Gazette, Inc. v. Harris

Gazette, Inc. v. Harris,

James al. William et Record No. 830758 Newspapers, Charlottesville Inc.

v. Debra C. Matthews

Record No. 830526 Corporation Port Packet v.

E. Grey Lewis, et al.

Record No. 830651 1, 1985, February Decided at Richmond Carrico, C.J., Cochran, Poff, JJ., Compton, Present: Stephenson, and Harrison and Gordon, Retired Justices. Fleming

James N.

v. III Moore, W. Bedford Record No. 831446 1, 1985, February Decided at Richmond Carrico, C.J., Poff, Cochran, JJ., Harman, Compton, Present: Stephenson, Senior Justice, Gordon, Retired Justice. Williams, briefs), appellant. Lewis T. on for Booker & (Hunton 830758.) (Record No. & on for Herbig, brief), appel- Keith Freasier

S. Barker (Tuck, (Record 830758.) lees. No. Smith, Gibson & E. Pope; Taggart,

Thomas E. Albro (Barret Albro, 830526.) (Record on for No. brief), appellant. 830526.) No. Murray (Record

Matthew B. for appellee. Jacobson; L. Co- F. William Harvey Alper; B. Cohen (Joanne Dunham, hen, (Rec- for briefs), & on appellant. Alper Gettings, 830651.) No. ord 830651.) No. (Record for Cummings appellees. B.

William Association, Amicus Curiae: Press Inc. Virginia (Alexander Kohler; Christian, Barton, Wellford; David C. Brent & Epps, on Chappell, brief), (Record No. appellant. 830651.) Edwards; Poindexter; D. Alan Rudlin Gerald G. (W. Jeffery Williams; Poindexter, Hunton & & brief), Poindexter for ap- (Record pellant. 831446.) No. Cavedo; Smith,

Thomas E. Albro B. (Bradley Taggart, Gibson Albro, & on brief), for No. appellee. (Record 831446.)

COMPTON, J., delivered the of the Court. opinion In one we opinion, decide four libel appeals. are plaintiffs individuals, private officials or public public figures. Three of are appeals based on suits against members of the me- print dia. In the fourth the defendant is appeal, a private person. Judg- ments for damages have been entered against the cases, defendant in each case. In two the judgments include awards of punitive damages.

The dominant issue to be decided in each case is what standard of liability should govern an award of compensatory damages in a libel action in Virginia, given developments federal constitu- tional law on the subject of libel beginning with New York Times Sullivan, Co. v. 376 U.S. 254 (1964). Adjudication of this central will question spawn issues subsidiary common to all the suits. In addition, the awards of punitive damages generate issues common to those two cases. The common questions law will be analyzed in the first sections of and, this opinion sections, in succeeding issues peculiar to a specific case will be adjudicated in the section of the opinion devoted to such case.

I. The Dominant Issue A. Virginia Background In Virginia, states, as in other the law of defamation histori has cally protected basic interest. The individual’s right to per sonal includes his security entitlement to uninterrupted enjoyment Edwards, of his 191, Fuller v. reputation. 197, 180 Va. 22 S.E.2d 26, 29 (1942). has “Society pervasive interest strong preventing and redressing attacks Rosenblatt v. upon reputation.” Baer, 75, 383 U.S. 86 (1966).

8 in Virginia defamation law framework of general

Under 1964, major aspects when beginning period to prior federalized, citizen had to the defamed private became libel law words which were ei that included a false publication prove only or, if fixed to certain according principles, se ther actionable per se, which resulted in special words not defamatory per v. 182 Va. & Sons Rosenberg Craft, defamed. See M. the party 375, 512, 518, such (1944). Upon publication,1 29 S.E.2d 378 See presumed. damage reputation was inferred and malice — Slander, Note, A Libel Merger in Virginia Defamation And, 1116, unless the otherwise (1961). 1117 47 Va.L.Rev. could establish or the defendant was privileged libelous statement Mason, 215, 228, 160 S.E. truth, 157 Va. v. its Rosenberg damages. was liable for compensatory (1931), publisher malice, the plaintiff actual or express of common-law proof Upon mes, v. Hay James damages. award of punitive was entitled 253, 263, (1933). 168 S.E. 160 Va. 1964, however, decisions of the a series of

Commencing in the significant changes Court caused States Supreme United of libel. law Decisions Pertinent Court Supreme

B. Sullivan, Court the Supreme York Co. v. In New Times which the constitutional the extent to for the first time determined to award a state’s power and limit press protections speech crit against official brought by public in a libel action damages decided that at 256. The Court his conduct. 376 U.S. ics of official were consti state courts Alabama rules of law by applied for freedom safeguards for failure to provide deficient tutionally First and Four are required and of the that press speech offi such a brought by public in a libel action teenth Amendments guaran constitutional held that 264. The Court cial. Id. at “[t]he official from a public rule that prohibits ... a federal tees require his offi relating to falsehood defamatory for a recovering damages made with the statement unless he proves cial conduct — or with it was false is, knowledge that with ‘actual malice’ 279-80. or not.” Id. at was false of whether it disregard reckless Louisiana, applied the Court (1964), 64 379 U.S. v. In Garrison 1 insulting Virginia brought statute under required in an action publication is No (1921). words, S.E. 673 Va. 107 v. 130 8.01-45. Davis Code § Heflin. state criminal “actual malice” standard to the New York Times for criticism of official con- libel statutes that sanctions imposed duct of officials. public Butts, (1966), Co. v. 388 U.S. 130 Publishing Curtis figure’

Court held “that a who is not a official ‘public public may . . . recover for a defama [compensatory punitive] tory falsehood whose substance makes substantial danger repu tation on a unreasonable conduct con apparent, showing highly an extreme from stituting the standards of departure investigation adhered Id. reporting ordinarily responsible publishers.” at 155. In that the standard been holding had met by plaintiff Butts, but not in the case of Associated Press v. companion Walker (decided the same the Court the de rejected opinion), fendant’s contention that it could not be to an assess subjected Harlan, ment of punitive damages. Justice for writing the major stated: “Where ity, from publisher’s standards of departure press is severe responsibility enough to from him the consti strip tutional protection our decision acknowledges, we think it entirely proper the State to act not for the of the indi only protection vidual but to injured all those safeguard situated similarly against like abuse.” Id. at 161.

In St. Amant v. (1968), U.S. 727 the Court Thompson, identified evidence that be may employed establish New York Times White, “actual malice.” The Justice majority, through noted that “evidence of either deliberate falsification or reckless publication ‘despite publisher’s awareness of probable falsity’ was essential to officials in recovery by public defamation ac- tions.” Id. at 731. The Court then listed certain acts which show “recklessness” of “actual aspect malice”: intentional communications; fabrication aby defendant of facts or an basing article call; wholly upon unverified anonymous telephone print- ing allegations so inherently improbable reckless only per- son circulation; would them in put of an article despite obvious reasons to doubt the truth and of the in- veracity formant whom upon the article relies for Id. at 732. The accuracy. Court said that failure to investigate will not in itself establish bad faith, id. at but stated that a “defendant in a defamation action brought aby public official cannot . . . in- automatically sure a favorable verdict by testifying he with a be- published lief that the statements were true.” Id. at 732.

10 Metromedia, Inc.,

In v. (1971), Rosenbloom 403 U.S. 29 a plu- Court, Brennan, of the Justice rality through extended the New York Times “actual malice” standard to publications relating concern, general all matters of or public irrespective public or nature of the In private plaintiff. rejecting suggested dis- tinction between officials and on the public public figures one hand other, and individuals on the Justice Brennan private focused in- stead on interest about issues of society’s learning or public Rosenbloom, Thus, general concern. under once a trial court de- termined that the libel involved a matter of or alleged gen- public concern, eral the fact finder should then consider whether New York Times malice had been no heed to the proved, paying plain- tiff’s status. Welch, Inc., later, in

Three Gertz v. Robert years (1974), U.S. 323 Court Supreme its expressly repudiated in Rosenbloom. One commentator states that the holding Gertz sensed “the Rosenbloom had de majority plurality opinion nearly Eaton, the common law of . .” stroyed defamation. . J. Welch, Law American Inc., Gertz v. Robert Through of Defamation Primer, Beyond: An 61 Va.L.Rev. Analytical (1975). Gertz, had shot and killed a Chicago policeman youth.

Gertz, a reputable attorney, employed represent youth’s in civil the officer. The defendant family litigation against in its the views of the published, magazine giving John monthly Birch false about Gertz. im- statements Society, that Gertz had a criminal record and labeled him a “Lenin- plied ist” and “Communist-fronter.” Powell, im- writing

Justice for the articulated several majority, “the accommodation between the portant holdings defining proper law of defamation the freedoms speech press protected First, the First Amendment.” 418 U.S. at 325. the Court reaf- stating firmed its in New York Times and Butts rulings pub- lic officials and recover for defamation public figures may only of New York Times malice. Sec- convincing clear and upon proof ond, the Court clear that all or private, may made persons, public clear and con- recover presumed punitive only upon of New York Times malice. vincing proof bar, Third, of the cases at and most important purposes “that, Court held so do not without long they impose liability fault, stan- the States define for themselves the may appropriate

11 of defamatory or broadcaster dard of for a liability publisher Id. at 347. Justice individual.” falsehood to a injurious private boundary this establishes equitable Powell stated that approach recognizes interests involved. “It between the competing in compensating private of the state interest strength legitimate shields the press wrongful injury reputation, yet individuals for defama- of strict for rigors liability and broadcast media from the tion.” Id. at 348. Court, however, limited the of a applicability expressly Such limitation has not been sufficiently empha

fault standard. Gertz, comments based on but sized in of the decisions and many is essential to an accurate we think of the limitation recognition Butts, said, of the decision. The Court from analysis quoting must be restricted to circum a fault standard applicability stances where “the substance of the statement ‘makes defamatory ” Continuing, substantial Id. danger reputation apparent.’ Court stated: “Our would involve considerations somewhat inquiry different from those discussed above if a State to condi purported civil did tion on a factual misstatement whose content liability warn a editor or broadcaster of its reasonably defamatory prudent Firestone, Time, Id.; v. 464-65 Inc. U.S. potential.” J., (1976) (Powell, concurring). addition,

In the Court said that the State’s in com interest individuals for extends no pensating private injury reputation further than for which include actual compensation injury, may impairment standing reputation community, per humiliation, sonal mental well anguish suffering, as as out-of- Gertz, loss. 418 U.S. at 350. the Court pocket Finally, rejected must consider judges Rosenbloom plurality’s requirement interest,” whether “general address issues publications public that such a test “for stating determining applicability New York Times standard to defamation actions inade private serves both of the values at stake.” Id. at 346. quately competing Lando, Court (1979), Herbert v. 441 U.S. 153 Supreme in New York Times rejected a “that the balance struck plea now further for the should be modified to provide protections press when sued information to indi- circulating damaging erroneous Court, White, vidual Id. at Justice through 169. reputation.” the 1964 New York decision which “was widely noted that Times freedoms,” has been re- perceived essentially protective press Id. The Court also pointed affirmed cases. peatedly succeeding Gertz, out, however, Firestone and that “the Court has reit- citing — n erated its conviction reflected in the laws of defamation of all — of the States that the individual’s interest in his reputation also a Id. basic concern.” Pertinent Decisions Since New York Virginia

C. Times 213 Va. Sanders v. Times-World 192 S.E.2d Corp., Rosenbloom, (1972), 754 was decided after New York Times time, There, but before Gertz. for the first we the New applied involving York Times malice standard to a libel case a private concern,” general from matters of as re person arising “public Sanders, “In the rele by Rosenbloom. Rosenbloom quired vant test was not status of the involved but rather plaintiff events which subject were the the publication.” Newspaper Burke, 800, 803, 132, 224 S.E.2d 135 v. 216 Va. Publishing Corp. Sanders, cases, from (1976). Virginia In we cited three earlier that, 1961, 1967, and 1970 for the where respectively, proposition statements were the plaintiff defendants’ qualifiedly privileged, Sanders decision bears the burden to establish actual malice. The based, nevertheless, on federal standards of New York Times and Rosenbloom. Burke, libel was the first supra, v.

