “may tend 754 F.2d source questionable on a liance Castillo-Puche, 910, F.2d 551 not care Hotchner publisher did show that a not, Cir.), A.E. (2nd sub nom. or cert. denied or 913 was truthful an article whether Co., 434 Doubleday U.S. & not to Hotchner v. publisher did want perhaps that the (1977)); 120, L.Ed.2d 95 54 contradict- have facts which would discover Publishing Times v. New source.”). accord Cianci ed his Cir.1980); (2nd see also Co., F.2d 65 concludes that This court also (9th Inc., 710 F.2d v. Time Lewis upon the limited reliance defendants’ that Con Cir.1983). Thompson’s claim miscon reportage” is of “neutral doctrine in “dirty tricks” to naughton resorted rejected because ceived and is therefore upon the was based duce her statements neither at bar was “reportage” case factual false assertions as reflected nor disinterested accurate trips and ano Thompson jobs, had offered is privilege scope of the the record. The obvious Journal nymity. Because media is that the severely to ensure limited those under the truth of reasons doubt espouse immunity to granted “absolute not facts, “dirty tricks” references lying at in the most unwarranted concur protected state constitutionally were persons to be made known ... tacks opinion. ments Times reliability.” v. New Cianci scant above, judg- stated (2nd For the reasons Co., F.2d 69-70 Publishing AF- hereby court is the district in ment of Cir.1980). publisher who Clearly, “‘a charges FIRMED. in the espouses concurs fact GUY, Jr., Judge,

RALPH B. Circuit dissenting. independent

An of the entire review record in this case leads me to the inexora- plaintiff prove ble conclusion that failed to malice,” i.e., the existence of “actual reck- truth, disregard of less clear and Therefore, convincing evidence. I must re- spectfully dissent.

I. opinion majority lengthy sets forth a background recitation of the factual of this are, however, glaring case. There two I omissions which believe are critical to the proper resolution of the actual malice is- First, majority neglects quote sue.1 language allegedly the exact defam- Second, atory majority opinion article. adequately does address the admissions plaintiff during made course defendant, Journal- with the interview prior News. This interview conducted publication of the article and the excerpts plaintiff essentially reveal confirmed the substance the factual alle- gations subsequently appeared in which article. light the article is read in of the

