Lead Opinion
Melvin Reuber was employed as a scientist at a research center operated for the National Cancer Institute (NCI). While operating under the aegis of the NCI, Reuber disseminated his own research and took other actions which created the misleading impression that the NCI had reversed its official position that the pesticide malathion was a non-carcinogen. By such actions, Reuber, a self-styled whistleblower, entered the public controversy swirling around malathion’s safety. In response to Reuber’s involvement, his supervisor issued a letter of reprimand which criticized Reuber for, among other things, promoting inadequate research and subverting public confidence in the NCI. A news publication received a copy of the letter and published the majority of its contents. Reuber then sued and won a judgment against the publication for defamation and invasion of privacy-
In reviewing Reuber’s claims, we hold that a whistleblower is not invariably immune from public figure status and that recovery in this instance must be judged under an actual malice standard, a standard Reuber has failed to satisfy. In addition, we hold that appellant did not invade Reuber’s privacy. We therefore reverse the district court’s judgment.
I.
Melvin Reuber is no stranger to the scientific and political debates raging over the carcinogenicity of chemical pesticides. He began his research on carcinogens in the 1950s during his graduate training in pathology. In the early 1970s, Reuber served as a consultant to the Environmental Protection Agency on the carcinogenicity of certain chemicals, including pesticides. In this capacity, Reuber testified at EPA hearings and at a Senate subcommittee hearing. At these hearings, Reuber established himself as a scientist who frequently found pesticides to be carcinogens. At one hearing, for example, he challenged the validity of reports submitted by the chemical companies on pesticide safety, deeming most of the reports to be “worthless.”
In 1976, Reuber started work with the Frederick Cancer Research Center (“FCRC”). Litton Bioneties operated the FCRC under a contract with the National Cancer Institute (“NCI”), a public agency. At the FCRC, Reuber studied the carcinogenic effects of various chemicals. Reuber also performed independent research on his own time, often using materials and facilities at Tracor Jitco, another facility under contract with the NCI. As part of his independent research, Reuber analyzed the pesticide picloram and concluded that it was a carcinogen. He delivered his findings at a conference in Oregon in the late 1970s. At the conference, Reuber touted his abilities to accurately determine carcinogenicity. He also reported his views on the carcinogenicity of picloram in a study that environmental groups in Wisconsin utilized to oppose the use of picloram in the state.
As an additional part of Reuber’s independent research, he reanalyzed bioassays testing the potential carcinogenicity of malathion, an insecticide. These bioassays had been deposited at Tracor Jitco by other scientists under contract to the NCI. These scientists had found malathion to be non-carcinogenic and reported their findings in an official NCI report. Reuber concluded, on the contrary, that malathion was carcinogenic and assembled his findings in an unpublished manuscript.
Reuber’s research on malathion gained prominence during the Mediterranean fruit fly (“Medfly”) infestation of California in 1980-81. State officials proposed the use
By affiliating his own study with the NCI/FCRC in this way, Reuber created confusion over the official NCI position on the potential carcinogenic effects of malathion. In fact, California state health officials contacted NCI to determine whether Reuber’s manuscript represented the current NCI position or whether NCI adhered to the findings of its prior published study. Drs. Vernon Hartwell and Richard Adam-son, two NCI executives, responded to this confusion by contacting Dr. Michael Hanna, Reuber’s supervisor at FCRC and its director, and urging him to investigate Reuber’s activities.
On March 26, 1981, Hanna reprimanded Reuber in a letter (the “Hanna letter”) asserting that Reuber had engaged in various forms of professional misconduct: creating the impression that the NCI endorsed his independent research, engaging in inadequate research, spending excessive time away from his job, and ignoring NCI publication clearance procedures. For example, the letter states, “you have operated under the guise of the endorsement of both NCI and the ... FCRC. These obstreperous actions have had a multi-million dollar implication, giving the impression that the NCI may be administering programs of questionable competency.” On the adequacy of research, the letter states that after reviewing the evidence, “I can only assume that your statement regarding your thorough evaluation of these slides was incorrect and misleading ... thus raising a question of whether your interpretation is scientifically valid.”
