*2 reviews the case. The trial court’s KERN, FERREN, Before HARRIS clearly and states both precedents pertinent Judges. Associate consid- conflicting policy correctly the *3 reaching conclu- in its it examined erations KERN, Judge: Associate might analy- structure our While we sions. differently Judge did than are orders the somewhat cross-appeals These sis Revercomb, share his conclusion and a we trial court entered in defamation suit own. opinion as our Phillips against adopt the Wash- learned brought John his (Star) that in ington Evening Star resulted Judge opinion by the Re- aspect One in with a verdict jury finding the his favor comment. He follow-up warrants vercomb Phillips ap- in the amount of one dollar. 86) opinion by an (infra p. discussed of his motion peals from the court’s denial Newman, Superior Court trial then a Judge trial, for a new that there was contending contrary result. which reached the judge, punitive damages. sufficient evidence of issued opinion was unpublished That brief by argument We this and persuaded are not Newspaper Evening in Hatter The Star correctly instructed the the court conclude 15, 1976). (Mar. Sub- No. 8298-’75 CA denied the new trial mo- jury properly and Rever- Judge sequent to the issuance tion.1 opinion in this case opinion, both his comb’s in Hatter opinion its challenges ap- Judge on Newman’s The vigorously Star in footnotes upon commented peal pretrial the court’s denial its motion case were for Appeals its summary and motion for the United States Court judgment at trial. It contends that Circuit directed verdict District of Columbia individual, at least Supreme involved Court. references Phillips, private was Both explicitly general implicitly arguably an concern in event of —en- —and this report Judge in Revercomb’s warranting newspaper. its dorse in recover, in Hence, reject position taken Hat- may according Phillips Digest Star, The Reader’s story in a news ter. See Wolston v. for defamation 185, Association, Inc., U.S.App.D.C. convincing clear unless he shows rev’d, 427, (1978), 435 n. the defam- F.2d published evidence that the Star n. n. that it was 160 n. 99 S.Ct. atory knowledge material with false.2 that 61 L.Ed.2d 450 Alternatively, argues Star Phillips privi- publication concerning its before further comment We make one accurately reported an leged because it offi- Judge careful setting forth Revercomb’s govern- pronouncement cial by the puzzled We somewhat analysis. are to action response mental activity taken dissenting colleague’s our reliance extent of by Phillips. of, from, upon philosophy excerpts v. Me in Rosenbloom plurality opinion We trial court was cor- conclude that the Inc., tromedia, 91 S.Ct. 403 U!S. pursuant rect in that Su- ruling question is no There preme holding Gertz v. Robert L.Ed.2d Court’s v. Robert Welch, Inc., minds but our Welch, Inc., re supra, L.Ed.2d 789 an individual in defa- plurality opinion in Rosen- jected the earlier public figure mation action who is neither a indeed, recognized by (as, partially nor a recover actual bloom may official The conclusion Phillips propriety trial court ruled Appellant attacks the also upon jury’s reckless disre- evidence that actual malice or gard evidence in this case part had not the Star of the truth on the nominal award to We satisfied are him.. been here shown. circumstances that there was no error requiring reversal and retrial. Illustratively, (“Star”).1 our Co. colleague). Phillips Plaintiff John has stated in Gertz: sued connection published with a article it newspaper

For these reasons we conclude that the States should retain substantial which latitude November in their legal efforts to enforce a remedy shooting what in fact was accidental defamatory injurious falsehood Phillips had shot his stated wife falsely reputation aof individual. The claims “during The Star quarrel.” extension of the New York Times report was a re- defamatory [v. source of the Sullivan, dispatch received corded “hot line” police (1964)] proposed by test Motion rais- over the Star’s telephone. Rosenbloom plurality abridge would concerning the con- questions es important legitimate degree state interest to a common law stitutional and we unacceptable. find 418 U.S. at 345- “news” publish articles in news media *4 at 3010. defamatory pri- the District of Columbia Thus, colleague’s our preference for effec- vate citizens. tively equating private individuals with public figures for purposes UNDISPUTED FACTS strikes us not only contradictory to his- torical common law but principles, appear to Gertz The facts in this case which do as well. genuine dispute are follows.2 For the reasons set forth herein and in 28, 1978, On November in the late eve- following by Judge Revercomb ning hours, Phillips’ life Fannie Lou ended which we adopt, rulings judgment and her abruptly in the basement of home as a appealed from are affirmed. result of a wound to her neck. gunshot husband, John her who was Phillips, SUPERIOR COURT OF THE DISTRICT only person shooting at the scene of the and OF COLUMBIA CIVIL DIVISION who police, called the was arrested that C.A. No. evening despite 9999-75 homicide his for the state- “accidentally (his) ment that he had shot PHILLIPS, PLAINTIFF, JOHN pistol accidentally wife” fell when his its'holster discharged on contact with THE EVENING STAR NEWSPAPER Phillips, incidentally, floor. John was COMPANY, DEFENDANT. nor, any not a sense of the public official word, public personality; was a he OPINION AND ORDER shooting citizen at incident. the scene This case comes before the Court on Motion for Summary Judgment filed by Acting on information received tele- Defendant, The Evening Newspaper phone police public from a information offi- originally dispos- discovery. potentially permitted The Star filed its Wide latitude was Plain Summary Judgment May and, discovery indeed, itive during Motion for tiff efforts Motion, early discovery past 1976. Such Plaintiffs liberal continues particularly appropriate in hearing defamation actions date of Motion. Defendant’s against “chilling” media defendants where press speech the freedom threatened. of the material submitted .consideration Washington U.S.App. Keogh, Post Co. v. Summary support Judg- Motion for Star’s den., D.C. F.2d cert. ment, opposition, submitted in and full material U.S. However, motion, argument on must oral policy in consideration of the controversy per- determine factual whether 56(f) SCR-CIV which favors determination of controversy and must tinent to the exists dispositive full dis motions when making the material in this determination view covery of material facts is to the non- available opposing light party. favorable to the most moving party, the continued the Motion Underwriters, Boyle, International Inc. hearing May enable until Plain A.2d 779 opportunity ample tiffs counsel more than night last about o’clock line”3 At Fannie L. a recorded “hot one-way