When plaintiffs undisputed, pre-publication ad- Journal-News, missions to the becomes abundantly plaintiff could clear that Journal-News print- not show that disregard story in “reckless ed the required by as is the actual malice truth” Moreover, I standard. submit requisite plaintiff could not have made showing any at trial under of actual malice proof, rigorous let standard of alone convincing standard “clear and evidence” Finally, I applies in this case. be- which required under the reversal is even lieve scope appellate utilized narrow review majority. A. The Article gen- majority opinion provides only a The allegedly description of the libel- eralized “Thompson’s stating ous article any wrongdoing by grand jury 1. is not was cleared There is one further omission which directly disposition appeal relevant to the of this convic- in connection with the indictment and but, nevertheless, mentioning. bears In all fair- court administrator. tion of his Dolan, Judge ness to be noted that he it should charges liar, branded as a supporters other about happened what extortionist, opportunist an unethical who during Thompson’s New ap- recent waging was ‘deceitful’ ‘dishonest’ pearance in [a] Hamilton Municipal Court. generally ‘dirty’ campaign_” At Connaughton and support- some of his proper I analysis 834. believe that the neighbors ers and two were contacted requires the issues before us a more de- Monday Journal-News to obtain tailed account of language the exact their recollections meetings appeared in the article. The article which conversation. precipitated printed this case was beneath They claim there was never a direct read, a headline which “Bribery Case Wit- Thompson offer to Alice and her sister Jobs, ness Trip Claims Offered.”2 The Patsy Faye Stephens, Ave., 1757 Shuler following excerpts quoted are from the ar- Hamilton. ticle: Connaughton did admit there was talk A testify woman called to before the about working the two sisters in an ice County Butler Jury Grand Billy shop cream the Connaughtons might bribery Joe New case claims Dan Con- open. naughton, candidate for Hamilton Munic- ipal Judge, her offered and her sister tapes claims the were jobs trip apprecia- to Florida “in during turned off and on a session she tion” for help. their claims lasted until 5:30 a.m. When the Thompson, Ave., Alice 1740 Shuler tape off, was turned she Connaugh- said testify scheduled to before the promises ton made job about a and a grand jury in charges relation to the post-election trip to Florida Thomp- New, against resigned po- who his court Stephens son and which the Connaugh- Sept. sition 22. family going ton to take. Thompson said she believes Dan Con- tapes Barnes claim the ran contin- naughton, municipal a candidate for uously. judge, “dirty used tricks” in obtaining Dan Connaughton said there were cooperation personal with his investi- tapes times when the stopped. were gation of New. Thompson said that either at that sec- Connaughton, in an interview with the meeting ond subsequent or a third meet- Monday, Journal-News confirmed meet- ing Connaughton offered: ing Thompson. with job . Thompson appreciation for in any But he wrongdoing denied help for her Connaughton’s with investi- Thompson misinterpreted said comments gation Billy Judge New and Dolan. and discussion attending meetings while municipal job . a Stephens. court for persons with him and involved in his . an invitation for Thompson and her campaign gathering who were informa- go post-election sister to on a trip to tion about New Dolan. Connaughton Florida with and his fami- ly- Thompson said wanting her reason for up Thompson’s . to set parents, Zella to talk to the Journal-News were: 1. To Breedlove, and Brownie in the restaurant people let know she did not “snitch” on business at the location of Walt's Cham- New. 2. To “dirty reveal the tricks” bers, Connaughton owns and leas- Connaughton pulled get to her to make a es. statement. She things said two other bothered her Connaughton supporters and his claim (1) about Connaughton’s actions: he did promises no were protect made. promised her anonymity as (2) he people Connaughton allowed other suggested to hear said he tapes of a session Connaughton with may go two sisters want to South. copy 2. A appears the entire appendix article in an attached to this dissent. A, thought Connaughton his wife had they resign said And then would and I gourmet shop appointed? opening a ice cream would be about location. at the Walt’s Chambers Q. your Yeah. Or that intention was try

to very to—at least—at least confront them with the information —was Thompson Connaughton claimed that your mean, intention at I all? in promised post-election dinner at the interviewing people, these was to con- Maisonette downtown Cincinnati. front Dolan with this? Connaughton may said “it have been Well, A. I don’t know that I had a say I discussed. wouldn’t wasn’t dis- purpose prior firm hearing they what cussed.” say, had to I going what was to do with Connaughton claimed got the information once I I it. think it tapes told her the he made of her and her say, would be fair to during sometime Sept. Sept. sister’s statement 16 or those three or four they hours that were presented were to to Dolan. be there, probably that I made a remark Connaughton hoped Thompson said along just the lines that I can’t believe get resign New and Dolan to and then to and, hearing, you know, what I’m I appointed municipal have himself as they would think if could hear what judge. hearing, they we’re probably would re- following Plaintiff claimed that the alle- sign. mean, thought allegation I I gations (1) defamatory: were false and was that serious. But to tell her that— Judge that he had threatened to confront saying to answer that —and if she’s taped allegations of Dolan with the my purpose announced I what resigna- informants order force had them there for and what we were tion; (2) promised that he had the infor- going information, to do with the my they anonymous; mants that would remain answer would be no. (3) promised trip jobs, that he had MR. BLOUNT: You didn’t you tell her Florida, expensive appre- and an dinner “in going tapes were to take the to him? and (4) cooperation; ciation” for their play them for them? “dirty he had used tricks” to their obtain might I A. No. No. What have said cooperation. is, boy, I’d sure like to let them hear tapes got they’ve these and see what Interview B. themselves, know, say you in a fash- publication Prior foregoing ion such as that. article, the Journal-News arranged an in- expression MR. BLOUNT: In an plaintiff with