Hanna sent copies of the reprimand letter to officials at Litton and the NCI. This letter was then leaked to outside parties. How the letter leaked from its initial recipients has not been determined. In any event, on April 13, 1981 an anonymous source provided Dr. William Hollis of the National Agricultural Chemicals Association with a copy of the letter. Hollis then forwarded a copy to Jack Wise of Stauffer Chemical Company. Wise, in turn, informed Catherine Cooper, the editor of the Pesticide and Toxic Chemical News (“PTCN” or “the News”), about the letter. The PTCN is a newsletter with approximately 1,300 subscribers seeking information on pesticides and toxic chemicals. Appellant Food Chemical News owns PTCN. On April 15, 1981, Cooper published an article about the Hanna letter, essentially reprinting most of the letter’s contents. It is undisputed that Wise gave Cooper an accurate copy of the Hanna reprimand and that the News reported accurately its contents. On April 24, 1981, Reuber resigned from Litton.
Reuber then filed suit in federal district court for the District of Columbia against the Food Chemical News as well as his employers and supervisors. The suit against the Food Chemical News was eventually transferred to the United States District Court for the District of Maryland and is the only one before us on appeal. The district court held a jury trial on Reuber’s common law claims against the News for defamation and invasion of privacy. On the defamation count, the jury found that the News had acted with actual malice in publishing one or more false statements about Reuber. The jury also held the News liable for invasion of privacy. It awarded Reuber $625,000 in compensatory damages and $250,000 in punitive damages.
The News appealed the district court’s judgment. A panel of this circuit affirmed the judgment for Reuber. Reuber v. Food Chemical News, Inc.,
II.
In assessing Reuber’s defamation claim we shall assume, without deciding, that at least one of the statements in the News’ account of the Hanna letter was false. We shall also assume that the falsity damaged Reuber. What remains to be determined by this court is Reuber’s status as private or public figure. The court must then decide whether Reuber adequately proved his case against the News under the appropriate standard of culpability.
We hold that Reuber is a limited purpose public figure for this appeal because he voluntarily injected himself into a public controversy “in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc.,
A.
To recover compensatory damages for defamation, a public official or public figure must show actual malice, while a private figure may recover under a lower standard of culpability. Gertz,
The News contends that Reuber is a public figure based on his participation in controversies involving the use of pesticides, especially the malathion controversy. In response,- Reuber argues he is a private person who merely headed a pathology lab at FCRC and “was not known to the public at large.”
In Fitzgerald v. Penthouse, this court set forth a five-factor test for determining whether a party is a public figure.
The inquiry into access to channels of communication proceeds on the assumption that public controversy can be aired without the need for litigation and that rebuttal of offending speech is preferable to re
The inappropriateness of this course of action is apparent when one examines the combined second and third factors of the Fitzgerald analysis: whether the plaintiff has voluntarily assumed a role of special prominence in a public controversy by attempting to influence the outcome of the controversy.
Reuber’s research, again by contrast with Hutchinson’s, was quite familiar to most of those involved in the public debate over the carcinogenicity of pesticides, in particular malathion. Someone who has not attracted general notoriety may nonetheless be a public figure in the context of a particular controversy covered by publications of specialized interest. See, e.g., Waldbaum v. Fairchild Publications, Inc.,
Reuber argues that providing a manuscript that is used by others in a controversy does not meet the Fitzgerald requirement of voluntarily entering a controversy. We cannot accept this claim in his case. See, e.g., National Found. for Cancer Research, Inc. v. Council of Better Business Bureaus, Inc.,
Reuber also contends that he cannot be a public figure because many of his activities related to malathion occurred pri- or to the discovery of the Medfly in California. We note, however, that even “involuntary” participants can be public figures when they choose a course of conduct which invites public attention. See, e.g., Clyburn v. News World Communications, Inc.,
Even if Reuber’s arguments accurately reflected the law, they ignore the considerable body of evidence that he entered into the malathion controversy voluntarily. The evidence reflects an individual knowingly deploying himself on the front-lines of debate. For example, Reuber furthered the dissemination of his malathion study by referring interested parties, including a California congressman, to the John Muir Institute for copies of his study. Further, Reuber wrote a letter to the director of the California Department of Food and Agriculture and sent a copy to an official of the California Department of Public Health in early 1981 in an attempt to influence the outcome of the malathion controversy. In that letter, Reuber criticized an earlier NCI malathion study and stressed the superiority of his own scientific credentials. Reu-ber even included his curriculum vitae and bibliography. The letter concluded by inviting these officials to contact Reuber for further assistance.
