HARTE-HANKS COMMUNICATIONS, INC. v. CONNAUGHTON
No. 88-10
Supreme Court of the United States
Argued March 20, 1989-Decided June 22, 1989
491 U.S. 657
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
John A. Lloyd, Jr., argued the cause for respondent. With him on the brief were Sallie Conley Lux and Jeanette H. Rost.*
JUSTICE STEVENS delivered the opinion of the Court.
A public figure may not recover damages for a defamatory falsehood without clear and convincing proof that the false “statement was made with ‘actual malice‘-that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964). See Curtis Publishing Co. v. Butts, 388 U. S. 130, 162 (1967) (opinion of Warren, C. J.). In Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 (1984), we held that judges in such cases have a constitutional duty to “exercise independent judgment and determine whether the record establishes actual malice with convincing clarity.” Id., at 514. In this case the Court of Appeals affirmed a libel judgment against a newspaper without attempting to make an independent evaluation of the credibility of conflicting oral testimony concerning the subsidiary facts underlying the jury‘s finding of actual malice. We granted certiorari to consider whether the Court of Appeals’ analysis was consistent with our holding in Bose. 488 U. S. 907 (1988).
Respondent, Daniel Connaughton, was the unsuccessful candidate for the office of Municipal Judge of Hamilton, Ohio, in an election conducted on November 8, 1983. Petitioner is the publisher of the Journal News, a local newspaper that supported the reelection of the incumbent, James Dolan. A little over a month before the election, the incumbent‘s Director of Court Services resigned and was arrested on bribery charges. A grand jury investigation of those charges was in progress on November 1, 1983. On that date, the Journal News ran a front-page story quoting Alice Thompson, a grand jury witness, as stating that Connaughton had used “dirty tricks” and offered her and her sister jobs and a trip to Florida “in appreciation” for their help in the investigation.
Invoking the federal court‘s diversity jurisdiction, Connaughton filed an action for damages, alleging that the article was false, that it had damaged his personal and professional reputation, and that it had been published with actual malice. After discovery, petitioner filed a motion for summary judgment relying in part on an argument that even if Thompson‘s statements were false, the First Amendment protects the accurate and disinterested reporting of serious charges against a public figure. The District Court denied the motion, noting that the evidence raised an issue of fact as to the newspaper‘s interest in objective reporting and that the “neutral reportage doctrine” did not apply to Thompson‘s statements.1 The case accordingly proceeded to trial.
After listening to six days of testimony and three taped interviews-one conducted by Connaughton and two by Journal News reporters-and reviewing the contents of 56 exhibits, the jury was given succinct instructions accurately defining the elements of public figure libel and directed to answer three special verdicts.2 It unanimously found by a preponderance of the evidence that the November 1 story was defamatory and that it was false. It also found by clear and convincing proof that the story was published with actual malice. After a separate hearing on damages, the jury awarded Connaughton $5,000 in compensatory damages and $195,000 in punitive damages. Thereafter, the District Court denied a motion for judgmеnt notwithstanding the verdict, App. to Pet. for Cert. 83a, and petitioner appealed.
The Court of Appeals’ review of the actual malice determination involved four steps. It first noted the wide disparity between the respective parties’ versions of the critical evidence, pointing out that if the jury had credited petitioner‘s evidence it “could have easily concluded that Thompson‘s
Judge Guy dissented. In his opinion the admissions made by Connaughton in his interview with Journal News reporters the day before the story was published sufficiently corroborated Thompson‘s charges to preclude a finding of actual malice. Id., at 853-854. He was satisfied, as a matter of law, that respondent had failed to prove actual malice by clear and convincing evidence, regardless of whether determinations of credibility made by the jury are subject to a de novo standard of review. Id., at 855.
