Mahnke v. Northwest Publications, Inc.

“nor,” argued by following conjunctive portion exclusion ex- would be loss defendant, not follow necessarily it would tem- “change from that loss argue reasonable It is cluded. more such directly caused only losses humidity” encompassed perature change temperature incidentally aggravated by changes, those vandalism, the risk acts of occurred except not have also, viewpoint From this covered by policy. of which specifically aby specifically because it caused directly here is covered loss an- risk, enhanced incidentally though indirectly even covered Anderson v. Connecticut coverage. other excluded peril expressly (2d) 469, 43 807. Fire Ins. Co. 231 Minn. N. W.

Affirmed. PUBLICATIONS, INC. MAHNKE v. WILLIAM L. NORTHWEST 160 N. W. 1.

May 31, 40,745. 1968 No. Brown, Oppenheimer, Hodgson, & Leach and Don- David C. Wolff nelly, for appellant.

Erickson, Popham, Schnobrich, Wayne & Popham, Haik G. and Rolfe Worden, for A. respondent.

Nelson, Justice. defendant, libel, Publications, Inc.,

In this action for Northwest ap- peals from an order its motion denying for judgment o. v. or new n. Plaintiff, Mahnke, trial. $3,000 William L. was awarded verdict of $1,000 general damages plus punitive damages.

Defendant is’ the owner and of two St. publisher daily Paul news- papers, the St. Paul Dispatch and St. Paul Pioneer Press. Plaintiff was is detective with the captain Police Minneapolis Department. The libel for which plaintiff recovered was following contained ar- ticle, which appeared in the “Sunset Final” edition of the Paul Dis- St. patch January 1960:

“Cop Molesting Urged Rebuke in Tot “A Minneapolis priest Catholic today demanded official reprimand one city’s for of that detective because he said captains police official to arrest a man involved in a serious child-molesting case. refused

“Involved in the complaint, he said he ‘carry governor necessary,’ if are Father F. Meagher, Thomas executive director the Catholic Welfare association, and William Mahnke, L. one of four Minneapolis department police detective captains. aby parish his attention brought to said the case was

“Father Meagher sexually mo- that her husband complained woman to whom a priest and verified examined the girl A doctor daughter. lesting 6-year-old their molesting. “ attention,’ Father my to come to of incest ever ‘It was the worst case Meagher said. chaplain Hennepin as Catholic who also serves Meagher

“Father courts, and child to sent the mother district Minneapolis municipal squad. sex them department’s were taken from police. Statements Captain sought Mahnke Quady permission then Detective William to arrest father. rage’ into when he learned Mahnke said Meagher

“Rev. ‘flew coming to before case with her parish priest woman had discussed the ‘trying get even with her husband.’ her and accused police “ send out detec- her there no case and ‘Mahnke told refused arrest,’ don’t believe tives to make today. Father said T Meagher judges up as themselves officials should be allowed to set police juries the face of evidence.’ such Meagher what had hap- told Father returned and

“When woman Hawkinson, Calvin detective captain, he to another complained pened, later statement admit- gave arrested. The father who had the father being city molested child and held ting he had is sexually charges, Meagher Father said. jail pending filing treatment “The official carried his woman’s complaint Catholic Winslow, and the Mayor city’s to Peterson Chief of Police Milton E. civil service commission. “ is,’ ‘but what he said he today, ‘I don’t care Mahnke’s punishment if have the matter going get carry an official I reprimand governor.’ that the affair

“He be comment refused to calmed Chief Winslow’s or error of and refused ‘misunderstanding judgment’ partic- Mahnke, in a the chief was between ipate meeting seeking arrange woman Meagher. and Father “ chief,’ to the story to have the woman tell her ‘I’ll happy said, ‘but priest I won’t be involved in a roundtable discussion with This is a Mahnke. serious matter and should be handled such.’ “Mahnke could not be (Italics reached comment.” supplied.) for Plaintiff claimed that the italicized portions the above were article false.

If all conflicts in the evidence are resolved favor of plaintiff as the prevailing below, the facts party to be as appear follows: On January Blake, sister, Byron Mrs. June her Spahr, and 6-year-old daughter went to the Police Minneapolis Department. The had daughter told her mother that her father had been molesting her. Reverend Thomas Meagher, F. who executive director of the Catholic Wel- fare Association and who served also as Catholic chaplain Hennepin County District Court and court, Minneapolis municipal sent arrival, mother and child to the their police. Detective Upon William T. Quady and a policewoman interviewed mother daughter, policewoman took statements from A physician them. had examined and had daughter given a written report apparently failed sup- the claim of port molesting.

Detective Quady to have the father authority He had arrested. at the doubts time whether the evidence available a valid support arrest, he so consulted with plaintiff approximately 6:15 m. of that p.

day, relating to the information then They available. called an assistant county Meshbesher, attorney, Ronald to ask if would author- ize an arrest. Meshbesher said he would not do so under the circum- stances and suggested that be sent to the detectives home to interview the father in order to either an admission or develop some evi- further dence which would support arrest. Meshbesher,

After this talked talk with Detective Quady brother, to Mrs. and her Spahr Byron Blake. Both of them wanted the husband arrested. In accordance with the suggestion made assist- by the ant county Detective attorney, plaintiff told that he go should Quady to out the residence Spahr question the father. At that the point brother asked the if could police absolutely guarantee that they would arrest Spahr if went out to they the house. Blake believed that had Spahr he not want family abusive to the did drinking

been could be explained he were then arrested. Plaintiff both contacted if not Spahr such a could not be made. Mrs. guarantee Blake and Mrs. that Spahr not to the detectives be sent requested and her brother then Spahr hus- to interview the Mrs. indicated that her Spahr house When father. license had been was devised arrest suspended, plan band’s driver’s automobile, his and De- day driving him next when he would tective was that after Quady directive to effect. The prepared plan arrest making driving an for police question Spahr offense respect to the charge molesting daughter. made, Mrs. Spahr After ascertained that plans plaintiff these were meeting and her return their be- daughter safely could home. hours, then came to an tween which had lasted about IY2 end. parties, during The record clear that did meeting plaintiff course the. refuse arrest not did not seek from Spahr; Quady permission Detective arrest did into a or plaintiff fly rage not Spahr; plaintiff express he did not even with her any anger; get accuse mother of trying case; husband; did there he did not refuse to send he not tell her was no arrest; not an as out detectives to and he did express opinion make father, guilt to the in fact his although personal opin- innocence of the showing ion was that the man was also guilty. presented Evidence to the writer of article newspaper available comment. 21, 1960, after January days

The article was some event reported. day duty January was not on indicates

The record However, 2:30 m. that day following meeting. approximately p. Hawkinson, then on duty, telephoned plain- Detective Calvin F. Captain asking a call Father Meagher had received tiff and said because Plaintiff indicated Spahr surprise about status of the matter. and asked if the evening been made the previous that had plan then Hawkinson Captain outlined to man had been Plaintiff arrested. evening they previous with the case appeared the problems would have to use his judgment and said that Hawkinson Captain of matter. handling the further that Captain

It that Father informed Hawkinson he appears Meagher had talked to the doctor who had the child and that the doc- examined tor told him that child’s female were red and irritated— organs medical that did not information which apparently appear report had received the also police previous night. Hawkinson Captain legal wanted some advice as whether an arrest could be made. After and obtaining opinions of two assistant Bruce Stone county attorneys, Durda, father, Chester that sufficient cause existed to arrest the probable afternoon, he Spahr’s ordered during arrest. Arrested sub- Spahr admitted the offense with sequently was then charged. Schwartz, Max (Mickey) reporter rewrite desk working 21, 1960, the St. Paul wrote the As a rewrite Dispatch January article. man, Schwartz’ job taking consisted of dictation from who were reporters out the office stories “writ- preparing that editor wanted city ten in a hurry.” His first knowledge of the incidents had occurred before days was obtained on 21 in a call morning January either to or from Minneapolis which he was told there was a disagreement between Father Meagher He to a plaintiff. assign story did not reporter working office, outside the instead directly handled rewrite desk. He first to reach attempted Father suc- Meagher cessful after what he described as “numerous calls.” He phone reached Father Meagher at noon on 21. January

Schwartz did not recall whether he Father questioned care- Meagher fully to the events that occurred at the meeting about which story said, however, written. He was, that Father Meagher at the time of conversation, their irate. did He not recall whether he asked Father Meagher if he was present or witnessed personally the remarks and actions which his story attributed to plaintiff. He testified that he “as- sumed” Father Meagher was present.