The means by which Reuber injected himself into the malathion controversy are also significant. He circulated findings of his own malathion research with his office address attached indicating his affiliation with the FCRC and the NCI. Similarly, he wrote his letters to the California health officials on FCRC stationery and signed them “Melvin D. Reuber, MD/Head, Experimental Pathology Laboratory.” Further, Reuber took issue with the position of the NCI which was funding the facilities at which he performed his research. By taking issue with the NCI in studies and letters that at the same time indicated his affiliation with the agency, Reuber not only voluntarily injected himself into the malathion controversy by vigorously promoting his own views and research, but did so in a manner that was bound to create confusion over what the official agency position was.
The fourth Fitzgerald factor analyzes whether “the controversy existed prior to the publication of the defamatory statements.”
Reuber contends, however, that the fourth Fitzgerald requirement cannot be met because the editor of the News admitted that she did not intend to publish the article in the context of the malathion controversy. Here, appellee attempts to introduce the subjective element of the author’s intent into the determination of public figure status. We reject this approach in favor of the objective approach outlined in Waldbaum v. Fairchild Publications,
The fifth and final Fitzgerald factor addresses whether “the plaintiff retained public figure status at the time of the alleged defamation.”
This analysis of the Fitzgerald factors demonstrates that Reuber, unlike the defamed behavioral scientist in Hutchinson
B.
We thus begin the inquiry into actual malice. As a first step, we examine the jury instructions and conclude that the court erred in its instructions on the critical element of actual malice. That error alone requires a remand, but the inquiry does not end there. We must next determine whether Reuber proved actual malice by clear and convincing evidence for if he did not, we would enter judgment for the News rather than remanding for a new trial. This determination is in turn informed by the existence of a fair report privilege on the part of the News.
1.
Appellant contends that the trial court erred as a matter of law when instructing the jury on actual malice. The court gave this instruction to the jury:
You are instructed that actual malice exists when the person making the statement knowingly and deliberately lies or makes the statement with knowledge that it is false or with reckless disregard for its truth or falsity.
It is not enough to show merely that the publisher failed to investigate the truth of the statements. A failure to estimate standing alone is not actual malice. However, a failure to follow accepted standards of journalistic practice can be considered in determining whether the element of reckless indifference is present.
If you find that the News published an article whose substance makes substantial danger to reputation apparent and that it engaged in conduct which is an extreme departure from the standards of investigation and reporting normally adhered to by responsible publishers, the element of reckless indifference may be established.
In the first paragraph, reckless disregard is undefined. Indeed, the judge never informed the jury that reckless disregard relates to a state of mind in which a “defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson,
Thus, the trial court erred as a matter of law in its instructions to the jury on actual malice. When “ ‘it is impossible to know, in view of the general verdict returned’ whether the jury imposed liability on a permissible or an impermissible ground, ‘the judgment must be reversed and the case remanded.’ ” Greenbelt Publishing Ass’n v. Bresler,
2.
While the error in the jury instructions would alone mandate reversal, this cannot end our inquiry. The question remains whether to remand the cause for a new trial or to direct entry of judgment for the News.
To decide this question, we must examine whether Reuber proved actual malice by clear and convincing evidence. While the Supreme Court in Harte-Hanks did not endorse making departures from journalistic standards the determinant of actual malice, it did recognize that such standards might serve as supportive evidence for a reviewing court in its determination of this critical element of recovery.