II
Petitioner contends that the Court of Appeals made two basic errors. First, while correctly stating the actual malice standard announced in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the court actually applied a less severe
There is language in the Court of Appeals’ opinion that supports petitioner‘s first contention. For example, the Court of Appeals did expressly state that the Journal News’ decision to publish Alice Thompson‘s allegations constituted an extreme departure from professional standards.5 Moreover, the opinion attributes considerable weight to the evidence that the Journal News was motivated by its interest in the reelection of the candidate it supported and its economic interest in gaining a competitive advantage over the Cincin-
The language in the Court of Appeals’ opinion discussing professional standards is taken from Justice Harlan‘s plurality opinion in Curtis Publishing Co. v. Butts, supra, at 155. In that case, Justice Harlan had opined that the New York Times actual malice standard should be reserved for cases brought by public officials. The New York Times decision, in his view, was primarily driven by the repugnance of seditious libel and a concern that public official libel “lay close” to
It also is worth emphasizing that the actual malice standard is not satisfied merely through a showing of ill will or “malice” in the ordinary sense of the term.7 See Beck-
ley Newspapers Corp. v. Hanks, 389 U. S. 81 (1967) (per curiam); Henry v. Collins, 380 U. S. 356 (1965) (per curiam). Indeed, just last Term we unanimously held that a public figure “may not recover for the tort of intentional infliction of emotional distress . . . without showing . . . that the publication contains a false statement of fact which was made . . . with knowledge that the statement was false or with reckless disregard as to whether or not it was true.” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 56 (1988). Nor can the fact that the defendant published the defamatory material in order to increase its profits suffice to prove actual malice. The allegedly defamatory statements at issue in the New York Times case were themselves published as part of a paid advertisement. 376 U. S., at 265-266. If a profit motive could somehow strip communications of the otherwise available constitutional protection, our cases from New York Times to Hustler Magazine would be little more than еmpty vessels. Actual malice, instead, requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” “cannot be fully encompassed in one infallible definition,” St. Amant v. Thompson, 390 U. S. 727, 730 (1968), we have made clear that the defendant must have made the false publication with a “high degree of awareness of . . . probable falsity,” Garrison v. Louisiana, 379 U. S. 64, 74 (1964), or must have “entertained serious doubts as to the truth of his publication,” St. Amant, supra, at 731.
Certain statements in the Court of Appeals’ opinion, when read in isolation, appear to indicate that the court at times substituted the professional standards rule for the actual malice requirement and at other times inferred actual malice from the newspaper‘s motive in publishing Thompson‘s story. Nevertheless, when the opinion is read as a whole, it is clear that the conclusion concerning the newspaper‘s departure
The question whether the Court of Appeals gave undue weight to the jury‘s findings-whether it failed to conduct the kind of independent review mandated by our opinion in Bose-requires more careful consideration. A proper answer to that question must be prefaced by additional comment on some of the important conflicts in the evidence.
III
The most important witness to the bribery charges against the Director of Court Services was Patsy Stephens, Alice Thompson‘s older sister. In a tape-recorded interview conducted in Connaughton‘s home between 12:30 and 4:30 a.m. on September 17, 1983, Stephens explained how, on 40 or 50 occasions, she had visited with the Court Administrator, Billy Joe New, in his office and made cash payments to dispose of “DUI” and other minor criminal charges against her former husband and various other relatives and acquaintances.8 On September 22, pursuant to an arrangement
made by Connaughton at the suggestion of the county prosecutor, Stephens took a lie detector test. After learning that she had passed the test, Connaughton filed a written complaint against New. In due course, New was arrested, indicted, and convicted.
Alice Thompson was one of the eight persons present at the tape-recorded interview on September 17.9 One of the cases Patsy Stephens described was a shoplifting charge against her sister. Thompson volunteered some comments about the incident, but otherwise had little to say during the long interview with Stephens. Thompson was also present on the 22d, when Stephens took the polygraph test, but Thompson declined to submit to such a test. Apр. 301. On that day, the two sisters spent several hours in the company of Connaughton, his wife, and two of his supporters. They discussed a number of subjects, including the fact that Billy Joe New had just resigned, the question whether there was reason to be concerned about the safety of the two sisters, the fact that Martha Connaughton might open an ice cream parlor sometime in the future, the possibility that the two sisters might be employed there as waitresses, and a vacation in Florida planned by the Connaughtons for after the election.