terview order to confirm shock. Thompson’s allegations. Ms. I find the Yeah, Yeah, MR. CONNAUGHTON: transcript very of the interview to re- fireplace. I fell off of almost vealing respect to the issue of actual Right. malice. get But to back to the BLOUNT] [MR. 1. Allegation that had Intend- Plaintiff question on the deal about and Do- New Judge ed to Dolan With the Confront resignation your lan’s it ever inten- —was Tape Recorded Accusations tion, during either this interview or sub- Q. you say Did ever Alice that it, sequent tapes an to to use the as —tell your evidence, purpose towas collect the attempt get resign? to New and Dolan to Dolan, present get the information to only way. A. I can answer this After resign, New and Dolan to and then for all, hearing it I it an knew would be you appointed post? to be to that know, go approach, you to unrealistic present A. That I would Iwhat you gen- say down to their office and do to them ... hour, tlemen have about an I’d like for Q. Yeah, get something, you’d you you say- to listen to and then what ... oh, ing, well, okay, you if accept Q. want to you promise Did Municipal Court resignations, know, you quit. job our we for her Patsy Stephens? sister know, you absolutely And that was im- A. No. practical apply. and not I would do not Q. you Did offer to have “the sisters deny during saying the course of go post on a trip election to Florida with things

lot total shock and wonder- you your and family stay to in a condo- ing what in the world we were ever minium”? going something to do with that was A. No. dynamite, probably something I said like Q. you Did up Thomp- offer to set yeah, go I’d like to there down and let parents, Breedloves, son’s in what is them they’ve got hear this and see what Chambers, now Walt’s you own it, say you about know. and lease?

Q. resignation though? As far as the A. Absolutely not. Well, probably put A. I would have Q. Why say would she this to us? said, know, you Goddamn, add-on A. What was discussed in an off- they they ought just after hear this way, handed people who own that know, resign quit, something, you or bar, with, who we’re very pleased setting in that kind of expression. expires their lease September. My next

wife has the idea that she open wants to Alleged 2. Anonymity Promise type Graeters, an ice cream shop like or for that, thing some such and I heard her Informants discussing maybe, with them that since Q. you promise Did ever Alice Patty had run this Homette Restaurant Thompson anonymity? something nature, or of that maybe discussed, question A. That I help she participate would out and in the her, hoping and I told her it [sic] operation you of this—whatever want to my hope would be intention and that she shop gourmet call it—deli or ice cream anonymous, yes. could remain I But did shop. Yes, present and I was when that promise anonymity, the answer place. took it, would be no. Did we discuss we sure Q. And when was that? did, expressed and I my to her desire as Well, A. I don’t think it was that well as her desire that she could remain night. recall, As I this was a later time anonymous. that we had seen them. Q. you Do think that she felt that Q. But only by that would Patty promise? that was a Did she ever refer (unclear)? later, as, know, you I, you well Q. guess there, I Alice was and the know, I ... may offer have been extended to her in imagine A. I betrayed. she feels fashion, that she could work there Q. why And would that be? something surprised wouldn’t be if —I A. anonymous, Because she's not that was said. probably she my representation, felt that that maybe she could anonymous remain 4.Alleged Promise Trip a Florida had been a breach of trust to her. Q. post-election What about trip to Florida? any possibility Is there Alleged 3. Job Offer were, they well, way, an off-hand you Q. you Did ever talk to Alice about know, you guys go, you know, want getting joba for her in appreciation for go you along, can or something like that? help your investigation with of New MR. you BLOUNT: Did talk about and Dolan? anything like that? A. No. A. getting Ummm-hmmm. After Q. Not job? a waitress over the initial shock it became a little A. No. clearer to me scary of—kind of how this impossible if not for gave It difficult they would be the information thing with was conclusively deter- to safety the Journal-News as, personal if their us, far as to Thompson justified Ms. was mine whether ripened into stake, this before at was construing the statements plaintiff's in they officially where matter police a question of This is more a “promises.” if that would be get protection might I one of fact. believe interpretation than in off-handed I do remember required, Thompson Ms. allegations made that the thing or some being discussed it way by the (and virtually verbatim reported go they could ought to ... they that Journal-News) the adoption “amounted to Florida, or some- Head or Hilton down rational possible of one of a number that, hide out or maybe thing like case document this interpretations of I a that, [in know. But I something like don’t ambiguities. that bristled with nothing to discussion] have property and no own interpreta- of such an The choice deliberate them.... offer tion, reflecting a though arguably miscon- Dinner Expensive enough create a Alleged 5. Promise not ception, was ” York ‘malice’ New Times. issue of under lunch At statement. One last Q. 290, Time, Pape, 401 U.S. Inc. v. take promised to you Thompson said that (1971). 633, 639, 28 L.Ed.2d post election out to a her and her sister victory dinner at Maisonette. that the also noted Journal- It should to the them promised I to take A. contention that reported plaintiff’s News Hell, I been haven’t Maisonette? misinterpreted his state- Thompson had Ms. years. for Maisonette Moreover, position was plaintiff’s ments. article, it discussed? Was of the BLOUNT: in the fifth sentence MR. set forth conflicting brought up? alerting thereby Was readers that The also revealed viewpoints. article may have been. It may It have A. supporters who had attended plaintiff's loose dis- deny that some I won't been. plaintiff meeting that stated September kidding way ... was cussion offers” to any made “direct had not compare Bob you Did BLOUNT: MR. present- article Basically, the informants. the Maisonette? with Evans ad- which a discussion versions of ed two compari- No, those we didn’t make A. place and allowed readers mittedly took discussed, I sons, if she said that but as to own conclusions which to draw their telling the say she that wouldn't more accurate. version was firm made a says If I she that truth. going to definite- that we were statement the state- opinion discounts majority Maisonette, that’s ly party at plan during the plaintiff made ments not true. interview pre-publication his course of ma- point one At the Journal-News.

