JOHN THOMAS TALLEY, Plаintiff - Appellant, v. TIME, INC., d/b/a Sports Illustrated Magazine; GEORGE DOHRMANN; THAYER EVANS, Defendants - Appellees.
No. 18-6169
United States Court of Appeals, Tenth Circuit
May 8, 2019
FILED
United States Court of Appeals
Tenth Circuit
May 8, 2019
Elisabeth A. Shumaker
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOHN THOMAS TALLEY,
Plaintiff - Appellant,
v.
TIME, INC., d/b/a Sports Illustrated
Magazine; GEORGE DOHRMANN;
THAYER EVANS,
Defendants - Appellees.
No. 18-6169
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:14-CV-00853-D)
Raymond S. Allred (Gary L. Richardson, Charles L. Richardson, Alisa G. Hopkins, and
Lia R. Rottman, with him on the briefs), of Richardson Richardson Boudreaux, PPLC,
Tulsa, Oklahoma, for Plaintiff - Appellant.
Robert D. Nelon (Jon Epstein, with him on the brief), of Hall, Estill, Hardwick, Gable,
Golden & Nelson, P.C., Oklahoma City, Oklahoma, for Defendants - Appellees.
Before MATHESON, MURPHY, and EID, Circuit Judges.
In 2013, Sports Illustrated magazine (“SI”) published a five-article series on the Oklahoma State University (“OSU”) football program. The series explored “illicit payments” and other “extreme measures” OSU used to recruit and retain top players. Aplt. App., Vol. II at A446; Aplt. App., Vol. III at A699. The first article in the series, titled “The Money,” described an assistant coach who offered “de facto bonus[es] . . . based on performances on the field.” Aplt. App., Vol. II at A448. It also discussed boosters and coaches who made “direct payments to players . . . independent of performance,” id., and “funnel[ed] money to players through dubious work arrangements,” id. at A452.1 And it briefly profiled John Talley, a booster who “had been close to the football program since at least 2002” and who allegedly “grossly overpaid [OSU players] for jobs they did or compensated them for jobs they didn’t do.” Id.
Mr. Talley sued Time, Inc., which publishes SI, and SI reporters Thayer Evans and George Dohrmann (collectively, “the Defendants”) in state court, claiming that the article placed him in a false light and invaded his privacy. Invoking diversity jurisdiction under
Defendants moved for summary judgment. The district court granted the motion.
Mr. Talley timely appealed.
I. BACKGROUND
A. Oklahoma’s False Light Tort2
Oklahoma recognizes the common law tort of false light invasion of privacy. It has adopted the Restatement (Second) of Torts § 652E, which reads:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
See McCormack v. Okla. Publ’g Co., 613 P.2d 737, 740 (Okla. 1980) (recognizing “the tort of invasion of privacy . . . as set out in the Restatement”); Colbert v. World Publ’g Co., 747 P.2d 286, 290 (Okla. 1987) (noting that the Oklahoma Supreme
Court has “specifically adopt[ed] the treatment of [invasion of privacy] in the Restatement of the Law of Torts (Second)”).
False light plaintiffs must prove three elements:
(1) “the defendant gave publicity to a matter concerning the plaintiff that placed the plaintiff before the public in a false light,”
(2) “the false light in which the plaintiff was placed would be highly offensive to a reasonable person,” and
(3) “the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”
Mitchell v. Griffin Television, LLC, 60 P.3d 1058, 1061 (Okla. Civ. App. 2002).
Oklahoma courts have specified that the third element—“knowledge of or . . . reckless disregard as to the falsity of the publicized matter”—is identical to the actual malice standard articulated in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See Herbert v. Okla. Christian Coal., 992 P.2d 322, 328 (Okla. 1999) (quoting New York Times, 376 U.S. at 280).3 We discuss this standard in greater detail below.
B. Factual Background
SI is a sports magazine published by Time, Inc. Aplt. App. Vol. I at A85. In early 2012, Mr. Evans, who was then a reporter at Fox Sports, learned that the OSU football program might have been using financial inducements to attract and retain
players. Id. at A86; Aplt. App., Vol. II at A388. That fall, after taking a job at SI, Mr. Evans shared this information with SI’s Executive Editor B.J. Schecter. Aplt. App., Vol. II at A388. Mr. Schecter asked
In September 2013, SI published its findings in a five-part article series titled “The Dirty Game.” Aplt. App., Vol. II at A445-82. Below, we quote the passage about Mr. Talley, which appeared in the first article of the series. We then describe the steps SI took to investigate, research, draft, and edit the Talley passage.
