delivered the opinion of the Court.
Thе question before the Court in this appeal is whether the trial court erred in directing a verdict in favor of The A. S.
Prior to Frank C. Hohman’s (appellant) retirement on December 1, 1975, he was a major in the Baltimore County Police Department with over 29 years of service. Appellee’s morning newspaper, The Sun, began рublishing a series of articles on August 24, 1975 dealing with towing operations in Baltimore County. The final article, published on January 22, 1976, generated the present dispute. Considering the nature of this case, we shall set forth the entire article below:
“Baltimore county police were lax in their regulation of towing firms, аccording to a 3-1/2-month internal investigation of charges of favoritism in the county’s police-controlled towing business.
The formal investigation report cites for ‘nonfeasance’ an unspecified number of unnamed high-ranking officers no longer with the department.
Although the report finds no evidencе of criminal misconduct by current or former policemen, it says ‘subjective evidence would indicate that police officials had not fully exercised their administrative abilities’ in overseeing those firms licensed to take police calls to tow disabled vehicles.
Specifically, the report concludes that, in the past, towing license applications were approved or disapproved without written justification, official records of towing licensees were poor or non-existent and the tow truck operators were seldom if ever inspected for compliance with the law.
The nine-page report, dated January 7 and signed by Joseph R. Gallen, the police chief, has not yet been made public, but copies have been distributed within the department and sent to the county executive and state’s attorney.
Sandra A. O’Connor, the state’s аttorney, will use the findings in her own probe of the department and the towing industry. She has said this investigation will be a top priority of the new grand jury sworn in last week.
The report is the first formal confirmation of articles in The Sun as early as August stating that a'politically well-connected Essex garage owner had established the largest towing business in that area, apparently bеcause county police had limited his competition by control of the licensing procedure and had gerrymandered his authorized zone of operations to include some of the county’s most heavily traveled roads.
The garage owner, William E. Eiler, who lost his towing license in the ensuing investigation, is a friend of several once-powerful Democratic politicians and former police officers, including Ellison W. Ensor, the former chief.
Mr. Ensor retired September 1 amid the investigation into corruption charges within the 1,180-member police force.
Mr. Gallen was then named acting chiеf by Theodore G. Venetoulis, the county executive, with orders to pursue the probe. Subsequently, Mr. Gallen received the permanent appointment as chief.
Several high-ranking officers closely identified with the former chief also have subsequently retired. They include:
*Col. Gordon C. Lee, the former operations officer, who had custody of the licensing files for towing operators.
*Maj. Louis G. Roemer, the former chief of detectives and also a friend of Mr. Eiler.
*Maj. Frank Hohman, former head of the Traffic Division, who kept the complaint files on towing operators.
*Capt. Charles L. Krach, former commander of the Eastern Patrol Bureau, who was responsible fordrawing the towing zone boundaries in the Essex area.
These four officers, as well as Chief Ensor, were among those charged with ‘nonfeasance,’ according to a reliable source.
Colonel Lee and Major Hohman were named in one section of the report which described the ‘poor record-keeping system’ within the department relating to towing operators.
Police investigators also faulted the county Department of Permits and Licenses for ‘sloppy record keeping’ relating to towing and suggested that ‘effective internаl management procedures be adopted.’
The report also referred to one unidentified towing operator who ‘may have committed several violations of law’ other than the county towing statute and who is under investigation for possible criminal indictment by the state’s attorney.
At the conclusion of the report, Chief Gallen spelled out a new licensing procedure he has implemented, which will include at least three inspections a year of the county’s approximately 31 police-licensed towing companies.”
Appellant, at trial, claimed that this article falsely accused him of having been charged with a crime (nonfeasance) and that he had been damaged in his good name and reputation, particularly his reputation as a former law enforcement officer and as a former county employee of honesty and integrity.
Aрpellee successfully maintained below, that the article was not defamatory and that, even if it were, there was no evidence of actual malice sufficient for the jury to consider whether appellee’s constitutional privilege had been overcome.
1
New York Times v. Sullivan,
“Although the report finds no evidence of criminal misconduct by current or former policemen...”
“Sandra A. O’Connor, the state’s attorney, will use the findings in her own probe of the department and the towing industry. She has said this investigation will be a top priority of the new grand jury sworn in last week.”
The threshold question of whether an article is defamatory is one of law to be determined by the court. The trial court correctly considered the article in its entirety,
Heath v. Hughes,
“... [T]he libelous character of the article must be determined from the whole article published....
Words may have different meаnings according to the connection in which they are used, and their context may confine them to but a single and innocent construction. It would be a dangerous doctrine, and tend to promote grave injustice, to permit words to be withdrawn from others with which they are connected and used by the рublisher, and then impute to them a meaning not warranted by the whole publication.” [Emphasis in original.]