The statement in the article that “the woman returned told Father Meagher what warranted happened” the jury’s implicit findings Schwartz knew when he wrote the article that Father Meagher was not present at the meeting question, and that Schwartz also knew that the information related him in a secondhand fashion originally came from upset person, complaining mother. Schwartz did call the mother or to talked Detective Quady Meagher had ask if Father did he

nor to reach no attempt He made woman. the .complaining the brother of however, did, call Inspector He the brother. Quady either Detective Milton Wins- Chief of Police Weatherall who referred him Charles Schwartz misunderstanding. been a low. Winslow said that there had further warranting as not warning admitted that he disregarded story. the article as a of the facts and routine investigation prepared both to reach plaintiff tried testified that he unsuccessfully Schwartz stated In article Schwartz at the and at home. police department the state of the Under could not be reached for comment.” “Mahnke record statement Plaintiff the could have found this was false. jury that testified during that he was was at home the entire duty, period off article, time that and received no calls from Schwartz preparing wife, Lucille at home this Mahnke, during Schwartz. plaintiff’s was also he did that period of time. She testified not receive calls Schwartz any day. claimed he asked but that he did plaintiff headquarters that for at police Weatherall, not to do talked so until after he had attempt Inspector Winslow, he did not leave Meagher. message Chief and Father He said call for because was in too much a rush and because plaintiff he “too he would have received from would have been late do that the accepted me It is any good day.” apparent plaintiff’s been that he for comment. testimony could have reached edition, Schwartz first intended to the article in print the home whether not reached had not plaintiff. he When he succeeded in doing so m., edition, 12:30 deadline for p. city editor, who was hold Schwartz’ immediate had him for superior, story publication in the edition later so that he reach Then at plaintiff. sugges- could lunch, editor, tion of the at 1 city returning Schwartz went Upon m. p. from return lunch Schwartz claimed further he made a attempt and then wrote a “few minutes.” story reach plaintiff action, learned story, Plaintiff is the subject He received a call from someone evening appeared. at the Dis- asking if read was read patch, story. story had over the tele- him, and he was asked to phone comment. Plaintiff said the story comment untrue and he would have no further completely until he read the article. a retraction of article.

Subsequently, demanded When came retraction was not he instituted ffiis action. It first forthcoming, before this court of dis- judgment appeal by plaintiff missal trial court’s determination that his demand for a following the did retraction with the 548.06.1 comply requirements St. Minn. We held that demand did with the statute sufficiently comply remanded the Publications, case trial. Mahnke v. Northwest Inc. 266 Minn. (2d) 124 N. W. 411.

Defendant $4,000 contends that reversal against verdict it is required because article is within the fair-comment rule which under certain a defendant to permits escape circumstances payment damages resulting from the of untrue about publication statements pub lic officials or figures. This court has recently occasion to consider Koch, relevant authorities in Rose v. 278 Minn. 154 N. W. (2d) 409.

Defendant error the lower assigns as denial court’s of its motion for judgment notwithstanding the trial, verdict or a new the First citing Fourteenth Amendments to the Federal Constitution and New York Times Sullivan, Co. v. 710, 11 376 U. S. 84 S. Ct. L. ed. 95 A. L. R. (2d) 1412. Since defendant indicates that Minnesota now has a “new” defamation, law of it should be that in perhaps noted York New Times Sullivan, Co. v. supra, the United States Court Supreme adopted the position taken long before that by case and a court minority of

1 § provides 548.06 part: in “In an damages action for publication the of a newspaper, libel in a the shall recover no more than special damages, unless a retraction be demanded and refused as pro hereinafter vided. He shall publisher serve principal place at the publication, of notice, specifying a libelous, the statements claimed to requesting be * * * the same be withdrawn. If a retraction thereof be not he may allege notice, demand, such and failure to retract in complaint his special general recover both damages, if his cause of action be main tained. If such published, retraction be so may general still recover dam ages, unless the defendant shall show publication that the libelous was made good faith and under a mistake as to the facts.”

336 view, Under this the privilege privilege. courts on fair-comment other respond- about without officials defamatory public statements publish about a damages good to false statements made faith ing extends only. as well as to matters of comment One commentator official public analyzed the Court’s action as follows: Supreme

“* * * is basi- Court in Sullivan xhe rule adopted Supreme by courts minority a state same as the view cally espoused by * * been by *. has eliminated brief, majority position In view Pierce, Anatomy an De- Historic taken by Supreme Court.” See, Sullivan, 315, cision: 43 L. Rev. 342. New York Times Co. v. N. C. also, 1429, 1437; Note, U. Fla. L. Note, L. 19 18 Vanderbilt Rev. Rev. 700.

Comment, 241, 242, lists as one 114 U. of Pa. Rev. Minnesota L. extending privilege,” 10 states which “Sullivan adopted fact, fair-comment to false statements of that decision. The rule prior recog- United York Times case also States Court in New Supreme nized as a on this The court thinking point. Minnesota forerunner of its the standard all states said setting by henceforth applied 1435): 706, S. ed. L. U. S. Ct. L. 95 A. R. [2d] [2d] think, we rule that require, a federal guarantees “The constitutional for a recovering damages defamatory a official from prohibits public conduct unless he state- proves official relating falsehood is, it was knowledge malice’—that with ment made with ‘actual whether was false not. An oft-cited disregard with reckless false or rule, number of state like which has been adopted statement courts, MacLennan, is found in the 78 Kan. Kansas case Coleman v. P. 281.” “like rule” was the example Court as Supreme Cited 226, 230, Printing v. Blakely of Friedell Co. 163 Minn. Minnesota case 203 N. 975. W. signifi- Times Co.

It been said New York v. Sullivan most has “not enun- the reasons that did the Supreme cant decision for Court ciate, time, a rule ‘the extent which the consti- govern for the first power limit state’s award tutional for protections speech press critics of his against a libel action official damages brought by public conduct,’ con- brought official but in the Court making decision nullified an action siderable to the law libel and uniformity encroached ‘under the upon speech guise punishing free press ” Pierce, supra, libel.’ p. 362. in the New York Under the Court rule enunciated Times Supreme state- case, a malice if he makes a false of actual person culpable ment “with reckless of whether it is against disregard” official public false or It said what constitutes reckless dis- may not. that precisely regard is an must the facts upon since it and cir- open question, depend cumstances of each further Undoubtedly, litigation case. con- particular cerning of this standard well be in the application may expected See, supra, Pierce, future. p. 343. officials, of the law of defamation public

In application Minnesota Court has heretofore award based Supreme upheld jury reckless In National Co. 140 Printing libel. MacInnis Herald Minn. 1918D, 1091, N. L. R. A. an incumbent seek plaintiff, 167 W. reelection, ing sued for defamation an when article was the defendant charging he was a citizen. The article pub lished candidate, over the name the rival who authorized its publica tion did not court compose This an award upheld including article. punitive damages against defendant newspaper, stating Minn. 551): 167 N. W. “* * * The court submitted properly question dam- punitive ages. The could jury enough well conclude that the was at- publication tended with such as betokened an utter disregard recklessness of the plain- tiff’s rights malicious called for actually punishment.” There was in the case no charge Maclnnis of actual malice in the sense of ill will toward plaintiff. was sustained because of a Liability reckless failure to find out the true facts before finding publication, recklessness existed to such extreme degree as to an award of support punitive damages.

The United States Supreme Court has an award based recently upheld has some ob- doing defamation and so offered relevant reckless Butts, 130, 135,

servations. In Pub. v. 388 87 S. Ct. Curtis U. S. Co. 1981, 1975, (2d) 1094, 1099, 18 L. Court examined ed. Supreme At outset the current state of libel law to figures. applied public Harlan for— Mr. Justice noted need opinion, “* * * the relationship and clarification of exploration some further lest the New law and the freedom of speech press, between libel gives York rule a talisman which constitution- press Times become field, or, would ally equally in a limited what protection only adequate unfortunate, to having far immunize goes one which the press honor and injury make for the infliction of needless just reparation through false reputation publication.” 534, (2d)

See, Time, Hill, 374, U. S. 17 L. ed. Inc. v. 385 S. 87 Ct. 456. Black, York Justice the New concurring the words of

In Mr. elusive, hard to case, Times “malice” is “an abstract concept, prove 293, Sullivan, York Times 376 U. hard to New Co. S. disprove.” 716, (2d) (2d) L. R. these Despite Ct. 11 L. ed. 95 A. 1444. S. difficulties, is limits of attempt it to define the necessary conceptual as used in the New York Times case order determine “actual malice” if the in the us are In facts case before sufficient to sustain verdict. Times, malice” New York “actual was defined to include statement made “with that it false or with reckless knowledge disregard was (2d) whether it false or not.” 376 was U. S. 84 S. L. ed. Ct. can that public A. R. 1435. Unless establish L. official facts, state of recover he cannot libel. privileged bar, has been no that de- In the case there no evidence and claim the statements in the were There- appearing fendant knew article false. recover, fore, is to he establish that were they if must plaintiff disregard of what was written in was whether article reckless here, that the in contrast in the false. Plaintiff contends evidence that case, sufficient finding New Times constitutionally support York on defendant’s In our the record disregard opinion of such reckless part. bears out this contention.