1. The Article
Mr. Dohrmann and Mr. Evans co-authored “The Dirty Game” using information they gathered during SI’s investigation. Aplt. App., Vol. I at A87-88; Aplt. App., Vol. III at A770. The first article of the series—a roughly 5,000-word piece titled “The Money”—described gratuities and inducements that OSU used to attract and retain top players. Aplt. App., Vol. II at A445-53. It detailed financial benefits—including payments for performance on the field—that coaches offered to players on the team. Id. It also described how several “boosters,” including Mr.
Talley, “funnel[ed] money to players,” id. at A452, by paying them “for little or no work,” id.
Mr. Talley was the North Central Area Director of the Fellowship of Christian Athletes (“FCA”).4 Id. at A452; Aplt. App., Vol. I at A135. The 442-word passage about him reads, in full, as follows:
According to multiple players, though, the generosity of [booster Kay] Norris, who died of lung cancer in 2006, was exceeded by that of other [OSU] Cowboys supporters. John Talley, an area director of the Fellowship of Christian Athletes, had been close to the football program since at least 2002, when his son, Saul, was a walk-on long snapper. “John Talley was the hot name around campus,” [player Rodrick] Johnson says. “If you needed a job, call John Talley.”
[Players Fath’] Carter, [Brad] Girtman, [Rodrick] Johnson and Thomas Wright each say that Talley either grossly overpaid them for jobs they did or compensated them for jobs they didn’t do. They allege that numerous other players benefited from Talley‘s generosity too. Girtman says Talley paid him $1,500 to $2,000 every two weeks during one summer to work on his horse ranch, far more than the job was worth. Talley could also be counted on to set up speaking gigs for players, paying $100 for a 15- to 20-minute talk. “You might get more depending on who you were,” says Shaw. Carter says he and a few other players were once paid by Talley to help shoe horses. Asked if the players did the work, Carter says, “Are you kidding? Most of us hadn’t even seen a horse before.”
Quarterback Aso Pogi (1999 to 2002) says he and another player lived at Talley’s ranch one summer rent-
free. In retrospect Pogi says, “It’s a big deal. I was the starting quarterback.” (Talley says that Pogi lived at his ranch and had to work to cover his rent; Pogi denies that he did any work.)
OSU compliance director Kevin Fite says of the speaking engagements arranged by Talley, “They were not cleared through our office as paid speaking engagements. In fact, two of my staff members indicated to me that they had had conversations with John and told him you cannot pay for speaking engagements. If you want to employ our student-athletes for other things, that’s fine, but you cannot pay them for speaking engagements.”
While Fite says the school cleared Talley to employ athletes on his ranch, he acknowledges that Talley’s paying in cash “is not something I am comfortable with. I think that’s a concern. I would prefer to see it done a different way.”
George Dohrmann & Thayer Evans, Special Report on Oklahoma State Football: Part 1 – The Money, Sports Illustrated, Sept. 16, 2013, at 39-40; Aplt. App., Vol. II at A452.
The Reporting Process
As previously noted, SI began investigating the OSU football team in late 2012. Aplt. App., Vol. I at A86-87. Between 2000 and 2005, OSU achieved its first winning seasons in more than a decade. Aplt. App., Vol. II at A445. The Defendants suspected that new and perhaps impermissible recruiting strategies might have
contributed to this sudden success. Id. They focused their research on individuals who were involved with the program between 2000 and 2005. Id. at A388.
a. Interviews with players and Mr. Talley
The SI reporters interviewed 60 to 70 former and current OSU players, coaches, boosters, and administrators. Aplt. App., Vol. I at A87; Aplt. App., Vol. II at A388-90; Aplt. App., Vol. III at A747. The reporters recorded the interviews they used to write the passage about Mr. Talley. Aplt. App., Vol. II at A389. These recordings were later produced during discovery.5 In addition, Mr. Schecter
interviewed Mr. Talley.6 Id. at A404. We describe below the information gathered about Mr. Talley during these interviews.7
Mr. Evans conducted most of the interviews. Id. at A388. After each interview, he reviewed his notes and/or the recording and e-mailed summaries to Mr. Dohrmann and Mr. Schecter. Id. at A389-90, A408, A438. He also occasionally re-interviewed players to ensure that his information was accurate. Id. at A390.