Newspaper Publishing Corp. Gertz, we we held that the Analyzing case decided after Gertz. in violation of the trial court instructed the erroneously jury, admonition, could be ad- Gertz that defendant newspaper judged Additionally, liable without fault to private plaintiffs. trial court told the incorrectly jury the Court determined that the a find- that an award of could be damages premised upon punitive New York Times “actual of common-law malice rather than ing Furthermore, that we could define our recognizing while malice.”2 actual, compensatory damages own standard for recovery Gertz, a stan- Virginia we chose not to formulate authorized by did not award actual jury dard in that case. We noted that a fixing termed the task damages, and damages, only punitive 804, 224 Va. at 216 “unnecessary.” standard Gertz-approved S.E.2d at 136. 2 Land, 120-21, 118, malice, 220 Va. see also Preston v. For a definition of common-law 509, among private (1979), individuals in post-Gertz of slander case 255 S.E.2d were not in issue.

which the federal libel standards Moore, 884, (1981) v. 221 Va. 275 S.E.2d 632 Fleming defendant and (hereinafter I), a suit a non-media Fleming against name, of the same we decided instant case precursor se; that the was not defamatory per plaintiff, individual, did not forfeit his status private private by speaking at public hearings involving land use that because the proposals; Moore was not a he was not plaintiff public figure, required show New York malice as a recovery Times prerequisite 892, 637; id. damages, at 275 S.E.2d at compensatory puni- tive not be without tandem award of may awarded damages, unless the libel involved was “actionable compensatory se,” 893-94, 638; and, id. at 275 S.E.2d at that in libel actions per not based se defamation where New York Times malice upon per shown, is not damages must be limited to actual decided, however, injuries sustained. We that actual injury not confined to loss but pecuniary included such elements as dam- embarrassment, age to in the reputation standing community, humiliation, and mental We modified con- suffering. language Stores, tained in v. Rose’s 213 Va. 192 S.E.2d 766 Shupe (1972), to the extent emo- have indicated that Shupe may tional and embarrassment cannot constitute dam- upset “special ages.” 221 Va. at 275 S.E.2d at 639. I, we further decided that Gertz did not control be- Fleming

cause the Gertz rule was not extended to non-media de- explicitly stated, nevertheless, fendants. We that we share the Gertz concern “ with the ‘in un- wholly assessment of by juries punitive amounts relation to the actual predictable bearing necessary no ” Gertz, harm caused.’ Id. at 275 S.E.2d at quoting Thus, I, U.S. at 350. we held in a suit a indi- by private Fleming defendant, vidual a against recovery punitive non-media that actual malice damages must be based the New York Times upon defendants, is, standard that is to media that clear applicable or reckless convincing proof knowledge falsity disregard the truth.

D. Virginia The Standard of Fault for Compensatory

Damages standard Virginia within which we must fix the parameters discussion as a matter of law have been set forth in our prior state negli- for a argue of Gertz. The in the plaintiffs present appeals assert that a defamed standard. the defendants gence Generally, individual private should be to establish required New York Times actual, malice to recover in this compensatory damages State. In a brief amicus curiae filed in one of the media appeals, Virginia Association, Inc., Press argues negligence “a standard is no standard at all” and that such a requirement does not “simply provide needed to protection ensure a free and open press.” Asserting that the matters involved in these four involve appeals concern, issues of public the defendants contend that our pre- Gertz Sanders decision is controlling and that for the al- liability leged defamations requires of New York proof Times “actual mal- ice.” We do not agree. Court in Supreme Gertz left little doubt that it expected

many states to Powell, adopt negligence standard. Justice while noting allowance of would presumed damages unneces- sarily exacerbate the danger of media stated that self-censorship, the policy considerations concerning punitive-damage awards are irrelevant “wholly to the state interest that justifies a negligence standard for private defamation actions.” 418 U.S. at 350. Justice Blackmun, concurring, said flatly “that the Court now conditions a libel action by a private person upon showing negligence, contrasted with a showing willful or reckless . . .” disregard. Id. at 353. Chief Justice Burger, said dissenting, that the majority “introduces the the media will concept be liable for negli- gence in publishing defamatory statements with respect [ordi- nary private Brennan, Id. at 355. Justice dissenting, citizens].” forecast of “a adoption reasonable-care standard” states by many as the “probable result of decision.” Id. at 366. today’s Justice White, dissenting deploring “additional burden on the plaintiff of fault,” proving negligence or other stated that lose, the new rule the plaintiff can not “[u]nder because the state- true, ment is but because it was not made.” Id. at 376. negligently Certainly, forecasts, despite Court’s Supreme we properly may choose to as a matter of adopt state law a stricter standard than Indeed, ordinary negligence. We will not do so. while we did I, fix the explicitly standard in we Fleming indi- implicitly cated that a level of less than New York liability Times malice was all “Therefore, that was required. We said: plaintiff] [the show, to required as a of prerequisite recovery compensa- tory damages, that acted with Fleming malice that met the New York Times standard.” 221 Va. at 275 S.E.2d at 638. hold, therefore, We that in an action brought by pri actual, vate individual to recover damages for a de recover famatory publication, plaintiff may upon proof by false, preponderance the evidence that the publication false, that the either defendant knew it to be or it to be believing true, belief, lacked grounds reasonable for such or acted negli in to ascertain the gently failing facts on which the publication standard, was based. Under this truth no is an affirmative longer Instead, defense to be established the defendant. plaintiff must because he is to establish prove falsity, negligence required addition, to such hold respect falsity. we that such liability be based may negligence, whether or not the upon relates to a matter of question general concern. public limited, of this application negligence standard is expressly however, to circumstances where the defamatory statement makes substantial danger to The trial reputation judge shall apparent. make If, such determination as a matter of law. on the other hand, no substantial danger from the reputation apparent issue, statement in New York Times malice must be established to recover compensatory damages. in the

Nothing public policy Commonwealth or our decisions prior of a requires adoption standard than one of higher ordinary negligence. Constitution of does not man- Virginia I, date embracement of a more standard. stringent Article § write, provides, “that citizen part, any may freely speak, his publish sentiments on all subjects, being for the responsible abuse of that . . .” right. recognizes That the balance provision to be struck between the right free expression enjoyed by individual and the on the one hand and the of defamed press right individuals to hold the for damage to speakers “responsible” repu- Howard, tation on the other. See I A. Commentaries on the Con- And, stitution at Virginia, (1974). 249-59 as we have already said, our decision controlling, Sanders is not because it was de- Rosenbloom, cided before Gertz and was based on nor are any our other cases.

Moreover, we think that a test strikes a bal- negligence proper ance between the rights of the news media and the rights pri- Gertz, vate individuals. As noted in more individual is private vulnerable to inflicted false- injury by defamatory reputation hood than are officials and who public figures ordinarily public “enjoy greater access to channels of commu- significantly effective

16 and hence have a more realistic to counteract nication opportunity Gertz, individuals false statements than private normally enjoy.” 418 344. Even “the truth catches though rarely up U.S. at lie,” n.9, for avail- id. rebuttal more opportunity readily able the state in interest public person. Consequently, pro- individual is tecting greater than the case of a non- private private person. addition, we believe that the standard will not re- negligence

sult in as the media defendants and that argue, self-censorship, of reasonable care is an burden for duty acceptable press all, to bear. After of is fundamental to the concept negligence of le- Virginia great tort imposition liability majority gal that are created and we have not been con- relationships daily, vinced that the falsehood should be publisher defamatory elevated to a for the for the status assessment preferred liability harm caused such a tort. Neither the intentional lie nor the negligent error advances interest in uninhib- substantially society’s ited and robust debate. See id. at 340.

Also, the limitations we have on the rule will serve to placed insulate the from based on a publisher liability content of which does not warn a editor or reasonably prudent case, broadcaster of its In such a New York defamatory potential. Times malice must be establishéd in order to recover compensa- damages. The mere error or the careless misstate- tory negligent which, face, ment of fact does not to be its appear defamatory will damages being not result in im- liability on the posed publisher. the standard we is in accord with the rule

Finally, adopt today embraced a substantial number the states that have decided Drushal, the issue since Gertz. See E. Collins and J. The Reaction Inc., Welch, the State v. 28 Case Courts to Gertz Robert of W.Res.L.Rev. 306 date, To at least 30 states and the Dis- (1978). trict of have standard in media negligence Columbia adopted cases the issue or involving discussing either after private persons, Also, without two federal courts inter- discussing question.3 3 Inc., Peagler Newspapers, v. Phoenix 114 Ariz. The cases that discuss the issue are: Co., 628, 309, (1977); S.W.2d 560 P.2d 1216 Dodrill v. Arkansas Democrat 265 Ark. 590 Co., denied, (1979), (1980); Phillips Evening Newspaper v. Star 840 cert. 444 U.S. 1076 denied, (1981); Publishing (D.C. 1980), 989 Miami Herald 424 A.2d 78 cert. 451 U.S. Ane, 1982); Corp., (Fla. App. Paradise Park 56 Co. v. 423 So.2d 376 Cahill v. Hawaiian Wood, (1975); 62 Ill.2d 340 N.E.2d 292 Hawaii 543 P.2d 1356 Troman v.

17 Gertz that we would preting Virginia after anticipated adopt lay See General Products Co. v. Meredith negligence standard. 526 F. Mills v. Corp., Kingsport (E.D. 1981); 546 Va. Supp. Times-News, draft- (W.D. 1979). 475 F. Va. And the Supp. to Gertz negli- ers the Restatement responded by adopting standard for gence the media defendant who defames a private or a in a unrelated to his ca- person matter public person public See (Second) Restatement of Torts 580B pacity. (c) (1977). § Smolla, generally Let the Author Beware: The Rejuvenation of R. Libel, the American Law 1 (1983). U.Pa.L.Rev.