3.39 that all matters in alleged In its answer this action defendant were in the indicates testimony clearly set forth record story true. little, that when the came to trial it that developed case defendant any, parts if evidence which indicate that of the contested true; were there is sufficient evidence to sustain the story jury’s that were finding plaintiff statements claimed to be false in fact false. denied specifically Plaintiff were direct exami- they true. On Blake, defendant, nation Mr. who called witness as a testified did not into a not tell there fly rage did no Spahr Mrs. case. if were out When asked true that refused to send detectives arrest, to her home to make an Blake stated he did send simply not them out to make arrest. Blake also said did hear plaintiff accuse trying get Mrs. even with her Spahr husband. Asked whether or not Detective Quady sought permission plaintiff to Mr. arrest Spahr, said, Blake “He did consult with Mahnke Captain as to or not whether he arrest, should the make yes.” Blake had also previously explained who,m that Detective Quady, characterized as most cooperative, was concerned about the in legal problems and making the arrest wished to speak to plaintiff these concerning problems. Detective also Quady testified that in the challenged the article were con- statements false. He firmed plaintiff’s that the reason an was made testimony arrest not on because uncertain as to January they was were whether there were to grounds sufficient make arrest then and her Spahr the and Mrs. that might brother were fearful the husband vent his on rage the family if he were released. Detective he did not Quady said seek plaintiff’s per- arrest, to mission make an that did not angry, become that plaintiff did Quady not hear plaintiff Spahr get accuse Mrs. of to even trying with her it is clear the could find the article husband. Thus that was in part false. article,

Defendant that the of the argues other than accuracy por- above, tions not challenged, italicized was so concedes the epi- did in the sode occur and manner described in the article. material

Plaintiff admitted that all italicized last statement except the was attributed can be Meagher, to Father reader plainly by any seen is no claim Meagher article. There that Father misquoted, was his to her quotes he confirmed exact that testified Minneapolis reporter However, it clear from the article published. hours was

some after made had no foundation Meagher Father statements record whatever in touch with getting had been made by if a that, follow-up fact in facts, would been made it have verify Quady Detective on the after- Meagher present meeting clear that Father tran- 15, 1960; knowledge no true of what had had noon of January occasion; about clearing up no concern and apparently on spired and her brother misunderstanding Spahr Mrs. part simple As the making taken officers arrest. rec- about caution stands, had been misinformed or he Meagher recklessly ord either Father without the article whether quoted regard made statements event, were that the article was based they appears true or false. In meeting statements who was not at the only upon present someone the true possession.2 and was no have facts position of an unusual serious libel type involving The article in question offensive nature of the highly because implications, particularly had days of 6 it would period elapsed, which it contained. Since charges could taken additional necessary that defendant have time seem Instead, reporter what had wrote an actually happened. learn article Meagher’s had stating person prominence complained Father chief of plaintiff’s police, mayor treatment Mrs. Spahr Commission, stated, Minneapolis, and the Civil Service don’t “I is, care what punishment going Mahnke’s he is get official if I have to the matter to the reprimand governor.” carry character the article is It defamatory contained the accu- plain. and, refused to arrest an obvious child plaintiff sation molester even worse, a man who had molested his sexually 6-year-old daughter. This was not all—the article on state that “flew went into a rage” he learned that the mother had when discussed the case complaining her coming with the parish priest police before station. Not was policeman of picture painted plaintiff unconcerned with the man who had a serious of a committed apprehension crim- repulsive Meagher predeceased Father the time trial. of act, he was accused of a mother in time of abusing great inal harshly her disrespect stress of The further religion. article stated that husband, had accused the mother of even with trying get her case, told her had she had no and had refused to send a detective out to make an arrest. person reading an account such Certainly any of des- picable conduct would react with resentment.

The the the article was on front a title page newspaper, with placed so that it cause at the sufficiently“catchy” might persons merely glancing article to involved in plaintiff might believe have been the molest- ing of a child. the The location of article demonstrates that was given it importance, and admitted that knew the top subject Schwartz story serious. executive editor admitted that of the readers Defendant’s think indignant and should be something done about it. Thus, it to us that appears this gravity charges story was factor to be considered jury in assessing conduct defendant.

There were admissions on the defendant it knew it was part necessary kind of verify before printing editor story city it. had refused to let the story go into noon edition paper January 21 because lacked such verification from plaintiff. The re- testified porter he was aware need to these verify statements: “Q. Now, conversation, during course of did conclude you mind that your serious matter that was this was involved in this potential story?

“A. I thought so. “Q. then that I assume because of that were concerned about you fact verifying statements that would go story? into “A. True.”

Yet the was published contacting anyone article without who was at at the station and after meeting police verification only of part dealing with Father story Meagher’s reaction. Nothing changed when the 2 o’clock deadline for the sunset arrived, edition but concern about forgotten. verification contends apparently Plaintiff that the of such concern convincing abandonment was a admission of reckless- ness on the part defendant. been on of error put out that defendant had notice

He also points had Chief warned before was because Winslow story it in as what had misunderstanding actually that there had been Schwartz fact, fact goes itself reflects this and that story directly occurred. If of the had been con- participants the basic issue of the case. one the tacted, would not have article. Plaintiff contends printed defendant warning to the chief’s alone police that defendant’s indifference would the article. be sufficient recklessness in proof publishing in or no finding would warrant the little at- The evidence that jury before of the story was made to contact and plaintiff publication tempt could been at that have reached his home. plaintiff that he While Schwartz claimed knew Father and knew he Meagher because in criminal matters position more experience had does, knowledge what average person plaintiff’s than chaplain was the afternoon of situation January key occurred no Meagher meeting knowledge Father did not attend the had since from individuals who were by hearsay coming of what occurred except did time upset, legal troubled and who not at the comprehend problems immediately. raised their arrested request Spahr Had contacted, one of appear or been would participants other an accurate of what would eliminated the version have happened the fact that a clergyman for all had practical purposes. Certainly story of a misinformed criminal handling complaint been about front-page The additional story. have been sensational information to him legal Captain which Hawkinson available opinion next when the made would have day arrest was altered the controversial in an story altogether nature of the official conduct by placing plaintiff’s light. A of the detectives or officials any police present different call could well have hearing at concerned therewith resulted story item that value as news late date. There is being shorn could conclude that defendant jury evidence was ample article, since Schwartz testified that publishing did negligent or Mrs. There was also Quady Spahr. to contact Detective not attempt sometime disagreement evidence that Schwartz informed 21, 1960, and that the article was written January during morning 2by There was avail- p. that afternoon. evidence m. able at home for if had been comment Schwartz more diligent attempt- ing contact All these could him. factors lead believe defendant was con- overly hasty negligent publishing an article taining an array false statements. the in

Under the United States Court the applied by Supreme standards New Times for freedom of the press York case the of the protection Amendment, that false under the First neither a statement is nor proof that it was written sufficient to establish actionable libel negligently is essential, recover, against it defendant. for is that In order he show on in “actual of defendant the part malice” the publication the article by disregard reckless of whether the statements therein were false or not. We think the on the record here find could presented publication defendant’s to have made with been such Several disregard. factors circumstances, this all permit conclusion. Under the the story was needlessly false. The relating statements have been plaintiff could checked by out in a matter of the false reporter hours and statements eliminated in in next the The in follow-up story only edition. purpose publishing days Father version old Meagher’s story 6 without veri- fication from plaintiff or others at the it present meeting in placing —and on the front to attract the interest page of the The reading public. —was was story the most controversial view given face of the possible, warning that had been given Winslow by Chief fact the matter was based entirely upon misunderstanding. The jury could find certainly that if defendant would, were about this it concerned the truth of article circumstances, under the have additional required supervision and check- Instead, ing releasing before the article for routine publication. treat- being developed ment was a few given, story calls telephone despite nature, and no reporter assigned unusual check out the facts. Defendant’s executive editor it acknowledged that would pref- have been erable to have a reporter talk to a who was person meeting. at the admitted, however, Schwartz that would have in the story edition without early verification for the action of editor city it Under holding up. circumstances extent of the con- falsity tained in the article is also evidence of recklessness. ex- to indicate that Chief Winslow’s in the evidence nothing

There is Neither misunderstanding probed. been a there had planation Hawkinson, nor their version Quady, gave Detective Captain front of the after- on the placed page occurrence before week-old contacted, source Father facts that the news newspaper. noon The that he meeting, angry not been at the was then Meagher, present the meeting at could actually present plaintiff, persons contacted, of reckless- finding support jury’s have been were not ness. de- of the the failure to retract on the part court ruled that trial contends could Plaintiff jury.

fendant not be considered the demand retraction relevant to logically action of defendant article and indifferent the truth or falsity whether was recklessly determining to retract into reck- taking also that the failure account less indifference to whether the was true or false is the story only way encourage courts can with 548.06. compliance by publishers § case, we that the failure to re- circumstances think Under tract underscored defendant’s reckless attitude defamatory statements consequences as to the of what been and that the jury entitled to take fact into See Pratt consideration. v. Pioneer-Press Co. 251, 252, 708, Mitchell, 35 Minn. 28 N. W. wherein Mr. Justice speak- court, ing for said:

“If of question, generally, competency this evidence was us, us, no reason occurs to if evidence of properly before now a retraction a mitigation damages, of libel is of as a want of competent showing malice, retract, to of actual evidence of a refusal a why peremptory and discourteous refusal to or even listen a publish vindication person’s himself, of is not malice.” competent tending show actual it, considered United States

As we view the evidence Supreme several parallels in the Butts case has the instant case. The Court court that the Butts was in no sense “hot news.” It story appears noted defendant’s informant supposedly that another when person present of the conversation Butts which the defamatory story overheard even The felt that in Supreme based was not interviewed. Court

345 light of the seriousness of charges against Butts, had ig- the Post nored “elementary” precautions. charge that a officer “flew police into rage” upon learning of the fact that a mother went to complaining priest before she went to the and then refused to arrest the man police who had molested her 6-year-old daughter, is no less Certainly serious. “elementary” precautions ignored were in the instant case as in the Butts case.

In sustaining case, award Harlan, the Butts Mr. Justice for speaking court, out (388 147, pointed U. S. 87 S. Ct.

L. 1106): ed. [2d]

“ ‘Newspapers, magazines, are broadcasting companies businesses conducted for profit and often make very large ones. Like other enter- prises that damage inflict in the course performing highly service * * * useful to the must public they freight; pay injured persons should not relegated remedies [to make their claims which] collection difficult or unless impossible strong policy considerations demand.’ Buck- ley New York Post Corp. 373 2dF. 182.”