“If there were legally sufficient evidence that this publicatiоn charged the plaintiff with the commission of a crime in the sense that it’s argued by Major Hohman, then I’d let the jury consider damages. If the statement was reasonably capable of two different meanings as Major Hohman’s counsel argued, I should let the jury decide whether it’s defamatory or not. If the statement is capable of two different meanings.”
Nevertheless, we believe the trial judge was wrong when he then concluded the statement was capable of only one meaning. Normally this conclusion on our part would require reversal, but not here because we do not believe there wаs evidence of actual malice, an element necessary to be shown under these circumstances.
Appellee argues that the lack of sufficient evidence of actual malice would also preclude submission of the issue of whether the newspaper’s constitutional рrivilege had been overcome. The trial court did not base its decision to grant the motion for directed verdict specifically upon any failure on appellant’s part to produce evidence of actual malice. The trial.judge stated:
“I don’t need to really base my ruling on thаt argument because I find that the evidence is legally insufficient to meet the burden of proof on the plaintiff to go to the jury.”
Our recent decision in
Delia v.
Berkey,
2
“Accordingly, the test applied in determining the governing legal principles in this case [involving a police officer acting within the scоpe of his law enforcement function] is the standard enunciated by the Supreme Court of the United States in New York Times v. Sullivan,376 U.S. 254 ,84 S. Ct. 710 (1964), which held that public officials may sue for libel only when they can demonstrate that the alleged libel was made with ‘actual malice,’ which is defined to mean publication of false statements with actual knowledge of their falsity or with reckless disregard for their truth or falsity. In Garrison v. Louisiana,379 U.S. 64 , 74,85 S. Ct. 209 (1964), the Court refined its standard, stating that ‘only those false statements made with the high degree of awareness of their probable falsity demanded by New YorkTimes may be the subject of either civil or criminal sanctions.’
New York Times, supra, and its progeny impose a heavy burden on the public official or public figure who sеeks redress for an alleged defamation. The defamed public official or public figure must prove not only that the circulation was false but that it was knowingly so or was circulated with reckless disregard for truth or falsity. See Cox Broadcasting Corp. v. Cohn,420 U.S. 469 ,95 S. Ct. 1029 (1975). The procedural effect of New York Times was a shifting of the burden of proof in сases involving alleged defamation of public officials or public figures. We said in Kapiloff v. Dunn,27 Md. App. 514 , 530,343 A.2d 251 (1975):
In order to protect the interest of the First Amendment in the free dissemination of information concerning the conduct of a public official or public figure, the Supreme Court shifted that burden. It is now incumbent upon the рublic official or public figure plaintiff to prove that the statements concerning his conduct were false, and that they were published with actual malice.
The New York Times or the so called ‘constitutional malice’ doctrine focuses primarily on the element of scienter. Knowing falsity or reckless disregard for truth involves proof of a ‘high degree of awareness of... probable falsity ...,’ Garrison v. Louisiana, supra, such that the defendant ‘entertained serious doubts as to the truth of his public action.’ St. Amant v. Thompson,390 U.S. 727 , 731,88 S. Ct. 1323 (1968). Accord, Marchesi v. Franchino,283 Md. 131 ,387 A.2d 1129 (1978)."
Id.
at 51-53. To prove “reckless disregard”, as required by
New York Times v. Sullivan, supra,
appellant had to adduce sufficient evidence to permit the conclusion that appelleе in fact entertained serious doubts as to the truth of the
“These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” [Emphasis added.]
There is simply no evidence that appellee published the article with “knowing falsity” or “reckless disregard of the truth”.
Our review of the recоrd persuades us that appellant failed to meet the heavy burden placed upon him by New York Times v. Sullivan, supra, in producing sufficient evidence of actual malice to take the matter to the jury.
The
Sun
reporter’s testimony negates any inference that he entertained any serious doubts about the truth of the mattеrs treated in the article, particularly the allegedly defamatory statement. The reporter included the name of appellant among those to whom the nine-page report referred when it stated, “There was evidence of non-feasance by ranking police officеrs who are no longer with the police department”, for the following reasons: the language of the report,
i.e.,
“ranking police officers”; the reference made by the report to the poor record-keeping within the police department, and the confirmation by a “reliаble source” that the names that were to appear in the article were the “ranking officers” mentioned in the report. The investigative report itself did not give the names of the officers, so the reporter resorted to the sources noted previously to garner the information fоr the January 22, 1976 article. The reporter’s recitation of his investigation to determine the names of those “ranking police officers” contains no hint, nor is there any other evidence, that appellee or its reporter entertained any doubts, much less serious doubts, as to the truth of the publication. Thus we are led to the inescapable conclusion that
Judgment affirmed.
Costs to be paid by appellant.