II. Subsidiary Issues Because one of the involves a non-media present appeals defendant, arises whether the standard is question negligence defendants, limited to media in which case the non-media defend Gertz in ant would remain of subject the rule strict liability. volved a media defendant and did address the Court’s opinion hold, however, the instant issue. We as a matter of law that state the negligence standard should be non- media and applicable media defendants alike. (1975); 223, (1975); Publishing Gobin v. Globe 216 Kan. P.2d v. 531 76 McCall Co.. Co., denied, Publishing 1981), (Ky. Courier-Journal & Louisville 623 S.W.2d 882 cert. Press, (1982); Capital City (La. 1975); App. 456 U.S. 975 v. Wilson 315 So.2d 393 Ct. 580, (1976); County

Jacron Sales Co. v. 276 Md. 350 A.2d 688 Stone v. Essex Sindorf Inc., Yunker, 849, Newspapers, (1975); 367 Mass. 330 N.E.2d 161 Madison v. 180 Mont. 54, News, 258, 493, (1978); Valley 589 P.2d 126 McCusker v. 121 N.H. 428 A.2d cert. denied, Brown, 394, (1981); (1982); 454 U.S. 1017 Marchiondo v. 98 N.M. 649 P.2d 462 Sons, Co., 105, Maloney Scripps App.2d Thomas H. & Inc. v. E. 43 W. Ohio 334 N.E.2d denied, Television, Inc., (1974), (1975); 494 cert. 423 883 v. P.2d U.S. Martin 549 Griffin Co., denied, (Okla. 12, 23, 1976); Publishing 85 Jones v. Sun 278 S.C. 292 S.E.2d cert. Nichols, (1982); (Tenn. 1978); Memphis Publishing 459 U.S. 944 Co. v. 569 S.W.2d 412 Inc., denied, (Tex. 1976), Newspapers, Foster v. Laredo 541 S.W.2d 809 cert. 429 U.S. KSL, Inc., (1977); 1981); Seegmiller (Utah King 1123 v. Broad 626 P.2d 968 Taskett v. Co., 439, Havalunch, Mazza, casting (1976); 86 Wash.2d 546 P.2d 81 Inc. v. 294 S.E.2d Mertz, denied, 636, 141, (W. 1982); Denny 70 Va. v. N.W.2d cert. 459 106 Wis.2d 318 (1982). 883 U.S. are; News, Browning Birmingham The cases that do not discuss v. 348 So.2d the issue Co., (Ala. 4, 1977); Register Publishing Supp. 455 Corbett v. 33 Conn. 356 A.2d 472 Whetsell, 233, (1975); (1979); App. 151 Savannah News-Press Div. v. 149 Ga. 254 S.E.2d Pietsch, denied, 337, 395, (1977); Bandelin v. 98 Idaho 563 P.2d cert. 434 U.S. 891 Green, DaSilva, 99, (1979); Wheeler v. 286 Or. 593 P.2d 777 v. 414 A.2d 806 DeCarvalho Ass’n, Inc., (R.I. 454, 1980); (1977); Times-Argus v. Ad Colombo 135 Vt. 380 A.2d 80 Co., 1976). Broadcasting (Wyo. ams v. Frontier 555 P.2d 556

18 is It would indeed be

The of such a conclusion logic compelling. individuals are liable bizarre to hold as a matter of tort law that of only showing without fault while the media is liable upon 580, Md. 350 See Sales Co. v. 276 negligence. Jacron Sindorf media, (1976). being composed profession- A.2d because of wider greater damage als and much capable causing communication, of the risk cognizant distribution of the are more to take precautions. more liability likely appropriate defamer, however, whose utterance is private-individual likely harm, cause less will not realize the potential liability ordinarily from and will fail to take similar resulting his communication pre- 580B, comment e (Second) cautions. See Restatement of Torts § Mertz, 636, 659-61, 2d v. 106 Wis. (1977). Denny Contra N.W.2d Neither nor reason (1982). supports 152-53 policy See different treatment of the of defendants. respective types Co., 593-94, Jacron Sales 276 Md. at 350 A.2d at 696. I, Furthermore, we the constitutional applied privi- Fleming Times, Butts, non-media defend- lege of New York and Gertz to a ant We now take damages sought. where recovery punitive the next Gertz-authorized logical, consistent step apply standard to non-media defendants where negligence recovery is compensatory damages sought.

Another arises from establishment of issue that subsidiary negligence standard for the current status of the in Virginia. common-law Unlike qualified privileges jurisdictions, some does not Virginia permit qualified privilege be defeated of mere We upon showing negligence. require proof malice, is, of common-law actuated motives of by behavior ill-will, of the occasion on which the or personal spite, independent Inc., v. 202 Va. Story communication was made. Newspapers, 588, 590, 118 S.E.2d This a more strin (1961). being 670 survive in gent negligence, standard than the qualified privileges means, course, still avoid Virginia. This of that the defendant may negligence based on even liability though qualified privilege is met When a is es privilege standard by plaintiff. qualified tablished defeated evidence of common- and not aby plaintiffs malice, in the higher law standard is subsumed negligence have might standard and it is of no that the plaintiff consequence Co., 276 Md. met the lower standard of Jacron Sales negligence. at 350 A.2d at 699-700.

19 of other issue involves subsidiary scope appellate v. review in these cases. on Bose Consumers Union Relying Corp. States, Inc., (1984), 1949 the media de United S.Ct. of that, issues, fendants assert in a First Amendment an raising case court an an exami appellate obligation has to make independent nation of the entire record in order to insure that the judgment the trial court does not forbidden intrusion on the ex constitute a ercise of free We court in Vir agree that expression. appellate ginia must conduct such examination of the whole independent record on the York issue where New punitive damages established, Times malice must be but not on the of com question when New York Times malice need not be pensatory damages proven.

Bose is concerned with the primarily 52(a), Rule application Procedure, Federal Rules of Civil which fixes a errone- “clearly ous” standard for federal review of of fact. Nev- appellate findings ertheless, the Court in First Amendment cases Supreme arising state courts has held that the examination repeatedly independent See, Times, contended for is on review. New York required e.g., Amant, Bose, 284-86; 376 U.S. at St. 390 U.S. at 732-33. In Court held: “The review re- requirement independent appellate iterated in New York v. is a rule consti- Times Sullivan of federal tutional law.” 104 S.Ct. at 1965. because we Consequently, apply the federal constitutional rule of New York Times to the punitive- suit, damage issue in a we State defamation likewise apply federal constitutional rule of examination to independent appellate such an issue.

Thus, we hold that an court in on the issue appellate Virginia, of punitive damages or where New York Times malice must be must proven, decide whether the evidence in the independently record on is sufficient to of New York appeal finding support Times “actual malice” S.Ct. at convincing clear and proof. 1965. This does not mean that the court reviewing may disregard the determinations made on of witnesses the trier of credibility fact or that the attaches to factual correctness that presumption rule means findings to be discounted. Id. at 1959. The simply in such a case must examine the facts appellate judges perti- nent to judg- award and exercise punitive-damage independent ment to malice “determine whether the record establishes actual with convincing Id. at 1967. clarity.” however, dam contrast, issue of on the

In need not be York malice cases when New Times libel ages of re the established standard will continue to follow we proven, is, 8.01-680, judgment “the Code by view mandated § from the evi unless it appears trial court shall not be set aside or without evidence to wrong is judgment dence that such plainly is Bose on this issue reason we do not embrace it.” The support examination is bottomed of independent that the Bose mandate federal reviewing judges governing to assure obligation stan negligence constitutional law has been applied properly. have is not adopted that we damages dard for compensatory law; rather, within the constitutional matter of federal governing Gertz, fixed the standard as we have authorized parameters Bose, deci as well as the federal state law. Accordingly matter of based, issue. on this controlling on which it is is not sions Gazette, Harris, et al. Inc. v. III. The Harris, Vir- James William In November of appellees Harris, wife, filed and Barbara H. Sweeney sepa- Mae his ginia Gazette, Inc., for judgment against appellant rate motions alleg- caused seeking compensatory punitive 1981 editions in the July libelous statement edly published circulated in weekly The Gazette newspaper. published and Powhatan. the counties Goochland claimed County, citizens of Powhatan The plaintiffs, private would understand they news item in question that readers of the fact, a child sexual aggravated battery. had been charged molested by of Mrs. had been Sweeney of the Harrises and a child Harold F. Payne. one

The article read as follows:

“CRIMINAL CASES those heard last among criminal cases were following

“The week in District Court:

Goochland check, Johnson, $80. bad Danny boat, $63. driving Hague, W. reckelss Leigh [sic] $130, 90 days wounding, malicious Fleming, Alvin suspended.

Harold F. aggravated sexual Barbara H. Payne, battery, bond; Sweeny [sic], property aggravated sexual battery, Harris, James and Virginia bond property charges certified to circuit court (charges filed in the adult division of juvenile court).”

Following cases, a consolidated trial the three the found jury Harris, favor of James and Virginia and Barbara fix- Sweeney, ing $30,000, compensatory damages $10,000, the amounts of $10,000, and The did not respectively. jury award dam- punitive ages. verdicts, The trial court entered on the judgments and we granted The Gazette an from appeal February final orders.

The assignments of error issues present pertaining to the stan- dard of fault evidence, to be applied, of the sufficiency misdirec- tion of the jury, and excessiveness of the verdicts.

The evidence may be summarized briefly. July of Payne arrested and charged in Goochland with County aggra- vated sexual of the Harris child battery and the child. Sweeney The three parents were the witnesses complaining against Payne. A for The reporter Gazette a narrative about the prepared story incidents and submitted it to the editor. After paper’s reviewing draft, the editor directed the reporter verify charges from court records.

The reporter examined the pertinent docket of the Juve- page nile and Domestic Relations District Court of Goochland County. The information on the docket sheet was contained in pre-printed columns, the head of each column or containing pre-printed typed words and columns, abbreviations. Symbols respective reading from left right, W”; were as follows: “COUNSEL CA P “OF- BSE”; and “CCRE DATE APPEAL DATE.” FICER/CMPLNT The did not reporter understand the meaning abbreviations he except knew “CMPLNT” designated “complainant.” The reporter copied portion the docket page pertaining to Payne’s charges. He made a verbatim abstract he did except not include offenses, the column designations, the dates of the the amounts of the bonds. The became the draft of property copy an article to be included in “The Public Record” section of the 30th July issue. “The Public Record” was a feature of the regular paper included information from routinely the local public recorded, is- building permits about real estate transfers records sued, heard, licenses issued. marriage criminal cases editor, who ap- his second draft to submitted reporter accurate and concise. because he considered it to be it proved testified, article, intended to the item editor dissecting charged was the defendant to the reader that convey Payne Sweeney “person sexual that Mrs. aggravated battery, was “out” on charge,” Payne property and that placing “Semicolon, we start back with the The editor continued: bond. antecedent, again, is Mr. sexual aggravated battery which Payne, He further testi- charges.” James and Harris Virginia placing are charges fied: bond has been “Again, posted property only certified Circuit Court.” The evidence showed in “The listings in the of majority defendant’s name was inserted that, the names to the date in question, Public Record” and prior victims were never listed. of witnesses and crime complaining good showed that had they enjoyed reputations The plaintiffs inci- vulgar did not wish the they to the and that prior publication matters of knowl- public dents their children to become involving in the interpreted also edge. They proved persons community had accused of immoral conduct. the news item to mean been they embarrassed, addition, were up- the established plaintiffs they set, result of the damaged the hysterical, emotionally publication. a negli-

Over the the trial court objection, applied newspaper’s to explain standard. No discussion is gence necessary additional that New York Times rejection argument our of the newspaper’s court as the proper should have been the trial adopted by malice standard of liability. limitation, of the which was articulated

Application express rule, Virginia in the Gertz and which now has been incorporated Nonetheless, we are of that the opinion was not an issue below. substantial to danger content of the statement in makes question words, item, news under the cir- In other the reputation apparent. cumstances, its defam- should editor of warn reasonably prudent atory potential. made a trial

The threshold determination to be to danger is substantial repu on the whether there judge question resembles the of a publication tation from the content apparent the question the court on determination made traditionally decide, must se. A trial judge whether a is libelous per statement the whether a reasonable and viewing objectively, circumstances editor should have that the words used con- prudent anticipated tained an to We hold necessarily reputation. harmful imputation i.e., here, that the harmful of the words used potential plain- crimes, tiffs been to the were accused of should have apparent pa- editor, he per’s if had exercised care. ordinary Viewed bemay the to objectively, interpreted report publication that Mrs. and the Harrises had been with Sweeney charged ag- gravated sexual showed assault. evidence that prior no edition of The Gazette had date of the question, published in “The Public Record” the the name portion paper Indeed, of a three any person except that defendant. cases reported charges above recited immediately Payne apparently Also, the names of the defendants article contained no only. information which significance of the explained names appear- reader, ing segment referring to the A plaintiffs. perusing the words in sequence, would conclude from probably arrange- ment of language that the were plaintiffs charged crimes and that had been in order they bonds required post property remain large at and free of trial of the custody pending charges. Such a conclusion justified would be because information fol- lows the same name of pattern charge, person persons — charged, and of bond. The name requirement listing at Payne’s is a beginning item factor but does not de- confusing tract from the defamatory potential remaining language. circumstances,

Under these reasonable editor prudent should have been alerted to the damage likelihood reputa- unclear, tion. The confusing, was not and publication merely gar- bled (conditions which ordinarily defamatory would not create po- it used tential); containing also language imputations necessarily harmful to reputation. the limitation was Consequently, express not and negligence the trial court the applicable correctly adopted standard.