This is so because of the premises underlying the fair report privilege. The fair report privilege is an exception to the republication rule and is designed to mitigate its harsh effects. “Under the republication rule, one who repeats a defamatory statement is as liable as the original defamer,” Lee,
With these considerations in mind, we address whether the fair report privilege should apply to the News’ article. Reuber contends that the News should not be accorded a fair report privilege because the factual predicate for the privilege, a report on a government action or document, is absent in this case. In this respect, he argues that the reprimand letter constitutes the actions of private entities, Hanna and the FCRC, rather than governmental entities. We believe, on the contrary, that the letter does qualify as official action for the purposes of a fair report privilege. The decision to discipline Reuber, and the letter embodying this decision, “invoked the power and prestige of the National Cancer Institute so as to make the decision a governmental one in perception as well as reality.” Reuber v. United States,
Reuber also contests the legal foundations for the privilege in this case. In Lee, the circuit recognized three specific rationales for the creation of a fair report privilege as applied to government actions or documents: agency, public supervision, and the public’s right to information.
We need not decide in this case whether the agency rationale encompasses only those documents which the government has officially released and which the public would have immediate access to or whether it also encompasses otherwise confidential documents which someone has placed in the public domain. We do not think that the scope of the agency rationale would be dispositive here because the other two rationales for a fair report privilege, public supervision and public information, are plainly present. See, e.g., Medico,
We wish to make plain, however, that our holding is not without limits. By recognizing a fair report privilege in these circumstances, we neither authorize em
Whether the fair report privilege should be characterized as absolute or qualified in its relationship to actual malice has been the subject of debate. See, e.g., Medico,
3.
We must address finally Reuber’s claim that, notwithstanding the existence of the privilege, there was evidence of actual malice. Actual malice is a subjective standard. Plaintiff must prove that the defendant made the statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times v. Sullivan,
This independent review of the record does, however, embody two variations from the standard practice. First, the requirement of independent review departs from the considerable deference an appellate court normally accords to a fact-finder’s determinations. See, e.g., Inwood Laboratories v. Ives Laboratories,
We begin our review by examining the evidence which Reuber and the district court believed sufficient to establish actual malice on the part of the News. The trial court observed that Cooper never assessed the impact that reprinting the serious charges contained in the reprimand letter would have on Reuber’s reputation and career. The law of defamation, of course, protects against false damage to reputation, but the falsity of charges cannot be equated with their seriousness. Controversies with a serious public impact will contain their share of serious charges, and the New York Times rule is not to be suddenly suspended for a news organization whenever the stakes run high. If that were the case, the vitality of debate would suffer at the point when the need for information and illumination was uppermost. Nor can Cooper’s alleged insensitivity to Reuber’s career or reputation be the basis for recovery. There are limits to the lengths to which news organizations can be expected to go in protecting the sensibilities of one side in a public debate. The failure to protect reputation cannot alone constitute actual malice, for indeed it is inescapable to public controversy that reputations are at risk.
Here, the trial court seemed almost to infer that Cooper, by being insensitive to Reuber’s reputation, harbored an ill will towards Reuber. Even if Cooper harbored ill will towards Reuber, and there is no evidence of that, the Supreme Court consistently has held that “the actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.” Harte-Hanks,
As additional evidence that Cooper allegedly acted with reckless disregard, the trial court noted that Cooper never questioned whether Jack Wise, the person who gave the copy of the reprimand letter to Cooper, or his chemical company employer had a strong incentive to harm Reuber’s professional reputation. Actual malice cannot be proven simply because a source of information might also have provided the information to further the source’s self-interest. Self-interest (and the related desire to place opposing views and persons in an unfavorable light) motivates many news sources; if dealing with such persons were to constitute evidence of actual malice on the part of a reporter, much newsgathering would be severely chilled. The fact that Wise or his employer “had a strong incentive to diminish the impact of Dr. Reuber’s scientific work” cannot constitute a finding of malice. Reuber, in turn, had a strong incentive to diminish the impact of NCI’s conclusions and those of his superiors who worked there, and strong incentives to disprove are what debate is all about.