- that Connaughton had stated that his purpose in taping the interview with Patsy Stephens was to get evidence with which he could confront New and Judge Dolan and “scare them into resigning” without making any public use of the tapes;10
that he would pay the expenses for a 3-week vacation in Florida for the two sisters;11 - that he would buy a restaurant for the two sisters’ parents to operate;12
that he would provide jobs for both Patsy Stephens and Alice Thompson;13 - that he would take them out to a victory dinner at an expensive French restaurant after the election;14 and
- that Connaughton would not allow knowledge of the sisters’ involvement to become public.15
Toward the end of the interview, Blount made two significant comments. He announced that “Pam will, of course, write the story,” id., at 314, and he asked “[w]hat would happen if we called your sister,” id., at 316. In response to the first comment, Thompson volunteered a somewhat improbable explanation for her motivation in seeking the interview,21
On Sunday, October 30, an editorial appeared in the Journal News under the headline “Municipal Court Race will have More than One Loser.”24 App. to Pet. for Cert. 45a. In the column, Blount observed that the campaign “battle has been all it was expected to be and more,” and predicted that “[a] lot could still happen in the next eight to nine days.” Ibid. He went on to discuss the charges pending against New, stating that the “array of charges and counter charges probably has taken some votes from Dolan.” Ibid. He cautioned, however, that the race was still wide open and quoted an unidentified voter as saying, “I resent voting for a person who I later find has been deceitful or dishonest
On October 31, a reporter for the Journal News telephoned Connaughton and asked him to attend a meeting with Jim Blount, stating “that the endorsement may hang in the balance.” Tr. 457 (Aug. 9, 1985). Connaughton met with the reporter, Blount, and Cocozzo that afternoon and discussed a variety of subjects. One of the subjects was the rumor that Connaughton had an influential link to the Cincinnati Enquirer. Connaughton asserted that he had “no extraordinary pull or any inside track to anybody down there,” and that any rumor to the contrary was “a lie.” Id., at 458. Another subject was Connaughton‘s participation in the investigation of Billy Joe New. Connaughton provided a chronology of the events that led to his filing of the complaint against New and explained that he believed that he had an obligation “as an attorney and officer of the court to report [New‘s] crimes.” Id., at 458-459. No mention was made of Thompson‘s interview or her charges against Connaughton. Id., at 460. After about an hour, Jim Blount received a telephone call and then told Connaughton that a reporter wanted to interview him. Id., at 462.
Connaughton then went to another office where Blount and Long advised him that they had interviewed Alice Thompson
Thus, while categorically denying that he intended to confront New and Judge Dolan with the tape of the Stephens interview to scare them into resigning, Connaughton admitted that he might well have speculated about what they would say or do if they heard the tapes.26 Similarly, while denying
The following day the lead story in the Journal News—under the headline “Bribery case witness claims jobs, trip offered“—reported that “[a] woman called to testify before the Grand Jury in the Billy Joe New bribery case claims Dan Connaughton, candidate for Hamilton Municipal Judge, offered her and her sister jobs and a trip to Florida ‘in appreciation’ for their help.”31 Id., at 329. The article, which carried Pam Long‘s byline, stated that Thompson accused Connaughton of using ” ‘dirty tricks’ ” to gain her cooperation in investigating New and that Connaughton, although admitting that he did meet with Thompson, “denied any wrongdoing.” Ibid. Each of Thompson‘s allegations was accurately reported, including her claims that Connaughton had promised to “protect her anonymity,” id., at 330, that he had promised Stephens “a municipal court job” and Thompson some other sort of work, that he had invited both sisters оn “a post-election trip to Florida,” and that he had offered “to set up Thompson‘s parents . . . in the restaurant business,” id., at 333. The article conveyed Thompson‘s allegation that “the tapes were turned off and on during a session [that] lasted until 5:30 a.m.,” and that these promises were
As the Court of Appeals correctly noted, there was evidence in the record—both in the Thompson tape and in the Connaughton tape—that would have supported the conclusion that Thompson was telling the truth and that Connaughton was dissembling. See 842 F. 2d, at 840. On the other hand, notwithstanding the partial confirmation of Thompson‘s charges in the Connaughton tape, there remained a sharp conflict between their respective versions of the critical events. There was unquestionably ample evidence in the record to support a finding that Thompson‘s principal charges were false, either because she misinterpreted remarks by Connaughton and his wife, or because Thompson was deliberately lying.