The Gazette contends that even if the trial court was cor rect in court erred standard of the applying negligence liability, the the submitting case to on that issue. The jury newspaper argues there was which juror insufficient evidence on a rational could disagree. conclude that the was We negligent. paper

The instruction informed that “in pertinent jury, the part, fault, order to establish that Gazette was at must plaintiffs prove aby of the evidence Gazette acted with preponderance negli- This the article.” instruction

gence and preparing publishing we elements of the standard have ar- with the essential comports The showed the editor believed the evidence today. ticulated the article was reasonably be true although, interpreted, report was thought that he the item accurate false. The editor testified of a and because it was an verbatim court apparent copy concise for to determine whether the principals record. But it was the jury Gazette, case, the editor in lacked reason- The this reporter or, article for their in the of the al- grounds accuracy able belief facts, be- especially failed to ascertain the ternatively, negligently the identify plaintiffs did not the roles publication cause the This failure to de- in the criminal played proceedings reported. names in the item resulted significance appearing scribe the of the article,” from “in the in the publishing carelessness preparing of the language instruction.

On the we have dis- negligent already question preparation, the symbols, cussed the admitted reporter’s inability interpret “CMPLNT,” No verification of the on the docket except page. gathered sought sug- information was finally reporter by gested the editor. understanding Consequently, complete information, record, source the court was essential to only of the The was entitled to accuracy clarity report. jury ignorance. of his reporter negligent conclude that because also was find that the should not jury negligence entitled to have been excused because court record merely copied verbatim and the format did almost because of the the form of the docket substantially page. Finally, deviate from the article did not include the information conveyed by even “CMPLNT,” symbol abbreviation understood the re- only porter. This was an of omission that also could deter- jury act mine constituted negligence. on the

There were substantial additional facts ques- presented tion of For who wrote negligent publication. example, the reporter error,” like the article testified the item “looked an admit- thereby that the article ting conveyed inaccurate representation in sensitive The editor indicated the plaintiffs’ involvement crimes. but The Gazette’s unclear,” when item was “not asked publisher, said, if I do.” understood what article “I think he replied, who did the article conceded publisher, not review before printing, he had he the article to stated that understood mean previously they had posted charged bonds “because plaintiffs property added). In aggravated (emphasis with sexual assault.” somebody addition, whether, reporting the was entitled to determine jury Ga- crimes of the custom of magnitude, long-standing this zette should violated, been of the publication complaining have by names, to witnesses’ without care exercised assure greater being that the accurately item’s format the information conveyed reported.

Next, the contends the trial in- newspaper erroneously court structed the that it could jury award injury repu- tation. While the established en- conceding plaintiffs they good joyed reputations Powhatan to the County prior that, the asserts with publication, paper one “there was exception, not a shred of of evidence what the plaintiffs’ respective reputa-

tions were alleged after the libel.” The defendant contends that Mrs. testified that Mrs. Sweeney’s employer Sweeney’s reputation did not “in suffer the least” as a result of the publication. asserts that other Harrises’ newspaper witnesses the opined reputation changed had “an iota” as the result of libel. Viewing the evidence in the most to the light favorable are plaintiffs, who before us with armed verdicts jury by approved court, the trial we find there was sufficient evidence circumstantial damage plaintiffs’ caused the libel. exam reputation For Mr. article, Harris testified that ple, following of the which essentially charged being sexual plaintiffs perverts in a rural county, neighborhood “stopped coming children house.” Harris also testified that had he observed differences in the way neighbors treated him before and after incident. A friend of the his plaintiffs good testified that of the prior opinion Harrises and Mrs. was renewed Sweeney after incident only a full upon explanation meaning of the news report.

Next, defendant claims the trial court misdirected jury refusing two instructions on damages. the issue of We find no error in regard. this An instruction tendered by defendant question cause was an proximate incorrect statement law. A nominal instruction had damage proffered by paper First, two vices. if it given, would have suggested improperly — the amount jury nominal award return a “you may verdict for the in some one plaintiff nominal amount such as dol Second, lar.” it was for the reasons we elabo unnecessary, shall section, rate upon in next section of this we opinion. discuss the damage refusal a nominal instruction offered aby of the in- which a contention support

media defendant made Gazette and which relied on The that by struction similar to made The Gazette. authority by the same case cited $30,000, of argues the verdicts the Finally, newspaper amount, $10,000, $10,000, rely are excessive in and respectively, our which set forth criteria general on statements from cases ing instruction, In damage In the main determining for excessiveness. consider, to in de jury trial the permitted struction the court awards, surround amount of the the circumstances termining the statement, and the the on which it was made the ing occasion insult, the of nature and of extent the the character publication, statement, and on who the its the effect those “heard” probable feelings upon respective “personal effect the probable plaintiffs’ and in business.” The in the upon standing community [their] the for to in plaintiffs instruction authorized the jury compensate embarrassment, humiliation, sult, and mental suf including pain, Harris, and, of to in the case Mr. fering; reputation; any injury loss, the by medical caused monetary including expenses, publication.

The is the argument upon of the defendant’s excessiveness focus words, “injury failure of to in defendant’s alleged proof support, not Mr. was em- to business.” The asserts that Harris newspaper the does not and was not that record seeking employment, ployed Mrs. and that Mrs. Swee- reflect whether Harris employed, the incident. following had failed to receive raise ney merely pay argument. This is an actually insufficiency-of-the-evidence dealing We will notice of contention take no further this to defendant failed to plaintiffs’ object “business” because injury to as- to that of 11 which the portion permitted jury Instruction objection an on of such a loss. The sole sess amount account no of defendant “there is evidence any' to Instruction 11 defendant did damage to the Because reputation any plaintiff.” reference in the instruc- object below to the “business” loss tion, to such insufficiency support on the of the evidence ground item, on rely will not be to such an the defendant permitted See is ruling on 5:21. basis such ground Rule appeal. to If had been made the obvious. made argument appeal to court have had the consider judge, opportunity trial would been de- could have amended instruction question loss, con- assuming to defendant’s leting reference business tention is correct.

The balance of defendant’s suffers from argument excessiveness the same now contends there was no newspaper deficiency. in- competent evidence emotional support plaintiffs’ alleged juries, asserting vague generalizations “offered plaintiffs only . . .” the de- conclusory, self-serving opinions. Continuing, — argues: fendant “These statements of or conclusion ut- opinion — ... terly lacking a factual basis cannot meet the standards This, too, competent argument evidence actual injury.” the evidence was insufficient to support finding distress; suffered mental it is not a true excessiveness ar- plaintiffs gument. This contention should have been made the trial court It elements Instruction 11. was opposition pertinent not. for the such conten- Consequently, already assigned, reasons guise tion will not be noticed for the first time on under the appeal of an argument that the verdicts are excessive. will, therefore,

The in favor the be judgments of plaintiffs affirmed.

IV. Charlottesville Inc. v. Newspapers, Matthews 1982, In March of Debra C. Matthews sued appellee appellant Inc., Charlottesville Newspapers, for and compensatory punitive damages an resulting from libelous allegedly publication appear- ing the edition of The a Daily 1982 February Progress, of general circulation in the of Charlottesville. newspaper City The plaintiff alleged that a news article defendant published by about the outcome her in iden- of trial libeled item rape name, tified her by referred her on seven occasions as “Miss married, Matthews” when in fact she was and lawfully stated she was she raped at time one Jef- pregnant allegedly frey Williams.

The first ar- headline and four paragraphs ten-paragraph ticle stated:

“MAN OF FORNICATION FOUND GUILTY “An Albemarle Circuit found Jeffery Court County jury of Williams of 2221 Jefferson Towne apartments guilty [sic] $100. fornication and fined him Wednesday “Williams, 31, had 8 charged rape May been Matthews, of Villiage Debra C. of Whitewood [sic] Apartments. misdemeanor,

“Fornication, voluntary the crime person. intercourse an unmarried sexual at the “According prelimi- to Miss Matthews’ testimony of Wil- at the hearing, apartment the incident occurred nary Matthews, sister, who was preg- Wood. Miss liams’ Rosyln time, to dress because had there gone nant at at her apartment.” was out electricity article, continuing plaintiff The remainder of refer sum- Matthews,” facts and alleged rape “Miss related the criminal made after the attorney marized statements of Williams’ trial. and, plain-

The to a at the conclusion case tried jury evidence, The was abandoned. damages tiffs the claim of punitive fixed her compensatory found favor of the jury plaintiff verdict, $25,000. we damages The trial court confirmed the at judg- January from the appeal awarded the newspaper ment order. aas was not actionable defendant contends that article law, against are recoverable

matter of that compensatory York of New a media defendant in a libel suit only upon proof was in- that the evidence negligence, Times malice and not mere and that sufficient as a matter law to establish negligence, on qualified privilege trial court erred in to instruct refusing damages. nominal No dis- court standard. further negligence trial applied with the disagreement newspa-

cussion is our necessary explain should contention the New York Times malice standard per’s damages. be adopted proof sub the of the article makes question whether content below. stantial to was not issue danger reputation apparent Nevertheless, on we are of that the limitation application opinion this of the standard should not case. negligence operate said, made, As to be under we have the threshold determination is the the negligence principle, limitation and before applying law, circumstances ob- viewing whether as a matter of when the have anticipated a editor should reasonable jectively, prudent harmful necessarily that the words used contained an imputation which states to content of a news item reputation. Manifestly, the danger creates substantial that an unmarried woman is a pregnant editor of the reasonably prudent to and should warn a reputation from construction item’s One reasonable defamatory potential. forni- crime of such a reference is that the female committed the Therefore, the trial cation and became from the act. pregnant was court’s of the rule adoption negligence proper. sense, a the poten discussion on foregoing defamatory

tial forecasts that the trial our decision on the claim newspaper’s decided, law, court should have a the article was as matter that not in fact instead of the to defamatory jury permitting pass the question. often it to

“Although varying circumstances make difficult is a determine whether it particular language defamatory, general rule that to defamatory words are be taken allegedly in their and natural and to understood plain meaning be them, courts and as juries other would people understand according to the sense which to been they have appear used. In order to render words it and actionable defamatory is not be in defamatory direct necessary charge terms but be it made and it how may matters not indirectly, artful disguised modes in which the is con- meaning if it cealed is in fact defamatory. Accordingly, defamatory inference, charge may be made or insinua- implication 7, tion.” Carwile v. Richmond 196 Va. Newspapers, S.E.2d 591-92 (1954).

Not should a only editor have reasonably prudent appreciated defamatory of the item in potential was question, face, Carwile, sufficiently on its under defamatory permit jury to decide whether in the statement actually defamatory. fact Thus, the trial did in failing court not err to decide the as question matter law.