Reuber also alleges that actual malice can be inferred because a profit motive drove the News to publish the Hanna letter. He characterizes the News as a
The News may have subscribers in the chemical industry, but it also has subscribers in academia, in public citizen and environmental groups, and in the government. The very fact that the News had printed eleven previous stories reporting Reuber’s various legal activities and research efforts (often opposing the interests of chemical companies) calls into some question Reu-ber’s contention that the News is the uncritical mouthpiece of the chemical industry. But the profit motive or the political orientation of the News is hardly the dispositive point. The cases from New York Times v. Sullivan onward teach that evidence of a defendant printing material to increase its profits does not suffice to prove actual malice. Harte-Hanks,
Reuber also contends that Cooper’s attitude toward the accuracy of the allegations contained in the reprimand letter reveals her reckless disregard of the truth. For example, the trial court observed that Cooper testified that she made a conscious decision not to inquire into the truth or falsity of Hanna’s allegations in the letter. Even if Cooper made such a decision, that decision does not prove actual malice under these circumstances. In St. Amant v. Thompson,
Here, the News and its editor had no apparent reason to question the truthfulness of the Hanna letter. A presumably reliable author, the director of a federally-sponsored cancer research center, wrote the letter on official FCRC letterhead. The author characterized the allegations against Reuber as ones which “I have investigated and have found to be true.” Furthermore, the source that gave Cooper the Hanna letter had provided her with reliable information previously. “Certainly where there was no reason to doubt the accuracy of the sources used, the failure to investigate further, even if time was available, cannot amount to reckless conduct.” Ryan v. Brooks,
The trial judge also relied on Cooper's testimony that she would have published the Hanna letter even if she had known some of the allegations were false as evidence of reckless disregard. Cooper stated, for example, that she would print the article even if some of the allegations were false because it would be newsworthy that the director of a federally funded cancer research center was leveling false charges at his employee, an eminent cancer researcher. The Hanna letter might further show, even if part or all of it was false,
We need not debate the merits of that view, however, because Cooper’s testimony is of limited relevance. Actual malice means a defendant published a story with a “high degree of awareness of ... probable falsity.” Garrison v. Louisiana,
Of course, false allegations add little to public debate; indeed they detract from it. See Hustler Magazine v. Falwell,
In addition, the reality of the newsgath-ering process counsels against requiring the press to guarantee that every allegation on the part of a public disputant is correct. Here, the editor of the News received her copy of the Hanna letter on April 13 or 14. The News, a weekly, was scheduled for printing on April 15. Had Cooper missed the April 15 deadline, she could not have published again for a week and her readers might have been deprived of a timely report. Since the spraying of malathion had not yet occurred and its properties were still under debate, the News provided its readership with information essential to informed debate on the point. It will often be the case, of course, that investigative journalists will and should defer publication until the accuracy of charges can be determined. The law of defamation necessarily presupposes some tradeoffs in the timeliness of publication in the interests of accurate and responsible reporting. To incorporate a further guarantee of the non-falsity of every published charge during a heated public controversy is, however, to sacrifice the timeliness of news reporting to a far greater degree than New York Times allows or that the rapid-fire nature of public debate would permit. See, e.g., Hunt v. Liberty Lobby,
Finally, Reuber points to Cooper’s alleged failure to analyze two passages in the Hanna letter that Reuber considered contradictory. At one point in the letter,
When examining this testimony, it is important to note that the trial court treated it as evidence of reckless disregard, but not actual knowledge of falsity. Based on this characterization, we independently review the testimony under the standard mandated by Harte-Hanks. See
In sum, there was no actual malice here because the News did not publish with knowledge of the letter’s falsity or in reckless disregard of its truth under New York Times v. Sullivan. Reuber’s manifold contentions would transform the New York Times standard for actual malice into one far less protective of the purposes of free expression. His cause of action seeks to impose wholly unprecedented burdens on news organizations in the interest of conducting a one-way debate. We reject the attempt to silence one's adversaries in a public controversy by suing organizations attempting to inform the public about questions raised as to the research of every putative defamation plaintiff. Upholding this judgment would have the ironic effect of stifling debate within the community of scientists at a time when the implications of scientific research are ever more far reaching and when the public’s understanding of professional credentials and conclusions must be correspondingly enhanced.
III.
Turning to the remaining claim, we must determine whether the News invaded ap-pellee’s privacy. We hold that the News did not and reverse the award for invasion of privacy.
The trial court instructed the jury that invasion of privacy is “the intrusion upon another person’s solitude, seclusion, private affairs or concerns in a manner which would be highly offensive to a reasonable person ... [or] the publicizing of true facts concerning the private life of another which are not of legitimate concern.” This instruction recognizes two varieties of invasion of privacy: intrusion and publication of private facts.