The jury listened to the tape recordings of the two conflicting interviews and also observed the demeanor of the two witnesses as they testified in open court. They found that Connaughton was telling the truth and that Thompson‘s charges were false. The fact that an impartial jury unanimously reached that conclusion does not, however, demonstrate that the Journal News acted with actual malice. Unlike a newspaper, a jury is often required to decide which of two plausible stories is correct. Difference of opinion as to the truth of a matter—even a difference of 11 to 1—does not alone constitute clear and convincing evidence that the defendant acted with a knowledge of falsity or with a “high degree of awareness of . . . probable falsity,” Garrison, 379 U. S., at 74. The jury‘s verdict in this case, however, derived additional support from several critical pieces of information that strongly support the inference that the Jour
IV
On October 27, after the interview with Alice Thompson, the managing editor of the Journal News assembled a group of reporters and instructed them to interview all of the witnesses to the conversation between Connaughton and Thompson with one exception—Patsy Stephens. No one was asked to interview her and no one made any attempt to do so. See App. 56-57, 61, 83-85. This omission is hard to explain in light of Blount‘s and Long‘s repeated questions during the Connaughton and Thompson interviews concerning whether Stephens would confirm Thompson‘s allegations. See id., at 277, 313, 316. It is utterly bewildering in light of the fact that the Journal News committed substantial resources to investigating Thompson‘s claims, yet chose not to interview the one witness who was most likely to confirm Thompson‘s account of the events. However, if the Journal News had serious doubts concerning the truth of Thompson‘s remarks, but was committed to running the story, there was good reason not to interview Stephens—while denials coming from Connaughton‘s supporters might be explained as motivated by a desire to assist Connaughton, a denial coming from Stephens would quickly put an end to the story.
The remaining six witnesses, including Connaughton, were all interviewed separately on October 31. Each of them denied Alice Thompson‘s charges and corroborated Connaughton‘s version of the events. Thus, one Journal News reporter testified at trial that Jeanette and Ernest Barnes denied that any promises, offers, or inducements were made and that he had known the Barneses for several years and considered them both credible. Id., at 89-90. Another reporter testified that she interviewed Dave Berry and that Berry stated that absolutely no promises or offers were made. Id., at 91-92. By the time the November 1 story ap
The newspaper‘s decision not to listen to the tapes of the Stephens interview in Connaughton‘s home also supports the finding of actual malice. During the Connaughton interview, Long and Blount asked if they could hear the tapes. Id., at 259. Connaughton agreed, ibid., and later made the tapes available, id., at 48, 142. Much of what Thompson had said about the interview could easily have been verified or disproved by listening to the tapes. Listening to the tapes, for example, would have revealed whether Thompson accurately reported that the tape recorders were selectively turned on and off and that Connaughton was careful not to speak while the reсorders were running. Similarly, the tapes presented a simple means of determining whether Stephens and Thompson had been asked leading questions, as Thompson claimed. Furthermore, if Blount was truly in equipoise about the question whether to endorse the incumbent judge for reelection—as he indicated in the column that he published on Sunday, October 30—it is difficult to understand his lack of interest in a detailed description of the corrupt disposition of 40 to 50 cases in Judge Dolan‘s court. Even though he may have correctly assumed that the account did not reflect on the integrity of the judge himself, surely the question whether administrative shortcomings might be revealed by the tapes would be a matter in which an editor in the process of determining which candidate to endorse would normally have an interest.32 Although simply one piece of
Moreover, although also just a small part of the larger picture, Blount‘s October 30 editorial can be read to set the stage for the November 1 article. Significantly, this editorial appeared before Connaughton or any of the other witnesses were interviewed. Its prediction that further information concerning the integrity of the candidates might surface in the last few days of the campaign can be taken to indicate that Blount had already decided to publish Thompson‘s allegations, regardless of how the evidence developed and regardless of whether or not Thompson‘s story was credible upon ultimate reflection.