II. states, answers “Connaughton’s jority and, record matter of questions are a these con- responses forth above set Plaintiff's context, support the do not jobs, when read subject of firmed the fact that ’ he admit- conclusions dinners, discussed Journal-News vacations, been had charges any Likewise, ted plaintiff informants. with the during ear- denied unequivocally “hope” he had expressed he had admitted 836. It is At stages of the interview.” Thomp- ly Ms. protect “intention” to and his Connaughton’s state- precisely because also admitted anonymity. Plaintiff son’s of record” that ments “are a matter possibility he discussed the them obliged to consider deter- is court 17 interview taped September playing the against the mining judgment Thus, whether I Judge believe Dolan. first contrary to the is plaintiff Journal-News pre-publication interview See, York Times e.g., New Journal-News, amendment. confirmed by the conducted Sullivan, 376 U.S. allega- Thompson’s of Ms. basis factual (an (1964) appellate 728, 11 L.Ed.2d 686 tions. independent an examina- make conclusion that printed court “must the Journal-News record, so as to Thompson’s allegations tion of the whole Ms. “high with a [insure] not judgment degree does constitute probable the of of awareness ... falsi- on the field of free intrusion ty.” forbidden Thompson, See St. Amant v. added) (citation (emphasis expression.”) 727, 731, 1323, 1325, U.S. 20 L.Ed. omitted). (1968) (citations omitted). 2d 262 opinion, majority in its the