cer over Randolph of 2911 Street N.E. Phillips own tele- supplemented by his dispatch argument once an during was shot McAleer, reporter phone inquiries, Charles husband, Phillips inside their John her Star, “hot” composed employed by Phillips was taken to Mrs. apartment. Phillips shoot- news article Center where Washington Hospital this incident incident. He combined ing (sic) at 1:45 this pronounced was nead she death and arrest incident with another has been arrested Her morning. husband edition story news carried the second charged with Homicide. Washington The the November Washington November On (now Washington The Star News known as shooting on the article an published Post the article Star). pertinent part The argument” “during an using incident read as follows: Post is also a Washington The statement. to the “hot line”. subscriber WOMAN, DEAD D.C. MAN SHOT Phillips case later reclassified The said a Northeast police 49-year-old D.C. from a accidental police homicide 32-year-old and a man woman Southeast investigation, de- shooting, police, after separate shooting were killed in incidents place. had taken termining that no homicide night. two last period within a hour corrected, court papers arrest book was 2600 block Phillips Fannie Lou dissolved, changed other office files once in NE was shot Randolph Street made, Sup- as reflected notifications *5 during pistol an automatic a head with of December plemental Report Police home, said. She was police in her quarrel M, affidavit (Attachment Greene a. m. at dead at 1:45 pronounced 2, 1976). August filed Center, according Hospital to Washington the actual source question There is as to police. “during quarrel” a and factual basis for the husband, John, 56, Phillips’ who Mrs. article, upon in based assertion arrested and police, called the has been argument” state- “during “hot-line” an homicide, charged police with said. present rec- ment —there in no basis supposed log The “hot line” which is to such None of the ord for an assertion. messages reflect verbatim the transmitted including the PD police reports, official to media con- PD orally by telephone the news PD PD PD PD Phillips statement to Po- entry respect Phillips’ this John formal tains and . lice, Greene’s affi- reflected in Detective incident:4 many pages remove take telephone who on occasions line” is a communication The “hot photostatic copies. system by Information to their offices to make Public established a means of of the D.C. in 1971 as Office Police police reports providing authenticity about crimes and ac- of the “hot 4. Plaintiff contests the charge incident, entry respect to the media. There is no log tivities to this line” suggesting subscribers, system some changed to the various time that was some it Star, merely including newspaper publication the media subsequent in total to the paying equipment. Whenever “during argument” for the costs of which did reflect However, police speculation information originally appear an event occurs which the in it. newsworthy, prepares he a hand- supportive officer deems is not evidence surmise without report typewritten narrative genuine written or of fact re- issue sufficient raise a orally log to the authenticity then this information line garding transmits hot of the subscriber, atop activating flashing light authenticity a such this Court must assume phone” playing particulars. “hot line a recorded mes- The Court absence of concrete duty. answering sage reporter story printed companion on note that in the does by article, report line Phillips information from which the the Star with the hot slaying Boydston, assembled is obtained informa- the Star one Lawrence directly police reported Boydston “during tion officer unit in- from was shot volved, However, log instant case. The i. e. homicide in the quarrel”. “hot line” account “log” placed leaf any narrative is in a loose written incident no reference to of this contains press “quarrel”, “argument”, book made available to members like. or the (the davit grounds, on the rev’d on Phillips homicide detective other case) 2, 1976, filed August reflect any such (1919); see also 63 L.Ed. quarrel or domestic unrest in connection Patterson, 81 U.S.App.D.C. Thackrey v. with the shooting; press did the nor release assertion (1946) (mere of mari- F.2d issued on November the Homi- libelous). tal discord held H, (attachment cide Branch Greene affida- Summary Judgment, In its Motion for vit August 2,1976) filed mention any quar- (1) constitu- the Star four raises defenses: rel or marital discord the inci- New York privilege tional Times under dent. Nor does it the numer- appear standard; (2) privilege “actual malice” ous affidavits filed members of the publish an accurate the article as restate- Homicide Branch that of them were the record; (3) ment of a public privilege to source of “quarrel” such information. It arrest; report plaintiff’s the fact of should be noted that PD is treated for no provable applicable stan- damages purposes 4-134(4), D.C.Code 4- §§ short, dards of publisher’s culpability.. In 135, as equivalent to the arrest book infor- to rely Star asserts its public; however, mation available to the police dispatches one-way telephone over customarily information is not availa- publishing system information false fac- ble for day (Page or two Greene affida- defaming private citizens, tual statements vit 1976). filed August This delay, the knowing publica- absence of or reckless represents, makes the news “stale” in tion. There evidence of common being no eyes public, and the news media (ill will) knowing law malice reckless is correspondingly pressed to expeditiously facts, publication undisputed report such news items the Phillips agrees if such common shooting. applies constitutional Times to this On the basis of “during quarrel” publication, for Summary Judg- the Motion article, statement in the Star the Plaintiff ment granted. should be filed the alleges instant suit. He sepa- rate counts negligent and malicious publica- However, negligence should a or “higher” tion and including asserts damages humilia- *6 standard of care there is a apply, sufficient tion, a disabling stroke, embarrassment and question as to the reasonable- of fact raised praying $500,000 compensatory and ness of on relying the “hot line” Star $500,000 punitive awards. dispatch summary judgment. to deny Therefore, for the the issue deter- concedes, Defendant purposes Star mine is whether a constitutional or common motion, this is not public Plaintiff privilege applies Star’s defama- figure; indeed, this clear in light seems lowering tory publication, the standard of Supreme recent decisions on the sub care ject. required publishing Time, Firestone, Inc. g., Bee e. v. 424 448, 96 defamatory news article at issue. 958, U.S. (1976). S.Ct. 47 L.Ed.2d 154 Furthermore, motion, purposes this

the Star does seriously not contest the de PRIVILEGE CONSTITUTIONAL famatory impact of “during the statement long protected impor- The have states quarrel” on the allegedly imputing Plaintiff tant reputational interests of its citizens in both marital discord consequent crimi following liability the strict common law of nal shooting. It appears that such a state Recognizing defamation. the harsh results ment can reasonably interpreted of such when liability publication strict defamatory in the context in which it was made in furtherance of some other com- used “since it imputes ‘conduct that would consideration, peting policy render interest or him liable to punishment make odious, tempered him states softened and the strict lia- infamous ridiculous’ ”. John son Co., bility v. Johnson standard with both abso- Publishing privileges, 271 A.2d 696 conditional; immunities) (D.C.App.1970), Chaloner v. lute citing (actually Wash ington however, App.D.C. (1911), Post 231 remained basically 36