Finally, discrepancies in the testimony of Journal News witnesses may have given the jury the impression that the
V
The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S., at 510-511. This rule is not simply premised on common-law tradition,33 but on the
There is little doubt that “public discussion of the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule,” Ocala Star-Banner Co. v. Damron, 401 U. S. 295, 300 (1971), and the strongest possible case for in
“Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparativе merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively.” 4 J. Elliot, Debates on the Federal Constitution 575 (1861).
This value must be protected with special vigilance. When a candidate enters the political arena, he or she “must expect that the debate will sometimes be rough and personal,” Ollman v. Evans, 242 U. S. App. D. C. 301, 333, 750 F. 2d 970, 1002 (1984) (en banc) (Bork, J., concurring), cert. denied, 471 U. S. 1127 (1985), and cannot ” ‘cry Foul!’ when an opponent or an industrious reporter attempts to demonstrate” that he or she lacks the “sterling integrity” trumpeted in campaign literature and speeches, Monitor Patriot Co. v. Roy, 401 U. S. 265, 274 (1971). Vigorous reportage of political campaigns is necessary for the optimal functioning of democratic institutions and central to our history of individual liberty.34
In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full. Although credibility determinations are reviewed under the clearly-erroneous standard because the trier of fact has had the “opportunity to observe the demeanor of the witnesses,” Bose, 466 U. S., at 499-500, the reviewing court must ” ‘examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . protect,’ ” New York Times Co., 376 U. S., at 285 (quoting Pennekamp v. Florida, 328 U. S. 331, 335 (1946)).35 Based on our review of the entire record, we agree with the Court of Appeals that the evidence did in fact support a finding of actual malice. Our approach, however, differs somewhat from that taken by the Court of Appeals.
In considering the actual malice issue, the Court of Appeals identified 11 subsidiary facts that the jury “could have” found.36 842 F. 2d, at 843-844. The court held that such
There is no dispute that Thompson‘s charges had been denied not only by Connaughton, but also by five other witnesses before the story was published. Thompson‘s most serious charge—that Connaughton intended to confront the incumbent judge with the tapes to scare him into resigning and otherwise not to disclose the existence of the tapes—was not only highly improbable, but inconsistent with the fact that Connaughton had actually arranged a lie detector test for Stephens and then delivered the tapes to the police. These facts were well known to the Journal News before the story was published. Moreover, because the newspaper‘s interviews of Thompson and Connaughton were captured on tape, there can be no dispute as to what was communicated, nor how it was said. The hesitant, inaudible, and sometimes unresponsive and improbable tone of Thompson‘s answers to various leading questions raise obvious doubts about her veracity. Moreover, contrary to petitioner‘s contention that the prepublication interview with Connaughton confirmed the factual basis of Thompson‘s statements, Brief for Petitioner 47, review of the tapes makes clear that Connaughton unambiguously denied each allegation of wrongful conduct. Connaughton‘s acknowledgment, for instance, that his wife may have discussed with Stephens and Thompson the possibility of working at an ice cream store that she might someday open, hardly confirms the allegations that Connaughton had promised to buy a restaurant for the sister‘s parents to operate, that he would provide Stephens with a job at the Municipal Court, or even that he would provide Thompson with suitable work.37 It is extraordinarily unlikely that the
It is also undisputed that Connaughton made the tapes of the Stephens interview available to the Journal News and that no one at the newspaper took the time to listen to them. Similarly, there is no question that the Journal News was aware that Patsy Stephens was a key witness and that they failed to make any effort to interview her. Accepting the jury‘s determination that petitioner‘s explanations for these omissions were not credible, it is likely that the newspaper‘s inaction was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of Thompson‘s charges. Although failure to investigate will not alone support a finding of actual malice, see St. Amant, 390 U. S., at 731, 733, the purposeful avoidance of the truth is in a different category.