Elsewhere states: III. Moreover, jury obviously refused the A portion majority substantial construction of to credit the Journal’s opinion analysis is devoted to the Connaughton’s of interview October 31. proper appellate standard of review of a accepted Connaughton’s express It deni- finding Specifically, of “actual malice.” Thompson charge als of each and con- majority the attempted has to resolve the significant language sidered the inter- perceives by conflict which it is created the preted by the Journal to constitute his Supreme opinion Corp. Court’s in Bose charges, admissions those when read States, Inc., Consumers Union United context, nothing conjec- in more than 485, 104 466 U.S. 80 L.Ed.2d 502 questions by ture elicited structured cal- (1984), squarely wherein the Court held: Thus, speculation. upon culated to evoke clearly-erroneous We hold that the stan- reviewing in entirety, the record its 52(a) dard of Rule of the Federal Rules jury’s court concludes the determi- prescribe Civil Procedure does not operational bearing nations of the facts standard of applied review to be in re- upon falsity of the article in issue viewing a determination of actual malice clearly were not erroneous. governed in by a case New York Times At 841.3 Appellate judges Co. v. Sullivan. join I cannot the cavalier manner in independent such a case must exercise majority which the dismisses these undis- judgment and determine whether puted by factual statements made record establishes actual malice con- plaintiff. Admittedly, plaintiff initially de- vincing clarity. general allegations nied the by made Ms. Id. at 104 S.Ct. at 1967. The majority however, Thompson; promptly he then con- reading found that a broad of the Court's by admitting tradicted himself that each of holding in Bose would conflict with the these matters had been I discussed. have 52(a) mandate of Fed.R.Civ.P. which dic- quoted extensively from transcript “findings tates that of fact shall not be set plaintiff’s interview in order to show that ” clearly aside unless erroneous.... his statements were not taken out of con- majority expressed opinion also if text, they nor can be construed as mere appellate engaged court re- de novo Rather, “speculation.” they provided am- findings, view factual it would “im- ple basis for the Journal-News conclude pinge” plaintiff’s right on a constitutional Thompson’s allegations that Ms. were sub- jury guaranteed by to a trial as the seventh stantially deny true. Plaintiff did not Therefore, majority amendment. has fact place; that such discussions had taken attempted to reconcile this by conflict stat- merely suggested he that Ms. ing: had “misinterpreted” his This comments. reported Logic is the inway which it was in the and reason dictate that the Bose undisputed apply November article. Given these directed de novo review did facts, agree majority’s preliminary, operative, I cannot with the subsidiary fac- plaintiff utterly allegations 3. Because I has order to believe find contained in the false, prove only failed to actual malice clear and con- article were would not have evidence, vincing unnecessary Thompson's testimony, I find it to ana- to discredit Ms. but also lyze requisite proved elements of discredit some of the statements whether he made falsity preponderance plaintiff and defamation himself when he admitted that the sub- ironic, however, jects I find it that in had been discussed. evidence.