Mr. Justice Harlan concluded by stating U. S. Ct. S. 1114): L. ed. [2d] “* * * Publishers like Curtis in a wide engage activities variety may damages lead tort suits where are punitive a possibility. To exempt because the nature from an publisher, calling, imposition generally exacted from other members of the community, would be to extend a required guar- not constitutional protection ** * antee.

“Where a departure responsibil- standards publisher’s press enough our ity strip protection severe from him constitutional we the State to act acknowledges, entirely decision think proper all safeguard for the individual injured protection against those situated similarly like abuse.” 75, 92, Baer, S. 15 L. See Rosenblatt v. 383 86 S. Ct. U. (2d) 597, ed. in our system wherein the of of importance reputation ex- were that right gives the law of ordered liberties and protection concurring opinion: in his Mr. Justice Stewart pressed * * * * “* * underlie social values says, ‘important As the Court interest strong has a Society pervasive defamation. the law of reputation.’ attacks redressing preventing reputation of his own protection “The of man right basic than our more hurt reflects no wrongful invasion and unjustified con- being human of every and worth the essential dignity concept —a liberty. protection of ordered system decent the root of cept any itself, is left primarily of life the protection like private personality, But and Tenth Amendments. Ninth under States to the individual this recognition by less any entitled right is does not mean system.” our constitutional as a Court basic of the Wall Royster, editor Vermont part from an article quote We Trial, Rev. 364: Fair 43 N. L. Journal, Press C. The Free Street “* * * |s fourth amend- first nor the neither the that in pt no accident] press, the of a form freedom of ment drafters trouble define did the jurors possess. are impartiality which the nature of the trial or “* * * years ago, nearly seventy ‘The Supreme observed As the Court Constitution, ten amendments that the first perfectly law is well settled lay down Rights, not intended to Bill were commonly known as the guaranties embody certain government, simply but principles novel ** English *.’ our ancestors had inherited from immunities we bred of principles those were not deep “In the reaches the common law said, which, not be al- has ‘must predilictions abstract moral as Justice Holmes distinctions,’ settling legal but rooted to influence our lowed minds in convincingly experience. experience harsh had shown Generations press— guarantees by jury without both of these and freedom —trial then, sovereign’s principles, no man caught was safe once in the toils. The philosophical eminently were not practical. but now in a when these memories that we are time “Yet so short are men’s by many people, in- guarantees to be viewed two have come fundamental law, cluding many supposedly in the as not unrelated even versed mutually antagonistic and irreconcilable. ije ‡

‡ # today yesteryear is more honored “Blackstone, that teacher of than who read, clearly, apparent and it that what he states is not a the matter stated as to An current law libel officials analysis applied public (S. Y.) be found in D. N. 261 F. may Ginzburg Supp. Goldwater denied motion for summary court defendant’s judgment that evidence grounds adduced pretrial depositions might meaning such that the well infer “actual malice” within the instance, of the New Times For York rule. the libelous of “nerv- charge breakdown” on ous of the in the Goldwater case came part did not know whether the source one source defendant from had of that The source of the libel personal knowledge fact. published in the at bar was Father who did not have knowl- Meagher, case personal edge of asserted misconduct. plaintiff’s two-pronged concept.

one-sided doctrine but a He remarks in his Commen- taries: state; liberty press

“The of the is indeed to the essential nature of the free laying previous but consists in no upon publications, restraints and not in freedom from published. censure from criminal matter when Every free- right man has undoubted lay pleases what sentiments he before the this, public; to press: forbid is to destroy publishes freedom of the but heif mischievous, improper, what illegal, is he must the consequences take temerity. own ‡ ‡

^ “But especially note that as principle Blackstone states the there is no freedom accountability from for what is written or a man writes said. If injures has, what view, tort, another he in this surely committed a as as if he pikestaff. stabbed him with a what If a man writes destructive to the ends society, society then may bring afterwards him to task. “Such concept was the of freedom press of the to those who drafted amendment; they

the first felt no need to define their terms for their minds had been suckled on Blackstone. manA was as free write as to down walk public highway; in either trampled if case he neighbor or disturbed peace he should answer for it. today problems “If we have from ‘freedom press’ they of the derive not holding part the first softening doctrine but from the second part. do We they forceful; still have libel laws but are neither nor clear in the recent New York Supreme Times case the Court all but abolished them they apply- as public jurisdictions officials. In most the concept of an has, answerable tort from printed word practical all purposes, been entirely.” lost testified, the Goldwater Ginzburg

In case one respect Goldwater, charges about did not whether published consider true or false all he cared about was been printing what had Clearly said. it can be said that the attitude defendant’s reporter was similar case at hand. were,

The untrue remarks in the instant case about in contrast those made about in the York allegedly Sullivan New case, totally completely as Times harmful well untrue. De- being fendant, article, prior to relied on one irate publication person information, aas source of whereas New York Times relied defendant on many reliable obtained certification that the individuals people, consented to the use of their names in the advertisement claimed to libelous, and made the the adver- determination prior publication tisement did Moreover, not contain attacks of a character. there personal be no question can the instant related to the defamation in case plaintiff.

Defendant that whatever doubt of its the argues right publish ar- ticle in question could have been left the New York Times decision was foreclosed favor Washington Keogh, in defendant’s Post v. Co. 125 32, it, D. App. C. 365 F. As see the Washington 965. we Post case is not applicable against the case at That case involved a lawsuit bar. an individual from the of newspaper stemming syndicated publication column written aby writer who for had written a col- many years daily umn in more than 600 circulation of newspapers daily 40 million. The case simply held that reckless truth could disregard the not be failure premised the of one of the 600 across the newspapers nation to send a or out to review reporter investigator independently factual circumstances dealt with column that syndicated in each it pub- lished. did not While defendant contends that the evidence establish reckless

disregard convincing on its “with part clarity,” evidence previously 6, 1967, opinion In per Beckley Newspapers curiam filed November (2d) 248, Corp. Hanks, 88 S. 19 L. ed. 389 U. S. Ct. the United Court, Supreme independent States after “an examination of the record as 250), judg- a whole” 88 S. 19 L. ed. U. S. Ct. reversed a [2d] discussed contained several factors to such pointing strongly disregard and thus supports jury’s finding.

The court made every submitting trial effort in issues to com ply with the rule applied New York Times Butts cases. It instructed the jury: *

“* * A is libelous if tends to printed injure the publication reputation of another and affect his adversely good name and standing in his It community among his is associates work. immaterial what meaning Defendant intended be- convey by printed language cause the itself language speak light must of all the circum- stances. Under that question statement or definition the article here in is However, libelous. it does not De- necessarily follow therefrom fendant must respond damages for and distribution. publication

“The time Plaintiff was article and still is a printed Captain of Detectives in the Police Department Minneapolis, and1as City such, officer, at that time a are to public consider him you so conduct during your discharge deliberations. His in the of his official duties is a matter Freedom public press speech interest. interest, discussion in which the upon subject public such has duties, as the conduct of a officer in of his official public discharge has a right guaranteed by the constitution of our constitu country. tional principle based debate and principle open discussion matters, on all does not the public and turn on truth of the published the appearing statement or of kind in news this case. Defendant’s here, has constitutional the paper right a in publish question article and quote therein statements attributed if Meagher. Father Even ment for the in a libel action aby public against newspaper official a ground the that the record failed to show the possessed that defendant high degree the falsity awareness probable required by of of the the rule Sullivan, enunciated in York Times New Co. v. 376 S.U. 84 S. Ct. (2d) 686, L. ed. A. L. R. 1412. We not do feel that the editorials Beckley in and prepublication the failure to make investigation there comparable involved are situation by the disclosed the the record in case before us. statements as truth false unverified the article or find contains

you Plaintiff, the as to the find article is libelous you and even if or falsity, damages may not the recover nevertheless, Defendant Plaintiff publica convincing proved by clear and evidence that he has unless knowledge is by actual malice that with was actuated tion article of disregard a whether and was reckless was with that it false conduct is disregard means which heed or a it was not. A reckless false a consequences. It conduct and shows wanton is less indifference negligent. more than is far in that to corroborate failing if feel the Defendant you newspaper “Even * * * was Meagher’s Father statements the Plaintiff himself to corroborate those statements with other negligent failing principals meeting, findings at the these are insufficient present negligence required finding themselves to that on negligence your show part of actual malice. action, order to this

“In recover in the Plaintiff must evi- prove by convincing that is and has dence clear that Plaintiff sustained certain article, to his injuries reason reputation publication was actual on the part that the article actuated malice Defendant, (Italics damaged thereby.” that supplied.) deliberations, for further after returned

Shortly undertaking jury took before the foreman following place instructions. The discussion trial court: you reading were question, “Juror: We have Your Honor. When us, made negligence law to that a statement that your I believe you —the out further checking story on the as far newspaper part might could in the same sense malice against not be used them the difference point, And question used. I think we have that, us? read back to you between Could negligence. malice If feel Well, you read it was this: the instruction as I “The Court: to corroborate failing negligent defendant newspaper himself or was negligent statement with the Plaintiff Meagher’s Father with other present those statements principals to corroborate failing insufficient in themselves are negligence meeting, findings these finding your part that for the required show the recklessness is actual malice. ‡ $

$ $ $ a means conduct is heed- want to reckless which say disregard “I Do less and wanton all under- consequences. you shows indifference stand It to negligence, what I mean? is conduct which amounts doing something all means negligence may I think understand you do that a reasonable would not failure rea- person [to do] sonable under similar That negligence. do is person circumstances. case, inBut this recklessness or reckless means disregard something over and above negligent conduct. Do understand you that? I

“Juror: think that answers our Thank question. you.” court a memorandum de accompanying order denying post-trial fendant’s motion pointed out the New York Times case no lays guidelines down as to what constitutes a “reckless disregard” except that mere negligence insufficient, and said that what amounts to reckless disregard is clearly a jury question, citing Nusbaum v. Newark Morning Ledger 132, 155, Co. 86 N. Super. 198; J. 206 A. Hogan v. New York (2d) 354; Times Cir.) Co. 313 F. MacInnis v. National Herald Printing Co. 140 Minn. 167 N. W. 1918D, L. R. A. agree 1091. We that this was a jury question. More over, we find the given instructions placed before squarely it the law set forth in New York Times Butts cases. It is the established rule in this state a motion for judgment notwithstanding the verdict accepts view of the evidence most favorable the verdict and admits reasonable every inference to be evidence, drawn from such as well as the credibility of the for the testimony adverse and if party, rule, application whole, light evidence aas dis closes a verdict, reasonable for the basis the motion must denied. Dunnell, (3 ed.) Dig. 5082, and case Here, cited under § note 18. since there evidence which would support finding defendant was guilty of reckless disregard of whether the article not, was false or the verdict was arrived at under instructions correctly stating the appli law, cable the trial court not have could properly granted defendant’s motion.