There is a remarkable similarity between this case—and in particular, the newspaper‘s failure to interview Stephens and failure to listen to the tape recording of the September 17 interview at Connaughton‘s home—and the facts that supported the Court‘s judgment in Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967). In Butts the evidence showed that the Saturday Evening Post had published an accurate account of an unreliable informant‘s false description of the Georgia athletic director‘s purported agreement to “fix” a college football game. Although there was reason to question the informant‘s veracity, just as there was reason to doubt Thompson‘s story, the editors did not interview a witness who had the same access to the facts as the informant and did not look at films that revealed what actually hap
As in Butts, the evidence in the record in this case, when reviewed in its entirety, is “unmistakably” sufficient to support a finding of actual malice. The judgment of the Court of Appeals is accordingly
Affirmed.
In my view, in cases like this the historical facts—e. g., who did what to whom and when—are reviewable only under the clearly-erroneous standard mandated by
As I read it, the Court‘s opinion is consistent with these views, and—as JUSTICE KENNEDY observes—is consistent with the views expressed by JUSTICE SCALIA in his concurrence. Based on these premises, I join the Court‘s opinion.
JUSTICE BLACKMUN, concurring.
I agree with the majority‘s аnalysis and with the result it reaches. I write separately, however, to stress two points.
First, the case reaches us in an odd posture, one which stands in the way of giving full consideration to aspects of the content of the article under attack that perhaps are of constitutional significance. Petitioner has abandoned the defense of truth, see Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986), despite the fact that there might be some support for that defense. We therefore must presume that the jury correctly found that the article was false, see ante, at 681, and decide whether petitioner acted with knowledge or reckless disregard of its falsity. In addition, petitioner has eschewed any reliance on the “neutral reportage” defense. Cf. Edwards v. National Audubon Society, Inc., 556 F. 2d 113, 120 (CA2), cert. denied, 434 U. S. 1002 (1977). This strategic decision appears to have been unwise in light of the facts of this case. The article accurately reported
Second, I wish to emphasize that the form and content of the story are relevant not only to the falsity and neutral reportage questions, but also to the question of actual malice. In the past, this Court‘s decisions dealing with actual malice have placed considerable emphasis on the manner in which the allegedly false content was presented by the publisher. See Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6, 12–13 (1970) (truthful and accurate reporting of what was said at public meeting on issues of public importance not actionable); Time, Inc. v. Pape, 401 U. S. 279, 290-292 (1971) (erroneous interpretation of Government report not “actual malice“). Under our precedents, I find significant the fact that the article in this case accurately portrayed Thompson‘s allegations as allegations, and also printed Connaughton‘s partial denial of their truth. The form of the story in this case is markedly different from the form of the story in Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), where the informant‘s description of the events was presented as truth rather than as contested allegations. These differences in presentation are relevant to the question whether the publisher acted in reckless disregard of the truth: presenting the content of Thompson‘s allegations as though they were established fact would have shown markedly less regard of their possible falsity.
I am confident, however, that these aspects of the majority‘s opinion are omissions in explanation rather than in analysis, and that the majority‘s opinion cannot fairly be read to hold that the content of the article is irrelevant to the actual malice inquiry. Because I am convinced that the majority has considered the article‘s content and form in the course of its painstaking “review of the entire record,” see ante, at 689, and because I conclude that the result the majority reaches is proper even when the contents of the story are given due weight, I concur.
JUSTICE KENNEDY, concurring.
I join the opinion of the Court, for in my view it is not inconsistent with the analysis set out in JUSTICE SCALIA‘S separate concurrence.
JUSTICE SCALIA, concurring in the judgment.