855 general malice” in the finding of actual in credibili- anchored tual determinations interpreta- majority’s Under verdict. limited rather but ty determinations appellate of proper standard tion of the of conclusion the ultimate review to a of review, accept to these in- bound we are mal- of actual convincing proof and clear they true unless are ferred conclusions ice. “clearly erroneous.” At 842. summa- conclusions can be These eleven in opinion Bose majority Admittedly, the (1) categories: general rized five nevertheless, I do confusing; is somewhat publish motive sen- had a to Journal-News opin- reading that of that a fair not believe plaintiff be- falsehoods about sational extremely narrow con- support the ion can up- in the opponent supported cause it majority.4 by given it is which struction hoped that coming and because it election be distin- Therefore, Bose cannot since circulation; (2) its boost such stories would facts, court is I believe this its guished on unreliable source Thompson was an Ms. pronounce- Court’s Supreme by the bound (3) instability; Other given her emotional whether regardless of case in that ments meetings at the between present witnesses Supreme disagree with the agree or we Connaughton discredited Thompson and analysis. of method Court’s accusations; (4) The Journal-News this case Moreover, not believe I do that interviewing key a “intentionally” avoided not whether to determine requires us (5) printed witness; and Journal-News announced standard novo review the de allegations the knowl- Thompson’s with Ms. of credibili- determinations “per- extends to Bose harmed plaintiff would be edge that that undisputed It is by jury. politically.” ty professionally, made and sonally, from possible the statements con- plaintiff made found that these majority The Giv- my clearly I in Part of dissent. not erroneous quoted were which clusions find, Purport- statements, as a true. I would taken as must be en these therefore of the “ulti- law, prove to novo review plaintiff ing apply a de failed matter of malice, fact,” i.e., majority convincing actual evi- mate malice clear actual of these given the existence from Therefore, refrain concluded I would dence. demon- plaintiff had “subsidiary facts” admittedly diffi- attempting to resolve the convincing evidence strated clear opinion since by the Bose posed cult issues Ms. had published that the Journal-News necessary to the resolution it is not despite serious allegations Thompson’s yet not has Sixth Circuit instant case. The 844. truth. At doubt as their I issues and rule on these occasion to in which for a case prefer wait would “subsidiary” speculative if these Even squarely presented. they are be- only evidence findings were the factual agree hesitant to court, I this would fore agree this court if I Even were convincing “clear and they constitute reading of adopt circumscribed should disregard of the reckless of a evidence” in- majority in the proposed by the Bose truth. case, in its not concur I could stant still “finding” that First, eleven majority respect sets forth judgment. The plain- sought to defeat which the operative facts” editorial staff “subsidiary or him, discrediting campaign evidence found from the tiff’s jury could have finding actual of support does majority The alone trial. At 843. presented at Branch See, e.g., Old Dominion jury’s malice. these from infers conclusions Independent Note, Law Libel gen- The Failure Supreme Bose has The Court’s decision in 4. Corp. Making v. Sense Bose controversy Appellate great in academic deal of Review: erated Inc., States, 71 Cor- spawned review arti- several law United circles and has cles, Union Consumers Comment, the Court’s (1986); Expand- are critical of most of The nell L.Rev. 477 Bezanson, Fault, See, Falsity e.g., reasoning. Cases— Libel ing Scope Appellate Review in Law: An Reputation Public Clearly Erro- Supreme Defamation Abandons the Court Union, Corp. 8 Essay v. on Bose Consumers Findings Actual Review neous Standard (1985); Monaghan, Constitu- Hamline L.Rev. (1985). Malice, 711 L.Rev. 36 Mercer (1985); Review, 229 Fact 85 Colum.L.Rev. tional 264, 281-82, Austin, No. 418 U.S. Amant, actual malice. St. 390 U.S. at 2779-80, (“[I]ll S.Ct. 41 L.Ed.2d 745 at Newsweek, 1326. In Schultz v. motives, plaintiff, will or bad toward the (6th Cir.1982), 668 F.2d 911 this court stat- are not elements of the New York Times ed that “unless there showing is a of actual standard.”) (citations omitted). Admitted- concerning doubt the truth of the state- ly, subjective may existence of a dislike ments, mere incomplete evidence of investi- motive; issue of relevant to the how- gation is insufficient to show actual mal- ever, plaintiff must show more than an ice.” 668 Furthermore, F.2d at 918. as harm”; “intent to inflict he must show by noted the majority, the Journal-News through “intent to harm inflict falsehood.” assigned “eight reporters or nine” to inves- Collins, Henry 356, 357, 380 U.S. 85 tigate Thompson’s allegations. if Even 992, 993, (1965). 13 L.Ed.2d 892 reporters were unable to substantiate her phrase legal “actual malice” is a term of story, hardly this is complete indicative of a publication art which is defined as the of a departure from the fundamental standards knowledge falsity statement “with of its or investigative reporting. disregard with reckless of whether it was Finally, and importantly, most major- false or not.” New York Times v. Sulli- ity neglects to undisputed mention the one van, 279-80, 376 U.S. at 84 S.Ct. at 726. It “subsidiary fact” which has the most rele- seems majority may to me that the have vance to the “ultimate fact” of actual mal- equated the term “actual malice” with “ani- ice, i.e., plaintiff’s own statements. The mosity” “antipathy” or rather than its tech- fundamental issue in this case is whether legal nical definition. Nor is the “fact” the Journal-News knew should have that sought Jounral-News increase known that lying Ms. when its circulation conclusive evidence of “actu- she said that the plaintiff had offered her a again, only al malice.” Once relates to job, trip, a expensive and an dinner “in particularly probative, motive and is not appreciation” cooperation for her and that since I presume newspapers that all seek to promised protect he had anonymity her by increase publishing their market share and that he had threatened to confront newsworthy stories. Judge Thompson’s Dolan with accusations. Second, despite Thompson’s history Ms. The factual basis each one of these personal problems, allegations her were allegations partially was at least substanti- not inherently unbelieveable were en- by plaintiff ated himself. The record tirely plausible light preceding of the shows that the Journal-News did not de- events which were known to the editors publish cide to Thompson’s allegations Ms. reporters Journal-News. Nor plaintiff until after had confirmed that the allegations is the fact that her were “con- place. discussions had taken emphasize I tradicted” several other witnesses nec- plaintiff making has never denied essarily determinative. These witnesses these appear statements which in the tran- supporters were avowed plaintiff script of his pre-publication interview. and the fact that none of them claimed to Even if the subsidiary eleven factual con- plaintiff have heard any make offers does clusions inferred majority given are disprove not Thompson’s allegations since damaging interpretation, the most they still she claimed that at least some of the support cannot finding of reckless dis- “promises” privately were made off the regard light of the truth in plain- record. tiff’s own uncontroverted admissions. Third, majority heavily relies on the “subsidiary” fact the Journal-News IV. “intentionally” key failed to interview a witness, note, Patsy Stephens, I Thompson’s necessary Ms. As final find it briefly plaintiff’s co-informant who could have confirmed or address contention that Thompson’s discredited allegations. portion It is he was defamed of the arti- established, well however, Thompson’s that the failure cle which contained allegation to investigate does plaintiff “dirty not itself establish had used tricks” to things I cooperation as an informant. She said two other bothered her her obtain Connaughton’s (1) I about actions: he did separately because find this issue discuss protect anonymity promised “dirty tricks” are the references to (2) people he allowed other hear expressions of constitutionally protected tapes of a session with opinion. supporters happened other about what that “there is no established It is well during Thompson’s ap- with New recent perni- idea. However thing as a false such pearance Municipal in Hamilton Court. seem, may depend we opinion cious an I phrase “dirty believe that the tricks” is the conscience of not on its correction conclusory phrase which does not lend competition