The defendant attacks on of the evi appeal sufficiency dence to prove That negligence. issue not raised in the trial evidence, court. During argument of its motion strike made at the conclusion of the case renewed at the end of plaintiffs evidence, the defendant argued negli against adoption gence never standard. It contended evidence was insuffi cient to raise a issue jury defendant’s After the negligence. trial judge announced that he would apply negligence stan dard, First, argued defendant two issues. it only asserted Second, the publication was not it actionable. that the argued pa- More- should on the of qualified privilege. be exonerated basis per over, instructions, the defendant did in its stating objections evidence, that the standard argue only not insufficiency Accord- negligence. be York and not should New Times malice was raised in we will not notice on an issue that not ingly, appeal Parenthetically, the trial court. Rule 5:21. it understand- quite because, was raised why sufficiency able of the evidence below follows, will be evidence as from the discussion that of apparent was the abundant. newspaper’s negligence Discussion of defendant’s contention that it was from protected reci- the mistake a brief by qualified requires accidental privilege as of author of the article had been hired a tation the facts. The the about a by part-time reporter photographer newspaper re- The had reporter month before the item was published. young covering no or in the “court- training, guidance, ceived instruction house His consisted of: work his experience beat.” only prior college in journalism school two high yearbook; participation courses; magazine of information for one article. compilation did trial in the court or

The not attend the circuit reporter rape on the in the district court. hearing charge general the preliminary Instead, his on review the of testi- transcript he based article whether given hearing, knowing at the without mony preliminary same in the circuit court trial. The testimony was presented tran- throughout hearing was identified the preliminary plaintiff as The obtained “Mrs. Matthews.” claimed have script reporter circuit some the facts from an interview court deputy clerk, but clerk handed the only reporter testified that she file did to him. The defense the. attorney court not talk tele- criminal trial testified that the asked him merely reporter exami- During for a comment on the outcome the trial. phone witness, admitted reporter nation adverse plaintiff defendant, he not talk to the criminal the Common- did assistants, or his court who wealth’s Attorney any reporter trial, courtroom, the in- bailiff on duty at present office, officer, at anyone in the sheriff’s vestigating anyone police the alleged rape, where the after hospital taken plaintiff that his use of testified judge, any jurors. reporter my “Miss” was “just memory.” slip editor, who of the reporter The defendant’s city supervisor article, had a although Daily Progress wrote the testified victims, the alleged paper of not names of rape policy printing had jury because the name this instance printed plaintiff’s he He also testified that determined she was not a victim of rape. false, and the was “had no idea” that the reference to plaintiff on of a factual mis- nothing that about the article him notice put to a calling per- take. He stated that it “never occurred” him that be son “Miss” and offensive. saying pregnant might she said, As sur we have the common-law qualified privileges vive establishment the standard for negligence Nevertheless, damage reject we the recovery Virginia. newspa it entitled an on the de per’s contention that was instruction argues fense of in this that its ac privilege case. defendant fair, count of a the court proceedings impartial, accurate and that the trial erred in fail court substantially report, ing to the to determine whether permit jury privilege applied the and, so, if whether the abused the paper privilege. words, law,

We hold that were defamatory the a matter of accurate. the factual errors in substantially Manifestly, only the article related to the of Mrs. Matthews’ paper’s description Nonetheless, marital status. the of the article defamatory content is not cured the otherwise accurate” newspaper’s “substantially account of the criminal Mrs. designation trial. Matthews as “Miss” was of the wholly inaccurate. That act was at root wrong that defamed her. in describing plain- The clear error status, tiff’s marital in the gratuitous with the mention coupled article of her resulted her pregnancy, damage reputation. Hence, the inaccurate of the newspaper deprives benefit of the that arises from court privilege reporting proceed- Zoll, 857-58, ings. 850, See Times-Dispatch v. 148 Va. 139 S.E. 505, (1927). 507 the defendant

Finally, contends trial court erred re fusing instruct on jury damages nominal as follows: “Nominal damages are those recoverable where a legal is to right be vindicated invasion that against an has pro- where, no duced actual kind present loss from any case, nature some been injury has done amount which the fails to show. The law proof damage infers some from the invasion of a right. that, this

“In connection the court if be- you instructs you from lieve the evidence no that there is of actual dam- proof 32 defend- resulting from the

age plaintiff proximately acts, damages only.” ant’s award her nominal you may Kocen, Va. S.E.2d 385 on News Leader Co. v. 3 Relying damage the defendant (1939), argues giving compensatory instruction on nominal dam- instruction without corresponding and conse- “objectionable” creates “imbalance” that ages We do not agree. constitutes reversible error. quently Kocen, word twice in a the trial court used the “substantial” word Over- damage modify instruction to “compensatory.” “The for the the Court said: revers- turning judgment plaintiff, lies ible error in the fact the instructions emphasized to recover substantial without right plaintiff any might the fact the jury instruction laying equal emphasis 3 S.E.2d return a verdict for nominal Va. at damages.” Kocen, case, In the there was no instruction at 392. unlike present Hence, the to award there inviting jury damages. “substantial” counterbalance, dam- no need to an instruction on nominal being to and the court refused so ages correctly trial unnecessary, instruct. reasons, in

For these the below favor of the judgment plaintiff will be affirmed. Lewis,

V. v. et al. Corporation Port Packet 1980, of subject In of articles and an editorial on the two July Packet, in Port a child abuse were The Alexandria published in In of April circulated the Alexandria area. weekly newspaper Lewis, wife, 1981, his Lewis G. Carolyn E. and appellees Grey the of publisher paper, sued Port Packet appellant Corporation, motion an amended damages. for and compensatory punitive un- published the that defendant judgment, alleged plaintiffs concerning causing statements plaintiffs, true and defamatory and ridicule. The plaintiffs them to be exposed public contempt humiliated, that their rep- embarrassed and alleged they were been utations for had honesty integrity impaired. trial, in of the plain- a a found favor

Following four-day jury $50,000 dam- tiffs, at fixing punitive $100,000. motion to defendant’s at The trial court overruled ages plain- in of the entered favor judgment set aside the verdict and de- tiffs, We awarded jury. in amounts fixed by jointly, 1983 final order. an from appeal January fendant Lewis, Jr., 1980, a.m., 10, Grey On June about 8:00 Edward his being son of the fed nine-month-old plaintiffs, mother from a in bedroom to the kitchen adjacent bottle a left child plaintiffs’ home in Alexandria. Mrs. Lewis momen- bed the kitchen to against on a while she tarily pillows stepped Lewis, Sev- assist Mr. who was a shortcake. strawberry preparing later, eral minutes a “loud in the bed- heard crash” plaintiffs room and child bed. child discovered the had fallen from the The to be appeared injured. baby The Lewises rushed the seriously Alexandria two inju- where he died later from head Hospital days ries sustained Pro- in fall. the Alexandria Child Subsequently, tective Services and the Alexandria Unit Police inves- Department death, tigated which the child’s was ruled accidental. The police closed on officially investigation their 1980. July meantime, In the published July defendant its 16 edition articles, The Packet the first series two well as editorial, article, on subject of child abuse in Alexandria. which is the subject main this under the dispute, appeared by- line of reporter Higgins. Adrian “2 DIE headline read: TOTS AS CHILD ABUSE CLIMBS.” The first several paragraphs the ten-column article stated: June,

“Early nine-month-old Mark for his short fought life after receiving injuries head what was a police believe vicious attack the infant. fight. Mark lost his “The week same also two-year-old Robert suffered a skull fracture in clung another attack. to life for suspected Robert two weeks.

“On re- April five Asia Marie Monday, year-old to a city turned care center after weekend day spent her teacher’s beating. aide of a severe Asia’s displaying signs two-year-old sister came back with injuries. lesser

“What all these frail in victims are believed to have com- mon is to of exposure one fastest social growing Alexandria’s problems: child beating.”

The next several of paragraphs cited statistics the incidence child in abuse the chil- City, commenting many assaults on dren go undetected a that has “society traditionally regarded the a family home shelter and be- sanctuary young human .” ings. . . article then summarized an interview with su- who indicated that of the local social services pervisor department of children” are of who “parents maltreated “greater portion enough but hard to have more feel the economic money, pinch become stressful and violent.” abuse, listed of without giving

The article then incidents child offenses. That in- alleged names of the individuals involved the formation the preceded following: childhood, Mark

“Denied of nine-month-old pains even first name) his skull (not during real received a fractured he week of and was taken to Alexandria where Hospital June as a treating died two death later. Detectives are his days homicide. name) (not

“The week real same Robert his two-year-old age At a time when other kids his injuries. suffered similar trinkets, to are life’s Robert was taken exploring curiously D. and then transferred to C. Children’s Hospital Alexandria to life receive care. Hooked up more Hospital specialized him, in a revive was attempt futile Robert support systems autopsy declared dead two weeks later. Based on medically treating are investigators Alexandria also reports, police as a Robert’s death murder.” Marie, the abuse of Asia

The remainder of the article discussed earlier, article referred to and her sister. The concluded Uhrig statements Ronald Alexandria Po- by Sergeant made difficulties Uhrig lice was out the Department. quoted pointing “ cases, ‘The noting: big- convictions in child abuse obtaining child) and one (of have an abused gest problem you parents two ” other, have won’t doesn’t to.’ testify against “CHILD captioned The editorial in the same edition out subject, ABUSE.” The writer discussed “painful” pointed abuse, it that was difficulties of mentioned charges proving abuse before it could be necessary stopped, to learn child cases be “solution” notoriety might stated such The editorial concluded: “problem.” “It is the weapon against be that main may publicity be known as a child child It is a thing abuser. shameful knew that if he or she abuser. It influence abuser might neigh- of news and the glare coverage probability all act. knowing part bors about [sic] “Could it work?” on

The issues involve was sufficient identi- appeal whether there fication the in of the to form a basis for an plaintiffs publication libel; action of a should negligence adopted whether standard be for an of damages; award whether the evidence was awards; sufficient to sustain awards damage the and whether the were excessive.

Discussion of the identification of question summary a requires Coldsmith, the evidence. James W. and editor of The publisher Packet, Higgins, and Adrian one the two re- full-time paper’s porters, became child in Alex- interested the abuse problem andria. decided to They proceed general an article the subject and this effort became the series eventually two-part pub- lished in July 1980. Sergeant

Police Uhrig among the individuals interviewed by Higgins mid- preparing During series. the course of the interview, July told Uhrig Higgins about several instances sus- abuse, pected child including the death of a child. nine-month-old name, Without victim identifying Uhrig told the reporter that the child was a male who injuries, including died from head a fracture, skull which were not a consistent with normal fall. Actu- ally, was relating the bare facts of death Uhrig of the plain- tiffs’ He Higgins child. told that the child June died at early Alexandria He Hospital. also told the case was clas- Higgins that sified as a death and it was suspicious being investigated pro- aas homicide. cedurally Uhrig testified that he explained Hig- gins that the final results of a investigation determine the police death, accidental, ultimate classification whether be it natu- ral, or a homicide. Initially, he a death that is not natu- explained, ral is classified police as a homicide. he

Uhrig testified that did not tell Higgins be- police lieved infant, there had “a been vicious attack” on child awas victim beating,” of “child or that were police treating the child’s as Uhrig death a “murder.” further testified that, article, after Higgins he told that he ob- words, jected to use of words in the article that were not Uhrig’s the use of especially According “vicious attack.” the re- Uhrig, porter that he used the “to replied very words be graphic.”