I agree with the Court‘s disposition of this case, and with its resolution of the second legal issue on which we granted certiorari, namely whether “highly unreasonable conduct constituting an extreme departure from ordinary standards of investigation and reporting” is alone enough to establish
I disagree, however, with the Court‘s approach to resolving the first and most significant question upon which certiorari was granted, which was the following:
“Whether, in a defamatiоn action instituted by a candidate for public office, the First and Fourteenth Amendments obligate an appellate court to conduct an independent review of the entire factual basis for a jury‘s finding of actual malice—a review that examines both the subsidiary facts underlying the jury‘s finding of actual malice and the jury‘s ultimate finding of actual malice itself.”
That question squarely raised the conflict that the Sixth Circuit perceived it had created with an earlier decision of the District of Columbia Circuit, en banc, concerning the requirement we set forth in Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 (1984), that judges “exercise independent judgment” on the question “whether the record establishes actual malice with convincing clarity,” id., at 514. The nub of the conflict, which is of overwhelming importance in libel actions by public figures, is whether this means, as the Sixth Circuit understood the District of Columbia Circuit to have held in Tavoulareas v. Piro, 260 U. S. App. D. C. 39, 817 F. 2d 762 (1987) (en banc), that the trial judge and reviewing courts must make their own “independent” assessment of the facts allegedly establishing malice; or rather, as the Sixth Circuit held here (explicitly rejecting Tavoulareas), that they must merely make their own “independent” assessment that, assuming all of the facts that could reasonably be found in favor of the plaintiff were found in favor of the plaintiff, clear and convincing proof of malice was established.
Today‘s opinion resolves this issue in what seems to me a peculiar manner. The Court finds it sufficient to decide the present case to accept, not all the favorable facts that the
“Given the trial court‘s instructions, the jury‘s answers to the three special interrogatories, and an understanding of those facts not in dispute, it is evident that the jury must have rejected (1) the testimony of petitioner‘s witnesses that Stephens was not contacted simply because Connaughton failed to place her in touch with the newspaper; (2) the testimony of Blount that he did not listen to the tapes simply because he thought they would provide him with no new information; and (3) the testimony of those Journal News employees who asserted that they believed Thompson‘s allegations were substantially true. When these findings are considered alongside the undisputed evidence, the conclusion that the newspaper acted with actual malice inextricably follows.” Ante, at 690-691 (emphasis in original).
This analysis adopts the most significant element of the Sixth Circuit‘s approach, since it accepts the jury‘s determination of at least the necessarily found controverted facts, rather than making an independent resolution of that conflicting testimony. Of course the Court examines the evidence pertinent to the jury determination—as a reviewing court always must—to determine that the jury could reasonably have reached that conclusion. But the Court does not purport to be exercising its own independent judgment as to whether Stephens was not contacted simply because Connaughton failed to place her in touch with the newspaper, whether Blount did not listen to the tapes because he thought they would provide no new information, or whether the Journal News employees believed Thompson‘s allegations to be substantially true.
More important, however, even if each of these factual findings happened to be necessary to the verdict and interrogatory response, I see no reason to make them the exclusive focus of our analysis, instead of consulting (as the Sixth Circuit did, and as courts invariably do when reviewing jury verdicts) all the reasonably supported findings that the jury could have made. It may well be true that “we need only consider those factual findings that were essential to the jury verdict” in the sense that referring to those alone is enough to decide the case—i. e., those alone establish clear and convincing proof of malice. But one could pick out any number of categоries of permissible jury findings that would meet that test. For example, it might be true that we could find the requisite proof of malice by considering, not all the evidence in its light most favorable to the plaintiff, but only that evidence produced by a particular witness. We could then say “we need only consider the findings the jury might have made based on the testimony of Mr. Smith to decide this case.” I see no more logic in limiting the inquiry the way the Court has done than in limiting it in this latter fashion.
In sum, while the Court‘s opinion is correct insofar as the critical point of deference to jury findings is concerned, I see no basis for consulting only a limited number of the permissible findings. I would have adopted the Sixth Circuit‘s analysis in its entirety, making our independent assessment of whether malice was clearly and convincingly proved on the assumption that the jury made all the supportive findings it reasonably could have made. That is what common-law courts have always done, and there is ultimately no alternative to it.