1) Payments for speeches and work
Between November 2012 and January 2013, Mr. Evans spoke to former OSU players Brad Girtman, Seymour Shaw, Prentiss Elliott, Chijuan Mack, Xavier Lawson-Kennedy, Doug Bond, Thomas Wright, Rodrick Johnson, T.J. Minor, and Larry Brown. Id. at A389. The players reported the following:
- Brad Girtman revealed that Mr. Talley paid him “fifteen hundred, a thousand” dollars to perform “ranch hand” tasks. Dist. Ct. Doc. 60, Ex. 17 at 0:14-0:20, 0:42 (Girtman Interview); see also Aplt. App., Vol. II at A508. When Mr. Evans asked if these payments were excessive, Mr. Girtman responded, “I mean, I thought he was overpaying me, cus I wasn’t sure what I was doing.” Girtman Interview at 0:06-0:13.
- Seymour Shaw reported that Mr. Talley “always paid [players] to go talk” and that “if you needed some money, you’d go to John Talley.” Dist. Ct.
Doc. 60, Ex. 15 at 1:09-1:13, 1:16-1:19 (Shaw Interview); see also Aplt. App., Vol. II at A500.
- Chijuan Mack volunteered Mr. Talley’s name without any prompting from Mr. Evans and described the speaking arrangements and team building activities that Mr. Talley organized for OSU players. Dist. Ct. Doc. 71, Ex. 12 at 45:49-46:37 (Mack Interview). When Mr. Evans asked, “So, like, during the season you would go speak to schools, read to schools, and they’d pay you like a normal job, obviously?,” Mr. Mack responded, “No, during the season you couldn’t get paid during the season. . . . But during the summer, you’d get to go there, he got a big farm like, he’d do stuff like focus groups . . . That’s when you would get paid.” Id. at 47:45-48:56.8
- Mr. Evans asked Larry Brown, “You would go talk to kids and [Mr. Talley] would pay you to go talk to kids, right?” Mr. Brown responded, “Yeah.” Dist. Ct. Doc. 60, Ex. 25 at 0:39-0:45 (Brown Interview).
- Thomas Wright denied that Mr. Talley ever overpaid him for work. Dist. Ct. Doc. 71, Ex. 13 at 6:23-36 (Evans Wright Interview). When Mr. Evans mentioned that “some guys got paid” for Mr. Talley’s speaking engagements, Mr. Wright responded, “I
know some guys did, but I didn’t. I didn’t get paid for that.” Id. at 6:27-45. In a different interview, Mr. Wright stated that OSU players worked for boosters but “got kinda overpaid.” Dist. Ct. Doc. 60, Ex. 19 at 0:00-0:21 (Evans Dohrmann Wright Interview). When asked about Mr. Talley, Mr. Wright said, “I don’t think he was into all that, he seemed pretty good, but I mean he had to have been a booster I would think . . . . He was hooking us up big time with jobs, but I
don’t think, as far as giving us money, I don’t think—he’d never hand us money . . . but he would definitely hook us up with jobs.” Id. at 0:53-1:21.
- Rodrick Johnson reported that Mr. Talley overpaid him for work. When Mr. Evans asked about “jobs that you guys got paid crazy amounts for,” Mr. Johnson immediately interrupted and said, “John Talley, John Talley. Oh, he owes me, still to this day.” Dist. Ct. Doc. 60, Ex. 13 at 0:00-0:07 (Johnson Interview). Mr. Johnson then added, “He used to pay very well. I would work for about three hours and I would get paid probably about 400 bucks.” Id. at 0:15-0:22. Mr. Johnson described cutting bushes and doing yard work on Mr. Talley’s property and said, “Max[imum,] I would do probably about ten hours and I would get—a lot of money. Like, it’d be enough to actually make it through the summer.” Id. at 0:51-1:00. Mr. Johnson also noted that, while some employers paid with an “actual check that wasn’t anything under the table,” “Talley would pay in cash.” Id. at 2:32-2:39. Additionally, Mr. Johnson said that Mr. Talley paid him for speaking engagements and that “one time I went to speak at a school and he paid me 100 bucks, and it was, like, for 20 minutes” and that “[t]here were guys that did that almost every day.” Id. at 2:42-3:02. He also stated “John Talley was the hot name around campus tryin’ to get jobs. If you need a job, call John Talley.” Id. at 3:20-3:25; see also Aplt. App., Vol. II at A494.
- Xavier Lawson-Kennedy stated that he never worked for Mr. Talley but that he “actually wanted to” because “[Mr. Talley] had the funnest . . . he had the best jobs to do, like go talk to kids.” Dist. Ct. Doc. 71, Ex. 14 at 13:20-32 (Lawsоn-Kennedy Interview).