84 statement”, effect, “scienter", making regardless accountability proposition

strict motive, will, spite publication. of the innocence of the The improper that ill clear sake, of Columbia in Chal Courts District own all desire to do harm for its Co., App.D.C. malice, Post 36 Washington oner v. was not constituting common law (1911), policy protection followed this 231 Thompson, v. 390 sufficient. St. Amant in the case reputational interests 1323, 20 L.Ed.2d 88 262 U.S. S.Ct. newspaper publications, stating: Collins, (1968); Henry v. 380 U.S. 85 in no Society way can be benefitted The 13 L.Ed.2d 892 Su S.Ct. of libelous matter. In publication soon constitu preme court extended protection view of the af- constitutional commonly known as the privilege, tional press, publishers forded a free should be officers and privilege, Times all highest accountability held to the for un- inferior, how no matter employees, publications, reliable or such as tend to govern on impersonal attack context of an any person impute conduct would Baer, v. operations. Rosenblatt ment infamous, odious, him ridicu- render 15 L.Ed.2d U.S. S.Ct. parties The such circum- lous. priv the Times the Court extended length. not dealing stances are at arm’s newspaper ilege to articles is refuting While the individual assailed fitting public figures conduct of charges person, publi- the false to one Publish officials definition. Curtis thousands, reaching thus placing cation Butts, ing Co. v. 388 U.S. completely within helpless victim (1967) football (college 18 L.Ed.2d 1094 power of his traducen Id. Walker, coach); Associated Press v. 1964, however, Starting U. S. Su- 18 L.Ed.2d 1094 S.Ct. U.S. Court, adjusting faced with the ten- preme (1967) (retired Unofficial army general). reputational sions between interests on the were en conduct and activities of officials press speech hand and freedom of one growing Times veloped by other, the common revolutionized Co. in 1971. Ocala v. shelter Star-Banner defamation, system regard law tort Damron, 295, 91 S.Ct. striking new in favor of the mass balances of a candi (past perjury L.Ed.2d media. Roy, date); Patriot Co. Monitor Sullivan, (1971) (past In New York Times Co. S.Ct. candidate). 254, 84 activities of a bootlegging privilege, consti of the Times a narrow of extension Supreme Court created zenith repu- expense of pub press certain at the protecting tutional the case of interests, badly splin came in a In that held that lications. the Court tational in Rosen protects the first tered Court decision amendment umbrella *7 Metromedia, Inc., defamatory re 403 U.S. 91 newspaper liability for bloom (1971). In public offi 29 296 that ports about official of S.Ct. L.Ed.2d conduct Court, (a chief), Supreme plurality there in a police cial local unless case the U. S. privilege be presented convincing opinion, clear and evidence of stretched the Times conduct of the news the official and unofficial of knowing falsity yond the or reckless protect figures paper’s public public malice”. The officials account —“actual public of int reports malice” news media of events Court later “actual clarified Supreme The Court shifted the “no truth of the erest.5 mean honest belief in the severely lege the perhaps criticized commenta- 5. This extension was foreshadowed e„ (i. Time, propensities Supreme bootstrapping if Inc. for its the in tors Court’s decision Hill, sufficiently publicized, will arouse 17 456 the event 385 U.S. S.Ct. interest) argued (1967), public privacy an invasion which and it was of held for defama- in a test should not cross to the action divided the Times tion, public especially considering the Hill Court’s in- extended to of of matters cognizance interest promoting the state This a “news- “additional terest. decision against damage privi- protection worthy” application the of individual test for the Times the privilege applicability analysis, least would have at in who little access to the media practical respects, from the status of the greater protection should rebuttal have plaintiffs defamed to the nature the Thus, Gertz, public figure. than a after it reported event order determine wheth- public figure private is the individual di- — er the special occasion deserved the Times which chotomy regulate applicabil- is to protection. But see 88 142- Harv.L.Rev. ity privilege, constitutional Times 143, which finds the New York Times hurdle, involving to cases media defama- through Rosenbloom decisions consistent tion. under Justice using public impor- Brennan Supreme should be It noted that tance as a utterance touchstone for Court, in rejecting “public the Rosenbloom invoking the privilege. test, the test’s questioned underly interest” This public interest-newsworthy test in ing propriety wisdom and as a tool for defamation, however, actions for was soon protecting Beyond interests involved. repudiated by Court.6 In bootstrapping appeal, Gertz Court Welch, Gertz v. Robert U.S. difficulty forcing judges found to decide S.Ct. the Su- publications on an hoc basis ad which ad preme reassessed the constitutional “general public dress issues interest” restraints on state law of defamation. not, and which do to determine “what infor Again faced balancing the competing government”, mation is relevant to self speech values of freedom and press with delegating doubted wisdom of such a “strong legitimate state interest judges. task to conscience of Id. 418 compensating private injury reputation,” 3010, citing Rosen U.S. at S.Ct. at 418 U.S. at at S.Ct. the Court bloom, at at S.Ct. rejected the public Rosenbloom issue test (Justice Marshall). also The Court observed availability Times public test overly that such interest ex over-emphasizing press the interests of the posed press as well liability imper- at expense important private reputa- private missibly denied recourse stated, tion interests. As the Court “The injured individual whose reputation extension pro- of the New York Times test defamatory falsehood unless he met posed by the Rosenbloom would plurality New “rigorous requirements of York Times abridge this legitimate state to a interest ....’’ at at degree we unacceptable” find Court, S.Ct. at 3010. The Gertz striking a final constitutional balance apparently behind uniting Justice Harlan’s interests, competing between these Rosenbloom, dissent rejected the Rosen- following limitations Gertz Court held the bloom analysis upon the based content or by the were mandated Constitution suits category of speech, distinguishing against news media: pre-Rosen extending bloom cases the Times 1) Times falsity wilful or reckless privilege. The focused on the instead standard of liability applies to defama- status of the defamed Plaintiff in terms tion of figures; officials rebuttal, opportunity and, im- the more consideration, 2) portant Even for existence of self-in- the defamation individual, duced publicity “assumption may impose the def- the states rule amation risk.” id. liability upon (re- strict the mass media *8 at 3009. The Court that a recognized jecting liability common law strict as to the person who sought publicity media); has not reputation