A.
Appellant argues that the court erred by instructing the jury on intrusion under the circumstances. We agree, as apparently did the panel.
B.
To recover for invasion of privacy for the publication of private facts, a party must show that an article publicized private facts in a highly offensive manner about an issue not of public concern. Restatement (Second) of Torts § 652D (1977); Hollander v. Lubow,
The record reflects a number of ways in which the Hanna letter was in the public domain prior to publication in the News. For example, William Hollis and Jack Wise, both employed in the chemical industry, obtained copies of the reprimand letter. Wise, in turn, gave copies of the reprimand letter to at least ten colleagues in the chemical industry. Wise and his colleagues planned to distribute the letter independent of its publication in the News. In addition, Wise used the contents of the Hanna letter in his lobbying efforts with an EPA official. Copies of the reprimand letter were apparently posted on a public bulletin board at the Environmental Protection Agency. Reuber v. United States,
In addition, appellant argues that Reuber has failed to satisfy the remaining two elements necessary to support his cause of action: the article was not published in a highly offensive manner and the Hanna letter is a matter of legitimate public concern. We agree and note that Bilney v. Evening Star Newspaper Co.,
The Bilney court rejected the players’ contentions by noting that “ ‘the legitimate interest of the public in the individual may extend beyond those matters which are themselves made public, and to some reasonable extent may include information as to matters that may otherwise be private.’ ”
Reuber maintains that Bilney does not control here because basketball at the University of Maryland involves a matter of public concern while the Hanna reprimand is purely a matter of private concern. The Hanna letter, however, touched not only upon the carcinogenic hazards of malathion spraying but also upon the effectiveness of the government’s fight against the scourge of cancer. Moreover, as we have already noted, Reuber sought the limelight associated with a controversy of immense public concern — as great, some might warrant, as the fortunes of a college basketball program.
Finally, the Supreme Court’s decisions on invasion of privacy counsel against accepting appellee’s claim. In these cases, the Court has been presented with challenges to state statutes that effectively created causes of action for invasion of privacy if the media identified participants in certain legal proceedings or victims of certain crimes. See The Florida Star, supra; The Daily Mail, supra; Oklahoma Publishing Co. v. District Court,
Reuber also argues that denying him recovery for invasion of privacy will mean that every bureaucrat whose work has some impact on a matter of public concern will lose all privacy interests in his or her confidential personnel file. We in no way believe that our decision will create the situation Reuber hypothesizes. The scope of our holding does not extend to “every bureaucrat”; rather our holding is limited to those figures who by nature of their activity become public figures. A researcher like the scientist in Hutchinson v. Proxmire who was not a public figure would have a greater privacy interest in the contents of his personnel file than would a researcher, like Reuber, whose persistent efforts to enter a public controversy transformed him for the limited purposes of that controversy into a public figure.
Other measures are also available to protect a public figure’s privacy that entail far fewer costs to the cause of free discussion. See, e.g., The Florida Star,
IV.
The judgment of the district court awarding damages against the News for invasion of privacy and defamation imposes exorbitant costs on public debate, costs we decline to assess. To uphold Reuber’s manifold claims would be to disable the government from rebutting charges by employees that the positions taken by government agencies were ill-founded, ill-motivated, or even corrupt. We think the First Amendment protects the right of persons both within and without government to challenge vigorously the conclusions of public agencies. We also think, however, that the Amendment protects the right of the party
The judgments for defamation and invasion of privacy are reversed and the case is remanded for entry of judgment for the defendant.
REVERSED AND REMANDED.
Notes
. While Hanna may have intended the letter as an internal reprimand, nevertheless the fact remains that numerous individuals outside the original circle of recipients saw the letter before it reached the News. For example, at least twelve people in the chemical industry received copies of the letter. One of these twelve used information in the letter to lobby an Environmental Protection Agency official. In addition, the letter was apparently posted on a public bulletin board at the EPA.
Dissenting Opinion
dissenting:
For the reasons set forth in the panel opinion, Reuber v. Food Chemical News, Inc.,