By March 2013 Mr. Evans had spoken with 19 players. According to his notes, “five [of these] admitted to taking cash, including three who said they were paid for their play, and two others admitted receiving extra per diem money.” Aplt. App., Vol. II at A389. In addition, “[f]ive players said they were either paid for no-show jobs or were significantly overpaid for work.” Id. Multiple players—including Mr. Girtman, Mr. Shaw, Mr. Brown, Mr. Wright, and Mr. Johnson—volunteered Mr.
Talley’s name or provided detail about his involvement with the OSU program. Id. at A389, A438.
2) Mr. Pogi living at the ranch
Shortly before publishing the article, Mr. Evans interviewed former OSU quarterback Aso Pogi.9 Id. at A390. Mr. Pogi
Mr. Evans: So, how many times do you estimate John [Talley] gave you money? John admitted that he gave money. Just that way you know that I’m not lying to you. John admitted it, said that he cleared it with the school, the school said they never cleared it, and that John was never supposed to give you guys money.
Mr. Pogi: Um, I don’t know, man, it was, you know, just speaking engagements—
Mr. Evans: You spoke a lot, though?
Mr. Pogi: Yeah I did, and, and, you know, we don’t get anything.
Mr. Evans: I know, I know, listen, and that’s another argument for another day. . . . But you spoke dozens of times, is what people said.
Mr. Pogi: Yeah.
Mr. Evans: And he gave you money dozens of times.
Mr. Pogi: I was on the road a lot to speak. And it was just for my gas, you know, just cus I had to drive my personal vehicle there, you know what I mean? But, um—
Mr. Evans: It’s not an indictment that you’ve done anything wrong, Aso, okay? I’m not—
Mr. Pogi: And listen, I’m, I’m not really, I’m not taking it that way. I’m, I’m kinda like, this is kinda throwing me off—
Mr. Evans: It is, and it should. . . . There’s no good way to do it, Aso. You have to understand, I mean, from my perspective, there’s no good way to do it. Cus if I call you ahead of time, you know, I want to get in front of you because, again, like, your name is in the story for money.
Mr. Pogi: Yeah, that, and that, that kinda, that kinda hurts me a little bit.
Mr. Evans: I mean, Aso, I mean, I’m sorry, you know? I mean, there’s just nothing I can do about it. You know what I’m saying? I mean, like, that’s why I came to get your response. And we’ll put your response in there.
Mr. Pogi: Well let me, let me just say this, then. Let me say that, um, I’d like to just, um, I’m not going to sit here and plead the Fifth or anything like that, but I, I’d like to, like, you know, do my own research on it, because I’m being honest with you in telling you that, you know, we received gas money, and—
Mr. Evans: That’s fine. I mean, I’ll tell you what you’re gonna find. Because I know it, I mean, I know it from the NCAA perspective, right? I mean, like I said, we went to them and told them, right? John said that he had had that approved, okay? Compliance said that they never approved it, Aso. So he was—and it’s against the rules for
you to be paid during the season, any of that stuff, for speaking engagements, et cetera.
Mr. Pogi: And guys put me out there?
Mr. Evans: They threw, oh, absolutely.
Mr. Pogi: That I was the main one, huh?
Mr. Evans: No. You’re not the main one. I mean, there’s a, it’s a long list, my man. Okay?
Mr. Pogi: I mean, I, I just, I did a—
Mr. Evans: You worked at his ranch, too.
Mr. Pogi: I did a lot.
Mr. Evans: You worked at his ranch.
Mr. Pogi: I—I lived there. Mr. Evans: You lived there, but you never, you never worked—
Mr. Pogi: I ne—I didn’t, I didn’t do anything like—
Mr. Evans: You knew guys came out there and worked. I mean he says estimates a thousand athletes have worked at his ranch.
Mr. Pogi: Yeah.
Mr. Evans: A thousand. I mean some people said that they got paid for not doing anything at his ranch. You know they just came out and they just basically got money—
Mr. Pogi: [Laughs]
. . . .
Mr. Evans: I mean, you lived with John [Talley], right? I mean, what was the arrangement?
Mr. Pogi: I had no arrangement. That’s the thing that’s throwing me off. I’m like, “Arrangement?” I-I-I didn’t make, you know, any money.
Mr. Evans: But you shouldn’t have been, I mean, like, you lived with him.
Mr. Pogi: Yeah I lived with him.
Mr. Evans: I mean, like, I mean did anybody ever—
Mr. Pogi: Me and George Horton, we, we lived with John, and, you know, we—
Mr. Evans: He didn’t charge you rent, obviously.
Mr. Pogi: No, he didn’t charge us rent. No, no, we lived there for a summer, you know and that was about it.