to his 6. would It should be noted be involved”. 385 that Court 543; Note, at may 87 S.Ct. at The Invasion has intimated that it wish to reconsider by Privacy, repudiate newsworthy Defamation the Hill 23 Stan.L.Rev. 547 standard for (1971). privacy as well. invasion actions Cantrell v. Co., City Publishing 419 U.S. Forest S.Ct. 3) ages claimed must therefore be defamatory impact Phillips Where a state- Remaining to apparent, granted ment is states have latitude Defendant Star. for is the Plaintiff’s claim protect private by any a individual stan- be determined to the issue except dard actual To resolve liability damages. of care strict without fault; to applied which of care should be standard dam- liability for actual Star for 4) plaintiff Regardless whether is a to turn the defama- ages, the must Court private punitive figure, pre- Columbia, District tion law in the damages sumed can be recovered if limitations the constitutional modified knowing reckless or is proved; falsehood announced in Gertz. 5) Under lesser standard of culpabili- (e. ty g. negligence), private individual LAW OF COLUMBIA DISTRICT compensation to recovery limited concedes that under Defendant Star injury” encompasses “actual which all usual or, care, approach Gertz the standard to damages including tort humiliation suf- the standard perspective, from another fering. fault, where actual to the States left Gertz Thus the left the States free media injuries as a result of are claimed impose liability the media for actual is that only limitation defamation—the damages negligent on the basis conduct imposed. Techni liability may not be strict “no rushing where Plaintiff was moth is involved cally, no constitutional flame”, private but person instead com actual setting such standards adequate status for rebuttal. As without except pensation of victim Justice Marshall observed a footnote in The does not to be held liable. Star strictly Rosenbloom, the states free to leaving so assert, however, already Court has that this Gertz, impose negligent for the liability media’s open decided the issue left defamation in their evolution of the com- me applied compensating standard to be mon law . Superior .. wrongs, dia Evening in Hatter v. trial judge’s . .. make more likely should it somewhat (dated Newspaper 8298-75 Star CA private person will have a mean- 15, 1976). March That case concerned

ingful forum in which to his vindicate publi in a private plaintiff defamed media reputation. If of care is the standard of Gertz.7 light was Times), cation and decided (than New York higher it would The that this decision be followed Star asks will more publishers likely seem that case, resurrecting in effect in the instant simply assert the of truth than defense Rosenbloom rule the District of Colum not breach the contend that did they bia. standard. S.Ct. however, be some appears, There opinion besides the lack of ambiguity restrictions do constitutional

mandate, however, authority support proposi far presumed that so cited case concerned, The trial punitive supports. tion the claims it are damages Hatter the Times standard of judge specifically also held Plaintiff must meet falsehood; showing there no that the as observed decision that knowing reckless or negligent above, completely published in this case defendants article the evidence the stan ly, necessarily deciding thus not Summary fails meet standard. not punitive This Court also is judgment applied. dam- dard to be presumed as to matter, reports who on that judge comments with- the Hatter the trial stated convincing proves by authority: he clear and out unless citation to D.C. have violated evidence that defendants appropriate This Court concludes malice” set forth in New the “actual standard is, be, jurisdiction rule in this should Sullivan, Company York Times a public involved in a matter of individual [254, 686] may in libel concern recover *9 against publisher, reporter broadcaster on whether standard trict of Columbia arguably clear media defamation individuals, actual dam- applicable by private in Hatter so far as held was involved, ages by becomes law are translated by privilege, found reason of a common liability Gertz from strict its next most (as such as fair apparently comment all proximate negli- standard care —that of reported in facts the article were true— Time, Firestone, gence. Inc. v. See also opinions arguably false) were supra. applicable thus standard it whether was an unexpressed based on ac- Phillips, Star’s insofar as defamation view policy consideration. In of this ambi- alleged, tual un- damages negligence, are in the guity opinion and the real policy privilege applies. less a For common law problems public associated with interest below, no reasons the Court finds stated possibly by Hatter, standard suggested in- sheltering common the Star privilege law cluding the bootstrap aspect of a news- from standard. negligence as the worthy cogent standard as well con- expressed Supreme cerns by the Court in many privi common law There are Gertz, this Court “follow” leges cannot Hatter in the District of recognized Columbia defamation, “create” composed law of common Times actual absolute privileges enjoyed judges those such as publications malice standard for media or legislators in course of their official of public matters concern where conduct and or qualified privi conditional individuals and their reputations are actual- leges, arising true out of the “privileges” ly damaged. The established common law particular upon occasion which the defama of defamation as restricted the Gertz tion is published upon defeated a show prohibition liability on strict must be fol- ing Star, of malice. The Defendant not lowed to set appropriate an standard of eligible absolute immunity under the cate liability.8 gory rely on a privilege, must defeasible The common law of defamation in qualified The District privilege. of Colum District long sought of Columbia has bia basically recognizes the case of provide the defamed Plaintiff a maximum media qualified two occasions for a privi standard of protection, liability, strict lege public to defame when official is say is to the “ultimate” standard of care. involved. muddled in case Although above, As stated liability this strict law and in several intermingled opinions, tempered by recognized privileges, certain these to “fair comment on privileges distill but the basic policy protect private repu “reports matters of interest” and tations remained in absence of impor public meetings”. proceedings official offsetting tant light considerations. of See, Patterson, v. g., e. De Savitsch constitutionally prohi mandated U.S.App.D.C. (which F.2d 15 bition of strict for media defama liability the fair comment confusingly. intermixes defendants, tion the District Columbia privilege); with the official records abandon must its basic defamation standard see also Johnson Johnson Publishing however, of care and liability; utmost 1971) (in (D.C.App. A.2d 696 which the protection intact. policy remains There trial fair judge erroneously instructed on fore, the basic of care in comment). standard the Dis- Court, recently reject any repudiated rejected point,

8. The at this must also such an exten- flowing dimension sion of constitutional Cox to the defamation constitutional (as- calculus, privileges warning from “official record” of an that such exten- suming such) give problems “hot line” to which the sion would rise to the same Broadcasting approach. asserts Cox rejected flows Rosenbloom created Cohn, Corp. Time, Firestone, supra, 455- 424 U.S. at Inc. v. involving privi- That 96 S.Ct. at 965-966. Common law privacy publication invasion of lege, any, protection action if sole from basic is the true information court records from official liability to be accorded standards of defamation (identity victim), clearly rape of a involving deceased publishers media records distinguishable present from the private individuals. Furthermore, action. *10 print to

The ment” additional false long privilege District of Columbia has recognized priv accorded the media the and fact of a quarrel. of the existence of fair on ilege public comment matters of of avail itself" may Nor the Star policy interest. The which considerations other media protection afforded prompted a protect Rosenbloom decision to reporting that of privilege, law common of reports public matters of interest no meetings”, public proceedings “official gave doubt rise to this privilege in the concedes this to be a the Court although however, common privilege, law. This has contemporary statement closer A question. protection been restricted to extend only report offi privilege of common this opinion, not to misstatements of fact. At follows: proceedings is as cial rejected least since D.C. Courts have Defamatory matter another minority which allows view “fair com any or proceeding official report any of fact ment” misstatements as well as public which deals meeting open to the malice, opinion, absent and have followed publish- is with matters of concern three-quarters majority view of occasion conditionally privileged ed on a fair disallowing priv states comment (a) complete, if is accurate and report where are false. ilege Washington facts oc- abridgement or what has a fair Bonner, App.D.C. Times Co. curred, (b) purpose published Russell v. citing Washington F.2d 836 as to a matter informing Co., accord, App.D.C. (1908); Post public concern. Co., Washington Fisher v. Post 212 A.2d 335 Torts, (Tent. (Second) of Restatement § (D.C.App.1965). Hughes also v. Wash 20, 1974). of fact Draft Misstatements No. ington Daily U.S.App.D.C. News protected as are opinion The well as policy ration F.2d 922 has been reporting privilege. privilege ale for this well stated rule is in De Sav Patterson, proceedings supra, U.S.App.D.C. reports itsch v. held applicable (e. court, the court agency F.2d 15: before or any indictment), done, g. grand jury returning an To state what a has accurately man judicial in reports any proceedings, other your and then say opinion dishonorable, character, place take before adminis- conduct which disgraceful was (e. g. harm, trative, legislative bodies may do as executive comment which no every hearing gover- one an before the judge can for himself whether extradition opinion nor), legislative is well expressed reports founded and to of action conduct, not. on the Misdescriptions bodies of bodies which are reports hand, other (e. to the conclu- perform public leads one duties law authorized to person sion detrimental con- whose g. disciplinary proceedings), bar association duct is misdescribed leaves the reader reports proceeding as well official judging no himself for opportunity by any agency taken officer or action (sic) the con- character of conduct government. (Second) of Restatement demned, picture being but a false nothing Torts, (Tent. d No. Comment Draft § presented judgment. 20, 1974). privilege recog- That such nized District of is well Columbia clear, therefore, It is given the defam- established, expressed but there was doubt made in atory of fact this case of statement extend- early privilege cases whether assertion, “during argument” an records, beyond judicial proceedings ed recognized fair comment matters, whether some and even as to those the District is not of Columbia available to necessary act” be- affirmative “official was the Star. under this Although Washington privileged. fore were they certainly protected Bonner, supra, App.D.C. at arrest, and, the true Times Phillips’ fact of Mr. Co. indeed, privi- (recognizing protected would have been in ex- 86 F.2d at 840 find- proceedings, but pressing (in lege report judicial relative to it malice), ing proceedings absence of was no no authority there “fair com- to extend it to *11 department sort, before an officer); executive or ness of records some even if the hot Co., Fletcher v. Evening Newspaper status, Star log gain line will not could that App.D.C. F.2d 582 (1940), cert. den. suffice an official record to which to create 1130; 61 S.Ct. 85 L.Ed. fact, the will reporting privilege attach. In Lubore v. Pittsburgh Co., Courier Pub. 101 the more than infor- log represents little an F.Supp. aff’d 91 U.S.App.D.C. the police mal between arrangement (1952) (no F.2d privilege report judi to venture, which media, joint the consists of a cial proceedings until official action by the nothing sanctified than unofficial more court); magistrate Jones, or Wills v. a police regarding of crime. As statements App.D.C. 482 (1898). The District of Co privilege of to reporting the reach lumbia Courts appear have later accepted arrest, police regarding statements an expansion of the reporting privilege be the common law rule: following states yond the strictly judicial bounds of proceed An is an by arrest an officer official ings, though possibly not as far as the Re action, report a of fact of that indicates, repudiated statement and have arrest, charge or of the of by crime made requirement the “official act” the privi or making returning the officer in lege to apply. Patterson, Cf. De Savitsch v. arrest, therefore the conditional within supra; Hughes Washington Daily News by [Reports covered this Section Co., U.S.App.D.C. 193 F.2d 922 of Official and Public Meet- Proceedings (1952); Johnson Co., v. Johnson Publishing ings]. On other hand statements supra 698 (following minority rule police, by complainant made by the or that qualified privilege ju attaches before witnesses, or by prosecuting other taken). dicial action is Star assert attorney as to facts of the case or ing the privilege upon based its reliance on expected given, yet evidence to be are not the “hot line” as an official report state part judicial proceeding, or ment police from the major clears two hur itself, arrest privileged and are not dles in the its fair and accurate added). this Section. (Emphasis report of the hot line information its Torts, (Second) Restatement Com- § article and by proper attribution of the (Tent. ment h 1974). Draft No. Not article’s police (avoid statements to sources a being required an arrest record nor record ing legal characterization state statute some other but authority, being ments as as opposed those Star merely constituting instead state- hearsay those report). asserted “official” case, ment of a by police facts the hot Johnson v. Publishing Johnson su line will official record for qualify not as an pra 698, citing Washington Times Co. v. It purposes privilege. should be Hines, App.D.C. 5 F.2d 541 case, strongest noted that the Defendant’s and Washington Bonner, Times Co. v. supra Corporation, F.Supp. Piracci v. Hearst (fair standard); Hughes and accurate aff’d, (4th (D.Md.1966), F.2d News, Washington Daily supra, and Curtis 1967), Cir. involves arrest records. official Publishing Vaughan, Co. v. U.S.App. case, newspaper’s report false D.C. 278 F.2d cert. den. 364 U.S. youth’s charge accurately arrest based on (1960) (attri 5 L.Ed.2d 51 information contained in arrest docket required). However, bution the Star’s re log privi- police book held log liance on the “hot line” as an official leged report under the official records provide document occasion for offi However, privilege. cial our report privilege misplaced and incor log rect. This record would be the PD considered as representing police the oral communication an arrest open from which the Star book record com posed statute, its carry required article does not the informal hot dignity not weight inaccurately (as authoritative reflect it did a record for line which can which the provide common sought of such official case) in this the contents reporting privilege. Therefore, privi- Mere inaccurate busi- records. the common law

lege knowing the Star’s reckless false proceedings publica- official does not extend to the false statements Star’s tion, Summary Motion Defendant’s report. made in reliance on the hot line Judgment Plaintiff’s claim as to the damages mean, course, presumed This does must punitive is foreclosed from showing granted. reliance on the hot report line was reasona- above, Wherefore, in with the accordance inap- ble and thus liability. avoid With the *12 June, 1977, day it this 30th plicability report privilege, of the official Ordered, that Defendant Star’s Motion maintains the reasonableness Star de- be, is hereby and Summary Judgment for negligence fense to the applicable standard punitive to pre- as and partially granted and may prevail well be able to on its hot reports by reasonable reliance line Plaintiff damages sumed claimed their status. despite and; non-official John Phillips Ordered, Further that Defendant Star’s CONCLUSION be, Summary and is Judgment Motion for presents clashing This case of two to the actual hereby, denied as partially important society, interests the constitu- by alleged claimed the Plain- damages speech press against tional freedoms of Phillips. tiff John important reputational pri- interests of party Each to its own costs. bear long vate individuals to committed protection. State for light bailiwicks In Court, By the the constitutional limitations announced Revercomb, George /s/ H. Gertz, the U.S. Court in the com- Judge mon policy law District of Columbia FERREN, Judge, dissenting: to Associate protect private reputational interests and the inapplicability under the facts of this presents ques- appeal This substantial any case of common law the me- privilege, District of tion law of the about the libel dia Defendant liable potentially Star to Columbia; liability what standard —actu- Plaintiff, Phillips, citizen for al or the courts negligence malice —should damages actual caused its defamatory figure” apply “private when a involved in a publication a negligence standard. “public general matter of concern” there appears genuine Since be a issue of brings action for defamation damage fact as to it whether was reasonable col- my media Unlike against a defendant? rely on the information in the “hot leagues, adopt the actual malice I would line” view of duty communication in in New York Times Co. standard set forth care to the reputation, Plaintiff and his Sullivan, 84 11 v. S.Ct. U.S. being genuine there likewise issue of fact (1964). I hold would therefore L.Ed.2d damages suffered a proxi- actual as may that a recover dam- private individual defamation, result mate of the Defendant editor, ages aby publisher, for defamation Summary Judgment Star’s must Motion reporter, plaintiff if the broadcaster alleged damages denied to the actual proves convincing evidence by clear and However, the Plaintiff. because media de- published defendant mandated malice constitutionally Times knowledge with that it famatory falsehood applicable standard Plaintiff’s claim for disregard reckless false with presumed damages, the fail- punitive not was produce any ure of of whether or it false.1 Plaintiff evidence Accordingly, judgment summary pre- judgment I would as to the claim for reverse the (or damages ($1.00) punitive) damages. and award of nominal in favor sumed 323, 349, Welch, Inc., Phillips; John his evidence fails to meet the Robert I do not New York Times actual malice standard. L.Ed.2d narrower, majority’s thus concur in reach the common affirmance questions. granting trial court’s motion order Star’s I. issue from Perceiving the a different an- gle, the Gertz concluded that supra, New York Times the Su- degree protection difference in the preme Court held that “a official media turn on another distinction should [may not damages for defamato- recover] York New Times Rosen- highlighted by ry falsehood relating to his official conduct “public plaintiffs fig- bloom: are whether unless he proves ‘convincing clarity’] [with ures,” deemed to in fairness can be who the statement was made with ‘actual voluntarily exposed “have themselves to in- is, malice’ —that knowledge that it defamatory injury creased from risk was false disregard or with reckless them,” id. falsehood whether it was false or not.” Id. 376 U.S. “private or instead are indi- S.Ct. at 279-80, 285-86, 725-26, 84 S.Ct. at 728- viduals,” cannot to have as- who be said Metromedia, Inc., Rosenbloom exposure sumed the risk of such and thus greater protection deserve courts. (plurality opinion), New extended York Gertz, Accordingly, See id. *13 Times to all require “private” defamation while the malice” stan- retaining “actual plaintiffs, just “public” cases, not figures, prove to figure” dard see id. at “public for that a 342-43, media defendant at withdrew from the proceeded had 94 S.Ct. of protection “actual media the that standard —so malice” in a publishing matter of in Rosenbloom—in cases recently accorded “public general or Id. concern.” at id. brought by “private individuals.” See at Rosenbloom, however, S.Ct. at 1820. con- 347, 94 did so S.Ct. at 3010. The Court tinued to a permit private to plaintiff hold how irrespective newsworthy story of a the strictly (as media liable law) at common indeed, might assumption on that the be— defamatory publication of less news- the story private the individual is about worthy material. See id. newsworthy any test. at See id. Inc., In Welch, Gertz v. Robert 418 U.S. time, S.Ct. at 3010. At the same the Gertz 2997,41 (1974), rejected Court fault” in “liability without rejected Court this sharp distinction be- any against media, case at id. tween publications do, not, that and do to S.Ct. at thus remove attempting reach “public a level general of or concern.” questionable distinction in altogether draw, That typically line is too to hard defamatory publica- Rosenbloom between said, Court stressing “difficulty of forc- “public tion of that have interest” matters ing state and federal judges to decide on an at and those do not. id. that See ad hoc basis which publications address is- S.Ct. at sues of ‘general public or interest’ and Rosenbloom, In receding from Court ” which do not .... Id. at 94 S.Ct. at impose Gertz did a standard. In- not short, Gertz, 3010. In degree after stead, states, long they “so it invited item reported newsworthiness a was no fault,” liability do to impose without longer to determine whether the media was appropriate “define for themselves substantially protected, unprotected, or liability standard or publisher a against “private” defamation suits indi- defamatory injuri- broadcaster falsehood viduals —a conclusion with which I whole- ous private to a at individual.” Id. omitted).2 heartedly (footnote agree. S.Ct. at 3010 Most that, Chaloner, Supreme 2. Since the 1964 decision in retains virtue the District Co., supra, policy protection” New York Times it has been clear a “utmost of defamed Co., Washington App. that private-figure Chaloner v. I be- plaintiffs. Post Ante at longer D.C. 231 no reflect the lieve to could invitation the states (presumably including of the District of Columbia insofar Chaloner the District Colum- imposed bia), liability press upon building strict libel. substantial Compare development id. at 233 with York Times the law of over New half, 279-80, supra wiped 376 U.S. at at 725-26. I last our slate decade and has therefore, note, Judge interesting do not share Revercomb’s conclusion clean. It is to place, fig- the public-private In the first process has resulted in a commonly, inherently is as difficult ure distinction “negli- choice malice” and between “actual Ro- found the manage as the Gertz Court gence.” inquiry. I turn to that distinction between matters senbloom general con- or public not —of are —and are II. Brennan has noted: cern.3 As Justice not, news recognized, Voluntarily “public” As we are all majority the Gertz some degree. Conversely, men some not, is, matter or is worthiness —whether a even the most aspects of the lives of general public prop concern —is not a mat- fall outside area of public men developing er criterion for to use in judges concern. public general ters [Cita- Gertz, applying libel standard. Thus, footnote tions and omitted.] supra 3010. The S.Ct. at have “public” figures certain idea that judges, are the ones to press, not decide entire lives exposed their voluntarily what newsworthy. what First This private while individu- public inspection, Amendment is all about. shrouded carefully kept als have theirs reported item is thus deemed Once best, is, legal fic- view accept compro- I cannot newsworthy, event, distinction tion. mise, Gertz, inherent that some re- paradoxical produce could easily legal is to more attack vulnerable of issues dampening discussion sult of individuals, rather simply private because they because general concern For public figures, than are involved. three while happen involve citizens that, “private reasons, even I believe encouragement extending constitutional *14 cases, figure” negligence standard “the of lives aspects of of the discussion breathing space to First gives insufficient not the area “public figures” that are in Rosenbloom, 48, supra, 91 public at general Amendment values.” concern. Id. 52, 403 91 at 1824. S.Ct. at 1824.4 U.S. at S.Ct. Pubs., Inc., here, U.S. adopting Judge 201 in 3. Revercomb’s Waidbaum v. Fairchild 301, (1980) my colleagues majority basically App.D.C. 627 1287 demon- endorse F.2d the decisis; making they complexity his not this reliance on do ad- strates the inherent in stare why they prefer negligence vance reasons That distinction. case reveals that standard, Rosenbloom, Supreme majority, overruling as the Court in Gertz invit- created 80, (1) ed public figures: them to do. Ante at 87. two subclassifications of pur- public figure a who is for all limited-pur- individual moreover, my disagree, colleagues’ I with as- common, poses and the more Supreme sertion the United that Court and “ i.e., public pose figure, ‘an individual [who] Appeals States for the of Co- District voluntarily injects a or is into himself drawn argu- implicitly lumbia Circuit “at least —and controversy particular public and therefore ably explicitly Judge Revercomb’s —endorse public thereby] figure for a becomes a 80, [sic: case,” opinion in this at in Wolston ante ” U.S.App.D.C. range 201 at limited of issues.’ Ass'n, Inc., Digest U.S.App. v. Reader’s 188 306, Gertz, (quoting supra, at 1292 427, 627 F.2d 185, n.3, (1978), n.3 2701, D.C. 193 578 F.2d 435 351, 3012). n.2, 94 at rev’d, 157, 418 U.S. at S.Ct. 443 U.S. 99 2704 160 S.Ct. n.2, (1979). 61 450 Those courts mere- II, ly opinion, Judge I do not conclude that Revercomb’s As at the outset of Part 4. indicated

given thoroughness, likely proper was the most its find to be a criterion “newsworthiness” (absent applicable developing reflection of District Columbia a libel standard court). ruling Thus, agree at See Bren- definitive the time while I with Justice media. id. public-private figure dis- nan’s of the criticism colleagues’ my Finally, tinction, I do not understand malice I would not limit the actual puzzlement my of Justice .at advancement “public general to matters con- standard arguments Brennan’s Rosenbloom fa- Because, however, from allegedly defam- cern.” vor an actual Ante at malice standard. atory undoubtedly item this case con- news Gertz, very quotation 80. Their ante at interest, matter of a decision cerned a 81, Court, makes clear adopting need malice here actual standard withdrawing mandate Rosenbloom provide application beyond matters standard, each has left it to state actual malice concern,” “public general in Rosen- court) adopt (and presumably what- to this bloom. liability. ever standard it fit short of strict sees

93 Time, Hill, See Inc. Anderson, Libel Press 385 Self-Censor- (quoting ship 422, 53 (1967).5 Tex.L.Rev. 480 87 17 L.Ed.2d 456 S.Ct. moreover, will guessing complicated, Such Second, I that even if press fear can will negligence likely because standard figure make the public-private distinction light it a burden of carry relatively cases, adoption negli most our i.e., evidence, proof, preponderance gence category standard for latter malice in contrast with the standard actual admittedly newsworthy news will force the See convincing clear and evidence. degree media toward self-censorship Gertz, supra, at U.S. at S.Ct. that our society can ill afford. Walker See J., dissenting); (Brennan, 3 Restate Sun, Inc., Colorado Springs 188 Colo. 580B, (Second) j ment of Torts Comment 99-100, § cert. (en banc), 538 P.2d But Anderson, supra see at denied, S.Ct. is unlikely 467. It the court itself will Heating AAFCO & Air (1975); protection against be able to afford much Conditioning Publications, v.Co. Northwest Inc., erroneous, verdicts;6 even vindictive 162 Ind.App. 683-685, 321 N.E.2d standard, context, 580,588-90 in this will negligence denied, cert. summary judgment. award of deter 47 L.Ed.2d (1976); Ander 456-58, supra Anderson, See son, 469.7 supra at 425-52. The uncertainties at Ac in negli herent I am cordingly, in a convinced premised standard on “reasonable (in gence care” will disserve in standard contrast with disregard”) “reckless more, will by fostering terest excessive self-cen “charge the press with ‘the intolerable burden than the malice standard sorship, actual guessing how jury might assess creating higher would disserve it hur of steps reasonableness taken it to dle verify every private for defamed individuals. accuracy of reference to a ” name, Colo, AAFCO, picture supra, Walker, portrait.’ supra 99-100, 538 P.2d at 162 Ind.App. N.E.2d at 458.8 [Rosenbloom, Gertz limitation of a individual’s Amendment cannot tolerate. recovery damages supra, actual will little to do 403 U.S. at 91 S.Ct. at 1823.] negli- alleviate the uncertainties inherent in a According gence to Professor Anderson: *15 standard. “The Gertz def- Court’s broad “ injury,” including ‘impair- summary judgment inition of deny ‘actual’ Some courts will reputation standing ment of nity,’ ground negligence in the commu- the quires that a standard re- humiliation, ‘personal as well as men- the kind of determination that factual ” anguish suffering,’ tal always regarded will peculiarly not “material- has been as with- ly capricious jury reduce the competence juries. uncertainty risk verdicts [ ] in the But jury punishing or ... publish- negligence deter a repre- the definition of AAFCO, 684, unpopular er supra important ideas.” at sents the most to summa- obstacle Gertz, (quoting supra, 321 N.E.2d at ry procedure 589 418 Whether it will Gertz. be 350, 3012). U.S. at 94 particularity S.Ct. at with the defined character- izes recklessness seen, remains to under Times be plurality

6. As the Rosenbloom observed: negli- but unless the describe the courts In the normal civil suit where this standard precision, gence pur- standard with some employed, “we view it as no general for there to be an in more serious poses will be defeated verdict erroneous surely just Times as those of the in the defendant’s favor than for there be have been if had would the Court left the plaintiff’s an erroneous in verdict favor.” disregard determination of unquestioned judgment reckless 358, Winship, In re 397 U.S. 371 S.Ct. [90 juries. at 457 [Id. 1068, 1076, (HAR- (1970) 25 L.Ed.2d 368] (footnote omitted).] LAN, J., cases, concurring). In libel how- Toledano, D.C.App., See also Nader v. de 408 ever, we view an erroneous for the verdict 31, denied, 41-44 A.2d cert. plaintiff only serious. most Not does it 1078, 1028, (1980). 62 L.Ed.2d 761 mulct the for an defendant innocent misstate- three-quarter-million-dollar jury Although ment —the 8. Times standard New York presents evidentiary in verdict this case could rest on such a substantial hurdle for error, suits, possibility private plaintiffs error —but the of such even in it can defamation be Colo, See, beyond Walker, vagueness e.g., supra negligence stan- met. 188 at itself, 458-59; Anderson, impetus 100-01, strong supra dard create a 538 would P.2d at 430, cases). self-censorship, (collecting toward which the First See also Her- 435-38

94 unique I

Finally, am influenced W. of Elaine KERR. Matter our position jurisdiction, of this nation’s capítol center of the world.9 and a media No. M-37-80. distinguish the Dis- These characteristics Appeals. District of Columbia which, from the states trict of Columbia 12, 1979. Argued Sept. en banc Gertz, negligence adopted after have Nov. Decided private-figure standard the media libel cases.10 is true a local Phillips merely

citizen, involved an event local interest

reported metropolitan newspa- large two

pers. adopt we how- today, standard

ever, will force to apply equal

plaintiffs injected into national or world newspaper

affairs. It will also apply

broadcasting companies headquartered else- country but with offices

where worry

District of I Columbia. therefore adoption negligence standard complete reporting will about deter im- and international

matters national D.C.,

portance generated Washington, may financially

but also force smaller

vulnerable to reconsider the ad- companies here, given

visability maintaining offices defending costs of a libel suit.11

I respectfully dissent. Inc., Lando, Newspapers, bert v. 99 541 S.W.2d S.Ct. ter v. Laredo denied, (Tex.1976), L.Ed.2d 115 cert. (1977); Taskett least At one commentator who favors the Broadcasting KING 86 Wash.2d negligence standard involv- suits Restatement, (1976) (en banc); 546 P.2d supra ing private “a differ- individuals concedes that 580B(c); Chapadeau cf. v. Utica Ob § may ent result mandated some states Inc., server-Dispatch, N.Y.2d special significance circumstances that attack 379 N.Y.S.2d N.E.2d (gross irresponsibility). competing to either of the interests that are Walker, supra But see being 29 Vand.L.Rev. balanced.” Colo, 98-99, (actual at 547 538 P.2d *16 —, AAFCO, malice); supra 321 N.E.2d Franchino, (same). v. 586 Marchesi See also Inc., Peagler Newspapers, 10. See v. Phoenix 131, (1978); Jacron 283 A.2d 1129 1216, Md. 387 309, 315, (1977) 114 Ariz. 560 P.2d 1222 580, Sindrof, Sales v. A.2d 688 (en Co., Co. Md. banc); Register Publishing v. Corbett 4, 12-13, Conn.Supp. (Su 356 A.2d per.Ct.1975); Park Cahill v. Hawaiian Paradise 522, 536, Corp., Silver, D.C.App., P.2d Haw. 394 A.2d 11. Cf. Rose (1975); Wood, Troman v. 62 Ill.2d (acknowledging First 1373-74 Amend (1976); N.E.2d Pub Gobin Globe ment reach of District of Co issue Co., lishing 216 Kan. 531 P.2d statute), rehearing long-arm banc lumbia en (1975); County Newspapers, Stone v. Essex denied, 398 A.2d 787 Inc., 849,857-859, 330 367 Mass. N.E.2d Sons, (1975); Maloney H. Inc. v. Thomas & E. Scripps App.2d 109- W. 43 Ohio denied, 494, 498 (1974), 334 N.E.2d cert. (1975); Mar 46 L.Ed.2d Television, Inc., tin v. Griffin 549 P.2d (Okla.1976); Publishing Memphis v. Nich Co. ols, (Tenn.1978); Fos 569 S.W.2d 417-18