Higgins testified that did Uhrig because the nine- identify child, month-old as well which was discussed two-year-old interview, in the he decided to the children fictitious give names of “Mark” and “Robert.” The stated this reporter refer to the chil- way tool” that convenient “writing provided testified the journalis- dren in the article. One witness that expert is lead.” tic term for such a device “anecdotal article, In the intended to inform the pa- the preparing reporter readers, terms, in what he believed was a per’s general growing social in the There was no intention to problem Alexandria area. deal with of the cases mentioned in the any publica- specifically tion, to illustrative discuss the as of the only “problem.” incidents did not of the he seek further verification information re- Higgins assumed, ceived about “Mark” because he mistakenly, Uhrig the of the charge investigation was of the into cause child’s an reporter death. The also decided that additional attempt verification, facts, the who in a to know anyone position from was futile would be because of the confidential nature of such informa- the Higgins tion. At time the article was neither nor published, Coldsmith, editor, the the and knew of “Mark” identity publisher or his parents. article prior

Coldsmith reviewed and edited the to publication. British-trained, He had was a award- Higgins, confidence who with Coldsmith knew winning reporter experience. considerable source,” had interviewed and Higgins Uhrig, per- “official no need facts of investigation ceived for additional about the Coldsmith, editorial, the believed “Mark’s” death. who wrote the met the of a reasonably prudent journalist. article standard extensive evidence that members the plaintiffs presented Lewises, them, who knew of identified community knew the or the the “Mark” in the article. child named plaintiffs parents This evidence from the themselves but only plaintiffs came friends, relative, investigation, also from a officials involved in the virtual strangers. and the argues ques- the defendant identification

Initially, appeal Empha- This was trial court demurrer. tion. first raised the was used that the arti- that the name “Mark” sizing fictitious contends that cle nowhere the plaintiffs, newspaper refers it contained no defama- the is not actionable because publication who is reason- individual imputation against any particular tory addition, the de- words article. In identifiable ably show, the pertinent evidence failed to under urges fendant that the

37 case, to refer instruction in that the article was intended contentions. disagree We both plaintiffs. show alleged

In libel must that the Virginia, a plaintiff Shelor, v. or him. Cave 16 concerning” libel “of published he Munf.) Va. 193 He need not show that was men (2 (1811). Instead, tioned in the by name satisfies publication. plaintiff if shows concerning” “of test he publication intended to be refer him would so understood by persons 985, 997-98, v. reading it who knew him. Powell 151 Va. Young, 624, 627, 144 Va. S.E. rev’d on other 145 grounds, words, (1928). S.E. 731 other test met if plaintiff shows that the its description was “in or identification publication such toas lead those who knew or knew of the to believe plaintiff that the article was intended to refer to Butler v. News- [him].” Co., 1, 7, Leader (1905). 104 Va. 51 S.E. But if the on its does it publication face not show that applies plain tiff, actionable, is not unless the allegations the supporting contemporaneous facts connect libelous words to otherwise, the If the were plaintiff. rule could any plaintiff adopt to himself apply any libelous matter and obtain a recovery. Boutwell, 413, Ewell v. 138 Va. 121 S.E. 915 (1924). The Restatement comment is the consistent with rule in Virginia. name;

“It is not that the be necessary designated by plaintiff it is that enough there is such a or reference to description him that those who hear or read reasonably understand the to the be intended. Extrinsic plaintiff person facts make may it clear that a statement to a refers individual al- particular though the language used to defame Re- nobody.” appears statement (Second) of Torts 564 comment b (1977). § case,

In the present though even the on its face publication did name, not refer the to Lewises by the facts contemporaneous connected sufficiently the to the to establish publication plaintiffs for issue the These the jury. facts included extensive testimo that, nial article, evidence the immediately upon publication them, individuals who many knew the or knew of plaintiffs, identi fied the as Lewises the of “Mark.” The parents conclusions those witnesses are es- supported by underlying facts which amply to to the from “Mark” the Lewis child

tablish an interconnection Lewises. age, recited details about the child’s sex and specific article died, died, his when how he the injuries, hospital

the nature of he died, sustaining injuries. where he he lived after long how died recently This was not that an infant simply report stating in a child injuries suspected in a of head case of hospital local Instead, abuse. “Mark’s” explicit detailing Lewis surrounding facts the death of the tragedy using exact stated obvious child. One of the witnesses plaintiffs’ expert he that is avail- when testified: “The more detail made identifying is, tend to know who this you, might able the more you person as even never knew the name such.” though you person The evidence the connection to the supporting plaintiffs, parents “Mark,” is The article and editorial just strong. pointedly those focused on of abused children tied references parents cases made reference to documented. editorial specific against that is the main suggested “publicity weapon article and abuser.” known as child abuser Noting being the child “shameful,” coverage” “the of news glare the writer opines conduct, will to the a reference neighbors” alert “the abuser’s “glare” includes as those to be in the obviously parents public- Moreover, there were references in the article ity. repeated “family in the For example, role child abuse parents’ problem. con- has been home” which was a “shelter” children formerly A battlefield,” cause of according verted to “a article. stress” number of attacks on children is increasing “parental more than money” in the “of who have erupting parents homes families,” Lewis attor- Mr. is an “poor publication reported. addition, the article in the District of Columbia. ney practicing cases of out the difficulty prosecuting and editorial pointed is involved and neither child because often a mere infant abuse 19.2- other. But see Code against the will the parents testify § 271.2. ruling did not err in that we the trial court hold

Consequently, be issue of fact to decided the of identification was an question jury. the contention of the defendant’s

The comments foregoing dispose re- refer the “as plaintiffs the insufficient to to that evidence was following . .” The instruction law of case. . quired by as to form: objection without given

“The article in does not name the plain- issue newspaper recover, therefore, tiffs. In must show plaintiffs order to a the article was pub- evidence preponderance concerning lished them. find,

“In order so determine that the article you to must or was intended to refer to the directly indirectly, plaintiffs, and that it is members reasonably probable public who referring read the article would understand it as to them.”

Defendant there was no basis for the argues evidentiary to jury found have that the article was intended to refer to the plaintiffs, either or We do not directly indirectly. agree.

True, neither editor reporter nor the knew the identity “Mark,” the child named or that the plaintiffs were parents Nevertheless, child. this does not mean that the defendant did intend the article refer to the Lewises The indirectly. Packet had against embarked a crusade child abusers. This is clear from the As of this editorial. part campaign, newspa- intended that children per be identified. As the parents abusing argue, the could plaintiffs jury reasonably conclude that the news- abusers, intended to refer “Mark’s” his paper directly parent therefore, parents, indirectly Lewises. Accordingly, jury’s finding is by sufficient evidence and consistent supported with the pertinent instruction.

Next, the defendant showing contends more than negligence is for an award of simple necessary dam ages. This been argument has considered and already rejected. trial The court standard. properly negligence applied threshold of facial was not an question defamatory potential issue conclude, nevertheless, below. We that the content of the article should have warned a its editor of reasonably prudent defamatory potential.

The stated that the Alexandria Police categorically were death of treating the “Mark” as a murder. In a paragraph “Robert,” devoted to “are article noted that also treat- police ing Robert’s death as a murder.” use of “also” clearly refers Furthermore, “Mark’s” preceding about death. paragraph the clear from the headline the content was that implication the murder occurred of child abuse the result during act of a circumstances, “vicious attack on the infant.” These viewed objec- editor, reason- exercising an who was should have alerted tively, i.e., used, that the care, of the words to the harmful potential able murder, a with charged dubbed “Mark” were of the child parents showed that the reporter false. The evidence fact that utterly dead- constraints of a under the and the editor were not operating that, with the use of Indeed, he realized Coldsmith testified line. line, serious things” “very serious “very the “vicious attack” for the editor simple described. A command being events” were con- with, officer actually for example, police verification the in- would have revealed of the death ducting investigation defamatory language. accuracy potentially Next, erred when it contends the trial court the defendant injury to award jury permitted of such injury. specific was no evidence when there reputation included, item as an court improperly contention is that the trial instruction, to consider the jury a direction for in the damage in the com “standing the plaintiffs’ of the defamation upon effect The defendant injury reputation. in order to determine munity” on the plain had effect any was no evidence the article there says disagree. We tiffs’ in the standing community. Alexan- Towne” section of of the “Old residents plaintiffs, of their

dria, neighbors, that some evidence feared they presented abuse, on the look- would “be were of child knowing accused they had other chil- the Lewises child abuse” because out for further addition, Mrs. their son. them who survived living dren when, after the store grocery incident in a local Lewis related an in the been cordial who had a casual acquaintance, publication, direc- the other and walked turn-about “made a past, complete article, had dis- Also, he had read a local realtor stated tion.” times, and, at a political six friends cussed it with approximately regarding publication. Coldsmith had admonished meeting, that article and he objected told the editor that The realtor bad doing “was too far” and gone “had thought he paper other evi- This and enough.” suffered things already people whether the to consider the jury dence was sufficient to permit community. in the standing diminished the plaintiffs’ publication the compensa- argument defendant’s reject We likewise con- $50,000 newspaper excessive. The award of tory-damage The de- was misled. was influenced by passion tends the jury charged atmosphere emotionally there was suggests fendant tragic surrounding evidence generated the trial during out did death of son. It that the plaintiffs the plaintiffs’ points result of the damage as the prove any monetary mental no medical treat- suffering required the plaintiffs’ ment. We that this award to two was not joint conclude plaintiffs excessive. I,

Consistent our decision in the trial court Fleming per- mitted the to assess for damages plaintiffs’ jury embarrassment, and mental and “pain, suffering, any humiliation to injury according their instruction. reputation,” pertinent addition, to jury the was admonished award that re- sulted the from only wrong, from defendant’s and not other causes. The the by verdict trial approved judge. no

There is fixed standard for measuring compensatory and amount of matter damages, the the award of dis largely cretion the with the to be based on facts and circumstances of jury each case. Unless the is so particular amount award exces court, sive as to the the shock conscience of or to create the im pression that the was influenced jury by passion prejudice, a verdict the trial will not be approved by court disturbed appeal. Moore, 36, v. Hughes Va. 197 S.E. 2d 220 (1973). A record of this us that the study convinces compensatory-dam- age verdict is not excessive. For Mrs. Lewis was “horri- example, fied,” “mortified,” because, by “humiliated” the article part, she the believed felt she and her husband had at- police tacked course, their child. in the publication, appeared midst of the She was death” and police investigation. “scared to feared she going “was be the next She was prison day.” put “so the sensitive” to article she believed individuals would think she “gotten had abused her child and with it and that away they shouldn’t associate with For months about six after [her].” the article was isolated from published, themselves plaintiffs addition, friends. In Mrs. Lewis lost stom- sleep experienced ach because she was pains “just aware humiliation.” public

Mr. Lewis was when “overwhelmed” he read the article. He expected be “indicted at moment.” He that he any testified situation,” “to deal with prepared which the police may have believed had “I attacked and killed little viciously my boy, Grey.” He testified that his article emotions upon reading day after its were different from the emotions that he had been over felt the loss his son. He “tremen- experiencing humiliation,” dous withdrew from his friends and in the associates and feared the information he was a child abuser community, “would throughout Washington.” and into spread community servant, A gov- former Mr. Lewis had to return to public hoped service, ernment but was concerned by competition posts Also, which to his newly “baggage.” he due aspired acquired daughter Lewises became afraid to their discipline five-year-old it, her. feared will hear about then will They “somebody spanking ” ‘Oh, God, again.’ there are the Lewises say, Next, evidence the defendant contends that the failed to estab- lish a basis for an award of The trial court sub- punitive damages. mitted the issue to the with a jury punitive-damage requirement that New York malice must be established plaintiffs. Times This action would have been correct if there had been sufficient evidence to defendant clearly convincingly prove made the statements were false or made them so knowing they as to to a willful for the truth. But we recklessly disregard amount record, have conducted an examination of the entire independent States, to Bose v. according Consumers Union United Corp. Inc., and have determined that the evidence is not sufficient to of New York malice” finding Times “actual clear support and convincing proof.