352 its mo- that in of alternative

The record indicates defendant support appear asserted of error. It does not assignments tion for a new trial 13 as to their on this have been submitted that authorities appeal circumstances, go not bound to into extended merit. Under the we are However, the that the record establishes assignments. discussion those to jury case was tried and was submitted with- impartially and fairly out defendant. prejudice

Affirmed.

Peterson, (dissenting). Justice constitutionally

The in this is whether the evidence only issue case a false and defamatory that supports published verdict defendant it story concerning disregard news “with of whether plaintiff reckless was No claim is made that the trial court’s instructions false not.” deficient, no under and constitutionally which the were jury deliberated “with that it knowledge claim is made that the news story was false.” that the concluding constitutionally verdict is majority opinion, (1) That, it sustainable, following although has considered elements: charge a fact made a priest against plaintiff that a serious prominent with facts although and priest quoted complete accuracy, false, and pro- asserted were to the defamatory, damaging the priest official; that, (2) although fessional as a reputation plaintiff police damage to more serious emanated charge was the because plaintiff high community, from a of such in the person acknowledged repute when it re- defendant acted reckless of truth disregard newspaper statements; (3) that, lied because it was reason- upon factual priest’s Koch, issue, then, Rose 1 The than confronted us in is different might evidence we that the have Minn. 154 W. 409. There held N. defamatory publica jury finding been sufficient to sustain a that a false and disregard knowledge it was or with reckless tion was made “with false plaintiff it because of whether or not” reversed for judgment was false constitutionally we held the trial instructions deficient. What court’s were however, majority opinion applicable, Rose v. to so of the Koch is much permit, instant purposes establishing in the as would constitutional case malice, prove of the publisher consideration fact undertook alleged publish the truth of and a retraction. false statements its refusal to independent had no priest to defendant ably apparent charge first-hand the facts based his knowledge all been have preferable because defendant would have acknowledged it or other involved principals made a prepublication inquiry events, state- unverified underlying publication priest’s its ments was an standards of investi- departure accepted extreme gation (4) that, although asserting that had undertaken reporting; to reach prior for comment the deadline for publication Edition,” so; that, not in in- (5) “Sunset defendant had fact done of admitting stead the factual errors de- contained the priest’s charge, true; (6) that, fendant undertook at trial the facts were prove although demanded that plaintiff had defendant retraction publish the news story, defendant had refused do so. decision the instant case calls into consideration two of the

several United States Court decisions on of Supreme the new law libel: Sullivan, New York 254, Times Co. 710, 376 U. S. 84 S. 11 L. Ct. (2d) 686, (2d) 1412, Butts, ed. 95 A. L. R. and Curtis Pub. Co. v. 130, U. S. 87 S. Ct. 18 L. 1094. The majority ed. opinion places great reliance on the Butts decision both on the ground that the facts in that case and this are and on the “parallel” ground that it provides the constitutional definition of “reckless disregard” of truth. I disagree. therefore, It necessary, to consider those cases in some depth before undertaking to measure the constitutional sufficiency of evi- dence in the instant case. Sullivan, supra,

New York Times Co. v. like the instant case unlike case, the Butts involved of defamation public official. Plaintiff was one of three elected commissioners of the of city Montgomery, Ala bama, with principal over the authority city’s police department. The “Committee to Defend Martin King Luther and the Struggle for Free dom in the South” sponsored full-page advertisement in the New York Times, which was tendered through an advertising agency.2 A. Ran- Philip

2The defamatory fact that the statements were contained in a newspaper advertisement, court held U. S. 84 S. Ct. 11 L. ed. [2d] 1427), 95 A. L. distinguish regular [2d] R. did not newspaper from information, article: “It communicated expressed opinion, griev- recited stature, the committee was chairman of a labor leader of national dolph, it, high including were members repute and a of citizens number Catholic, Jewish, and The thrust Protestant faith. clergymen prominent King of the late Dr. soliciting funds for the defense advertisement are in wider of Southern Negro engaged that “thousands students right affirmation of positive non-violent demonstration spread and S. guaranteed by in human as U. Constitution live dignity these Rights,” guarantees, they but that their efforts uphold “[i]n Bill by those who would being are met an wave of terror unprecedented which as set- negate and that document the whole world looks deny in a wave ting Implication freedom.” pattern modern person terror, end, of revulsion feelings and to such evoke rightly such to illustrate against Succeeding purported person. paragraphs alleged including events the follow- describing “wave of terror” certain found, referred, ing paragraphs, plaintiff: Alabama, Country, ’Tis of Montgomery, sang ‘My “In after students school, expelled Thee’ on the State their leaders were Capitol steps, the Ala- shotguns tear-gas ringed with truckloads of armed police the entire student College body protested bama State Campus. When was pad- hall re-register, dining state their by refusing authorities into submission. locked in to starve them attempt

^ H* have answered Dr.

“Again again Southern violators [Martin King’s protests They intimidation violence. peaceful Luther] bombed have as- killing They have home his wife and almost child. saulted his him times —for person. They ‘speeding,’ have arrested seven anees, sought protested abuses, support on behalf financial claimed and highest public objectives movement whose existence and are matters the * * * publishing the ad- paid interest and the for concern. That Times was newspapers vertisement is as immaterial this connection as is fact that * * discourage books *. Any are sold other conclusion would news- papers might carrying type, from so shut ‘editorial advertisements’ of important off ideas promulgation outlet for information and persons access wish publishing who do not themselves have facilities —who they speech though to exercise freedom of even are members of their not press.”

355 him now have with ‘loitering’ they charged and similar ‘offenses.’ And years” felony under which could him for ten ‘perjury’ they imprison —a that, were false in although The statements substantial defamatory numbers of armed at the not campus, they “ring” were Alabama did police the campus and did not hall to starve the they “padlock” dining students into read charge submission. If the advertisement were assaults, had ar- bombing, committed or condoned baseless rests as to Dr. it King and that too was untrue. The family, point there, could here, be found as the found advertisement’s jury were based charges statements of fact. defamatory false The New had acceptability York Times established stand “advertising ards,” for advertisements that were “fraudulent purpose rejecting Yet, or deceptive” or that a personal contained “attacks of character.” relying their of the who knowledge good those reputation sponsored advertisement it deeming unobjectionable under accept standards, ability the Times made other it no investigation. Although had several apparently news stories contemporaneous relating files to certain of the events and advertisement, occurrences to in the referred it 261, 716, 11 did not check its files.3 own 376 84 S. L. U. S. Ct. ed. (2d) (2d) 95 A. L. R. The United held Supreme 1425. States Court this evidence “supports finding negligence most failing dis misstatements, cover the and is constitutionally insufficient show the recklessness that is required finding of actual malice.” 376 S.U. (2d) 711, S. Ct. 11 L. ed. 95 A. L. R. 1439.

The Times did not the untruth admit of the advertisement at trial but, instead, that, corporate secretary company except asserted for the statement concerning “padlocking,” in the statements adver- tisement were “substantially correct.” The Alabama Supreme Court New Sullivan, York Times (2d) 25, Co. Ala. 144 So. 51, concluded that this was a “cavalier ignoring of falsity of advertisement could [from which] have been impressed Times, bad faith and its maliciousness inferable there- apparent, too, It is that the Times did any not check with of the 60 per names, sons whose appeared nor, on the as sponsors, advertisement so far it appears, did solicit comment Montgomery. official of

356 concluded, States on the that from.” The United Court Supreme contrary, not the and such assertion “does indicate malice at the time of publication” further, in “there no faith impeach good evidence to the [Times’] 710, 286, 729, (2d) R. holding it.” U. S. S. Ct. 11 L. A. L. 84 ed. 95 (2d) 1438. case, Sullivan, the like instant demanded

Plaintiff also, So, the New Times retraction of the advertisement. York publish demands, the of as in the briefs of governor did The Alabama. appears the the the advertisement parties, quoted foregoing of paragraphs asserted me with those “and the whole publication charge as grave as an misconduct actions and omissions improper [sic] the the as Although by official.” Times retraction demanded letter, the did wrote governor,4 it not do so for It him a Sullivan. instead stating part:

“We been the have matter are somewhat investigating puzzled far, our you you. to how think the statements in reflect on So way substantially are investigation would to indicate that statements seem no the state- justification correct the sole find with we exception at- in an dining College ‘padlocked ment that hall in the State to starve them submission.’ tempt into s}: sji ‡ Hí

iH Times, retraction parties As in New York in the briefs of the disclosed language of specific reported governor’s quoted his letter and the protest, complained, with and followed a “Statement the advertisement of which he Times,” stating publication advertise part: “The an York New re does it report The Times nor ment does not constitute a factual news publica Since judgment opinion editors of The Times. flect advertisement, investigation and consistent Times tion of the made correcting any misstatements retracting errors or policy complained may columns, appear paragraphs herewith retracts two in its granting justified retraction by the Governor.” The Times that, governor ground it since the felt him and Sullivan advertisement, should by said been apparently libeled believed language in referred there “any think that apologize.The Times did not (2d) L. R. 95 A. 84 S. 11 L. ed. Mr. 376 U. Sullivan.” S. Ct. governor. Neither, course, referred to the did it think it 1425. desire, might, meanwhile if let know re- you you “In us in what claim that the advertisement spect you you.” statements reflect on The United States Court as to Ct. Supreme said S. 84 S. U. 729, 11 729, 95 L. 1438): ed. A. L. R. [2d] [2d]

“* * * jhe demand, Times’ failure to retract al- upon respondent’s Patterson, it demand is though upon later retracted of Governor likewise not of malice adequate evidence for constitutional purposes. evidence, Whether a may or not ever such retract constitute failure First, are there two reasons it does not why written by here. letter the Times reflected a reasonable doubt on its as to ad- whether the part vertisement could reasonably be to refer respondent taken at all. Second, it refusal, not a was final since it asked for an on this explanation point request chose to respondent ignore. Nor does the retraction —a upon the demand of the Governor supply necessary may It proof. doubted that a failure to which retract is not itself evidence of malice can retroactively become such by virtue of a retraction made subsequently (Italics to another party.” supplied.)

The for judgment reversed both on the ground that the trial court’s instruction was constitutionally deficient and on the ground (376 evidence was insufficient constitutionally 264, 84 U. S. S. Ct. 717, 1426): 11 L. ed. A. L. R. [2d] [2d]

*“* * hold that the rule We of law applied by is the Alabama courts constitutionally deficient for to provide failure free- safeguards for dom of and of speech that are press required by the First and Four- Amendments teenth in a libel action a brought by public against official critics of his official conduct. further We hold that under the safe- proper guards evidence this presented case is constitutionally insufficient support judgment respondent.” New now-familiar York Times rule re- judgment was versed is U. S. Ct. 84 S. 11 L. ed. L. R. [2d] A. 1435): [2d]

“The think, constitutional guarantees require, we a federal rule that prohibits public a officialfrom recovering for a damages false- defamatory relating

hood to his conduct unless he proves official statement is, ‘actual malice’—that knowledge was made with it was false or with reckless whether false or not.”5 disregard it was Butts, supra, considered two Pub. must be separate Curtis Co. whether it to determine to the instant aspects persuasive application (a) factually parallel it is to the instant case at least case: Whether (b) Times; more than in New York whether in affirm nearly parallel Butts, the to the ing judgment for decision afforded definition “reckless think, element in the disregard” of truth rule New York Times. I does not the decision in the instant case. analysis, support Post, facts, the one of defendant’s Saturday Evening to the First, as concerning article defamatory a false Wallace magazines, published head coach Butts, director and former football the athletic such, not, was, as He was Georgia. “public figure.” He University the Georgia official” for he Athlet- however, employed by “public not a state The Post organization agency. private ic Association, forthcoming concerning “fixing” a football “exposé” rival, and its Georgia University game University between the Times, was, New York either instant case or Alabama. It unlike defamatory beyond Its character damaging completely false. “so- doubt; a deliberate policy was consistent with only purpose 5 226, Blakely Printing 163 Minn. Co. Friedell Our decision in own for the same weight in this case reasons 974, to decision 203 adds no W.N. 235, (2d) York Koch, N. 409. New 154 W. 278 Minn. we noted in Rose v. origi constituting reference a “like rule.” That by Times noted it footnote and the American in York Times the briefs of New nated in a footnote citation “have solicitude for courts that shown identify to those Liberties Union Civil by requiring aggrieved to the conduct of officials the freedom criticize malice, abrogating and strict liabil presumptions prove the critic’s official rule, moreover, ity to the New York Times obtain.” Similar that otherwise wantonly “causelessly injury acting to it to does make reference making publication notwithstanding “knowl plaintiff,” fact 230, it.” Minn. brought person making is 163 edge falsity home however, define extent, that it undertakes to wanton To the N. W. 975. cases, has con differently line of it no in the New York Times conduct than authority. tinued revenue, promote circulation

phisticated muckraking” and advertising and the ruined, Post itself concluded that “careers will be that is sure.” The Post relied for its story upon questionable of a stranger affidavit who, known to be on probation connection with bad charges, check was not known for probable distinction from New York reliability—a Times and this case too Nevertheless, obvious to belabor. and to that ex- tent like New York Times and the case, instant the Post made no attempt pursue numerous avenues of verification to Be- available it. cause the story article, was a magazine moreover, “hot news” having deadline, a daily so there was more time for investiga- available tion—a distinguishingfact emphasized the court itself in its companion case, Associated Walker, Press v. 388 U. S. 87 Ct. L. S. ed. still, 1094. Worse and me plainly distinguishable from a post- publication refusal retract, article, the Post published its without ver- ification, face of a prepublication notice from Butts himself that the forthcoming article was untrue. absolutely

Second, the decision was nevertheless that of divided court. The main opinion, written by Mr. Justice Harlan for only four members court, espoused new rule U. S. 87 S. 18 L. ed. Ct. [2d]1111):

“* * * * * * iswho not a ‘public figure’ [A] official public may damages recover for a defamatory falsehood whose substance makes danger substantial reputation showing apparent, highly un- reasonable constituting conduct an extreme departure the standards of investigation and reporting adhered to ordinarily responsible pub- * ** lishers.

“Nothing in this opinion holdings meant to [however] affect Time, New York Times and its recent including our decision progeny, Inc. v. Hill.” (a) two however: The rule things, espoused to note

It is most important officials, to as dis- did not purport public the four justices apply (b) figures officials, who it did from are not tinguished public public not, disregard” “reckless of truth. This event, in define purport

360 of Mr. Chief Justice concurring opinion clear in crystal made 1115): 1995, 163, L. 18 ed. [2d] 87 S. Ct. U. S. Warren «* * * the standard from opinion departs Harlan’s Mr. Justice figures’ involving ‘public in cases and substitutes of New York Times is conduct’ and phrased based unreasonable ‘highly that is on a standard investigation of the standards in terms of ‘extreme departure ***.*** publishers’ to by responsible adhered ordinarily reporting figures’ and officials’ me, ‘public between ‘public “To differentiation law, for basis in each no proof has standards adoption separate or First Amendment logic, policy.” Warren, have held both appears, Chief

Only Mr. Justice of New up the evidence measured standards instructions and Brennan, Justice Mr. joined by Justice York Times. It is true that Mr. dissent, evidence be constitu- acknowledged might in White dissenting ground judgment, only to sustain tionally sufficient is constitutionally equally that the instruction deficient. It true intended to increase the subscribing four the main opinion justices defamation, but, so, even that intent exposure liability press Koch, concluded Rose v. figures.6 was manifested as to We only public 262, (2d) 409, 428, that: 235, 278 154 N. W. Minn.

6 534, 456, Time, Hill, 374, (2d) 17 S. Ct. L. ed. Inc. v. 385 U. S. public “personality” magazine involving an in a privacy invasion article, there concurred insight. lends Mr. Harlan had some additional Justice “sweeping extension of majority opinion, with the but dissented to the part Sullivan,” majority stating principles New York Times v. Brennan, opinion, grant ‘talismanic written Mr. Justice “would seem 551, 552, 87 S. Ct. immunity’ all errors.” 385 unintentional U. S. Fortas, joined by and Mr. L. ed. 477. Mr. Justice Mr. Justice Clark 87 S. Warren, dissented, stating (385 Ct. Chief Justice U. S. 480): ed. “Perhaps purpose L. of the decision here is to indicate that [2d] place way recovery by insuperable persons this Court will obstacles injured by they print, who are are in provided reckless and heedless assaults added, though they totally significantly are He even divorced from fact.” dissenting opinion: investigation might in a “An error the course of negligent investigation be mere misstatement. Failure to make reasonable is something investigation’ certainly else. The of a ‘reasonable standard

361 “* * * therefore, seem, advocating would that justices It that the standard, well York as the who adherence to New justices announced officials, Times malice public figures public agree for both **7 such not less than ‘highlyunreasonable’ conduct.” Court, Beckley States Supreme A more recent decision of United (2d) Hanks, 81, 197, ed. S. Ct. 19 L. v. 389 U. S. 88 Newspapers Corp. 248, additional the two decisions. prior sheds light application official, There recovered a verdict for public damages upon plaintiff, jury other editorial asserted among things defendant’s comment woman, official, a public had threatened and intimidated another in the course of over fluoridation of local public controversy water The threats supply. intimidation were denied by plain both tiff and the woman Defendant admitted at trial that public official. but, made no “special investigation” before article's publishing instead, there was reversed, “[felt] that possibility.” holding The court 84, 252)— U. S. 88 200, S. Ct. 19 ed.L. [2d]

“* * * it cannot on this record be said failure of petitioner to make investigation constituted sufficientto prior proof present question whether statements were published disregard with reckless Sullivan, supra, were they whether or not. Cf. New Times false York 730, 710-711, at (2d) 287-288 S. 11 (2d) [84 Ct. L. ed. A. L. R. 95 1439]; Time, Hill, 534, 374, Inc. v. 385 U. S. 388-389 542- [87 S. Ct. 543, (2d) 456, 17 ed. (1967). Publishing L. also 467] See Curtis Co. v. Butts, supra, 1990, (2d) 153-154 S. Ct. 18 ed. [87 L. 1110] (opinion Mr. Harlan).” Justice Court, de- recent of the United Supreme most decision States

cided the mean- explicates since the initial of the instant writing opinions, ing Thompson, of “reckless more St. Amant v. disregard” yet narrowly. yardstick by liability publishers.” 385 U. minimum which to measure the S. 417, 557, (2d) 484. 87 S. 17 L. ed. Ct. 7 216, 64, 74, Louisiana, 209, 85 In Garrison v. 379 U. S. 13 L. S. Ct. 125, 133, (2d) official, ed. public which did involve a the New York Times * * * “high degree rule probable was refined mean a of awareness falsity.”

362 262, 1323, rule 727, 20 ed. reiterated 88 S. Ct. L. U. S. bad faith” added investigate does not itself establish

“[f]ailure that the evidence to the conclusion of “sufficient permit touchstone of his as to the truth publica- defendant fact entertained doubts serious (2d) 267, ed. L. tion.” 390 U. S. S. Ct. be can there Because, majority, wrote for 268. as Mr. Justice White marked out no “one “its outer limits will infallible definition” the factual we consider case-by-case adjudication,” again must through (2d) 730, 1325, S. 88 S. Ct. 20 L. ed. 267. analogue. U. Amant, sheriff in East Baton was a deputy defamed St. Thompson, office, Amant, made Parish, public a candidate for Rouge Louisiana. St. of which, Albin, dissident member a televised one a quoting in speech with Union, charged Thompson a falsely local Teamsters he in substance in connection of his duties gross performance public misconduct in the union Partin, presi- the local one nefarious activities of allegedly acted that St. Amant had concluded dent. The Court Supreme Louisiana sum- truth, upon certain considerations of based disregard in reckless 730, Ct. S. 88 S. in of Justice White U. opinion marized Mr. 266): 20 L. ed. 1325, [2d]

“* * ^[*] St. Amant had no personal knowledge Thompson’s of activi- was silent although the record ties; on Albin’s affidavit solely he relied the information verify he failed veracity; reputation as Albin’s facts; gave known the he might have office who in the union with those Thompson the statements defamed to whether no consideration be- consequences; mistakenly of the ahead heedless and went because he was for the broadcast merely he had responsibility lieved no words.” Albin’s quoting that, considerations, those observed of stated “the White

Mr. Justice evidence to a demonstrate low assess- Thompson’s community of failure to the mark” for Albin’s trustworthiness” properly “[c]loser ment of in “reckless He noted that evidence the record disregard.” testing reliable refute the claim that sufficiently indicated that Albin St. had relied information from Albin: Amant recklessly upon Amant St. months; had known for about 8 he had verified “other aspects” Albin others”; Albin’s information and “had affidavits from “seemed Albin incur to St. Amant” to such disclosure dis- personal danger by public union; Albin, “[according within the he was to sub- pute prepared charges”; stantiate his in and Albin first sworn to his writing answers later “in the newsmen.” presence 390 U. S. 88 S. Ct. 20 L. 268. The of the Louisiana Court affirm- Supreme ed. decision was, evidence, ing the St. Amant on this judgment against libel reversed and remanded.8 then, turn, constitutional evidence sufficiency

We verdict instant case. The St. Dispatch, Paul supporting jury’s contained evening story concerning defendant’s a newspaper, priest’s officer, January on Defendant charge against police 1960. plaintiff, Press, Pioneer St. Paul follow-up story morning published claim on Plaintiff’s based newspaper, January 1960. libel that in the Dispatch, not Pioneer upon story Captain Press. was, charge while of the duty, Mahnke Detective Bureau Police Department, only by outranked of de Minneapolis inspector tectives, was, and the police, police. chief He without inspector official, so that the test of defendant’s question, public constitutional is to rule judged under the of New York Times.9 privilege story defendant, The news as the find jury could evidence, was in false and disputed part defamatory. The first paragraph 8 dissented, reiterating Only expressed Mr. Justice Fortas views he had Time, (footnote 6, supra), concluding principle Inc. v. Hill that “[t]he * * * Publishing Curtis Co. v. Butts should lead us to affirmance here.” 1327, (2d) 20 390 U. S. 88 S. Ct. L. ed. 269. Mr. Justice Black and Douglas Mr. Justice concurred reasons stated in concurring for their opin Sullivan, ions in New York Times v. S. Co. 376 U. 84 S. Ct. 11 L. (2d) 686, (2d) 1412, A. L. Louisiana, ed. 95 R. and Garrison v. footnote supra. 9The properly trial court instructed the point: this “The Plaintiff printed was at the Captain time of the is a article still Detectives in Department the Police City Minneapolis, such, he as was at officer, that public time a you during are to your consider him so de liberations. His conduct discharge in the of his official is a matter of duties public Accord, Time, interest.” Pape Cir.) Inc. 558. F. it, essence contains customarily I understand story,

of a news in this case it read: story, and a news reprimand an official demanded Minneapolis priest today Catholic

“A said the official police detective because he one of that city’s captains child-molesting in a case.” to arrest á man involved serious had refused a jury favorably support Even under rule the facts most viewing was false verdict, have that this statement either concluding difficulty I me evidence that defamatory. plaintiff or seems from the It clear (for reasons) make an out- at the outset had declined perfectly proper basis right complainant. arrest as The demanded interrogation to make an arrest either prepared was after the next arranging day father at his home on the basis suspect or him after revocation charge driving to arrest for an different entirely of license. The word felicitous than the word might “decline” be more “refuse,” but are they synonymous.

The identified name capacity second and official paragraph plaintiff with the ac- charge, together priest’s as the person subject priest’s the gov- statement he would “to quoted carry curately complaint about nothing defamatory ernor if There is either false necessary.” identification, indirect, an essential this direct or paragraph, although element of a defamation action.10 story Dispatch read: The headline to the Rebuke in Tot

“Cop Molesting Urged” “sufficiently caption ‘catchy’ so majority states that opinion might merely glancing to believe that cause at the article persons it difficulty might molesting child.” I have no have been involved in the of a clumsy. agreeing only “catchy” Newspaper headline was not may, similarity headlines often bear little to the content of article and if identification, devastating eye have in the of the casual it contains effect Here, however, reader. could not such until headline have had effect had, itself, one paragraphs read at least the first two of the article from which implying was a clear that defendant was child caption follow-up story appropriately molester. The was more worded:

“Cites Arrest Refusal — Reprimand Cop Priest Demands” priest, The third indicated how the Father Thomas F. paragraph of the knowledge child-molesting had come offense. The Meagher, Father characterization quoted Meagher’s fourth paragraph offense ever to as “the worst case incest to come attention.” my father as a recital of situa- defamatory It was itself false arose; it did give tion out which it to the “sting” story, was con- not distinguishable from the situation in New York Times. textually The fifth Father identified own as a paragraph Meagher’s capacity for the District Court and the chaplain Hennepin County Minneapolis municipal court and recited statements taken from the had been This complainants. was neither false nor de- part paragraph famatory. contained the paragraph statement that “De- additional tective William Quady sought then permission Captain Mahnke father,” arrest which the be false and con- jury apparently found to ceivably defamatory. I have some difficulty, notwithstanding the jury’s verdict, in considering it defamatory.

It is the sixth and seventh paragraphs which could most reasonably be considered defamatory:

“Rev; Meagher said Mahnke ‘flew into rage’ when he learned woman had discussed the case with her before parish priest coming to police and accused her of even ‘trying get with her husband.’ “ ‘Mahnke told her there was case and no refused send out detectives arrest,’ to make the Father Meagher said T don’t today. believe police officials should be allowed to set themselves judges juries up ” the face of such evidence.’ statements, Of these two description in an acting un- manner, professional raging complainant her impugning mo- tives, seems to me to be the more It defamatory. a close has parallel Times, the situation in New York where a police official charged unprofessional shocking conduct of padlocking university dining hall to starve dissenting submission, students into heedless rising voice of the Negro the South. It similar, is much less in my opinion, the defamatory statement Butts, supra, Curtis Pub. Co. v. that an athletic director had set out to betray his own football team by fixing game.

The stated that had eighth Meagher subsequently Father paragraph (who to Calvin Hawkinson Captain subsequently complained bureau); of the detective that had charge Hawkinson had the duty arrested; molestation; that the admitted father had the and that man jail charges. the father was held in The being filing pending ninth recited that Father paragraph factually Meagher had carried to the chief and the service complaint police, mayor, city’s civil commission. tenth reiterated Meagher’s The Father intent paragraph that going get Mahnke “is to an official if reprimand carry I have to the matter claim was governor.” to No made that of these state- any ments were either false defamatory.

The and twelfth recited eleventh that the chief of had paragraphs police commented that the affair was priest “misunderstanding or error of and that judgment” priest refused participate a meeting scheduled the chief with No complainant. claim is made that of these defamatory. statements were false or were, The if paragraphs anything, favorable to notice gave to the reader that Father Meagher may have misunderstood the situation. would agree I that a reader treat sophisticated might quoted lan- guage of “misunderstanding” as time-honored having officialese —not purpose denying the merely calming statements irate citizens But, or protecting errant officials. unlike I credit majority, cannot it at face value as a to the defendant “warning” it must check out the factual allegations no publishing story. before the news It is in sense denial of truth in the sense prepublication Butts case.

The final stated: paragraph

“Mahnke be could not reached comment.” found, evidence, upon disputed was false —that Mahnke was indeed for comment and that the available writer had not false, in fact however, contact The fact it does attempted him. not make it defamatory.11 defamatory, Although suppose might it as I true I would not read be might in some cases draw the

that there readers who conclusion are It necessity reply. secluded himself to avoid the official under fire had Measured the New York Times rule there application Hanks, supra, such later cases as and St. Beckley Corp. Newspapers supra, Amant v. I would a matter of that the Thompson, hold as law reliance of defendant report from Father so upon Meagher unreasonable as disregard to constitute reckless of whether priest’s report was true or false. The writer the news been story may have imperceptive the fact that Father was not an Meagher eyewitness to the event which he based and to charge that extent might said to situation, however, be negligent. The no the reck- parallel has less reliance of the Saturday Evening writing Post in article a ruinous on the basis of an affidavit from an who unreliable person purported report conversation to which he was not but had privy allegedly overheard, the accidentally setting in the Butts case. Times,

Measured by rule the and its in New York de- application fendant’s failure of investigation was not more serious than in New York Times. The article concerning the priest’s charge was “hot news” as much as Walker, in supra, Associated Press was a deadline to there meet. The events which caused Father Meagher charge to make his were old, several days but the charge itself made the same was that de- day fendant it.

Defendant’s it executive editor admitted at trial that would been have “preferable” to have contacted the other in the persons involved story it, before publishing in a sense action thereby admitting such would represent a reasonable investigation standard of and reporting. Although the New York might Times well withheld inserting have an advertisement until it check could own files or its own in query correspondents indicate, might well a less publisher cryptically, be fairer for the issue, account the states one side of that an effort be made to will contact available, involved, persons yet other if not and that their views will be story. story stated in a follow-up follow-up report Defendant’s did make a its subsequent “Capt. with as follows: contact Mahnke said night Thursday fully he had the matter with discussed Chief Winslow and had meeting being arranged been persons told a with the involved. “ any 7 wouldn’t want to make comment until after we have had a chance them,’ said, adding allegations to meet against that all of made Meagher him Father would answered at that time.” for (as when demand it did confronted with subsequently

Alabama advertising acceptabil retraction), with its standards in accordance ordinary negligence, no more than it was held that its failure evinced ity, until Here, the story defendant withheld disregard reckless of truth. “reckless assuming Edition. deadline for its Sunset Even final departure of “an extreme disregard” equivalent of truth were re ordinarily investigation reporting adhered standards in defama rule relation to Butts sponsible publishers,” espoused 1111), 1991, 18 ed. tion of U. 87 Ct. L. figures [2d] S. public S. agree great. cannot that defendant’s Defendant’s negligence I in that Evening conduct Post Saturday conduct has no parallel to case. me additional gives this case majority’s opinion

One of the aspect officials that, any police of the detectives is pause. suggested It inter- with the been hearing reported or concerned events present at being shorn rogated, story it “well have resulted could not a journalistic judicial value as item.” This is a judgment, news contacted, one. been their version of the events' Had those officials have excluded the necessarily have been made This would not public. re- Meagher’s same Father It not the constitutional report of version. is weigh competing sponsibility newspaper, my opinion, versions, fact, and then vouch make its own determination of ultimate were, to be “debate facts If it reports. thus would cease there which, interchange issues” or “unfettered stated public ideas” Times, in New York intended very thing First Amendment was protect. in fact that verdict

The finds for the support opinion majority the truth of statements Meagher’s undertook to Father prove defendant This, course, teaching is not the rather than admit their untruth. in even to our own recent decision Rose It is contrary New York Times. 428): 264, Koch, held 154 N. W. [2d] where we Minn. of the state- defamatory, “The attempt prove unsuccessful truth itself, in malice.” establish actual opinion, ment cannot our difficult, is the last, in this failure de- aspect most case

369 Plaintiff, on fendant retract. wrote defendant through attorneys, 1960, 28, in January stating part:

“We hereby give notice that article on the first your page printed 21, of your 1960, January issue of the Paul Dispatch St. included false, scandalous, client, defamatory, charges against and libelous our Captain conduct, Mahnke. All charges published concerning therein advice, or actions of Mr. Mahnke are as in this complaint. noted matters A photostatic copy this article enclosed is herewith as ‘Exhibit A.’

“It is false, hereby demanded retract in the you future scandal- ous, and libelous defamatory, charges against made Mr. Mahnke in this article.”

Thereafter, 1960, 4, defendant, attorneys, February replied, in a manner in analogous newspaper’s response somewhat New Times, York stating part:

“* * * to determine what portion We are at time unable feel, article be retracted. We and have advised portions should action can taken on demand until newspaper your that no be you unless slanderous material the article.” specify Publications, 515, We Inc. 266 Minn. held in Mahnke v. Northwest (2d) 124 of retraction speci- N. notice sufficiently W. plaintiff’s false containing fied the article and de- particular part New famatory compliance matter held a sufficient with the statute. York demand for held under Times considered a similar retraction and case that the failure to retract circumstances of that support The situations are no means finding completely analogous, malice. course, because New York Times the had “a newspaper reason- * * * reasonably able doubt as to whether the advertisement could taken refer to all.” U. S. S. Ct. L. ed. (2d) 710, (2d) 95 A. L. R. 1439. Koch,

We said Rose v. 278 Minn. 154 N. W. 428: “Whether a failure to make retraction of a libelous statement is evi- dence of malice is of a demand yet Although making uncertain. damages for retraction for an award of prerequisite punitive against statute, under state law is not determina- newspaper a Minnesota this or New expressly York Times reserved the of question tive. ‘[w]hether * * * It not a to retract ever may failure constitute such evidence.’ court, would otherwise it was have been our that of the trial opinion, that such circumstances would be of real relevance the issue.” one, still comment in question for our Rose admittedly open was our dictum based Justice Brennan upon prefatory statement Mr. that, be deemed might It seems me the evidence dictum. now if rather at the clearly establishes that the of the time publisher action publication no more than ordinary negligence, postpublication action of cannot relate logically to retract publisher refusing more back to evince no than change original may of the act. It quality true, honest belief were publisher’s that the statements defamatory we which have held he at trial. I may undertake rightfully prove situations, however, can conceive of conduct at where the publisher’s the time of publication injure through an intent to may strongly suggest truth, calculated falsehood or reckless to which the disregard postpub- relevantly give “convincing clarity.” lication conduct relate back and may case, I do not believe that this is such and I believe whether retract, not considered the fact that defendant had refused jury convinc- establishing case falls short of constitutional malice ing York Times.12 clarity required by the rule New my question concerning Some exists in mind the extent to which the may have based its verdict the fact of defendant’s refusal retract. allegations complaint Plaintiff’s second amended did contain defendant, copy mailed a written notice and demand for retraction the complaint, was attached to and that a retraction was thereafter; regular newspaper issue of the within one week de damages exemplary manded because “defendant’s conduct willfully maliciously disregard undertaken reckless rights with a and wanton plaintiff.” But when a copy offered of its written demand for re evidence, objected ground traction defendant on the into that “so far as the case it is issues in this are concerned immaterial and irrelevant.” The court objection. Immediately sustained the following, thereafter the as the other subject, evidence on occurred:

I would reverse and direct the entry judgment therefore for defend- notwithstanding ant verdict.

Otis, (dissenting). Justice

I in the dissent of Justice join Mr. Peterson. “Q. [By plaintiff’s Was there a retraction in the De- counsel]: newspaper? fendant’s No, sir,

“A. there not. [Plaintiff]: “Q. you And did point present some determine to commence action? Yes,

“A. a few later did weeks I make that decision. Jj« sjs jjc # Now, this, “Q. clarify you nothing, say you when that you heard referring are to the paper? fact that there was printed no retraction in the correct, yes, “A. That sir.” chambers, position, interesting as presents Plaintiff’s disclosed in con- trast both “retraction” in New York position Times to his on own reporter defendant’s failure to contact him comment. The who rewrite had testify: [plaintiff] authored article offered to “I told he cared to make if any on place any objections comment the events that had taken had if portion of the Meagher statements which Father had made in evening, article that had carried the previous past Thursday, we or the I be very happy to print space, them same amount same display article, kind given that had been Meagher’s to Father and his answer to that was that attorney, he had turned the matter over any further comment would have to come from him.” This was offered proof purpose minimizing neither offer nor of an of retraction for the exemplary damages, question rebutting on “the evidence good comment, showing malice” and Plaintiff declined to so faith. how- ever, ground origi- do repeating that to so would have the effect charge Meagher give of Father thereby currency nal further to it. evi- dence was excluded.

Case Details

Case Name: Mahnke v. Northwest Publications, Inc.

Court Name: Supreme Court of Minnesota

Date Published: May 31, 1968

Citation: 160 N.W.2d 1

Docket Number: 40745

Court Abbreviation: Minn.