Mr. Evans: And you saw the guys come out and work. What’d you do for money in the summers? You went and did the speaking engagements?
Mr. Pogi: I did speaking engagements. I did a lot of speaking. But I wasn’t getting paid like that. I mean, I got gas money.
Id. at 9:41-12:29; 17:24-18:13.
ii. Mr. Dohrmann’s interviews
Mr. Dohrmann also spoke with players and OSU officials. He met in Denver with former OSU player Fath’ Carter. During that interview, Mr. Dohrmann said, “The other one I heard was . . . that there were like some funky jobs, like you go and mow the lawn, or you don’t mow the lawn.” Dist. Ct. Doc. 60, Ex. 11 at 0:00-0:11 (Carter Interview). Before Mr. Dohrmann could finish the question, Mr. Carter
interrupted and said, “You’re talking about John Talley.” Id. at 0:12-0:14. Mr. Carter then added, “Yeah, however that was constructed, I have no idea. But I was a big part of that . . . a lot of athletes.” Id. at 0:18-0:28. Mr. Dohrmann asked if there was “one funny job” that Mr. Carter remembered. Id. at 0:30-0:34. The conversation proceeded as follows:
Mr. Carter: There wasn’t a job!
Mr. Dohrmann: Yeah but I mean, what was the job on paper . . . ?
Mr. Carter: Uh, well there was no paper for one.
Mr. Dohrmann: Well, you know what I mean. In theory, you were supposed to—
Mr. Carter: It would be, um, like one funny one was out to his ranch, I’m putting the horseshoes on thе horses.
Mr. Dohrmann: But you don’t actually, no way you guys, you guys never got on a horse in your life.
Mr. Carter: [Laughing] Yeah. . . . Yeah that was a quick buck, cash.
. . . .
Mr. Dohrmann: How did guys view it? Did they view it like, “We earned this, like, this is only fair? Doin’ what we’re doin’.”
Mr. Carter: It was fair, but we viewed it as, “I’m gonna get paid.” You know, “Let me do some work for John Talley so I can go out and buy some shoes.”
Id. at 0:34-2:24; see also Aplt. App., Vol. II A323-24, A484.
Mr. Dohrmann later called Mr. Carter to verify his statements about shoeing horses. At his deposition, Mr. Dohrmann testified that during this phone call, Mr. Carter again said “something about shoeing horses and [that he had] never seen a horse before” and that “[h]e didn’t do the work but he was paid.” Aplt. App., Vol. II at A325-27.
iii. Mr. Schecter’s interview with Mr. Talley
On September 3, 2013, Mr. Schecter had a brief conversation with Mr. Talley outside the OSU basketball arena.10 Id. at A404. Mr. Schecter informed Mr. Talley of the allegations against him. Aplt. App., Vol. III at A718. He also asked about speaking arrangements and whether Mr. Talley had overpaid players for work. Id.; Aplt. App., Vol. II at A443. Mr. Talley confirmed he had hired and paid OSU players to work on his property but insisted he had cleared the employment arrangements with OSU’s compliance office. Aplt. App., Vol. I at A168; Aplt. App., Vol. II at A417. Mr. Schecter recorded the conversation on his cell phone, Aplt. App., Vol. II at A409, and summarized the interview in an e-mail that he sent to Mr. Evans and Mr. Dohrmann. See id. at A443, A520-23.11 He also gave Mr. Talley his
contact information and invited him to reach out with any questions. Id. at A424, A443.
On September 6, 2013, Mr. Schecter sent Mr. Talley an e-mаil that read, “Aso Pogi told us that he . . . lived on your range [sic] rent-free for one summer. Is that true?” Id. at A515; see also id. at A425. Mr. Talley responded, “No, there was an expectation of work for [Mr. Pogi’s] room and board that was done.” Id. at A514. Mr. Schecter then asked if Mr. Talley “report[ed] this arrangement to Oklahoma State,” and Mr. Talley responded, “[Y]es, to athletic compliance.” Id.; see also id. at A425.
b. Meetings with OSU officials
On September 3, 2013, Mr. Schecter and Mr. Dohrmann met with OSU Athletic Director Mike Holder, Associate Athletic Director for Compliance Kevin Fite, and General Counsel Gary Clark to “solicit their comment.” Aplt. App., Vol. II at A439; see also id. at A443; Aplt. App., Vol. III at A766. This meeting was not recorded, but both Mr. Schecter and Mr. Dohrmann testified at their depositions that they spent several hours “present[ing] the substance of the information [they] had learned in [their] investigation about the role money, drugs, women, and academics played in the OSU football program.” Aplt. App., