*1 appellate letter law that an is black the merits. It ment on which is not part anything cannot consider court Athletic Associ- v. Pittsburgh McCaffrey record in the case. includes infor- (1972). This 151, 293 A.2d ation, 448 Pa. Dile, Dile v. brief. See only party’s mation located 459, 426 A.2d Pa.Super. in the record
Therefore, exists no evidence since there dismissed. appeal Appellant’s allegations, support 448 A.2d DUNLAP, Samuel NEWSPAPERS, INC., Appellant. PHILADELPHIA Pennsylvania. Court Superior Nov. 1981. Argued 2, 1982. July Filed Sept. Appeal Denied Petition for Allowance *3 Klein, appellant. E. for Philadelphia, Samuel Lazaroff, Philadelphia, appellee. A. Milton LIPEZ, JJ. SPAETH, BECK and Before SPAETH, Judge: brought by appellee, defamation was
This action for against Police Department, in the Philadelphia sergeant It Inquirer. The Philadelphia publisher appellant, corrup concerning police in the Inquirer based on an article both compensatory appellee tion. The awarded jury n. o. v. for judgment motion damages. Appellant’s punitive concluded that judgment We have or new trial was denied. failed to because appellee have been entered n. o. v. should mal article with “actual published that appellant prove truth,” New required by as disregard ice” or “reckless 478 710, 11 Sullivan, 376
York Times Co. v. We therefore reverse. (1964).1 L.Ed.2d 686 a motion for n. o. judgment the denial of reviewing in the most favorable to v., light we must view the evidence the verdict supporting the verdict-winner. evidence Only All rejected. the rest con considered, being may to be resolved in favor of the flicts in the evidence are verdict-winner, Kiely Pennsyl Southeastern appellee.2 Ct. Pa.Superior vania Transportation Authority, Center, Medical v. Albert Einstein (1979); A.2d Grubb viewed, Thus 387 A.2d Pa.Superior Ct. the evidence was as follows: a headline that runs article at is introduced
The issue states, page front Inquirer’s entire width of Police Revealed.” Re- banner, Corruption one “Wide large beneath the headline Immediately at 563a. produced Record the left headlines, the one on side-by-side, two smaller are Inside,” the one on the Outside, Gambling “Patrol stating, Reports Payoff Sys- Confirm “Hidden Cameras right, “Patrol are beneath the Out- tem.” Two large photographs The side, larger photograph, Inside” headline. Gambling hand a man his placing seven inches shows square, about to this caption marked “17B.” inside a car police 17B Outside reads, Stops Car “Sergeant’s photograph itself, entitled “We The article Known Location.” Gambling Us”, be- Policemen Nabbed Until Gambling Spot Watched of car 17B. It the photograph beneath gins immediately must, public they appellee agree, is a official parties 1. The as *4 proof set forth in New York to the standard of and is therefore held Sullivan, supra. Times Co. v. independent Appellant examination us to “make an 2. asks 11, since, judgment record,” Appellant’s Brief in addition to whole argument v., seeking on the that the verdict it a new trial n. o. is also against weight It is true that the standard of the evidence. was judgment or a depending whether n. o. v. on of review is different Marshall, Pa.Superior sought. Ct. is Ditz v. new trial standard, Here, judgment n. o. v. have used the A.2d 701 we Appellant’s seeking judgment primarily n. o. v. appellant a is (“The demonstrates that defendant in this action Brief at record least, trial.”) v., very to a new judgment and at the to a n. o. entitled two report- describes the “stake-out” conducted Inquirer on ers and elaborates as meaning photograph follows:
We arrived at the location at about P.M. and found the streets for several late model empty luxury except cars in the area and one man with sideburns parked grey and a white shirt the block in front of the row- pacing house.
Later, other men talked with the older man and then entered the rowhouse. P.M.,
At 5:47 car 17B Wharton st. and turned up drove st., man, left onto 36th below us. The who directly 60s, to be in his late 50s out into appeared walked early street, side, leaned on the driver’s and reached into the car an window. squad through open At 5:51 P.M. the car left.
CALLS STATION
We called the 17th station District and asked who police car 17B that and was told it was driving day occupied by Sgt. Dunlap. Samuel I
On and another went to the 17th Monday reporter District to Dunlap show headquarters Sgt. photos him question about his activities on the afternoon of Sept. tall, thin-faced officer with a
Dunlap, ruddy complex- ion, and sat with them in an interro- greeted reporters room. gation said,
Asked if he was 17Bthat he “more driving car day, than likely.”
Asked if he could the man into his leaning identify car, said, “Oh sure—that’s squad Dunlap laughed Hubba Hubba.
‘TOWN DRUNK’
“He’s the local town He’s like always acting drunk. Wait, he’s I he died. I can just traffic. heard directing him his real name. We call Hubba Hubba—he’s get you been a million times for intoxication.” picked up *5 then identified the man as Vincent
Dunlap Wileczyk, of 3618 Wharton st.
Before Dunlap any could asked more he questions, took the and showed them to the photographs acting commander, district William Scott. then other myself
Scott motioned to reporter his room said, “I would if want to talk appreciate you to see me first. my policemen you all,
“First of let’s see identification.” some cards, After press one asked if showing reporter Scott Sgt. could while were dis- Dunlap stay photographs cussed. refused and told Dunlap, Scott “Go back out on the street.”
Told that had talked to we for several Dunlap calmly said, “Well, minutes, I’m he did that. I sorry Scott wouldn’t have information at all given you any regarding my personnel.” information,
Scott refused to further but give any per- us, sistently asked “What your purpose?” IWhen said The was Inquirer investigating gambling address, the Wharton street said he had no reports Scott at that location. gambling When told also that Inquirer investigating area, in the reports police payoffs captain put his desk, arms forward leaned back his chair touching and stood up.
“I haven’t had want to any reports payoffs—Do you make a asked. complaint?” Scott
“No,” a “I talk said. want to or ask reporter Dunlap about you Dunlap.” “I’m I
Scott will not allow responded, flatly telling you you to ask my policemen any questions.” malice,” The evidence of “actual which was essentially uncontroverted, was as follows: article, Pollack, wrote the Kent reporter who testified that he had called the station after the surveillance police had taken to find out who had been in car 17B at the place time and was told whoever answered the telephone 6/7/79, 255, 6/8/79, it was appellee. N.T. N.T. 331-332. *6 Mr. Although Pollack did obtain this information by pre- to be someone who “wanted to a letter to tending write the police 6/7/79, 255, commissioner to commend” N.T. appellee, he testified that this had been ruse used the during newspa- per’s series on police corruption months, three id 254.
Mr. Pollack also testified that after his call telephone to the police station, he met with Police Commissioner O’Neill to the in verify 6/7/79, the officer car 17B. N.T. identity However, 331-332. the Commissioner refused to to him talk or to give him information. Id This any was corroborated Moore, Acel who Mr. by accompanied Pollack on this inter- 6/8/79, view. N.T. 308-9. Holton served as and his was to
Ray “legman” job verify the information in to be the article written Mr. Pollack. by N.T. 6/7/79, 284. He testified that he was not satisfied with 17B, identification of the officer in car telephone 6/7/79, decided to interview N.T. 266. He was appellee. Moore, on accompanied this interview Mr. whose it by job was act to as and to take notes of what was “back-up” said 6/7/79, to insure N.T. 267 accuracy reporting. (testimony of Holton). Mr. Moore testified that this was a policy appellant’s and that he had this role on other performed 6/8/79, occasions. N.T. 303. Both Mr. Holton and Mr. Moore testified that showed which they photograph, later in the to him appeared newspaper, appellee asked if he was in the car at the time the was taken. photograph 6/7/79, 272, N.T. 6/8/79, N.T. 305 (Holton), (Moore). answered, Both testified that than “More appellee likely.” Id Both testified that was asked to double-check appellee this information from but that logs, when he left to do police so, Scott, the interview was N.T. interrupted by Captain 6/7/79, 274, 281, (Holton), 6/7/79, 284-85 N.T. 313 (Moore), room, who to leave upset was and ordered so appellee 6/7/79, 278-9, N.T. interview was ended. 6/8/79, N.T. (Holton), (Moore).
-I- decide, as issue in The first issue we must the threshold an defamation, is whether article published action for It was could be as defamatory. understood Inquirer court, instance, in the of the lower first make function If the court decided that the article could be this decision. as then it became the func- jury’s understood defamatory, it so understood those tion to decide whether who Co., 441 Pa. it. Corabi Publishing read v. Curtis Newspapers A.2d 899 (1971); Philadelphia Brophy 588, 422 Inc., Ct. A.2d 625 Pa.Superior if A it “tends to blacken a publication defamatory hatred, him to reputation public contempt or person’s expose profession.” him in his business or or ridicule injury *7 Pane, v. 408 Pa. Shop, Studio and Camera Inc. Cosgrove view, it is beyond 182 A.2d our the in could be Inquirer that article the question published above, as As we have described the understood defamatory. of a sergeant’s squad article ran beneath a large photograph in beneath a banner headline car, which turn appeared If appellee “Wide Police Revealed.” reading Corruption and the this car, says the the article was sergeant were in not,” than the the meaning conveyed by “more then likely depicted was that the photograph appellee accepting article injure appellee which at the least tend to bribe, very a would Newspapers v. Brophy Philadelphia in his profession. See that commissioner Inc., (article police supra suggesting chief as of police part officers shot and killed son police Publications, 510 Compare vendetta.3 Martin v. Municipal defamatory meaning allegedly communica- note that the of an 3. We only is read when the communication in tion can understood Therefore, Co., Publishing supra. v. Corabi The Curtis context. Brophy properly See includes its headline. of the article here context Inc., (headline Philadelphia Newspapers supra reader could lead to v. shooting). (Second) feud The Restatement believe that was cause of determining importance headline of Torts stresses the meaning newspaper of a article: types situations determine extent various Circumstances Thus, complained text of imputation a the context of the of. headline, ordinarily of the newspaper not the context article is caption article and (E.D.Pa.1988) (photograph, F.Supp. law), under meaning Pennsylvania of defamatory capable Forbes, (E.D.Pa.1980) (photo- 500 F.Supp. Fogel law). under Pennsylvania not caption defamatory graph as defama the article was understood As to whether it, argues who read appellee those tory by “[t]he for the more than sufficient at trial was evidence produced who read the average person to conclude that jury inwas Sergeant Dunlap it article construed to mean or Appellee’s a bribe receiving payoff.” 17-B and Car be precise, appellee 16. agree, although, Brief at We “the reasonable who read the said, person should have article,” average person.”4 instead of “the
-II- not be held liable because it argues may Appellant and true facts.” the undisputed “the article reported only However, not discuss does appellant Brief Appellant’s truth or the burden of proving who had to resolve this issue before article, and we think it important report only undisputed whether the article did we discuss facts. and true defamatory imputation although may explain qualify con- it or
veyed is true because the alone is read. This when the headline newspaper frequently only of a or reads public the headlines reads imperfectly hastily as not to realize its full itself so the article *8 significance. 563, (Second) d. Torts Comment § Restatement of here, is involved believe an intentional defamation 4. Since we do not defamation, III, the test is an see Part but rather an unintentional recipient objective would have understood a test—what reasonable explains: As the Restatement from the article. recipient communica- enough particular of the that the is not [I]t defamatory meaning actually to it. If the defamato- tion ry meaning attaches a intended, of be a reasonable construction not it must is person prone who is to think language. that a the Thus the fact innocent, by others, obviously hearing intended to be evil of an unreasonable construction words derogatory mean- them a attaches to defamatory. language ing, does not render the 563, (Second) c. Comment Restatement of Torts § 484
-A-
a
action the plaintiff
The issue whether in defamation
has
of
the
of the
proving
publication
the
falsity
burden
truth has recently
the
the
of
its
proving
defendant
burden
Court,
Supreme
been
the United
but it was
before
States
Co.,
Scripps-Howard Broadcasting
not decided. Wilson v.
962,
642
cert.
454 U.S.
102 S.Ct.
(6th Cir.)
granted,
F.2d 371
377
to Rule
500,
pursuant
L.Ed.2d
cert. dismissed
(1981),
70
The
53,
119
1130, 102
984,
71 L.Ed.2d
the burden of
Pennsylvania
place
has been to
practice
defendant,
validity
truth on the
but the continued
proving
Unlimited, Inc.
of
has
questioned.
this
been
Steaks
practice
n.
Deaner,
(3rd
1980).5
v.
623 F.2d
Cir.
274-5
defendant has the
law rule has been that the
common
an affirmative defense. Profes-
burden of
truth as
proving
of a
rule
explains
by saying
sor Prosser
the
“[o]ut
the
in the first
for
law presumes
tender regard
reputations,
has
false,
all
and
defendant
instance that
defamation
Prosser, Law of
of
truth.”
pleading
proving
burden
Supreme Court
(footnotes omitted).
Torts
Our
(1971)
§
this rule:
has
followed
consistently
to be actionable
Nevertheless,
in order
ordinarily
although
false,
is not an element
a cause
must be
words
Rather, the
opposite
libel
Pennsylvania.
action for
a
defense to a civil
truth, is
absolute
complete
falsity,
deciding,
suggested, without
in Steaks Unlimited
The court
placing
proving
on
unconstitu-
burden of
truth
the defendant
tional:
proving
Pennsylvania’s placement
the truth of
of the burden of
defendant,
Publishing
Curtis
the communication on
Corabi
908-09,
449-50,
appear
Co.,
at
would
to be
273 A.2d
441 Pa.
libel
enunci-
contrary
on state
law
to the constitutional
limitations
Gertz,
e.g.,
Supreme
418 U.S. at
n.
See
Court.
ated
S.Ct.,
(rejecting
White’s view
it would
at 3010
Justice
prove
require
to
defendants
for
state to
libel
constitutional
Times,
statement);
allegedly defamatory
York
New
truth of an
interpretations
(“Authoritative
485 the same proving . . . And the burden of action for libel defendant. rests upon Co., 432, 450, 441 273 A.2d Publishing Pa.
Corabi v. Curtis
899,
(footnotes omitted).
908 (1971)
WJAC, Inc.,
78,
v.
436 Pa.
However, Circuit, as noted the Third by constitutional- truth the burden of on defendant ity placing proving has been called into the decision of the question by United Welch, Inc., v. Robert States Court Gertz 418 Supreme 323, 2997, Gertz, 41 789 (1974). L.Ed.2d S.Ct. said, that, hold so as do not long they impose Court “We fault, without define for themselves liability may States standard of for a liability publisher appropriate broadcaster of to a defamatory injurious private falsehood 347, (footnote omitted). individual.” Id. at at 3010 burden Because the reason for truth placing proving on the is that it has been presumed, defendant rule urged that the common law does what Gertz precisely forbids: it holds a defendant liable in a case where strictly Sack, Libel, Slander, truth cannot be See proved. Problems, (1980) (citing Related Corabi v. Curtis Pub- Co., as the case burden on defend- lishing supra, only placing ant). law,
Given this state of the
we have a choice. We might
Co.,
follow Corabi v.
and hold that
Publishing
supra,
Curtis
21, 1953,
Aug.
This
the Act of
P.L.
rule has been codified
at,
(1981 Pamphlet)
now
No.
§
P.L.
Act.
Pa.C.S.A.
pertinent part:
which reads in
defamation,
(b) Burden of defendant—In an action for
the defend-
proving,
properly
ant has the burden of
when the issue is
raised:
(1)
defamatory
The truth of the
communication.
*10
had the burden of
truth.
proving
as defendant
appellant
we should do that.7
But we do not think
395, 396,
(1975),
462 Pa.
W. Law of Torts § a id. at 798. To establish omitted); qualified see § would be to show his required the defendant privilege, own faith or lack of “malice.” Id. at 794-95. good § points out that the common law rule has been The Restatement “eroded”: majority position although At has been that the common law the falsity plaintiff allege falsity complaint, in his the of a defam- must consistently atory presumed. is It has been held communication by truth an affirmative defense which must be raised the proof. practical on which he has the burden of defendant and however, eroded, by Supreme effect rule has been the recent of this holdings the First Amendment to the Constitution re- Court part regarding quires finding of fault on the of the defendant a Pending falsity of the further elucidation truth or communication. Court, Supreme purport not to set forth the Institute does proof precision the burden of as to truth the extent to which plaintiff. is now shifted to the A, (Second) b. Restatement of Torts 581 Comment § scheme, litigation Under this the focus of a defama- tion suit was on the issues where the normally burden of proof rested with the defendant: truth and privilege. latter, as to the where of the Especially proof defendant’s crucial, state of mind would frequently testimony of the defendant would be This peculiarly necessary. combination of a unique burden of on the heavy proof defendant with a need for peculiar testimony defendant would render it much more difficult for a decedent’s estate to defend a defamation action than to defend most other actions. Consequently, General when Assembly, balancing equities or not allowing survival, allowing could determine reasonably burden of unusually heavy defending defamation action *11 against a deceased justified defendant singling out that cause of action to abate the death of the defendant. Since the classification thus bore a “fair and substantial to a relationship” proper legislative objective, I conclude it did not deny equal protection to plaintiffs in defamation actions so as the long special circumstances the justifying classification continued.
However, a substantial in the law of change defamation the decision of wrought by the United States Su- preme Court in Welch, Inc., Gertz v. Robert 323, 418 U.S. 2997, S.Ct. L.Ed.2d 789 That that, case held as a law, matter of constitutional liability defamation not be may imposed without some fault, showing at amounting least to negligence, on the part of the 345, 3010; defendant. Id. at see Restatement (Second) of Torts 580A, 580B (Tent. Draft §§ No. 1975). This change shifts the burden drastically of proof in defamation actions and thereby reduces the unusually burden heavy heretofore on placed defendants in such actions. In the proving element of necessary fault to make out action, his cause of the will plaintiff necessarily have to facts prove that would ordinarily negate the existence of a conditional Id. privilege. Topic Special note, at 46-47. as a Similarly, practical matter, plaintiff will find it to necessary prove falsity element of to establish the necessary
statement in order fault; extent, the defendant is relieved to this as a defense. Id. comment burden of truth proving § b., 580B, comment i. & § of the burden
In this radical reallocation my judgment, actions has removed sufficiently in defamation proof such an action defending brought burdens of special justi as to negate prior a deceased defendant against of section 3371. provision fication for the challenged 405-408, (footnotes A.2d at 446 omitt Id., 462 Pa. at ed).8 undermines Corabi and its progeny, our opinion Moyer Moreover, we
in both the and federal courts. Pennsylvania should have the burden of are persuaded plaintiff reasons so carefully explained by for the proving falsity MERRITT, for the Circuit in Wilson v. writing Sixth Judge Co., : Scripps-Howard Broadcasting supra prove The same rule requiring plaintiff falsity the First Amendment libel cases based required under other standard of fault of lesser on or some negligence than malice. The Court magnitude Supreme stating that an article was true would seem “demonstration Moyer example as an of a state court’s 8. One commentator has cited proof: express recognition post-Geriz burdens of 1964, truth was a “defense” in defamation cases—which Before pleaded assumed unless the defendant meant that would be *12 affirmatively aspersion that his was true and then came forward at in, proof all the the the trial evidence of its truth. Once convincing dispar- court that the defendant had the burden of the changed agement all this: the United was true. The revolution has, by implication, Supreme an issue of States allocated Court falsity plaintiff by holding plaintiffs have no cause of to the that they fault. Public officials action unless or establish defendants’ public required by persons Times and Walker to establish are malice; private required by persons to Times are Gertz estab- requiring negligence. These burdens lish at least plaintiffs constitutional the defendants’ fault make no sense to demonstrate plaintiff disparagement that the was untrue. unless the shows defamatory truth are not actionable as either libel or Statements of expressly recognized Some state courts have this consti- slander. of the burdens on the truth issue [footnote tutional reallocation citing Moyer, omitted]. 1980). (2d Morris on Torts 350 ed.
489 fault,” Time, Inc. v. at publisher to preclude finding Firestone, 448, 458, 47 L.Ed.2d S.Ct. U.S. is an element of has (1976), suggested falsity In actions brought fault in defamation cases. defamation defendants, Tennessee by private against media persons based on negligence: has defined a standard of fault from a to be determined question appropriate [T]he defendant of evidence is whether the preponderance on the checking caution in exercised reasonable care and of the character defamatory truth or and the falsity it. communication before publishing Memphis Pub. Co. Nichols, S.W.2d [412] at 418 determine would be ordinarily impossible It [Tenn.]. exercised reasonable care and cau whether the defendant of a tion in on the truth or statement checking falsity whether the statement was determining without first must have caused an false. The carelessness publisher’s to ascertain that the failing error in an error in accuracy, was false. The two elements of statement defamatory linked, for a carelessness and are defend inevitably ant not be liable if it “took reasonable every should of its to insure the assertions.” precaution accuracy Gertz, at 3010. Fault then supra, two elements: carelessness and must be held to consist of falsity.1 fault,
In to decide the issue of it must order the jury and balance the facts weigh together concerning falsity and the carelessness. The concerning degree facts on the issue of truth and in the mind uncertainty juror’s on the issue of carelessness must degree uncertainty time in at a arriving taken into account at the same coherent conclusion on the issue of fault. Fairness and consideration of the issue lead us to conclusion must with the burden of carelessness proving party as a part also the burden of proving falsity carry of fault. concept addition, proving the burden places a rule permits imposition liability
truth on the defendant
*13
without fault in certain situations.
the trier of
“[W]hen
fact
is unable to determine the truth or
of a
falsity
fact,
of
proposition
he must render his decision against the
party
the burden of
having
proof.
Consequently,
jury
trial the judge
the burden of
by allocating
proof decides
each issue of fact which the
is unable to
jury
decide.” E.
Problems of Proof
the
Morgan, Some
Under Anglo-Ameri-
can System
of
70-71
When the
Litigation
is
jury
uncertain on the issue of the truth or
falsity
the
statement,
case,
as it
have been in the
may
present
it must
find in favor of the
A
plaintiff.
presumption
falsity
case,
thus
without fault in the
permits
close
in the
liability
case in which the
is uncertain. See
Court of
jury
County
Allen,
Ulster
2224-
County
30,
Id. at (footnote 375-76
-B- plaintiff decided that it was burden as Having appellee’s the article in the prove Inquirer, published sustained his burden. we must decide whether appellee *14 The in statements were: “We called the 17th question District police station and asked who was car 17B driving that and day was told it was occupied by Sgt. Samuel [sic ] and, “Asked if he was Dunlap”; car 17B that he driving day, ” said, [appellee] ‘more than likely.’ Appellee acknowledges said, that in one sense it be as that may appellant argues, the statements “reported and true only undisputed However, facts.” taken as a whole the appellee urges, article, headline, and to a false infer photographs gave rise ence. Thus the issue is whether a of finding falsity may based on a false inference drawn from true facts. We believe it be.9 may context,
Taken in the statement that was implied appellee in car 17B on the in This was question. implication day false; the evidence is taken, that when was photograph 6/8/79, another officer was in car 17B. N.T. 361. It seems to us that are, “true facts” that in context a falsehood imply in defamation, an action for not “true.”10 As one commen tator has said:
A is, course, for the publisher implications liable written, what he has said or not merely specific, literal statements made. To that a man example, and a say, married, other, woman but not to each a spent night room, in a will be an together interpreted hotel as asser- tion activities, that the in sexual because pair engaged will that average reader assume saith not a “they pater noster there.”
The literal publication “truth” need not be estab- lished, the statement is true.” only “substantially false, court, too, 9. The lower found the article was and said: “The key necessary implication language, issue is the matter no how Slip op. it was couched.” at 16. Appellee argue, prove, 10. does not and not that it was false for did existed, say imply police corruption the article to and to Rather, corruption. police whoever was in car 17B was involved in argument only his 17B the that he himself was not car at time taken, photograph implication and that therefore the that he 12, 13, 4, 6, Appellee’s was false. Brief “gist” “sting” must to the go of “truth” proof libel as “whether the [alleged]
the defamation. The test is the mind of the effect on would have a different published would have truth pleaded reader from that which produced. Problems, 50-51, Slander, Related 137-
Sack, Libel,
omitted)
original).
(footnotes
(emphasis
138 (1980)
this issue. Some
has addressed
No
case
Pennsylvania
basis of defamato-
be the
may
cases
that an “innuendo”
say
Elkins, 405 Pa.
437, 176 A.2d
ry meaning. Bogash
warranted,
supported
justified
must be
(1962) (innuendo
*15
Corp.,
349 Pa.
v. Warner-West
Sarkees
publication);
an
not
(innuendo may
“put
365, 369,
544,
(1944)
A.2d
546
of
on the interpretation
construction
unfair and forced
Co., 128,
Pa.
Pierce and “innuendoes” (statements (3d Cir.) n. 7 495, 499 under defamatory meaning not capable broadcast denied, 439 99 S.Ct. cert. law), Pennsylvania L.Ed.2d 170 free to case, we are Pennsylvania absence any In the ap- we should adopt, concluded that and have adopt, hold that the literal states, accuracy of sister proach “true” a communication will not render statements separate as a of the communication here, the where, implication as 50-51, (collec- 139-40 Sack, supra was false. whole See said, not sufficient to has “It is cases). As one court ting and demonstrate its individu- separately take sentence every out of context.” Clark and wrenched detached al accuracy, (D.D.C.1965). Pearson, 248 F.Supp. -HI- whether, although defamatory is issue remaining 17B was was in car false, appellee the implication for the disregard or reckless malice with actual published Sullivan, supra, Times Co. v. New York truth, as required by and its progeny. not to understand easy is “actual malice”
The term (1971) (“It certainly Prosser, Law of Torts apply. § chose to cling the Court unfortunate highly to all things has meant all ‘malice’, which discredited term *16 to attempting men, misleading.”). here highly and is malice,” the has said “actual Court by what is meant explain from the standards of extreme departure that it is “an to respon- adhered ordinarily by investigation reporting Butts, 388 Publishing Co. v. sible Curtis publishers.” has L.Ed.2d 1094 This court 1975, 18 87 S.Ct. be the departure by say- “extreme” must how emphasized ing: carelessness, bad negligence, no more than
A of showing preparation publication in the inaccuracy or judgment in- constitutionally article is defamatory of an allegedly to show malice. sufficient Inc., Newspapers supra Pa.Su- Philadelphia
Brophy at 633. 422 A.2d per. with
Here, we are unable to find acted the appellant malice, for the record shows that the did requisite reporters to ascertain the within their of everything power identity the officer in car 17B: there was no from police departure the standards of As discussed “responsible publishers.” above, 9-10 the two at- reporters see made pages supra, information, the including interviewing tempts verify of the but were from so subject story, they prevented doing and were therefore forced to police department rely on assurance that he was “more than in the appellee’s likely” to the police logs—the car. had no access records They what more the police did. It is not could apparent reporters 17B, in have done to ascertain the officer car identity their surveillance had been dis- considering especially impossible. covered and further observation therefore 6/8/79, N.T.
The
on
statement
that he
reporters’
appellee’s
reliance
was “more than
in the car did not constitute reckless
likely”
truth,
even
the statement had
disregard
though
not
been double-checked.
of the issues in Curran v. Phila-
One
Inc.,
Pa.
(1981),
A.2d 652
delphia Newspapers,
to a
concerned remarks attributable
“reliable source” who
had
a former
plaintiff,
United States
suggested
would have been asked to
if had had not
Attorney,
resign
done so. The reliable source was an assistant to the Assist-
ant
General who “was familiar not
with
Attorney
only
with
office
but also
the inner
general
procedure
workings
Division” and “had
his
displayed
familiarity”
[Criminal]
Id.,
with the
497 Pa. at
story’s reporter.
conversations
179,
no
publication
obtained
recovery
source,
from
which
a reliable
relates to a
directly
public
Indeed,
official’s conduct in office.
of such
publication
information in
reliance on a source is
justified
wholly
that the
knowledge
antithesis of
informa-
publication
can it be said that
publication
tion is false. Nor
reliance on a source
reckless
justified
displays
disregard
*17
whether
information is true or false.
such
179,
BECK, J., opinion. files a concurring BECK, Judge, concurring: well-reasoned view that as the
I endorse the majority’s official-libel had the bur public plaintiff,1 Sergeant Dunlap material. defamatory den of establishing falsity view, however, I from the and would majority’s depart finding hold officials a dealing public that matters inferences drawn not be based on false from falsity may correct in holding true facts. While I find the majority’s involved, are not I conclude matters where officials public standard should be established where public a different officials are involved. case,
In
I would not
permit
finding
the instant
where
could draw false inferences from state-
a recipient
ments
admitted were true.
plaintiff
which
holding
too
restricts the
majority’s
broadly
press’
freedom to
comment and criticism on official con-
publish
Inc.,
588,
Philadelphia Newspapers,
Pa.Super.Ct.
Brophy
3,
refused, February
(1980),
496 deter critics of official
duct. Too
constraints
stringent
may
it
criticism,
“from
their
even
voicing
though
conduct
it can
true, because of doubt whether
believed to be
expense
in court or fear of the
do so.
having
proved
statements which ‘steer far
only
tend to make
They [would]
zone ....’”
New York Times Co. v.
wider of the unlawful
279,
710, 725,
84
weigh potential public make wider latitude in against giving press report may To be public policies.2 and officials and ing criticizing public interest, a people informed on matters of democratic public vigilant vigorous must have constant recourse to a press.
Therefore, I would hold that failed to adduce Dunlap evidence of the material. proving falsity defamatory I would enter for the Accordingly, judgment appellant in would abstain from further this matter. inquiry Nevertheless, since the has majority’s reasoning elicited standard, malice” I offer a brief discussion of the “Times comment which further that may clarify principle. in this interpreted “Times malice” criterion as Common- wealth that requires .. . prove, ‘convincing clarity,’ officials
public
statements
to their official con
defamatory
relating
malice,
is,
were
with actual
with knowl
duct
made
with reckless
of wheth
disregard
that it was false or
edge
Sullivan,
er it was false or not. New York Times Co.
710, 11
. ..
....
(1964)
L.Ed.2d
U.S.
S.Ct.
686]
[84
of a
constitutes a reckless
disregard
falsity
What
in
Amant v.
Thompson,
statement was clarified
St.
necessary
public’s
representative
press
interest
in
2. “The
is the
instrumentality
public’s
effects
this context and the
which
843, 864,
Co.,
Washington
rights.”
417 U.S.
94 S.Ct.
Saxbe v.
Post
J.,
2811, 2822,
dissenting)
(quoted
(1974) (Powell,
[C]ases
pub-
man would have
prudent
a reasonably
whether
publishing.
before
investigated
have
lished, or would
the conclu-
to permit
evidence
must be sufficient
There
serious
defendant,
fact,
entertained
sion that
Publishing
of the publication.
the truth
doubt as to
to truth or
disregard
shows reckless
with such doubts
malice.
actual
and demonstrates
*19
Inc., 281 Pa.Super.Ct.
Newspapers,
Philadelphia
v.
Brophy
added),
625,
(1980) (emphasis
629-30
595-96, 422 A.2d
588,
3, 1981.
refused, February
allocatur
in the Commonwealth
to note that
It
is important
must
publication
Times malice test
to meet the
Pennsylvania
or with serious doubt.
disregard
with reckless
be made
well reasoned opinion
not frame its
does
majority
lower court opin
although
of serious doubt
the context
doubt.
It is therefore
of serious
ion addresses the issue
not serious doubt
doubt is
that some
to underscore
important
tantamount,
is not
certainty
and that a lack of absolute
Louisiana, 379
more,
doubt. “Garrison
to serious
without
(1964)
. . .
. . .
209, 215, 13 L.Ed.2d
64,
[74,
U.S.
S.Ct.
125]
publica
for a
false
showing
the necessity
emphasized
of awareness of . . .
‘high degree
tion was made with a
”
727,
Thompson,
Amant v.
St.
probable falsity.’
doubt
1325,
3. Amant at 88 S.Ct. at St. The trial court permitted a finding of serious doubt (“Times malice”) where the appellant published some doubt or without absolute independent substantiation of every published statement. As stated in New York Times Co. at S.Ct. at rule the critic of compelling “[a] official conduct to guarantee the truth of all his factual assertions—and to do so on of libel pain judgments virtually unlimited in amount—leads to a comparable ‘self-censorship ’ .... The rule thus dampens and limits the vigor debate variety public inconsistent with the First [and] and Fourteenth (Footnote Amendments.” omitted.)
Superior Court of Pennsylvania.
Argued Sept. *20 Filed July