judges juries, but on precise itself accuracy definition. The Welch, Inc., other ideas.” v. Robert Gertz by any this statement cannot be verified 3007, 339-40, 2997, 94 U.S. objective language The criteria. of the ar- (footnote omitted). It is a 41 L.Ed.2d 789 “Thompson ticle which states said she be- allegedly question of law as to whether an clearly Thomp- lieves” indicates that it was an ex- defamatory statement constitutes personal subjective opinion son’s that she pression opinion or a statement fact. “dirty had been the victim of tricks.” Evans, (D.C. 750 F.2d Ollman v. Moreover, Thomp- the article also set forth (en denied, Cir.1984) banc), 471 U.S. cert. allegations provided son’s the basis (1985). 2662, 86 L.Ed.2d 278 i.e., belief, plaintiff prom- for her had “dirty appears twice phrase tricks” anonymity ised her and that he had broken in the article: promise. presented The article also Thompson she Dan Con- said believes plaintiff’s position that Ms. naughton, municipal for a candidate Thus, misinterpreted his comments. “dirty obtaining judge, used tricks” the readers able to decide for them- were cooperation personal investi- with his plaintiff’s selves as to whether or not the gation of New. “dirty actions constituted tricks.” sum, Thompson’s In I find that Ms. char- Thompson said her reasons for want- plaintiff’s actions as acterization ing to talk to the Journal-News were: expression opinion “dirty tricks” is an speech under the first protected which is people . 1. To let know that she did Therefore, the amendment. Journal-News not snitch on New. publication for the should not be held liable “dirty . 2. To reveal the tricks” Con- opinion.5 of that naughton pulled get her to make a reasons, foregoing I dissent. For the statement. dissent, majority my rule is 5. The cites several Second Circuit cases of this I believe that the inverse case; i.e., general proposi- applicable if the under- for in the instant a Ninth Circuit case correct, substantially lying "opinions facts are then the tion that based on false fact are ac- constitutionally against newspaper be held liable who had cannot tionable ... a defendant regard falsity falsity expressing opinion knowledge probable to those Co., Argus-Press 586 F.2d (citations facts. See Orr v. underlying Maj. op. the omitted). facts.” at 847 (6th 1978). Cir. my Based on conclusions in Part I of

Case Details

Case Name: Daniel Connaughton v. Harte Hanks Communications, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 4, 1988

Citation: 842 F.2d 825

Docket Number: 86-3170

Court Abbreviation: 6th Cir.