The conduct of but not mali negligent, the defendant cious in the New York Times sense. The record is devoid of evi dence to show that or editor knew the defamatory reporter Therefore, statements were false. must recover plaintiffs puni all, tive if at evidence of reckless of damages, disregard upon whether the words were false or not. The articles were researched talked with the Uhrig, Higgins supervisor In addition to depth. of of the Alexandria Depart the Child Protective Services Unit Services, ment of Social two assistant direc city prosecutors, children, and a social dealing tor of a local with abused program fashion with con worker. The articles were edited in a deliberate was aware that sideration Because the editor given accuracy. an “official source” for the “serious” por had used reporter article, The edi suggested. tions of the no further verification it believing tor the article for publication complied approved standards of journalism. proper of record on this

In examination making independent issue, for damages we must be certain that the judgment punitive field of free ex- intrusion on the “does not constitute a forbidden Times, mandate at 285. With this York 376 U.S. New pression.”

43 mind, we cannot record in this say case establishes the required actual malice with convincing clarity. defamatory made, evidence, statements were not under the with a high degree of awareness that were false. they probably Consequently, judgment for punitive damages is erroneous and will be annulled. below will

Accordingly, judgment be affirmed as to the award, compensatory-damage reversed as to the punitive-damage award, and final will be judgment entered for the on the plaintiffs former award.

VI. v. Moore Fleming January Moore, III, W. Bedford appellee sued ap- James N. pellant Fleming for libel from arising an advertisement published a earlier in year The Cavalier Daily, student newspa- circulated per on the campus University and in Virginia the Albemarle area. County was a black Fleming real estate de- veloper Moore was a white University professor. dispute, and resulting “Racism,” publication entitled arose from efforts by others, Fleming, and land in the develop of Moore’s vicinity home situated in the County. trial,

Following the court below entered on a judgment jury $10,000 verdict awarding Moore compensatory damages and $100,000 punitive damages. On we appeal, reversed the judgment and remanded the case for a new trial on all issues. The 1981 I decision has been Fleming summarized in section 1(C) of this opinion.

The new trial was held in October of 1982 and resulted in a verdict in jury $100,000 favor of the for plaintiff compensatory $250,000 punitive damages cent interest plus per $250,000 16, 1976, from January which the trial upon court entered judgment June of 1983. We awarded the defendant an- other appeal, limited to questions the standard of concerning fault to be applied recovery damages, sufficiency award, the evidence to support punitive excessiveness both awards, and the correctness of interest on prejudgment the puni- tive award. The evidence during the retrial differs to presented some from degree at the first produced trial. mid-1970s,

In the Fleming, a native and a County successful joined three white realtor-appraiser, business associates in an ef- fort to 127 develop acres of land in the for approximately County residential The site purposes. was within the immediate watershed

44 Reservoir, The drinking

of the Rivanna a source of water. planned called was to house lower and “Evergreen,” unit development, Moore, a resident of the middle-income families of both races. Charlottesville area since was an assistant in the professor Humanities School of Engineering Division of the University’s Science. Moore lived near the site. His Applied development residence was named “Shack Mountain” and was described as a Jeffer- Eighteenth Twentieth of an Century reproduction Century Monticello, sonian it was a “small version” of not a pavilion; “replica.” of several defendant un-

During period years, Fleming sought to obtain a from authorities for successfully special permit county use of the zoned land. Plaintiff Moore and others agriculturally because of concern over the proposed opposed development units were and be- high (initially, dwelling density planned) would cause of fear that the reservoir be polluted. held before the Com- hearings Planning

A series public and others mission and the Board of The Supervisors. plaintiff that were submitted by several spoke opposition plans defendant. The Commission staff recommended that the Planning because the Evergreen rejected planned first be proposal mainly time, of the reservoir was great. too At the density pollution Planning also of considerable concern to the The Com- planners. first mission and the Board of defendant’s Supervisors rejected sec- because of the high density projection. proposal, mainly was like- Evergreen, ond with a lower plan proposed density, of conservation and envi- wise turned down because County the Board to the reservoir. relating Eventually, ronmental factors moratorium on construc- Supervisors early imposed until a deal- study progress tion within the reservoir watershed could be ing completed. jury of the reservoir pollution race was not a factor in deci- any has found on facts that disputed and that the Evergreen sions made officials by County relating in his was not motivated racial considerations opposi- plaintiff tion to defendant’s development.

Nevertheless, defendant controversy developed, as the land-use on racial were frustrated thought being solely that his plans obtaining were ap- noticed that white grounds. developers He Also, he as- were denied. being of their while his plans proval were conspir- the development sumed that citizen groups opposing addition, the planning him because he was black. against ing

45 staff had recommended a 100-foot tree buffer to the de- separate area the Shack defendant veloped from Mountain property. believed that the was a plaintiff leading Evergreen opponent and that Moore was condition for of the responsible imposition requiring the buffer. Moore was Fleming thought attempting have the buffer and Moore placed Fleming’s property somehow would take restrictive covenant advantage racially prior deeds to property. defendant

Consequently, drafted the He question. arranged for it to as a advertisement in appear January two paid 1976 issues of The Cavalier read Daily, campus by newspaper 15,000 approximately persons. The advertisement is verba- copied I, n.3, tim in 221 Va. 275 at at 887-88 S.E.2d 634-35 Fleming n.3. It was headlined “RACISM” James N. “Signed: Fleming.”

After that the stating author had endeavored to pleas- provide ant for housing “working the item said: people,”

“I do not expect any Farmington buy members to my houses. The tenured who live position-holders off the public dole at the working are well- expense people already housed, not could be to live in a racially-inte- expected grated neighborhood, anyhow.

“There is a deal of in the fact in Mr. great that here irony Jefferson’s country years situating after his vision of his beloved upon Monticello hilltop overlooking develop- we ing have a of Monticello the hill community replica upon overlooking which is a man who my property occupied by wants to of the same deprive working people opportunities that Mr. Jefferson Mr. even lo- sought them. Jefferson house, cated his slaves’ down hill from but quarters his Moore, Bedford of little does not occupant Monticello want sight.” black within his any people then between “great advertisement referred to conflict” “haves and the have-nots” and that “we created too stated have much segment financial for the tenured of the economic security greed is shown community expression whose their repeatedly by — ‘I’ve got mine too bad about you’.” Continuing, the author wrote that he was a “lover of liberty” and could not stand to “see the have-nots the no- oppressed by growth who are off of our work.” He next stated: people living

“I know that this highest living did achieve the Country standard in world no-growth by oppression man, working one’s yet today opportunity improve living standard is being the same violently opposed by people who oppose my proposed neighborhood.

“Pollution of the reservoir being used as the current ex- solution, course, to no-growth. cuse foster is to remove incomes of these guaranteed them greedy people put in the the world of one position seeing through eyes seeking the his or her standard. opportunity living improve then would admit Only they that the excuse is a pollution sham.”

The advertisement “I concluded: will and a lot develop Evergreen, will benefit from it.” people on Relying Bose v. Consumers Union Corp. United Inc., States, the defendant contends we make should an indepen- dent examination of all in issues this case to insure that the judg- ment below does not constitute a forbidden intrusion on the exer- addition, cise of free In expression. Fleming argues concern, advertisement related to a matter of vital a land- public use and that New York controversy, Times “actual malice” is the standard of proper liability We have compensatory damages. addressed these issues and no further discussion is neces- already sary our of the explain rejection contentions. The trial court in case, correct standard in this applying negligence and in using the in a suit a non-media defendant. principle against

We will consider next the whether the award of com- question pensatory is excessive. The argues defendant award shocks the conscience in it no bears relationship loss sustained Moore. actually by

Moore read the advertisement on both it was days published. describing the effect of the Moore testified that race publication, Rather, had no bearing on his he was opposition Evergreen. reservoir, concerned about his pollution preserving privacy, home, the historic character of his which had been protecting on the national and state of historic Con- placed registers places. testified, he he was and hu- embarrassed sequently, “very keenly” miliated “brought the racial attack because he had been up with sort of innocence on the whole He stated that the subject.” made him in conscious of race he be- way deplored cause he had been to be “color blind” and taught “considerate” his dealings with all other persons.

Moore testified: “I was to have a man that I seriously upset disagreed with in meetings go around behind me and public put into the student University such a malicious attack on newspaper me, character. my colleagues This was done in front of at the my students, Describing black and white.” his concern University, that the item had been the student placed newspaper op- to some other Moore said: “It was near posed publication, very home and concerned me much indeed. I felt that he had very put honor that could be restored vindication of gap my only fellow my citizens on this jury.”

The evidence showed that 1975 and a number of during racial concerns confronted the school was trying University. to attract students and minority Tension had faculty. developed campus because of the President’s in an University membership club, exclusive and there were private Farmington, demands that he resign his office. The plaintiff proved advertisement in the midst of this turmoil his adversely affected and his teaching with his students of both races. Dr. relationship Shannon, Jr., F. Edgar President of the from 1959 to University 1974, testified that the racial attitudes of a are perceived professor to his important relations with his affect materially students in the classroom. Shannon indicated that he had atmosphere never known Moore to do or to black say anything degrading per- sons or the black race. showed that Moore

Testimony was “very upset” by publica- tion and felt he had “a terrible The evidence experienced wrong.” showed that other as well members at the faculty University students made whether the about Moore and repeated inquiries statements in the item were true. suffered, testified, Moore “It’s not

Summarizing damage he I would visit on most It’s experience very people. unhappy.” Moore said the with the humiliation had not lessened passage time: “It still I been stings. still feel honor has my questioned, that’s not something shrug off you easily.”

48 awards fixed

Ordinarily, damage by jury following properly conducted trial and the trial are “held to be approved by judge inviolate against Smithey disturbance the courts.” v. Refining 142, 145, But, 203 Va. 122 S.E.2d Company, (1961). that, administration of in a healthy justice requires proper “[a] case, the courts must take action to correct what plainly appears to be an unfair verdict. This is an ancient and authority accepted of the common law.” Id. at 122 S.E.2d part at 875. When there is a claim that the verdict is excessive and it appears the award is so out of to the sustained to proportion damages sug- gest decision, that it is not the of a fair and it product impartial Id., becomes the of the court to correct the duty injustice. S.E.2d at 875-76. This is such a case.

We agree with the defendant amount of the award bears no to the loss sustained relationship actually plaintiff. embarrassment, Clearly, Moore suffered his damage to reputation, humiliation, and mental from this suffering defamatory publica Nevertheless, $100,000 tion made the verdict of is so negligently. out of sustained as to be excessive as a proportion damage out, matter of law. As the defendant Moore no points experienced Moreover, physical manifestation emotional distress. he any no sought medical attention for resulting condition from the any addition, publication. there was no evidence that Moore’s standing with his was diminished as the result of the libel. peers Indeed, the evidence shows that Moore’s acquaintances supported him; one concerned, indicated that: “As far as I am personally . . . he lost the evidence showed nothing.” Actually, that Moore continues to be high held in esteem his among community Thus, friends and colleagues. we find that the amount the ver and, dict bears no reasonable relation to the sustained therefore, Hence, is not the evidence. the trial supported by court erred in refusing motion set aside the post-trial compensa tory award as excessive. The court should granted have the motion and then considered to remit a requiring plaintiff portion the award or submit to a new trial under of Code provisions § 8.01-383.1. Constitution,

Section 6 of Article VI of the deal Virginia reversal, modification, ing the of this Court or power upon below, affirmance of a “In civil judgment provides, part: any case, enter final that Supreme may judgment, except [the Court] the award in a suit or for shall not damages action unliquidated

49 be increased or diminished.” We have this interpreted section: “The plain is to leave to the purpose provision factfinding tribunal —the or the trial court as a jury sitting function jury —the of fixing the amount of It does not unliquidated damages. deprive this court of the to remand the case to the lower court authority with direction that the be terms to remit a plaintiff put upon por tion of an award for or damages else submit to a new unliquidated Laburnum, 872, trial.” United Construction Workers v. Va. 900, 694, 75 S.E.2d 712 (1953), aff'd, (1954). 347 U.S. 656 Upon Webster, 771, rehearing of v. 154 Va. 153 S.E. 832 Bishop (1930), the Court said that “the long exercised this and power terms, all other courts to put and to allow him plaintiff upon of waiving a his or option portion damages have a new trial,” is not affected or diminished “in slightest degree” by 787, the foregoing constitutional section. 154 Va. at 155 S.E. at award, 828. For a case in which this Court diminished a damage 734, 760, 384, see Lorillard v. Clay, Va. 104 S.E. 392-93 (1920), decided before 1928 enactment of the forerunner to constitutional present Acts ch. 660. provision. p. we will

Accordingly, reverse the award and re- mand the case with direction to the trial court to require plaintiff to remit a substantial of his recovery else submit part to a new trial the issue of upon damages only.

Next, the defendant contends there was insufficient evi dence of actual malice to award. We do not support punitive agree.

We have made an examination of the record on independent this issue to be certain that the for judgment punitive does not constitute a forbidden on the field of free ex- intrusion pression. trial court instructed the that properly jury malice, York that plaintiff establish New Times required is, Moore, evidence, that clear and convincing had prove that Fleming knew the statements were false or that he made them, instruction, “so as to amount to according recklessly a willful for the truth. . . .” disregard

We will in his Fleming assume without is correct deciding position Fleming that Moore failed to knew the defam- prove substantial, Nonetheless, statements were there was atory false. credible acted finding Fleming evidence to support jury’s disregard with recklessness that was tantamount to a willful the truth.

50 his “at looking through eyes argues Fleming

On this point, . . . the con- only possible in 1976 January his world as it existed malice but by motivated actual is that was not clusion [he] of must of this element proof frustration.” But evaluation genuine from a subjective objective standpoint, merely be from an perspective. in and composing all and reason

Fleming judgment abandoned Moore of For he accused the advertisement. example, publishing for the basis any objective without possessing racial prejudice him demeaned Fleming Moore in the charge. Naming publication, dole” at off the living “public as a tenured being position-holder Moore, no evidence that There was working of expense people. being supported similar occupation, other any person no of citizens. There was proof to the of other groups prejudice to believe Moore wished had reason Fleming any legitimate had no Fleming of to deprive “working people” any opportunity. Moore, so-called “no- as one proper grounds suppose reck- Fleming other individuals. growth people” oppressing development pollu- stated that Moore’s to the lessly opposition “sham” to conceal his real grounds supposed purpose, tion was a i.e., who would live in the of black citizens and others oppression the ad- Fleming’s act community. Finally, publishing planned where Moore vertisement in the student on the newspaper campus in- defendant’s motive was to taught the conclusion that supports leading the voice of a oppo- timidate Moore in order to eliminate nent to Fleming’s development.

Next, amount of the award punitive defendant contends the in- no relationship shocks the conscience in that it bears de- which is to damages, punish tended purpose punitive not to warning for his conduct and to serve as a to others fendant $250,000, the award of in similar Defendant engage activity. says 16, 1976, is unjust interest on that amount from January plus or was misconceived the law or the facts establishes that the jury actuated by passion prejudice. we make on the punitive- examination independent The First liability. issue is not limited to

damage proof punitive of such an from the amount flowing Amendment implications consider the effect reviewing ap court to require award derogation on self-censorship of such award proval Moreover, verdict for dam a jury punitive of free right speech. to work an and result injustice oppres- cannot be allowed ages Cowden, 190, 199, sion. Stubbs v. 179 Va. 18 S.E.2d (1942). Where a award is in excess of what punitive substantially be ordinarily might for the expected punishment particular conduct, the reviewing court has a to anull the award duty unless the circumstances are so egregious as to constitute a sufficient punishment wrongful See id. at 18 S.E.2d at activity. award, 280. We hold that the amount of this including the interest factor, constitutes a forbidden intrusion on the exercise of free ex- pression that it is in excess of substantially adequate punish- ment for defendant’s conduct. said,

Without as we have question, Fleming acted with actual Nevertheless, malice. for this excessive punishment harangue is destructive, not it is merely punitive, even esti- though Fleming mated his assets at close to one million dollars. While the ele- ments of differ from the compensatory damages requirements establish punitive damages, factors many both on apply appeal. For example, absence of manifestation of Moore’s physical emotional distress must be considered. The fact no substantial reduction in Moore’s standing with his associates must not be Indeed, overlooked. Moore was not charged with commission of a crime. The amount of punitive damages awarded should bear some reasonable to the relationship actual sustained and otherwise, measure of punishment the award on required; its face indicates Id. at at prejudice S.E.2d partiality. 280. This is such an award and it cannot stand. award,

Consistent with our disposition and on the award, same we will reverse the authority, punitive direction to the trial court to to remit a sub- require plaintiff stantial of his part punitive or else submit to a new trial recovery upon issue of damages only.

Because the main interest was not question regarding preserved in properly the trial court and because the interest issue not may remand, arise addition, do upon we not address that question. we deny motion to dismiss. plaintiff’s reasons,

For affirmed, these the judgment will be in part, below reversed, in and remanded for further part, consistent proceedings with this opinion.

Record No. 830758—Affirmed. Record No. 830526—Affirmed. Record No. in Affirmed, part, 830651— reversed, in part, and judgment. final Record No. Affirmed, part, 831446— reversed, in part, and remanded. POFF, J., concurring dissenting part part. I do not standard of approve compensatory-damage liability the media defendants. majority imposes upon The free clause of the First Amendment was press designed, so engine much as a license for but as an of the publishers, peo- to know what the to discover ple’s right press uniquely equipped which I is to strike report. goal majority, applaud, balance between the interest a has public-policy person private in his good name the interest the has in the media’s public freedom to When a causes these publish. defamatory publication collide, interests to courts must constitutional competing weigh values and resolve the conflict the standard of by defining liability. (a cases left unde- Except involving qualified privilege concept fined), has standard. I majority adopted simple-negligence fear that standard creates an imbalance between the impolitic interests. competing

The actual-malice standard in favor of the me- weighs heavily dia defendant at the on the injured expense private plaintiff; hand, other standard tends to chill both re- simple-negligence free portorial and editorial free press speech, self-censorship a timorous media disserves the to know. I would people’s right reject both standards and strike a balance between the midway two extremes. claims,

For I favor a gross-negligence compensatory-damage that, of a standard. I would hold when the content Specifically, false makes substantial of a publication danger reputation recover private person apparent, person may a media defendant if he damages against proves by preponder- investi- ance of the evidence that the defendant’s in the negligence was so gation and verification of the content so heed- as to shock the conscience of fair-minded men and gross rights. indifference to his flagrant less of the truth as to evince a Inc., 38 N.Y.2d See v. Utica Observer-Dispatch, Chapadeau (1975). 379 N.Y.S.2d 341 N.E.2d 569 states, I the courts of most the discre- recognize exercising Welch, Inc., (1974), tion v. 418 U.S. 323 granted in Gertz Robert have standard. We not fear simple-negligence ought adopted to This Commonwealth first join minority. proclaimed in 1776 in Article XII of the Decla- free-press principle Virginia ration of and James Madison was Rights, largely responsible inclusion of the First Amendment in the Constitution of the view, United States. In a rule which makes my publishers broadcasters liable for weakens his- negligence Virginia’s simple torical commitment to freedom of the and encumbers the press right to learn what need to know govern to people they themselves wisely. defined,

In with the standard I have I will concur in keeping and dissent in part In the Gazette case and in the Char- part. case, lottesville I from Newspapers must dissent the decision to affirm the several verdicts each was an in- because based upon struction For same defining standard. simple-negligence reason, I dissent from the decision to affirm the compensatory- case; however, damage award in the Port Packet I concur in the decision to reverse the punitive-damage award in that case be- agree cause I that the evidence fails to show actual malice. case, Fleming I concur in full.

HARRISON, Justice, Retired concurring dissenting part in part. opinion finds in cases majority precedential support

decided this and several other state courts. I agree that each of the cases under review the defendant failed exercise ordinary care and therefore acted This dissent stems from negligently. my disagreement with the Court’s refusal in defamation adopt cases as a matter of state law a stricter standard than that of ordinary negligence. care is that care which is commen- Ordinary surate with the occasion. or is It not absolute intrinsic. It always time, relative to some manner, circumstances of place, person and becomes a of fact be decided question aby jury. selected,

Juries are and the for ser- randomly principal criteria vice thereon is felon, not to be a not under age eighteen, and not unable to in communicate the English language. Present-day ju-

ries often return verdicts that are out completely proportion no Trial exception. the harm done. The verdicts under review are of a jury. are reluctant to disturb the verdict judges Appellate trial court when it does courts are as to sustain a reluctant equally such take action. stan- gross negligence

I do not concur in the that a suggestion and gross neg- dard be The distinction between adopted. ordinary ligence any is too to be vague shadowy practical impor- this making tance. The that courts and had difficulty juries the General As- distinction in motor vehicle accident cases caused standard in cases. gross guest to abolish the sembly negligence Virginia jury Code 8.01-63.1 have no reason to believe that § a court would find it easier to make the distinction in defama- any tion cases.

I would New York standard which permits Times adopt for a statement recovery defamatory when such statement is made with that it is false only knowledge or is made or not. with reckless of whether it was false disregard And I media would make the same standard applicable non-media defendants. standard will have a Any inevitably lesser effect on free and the free and will erode the chilling speech press safeguards the Constitutions of the United States protected by and Virginia. negligent does limit the majority opinion application

standard a trial to find as a matter of law that by requiring judge defamatory danger reputation statement “makes substantial limitation, it will I I fear that apparent.” Although approve than substance. What is to be one of form rather prove practice of fact. Judges when it harmful are defamatory questions will be to “take case from the trier of the just away” hesitant facts as now verdict of a once it has jury are to set aside the they been rendered. Gazette,

Because I am of the defendants in The opinion Inc., Inc., and Port Packet Corpora- Charlottesville Newspapers, standard which I negligence tion were guilty simple only, affirming would not I dissent from the decision adopt, compen- I concur in the action of awards in the cases. satory-damage Port award in the reversing majority punitive-damage Packet I did not in Fleming. case. participate

Case Details

Case Name: Gazette, Inc. v. Harris

Court Name: Supreme Court of Virginia

Date Published: Feb 1, 1985

Citation: 325 S.E.2d 713

Docket Number: Record Nos. 830758, 830526, 830651 and 831446

Court Abbreviation: Va.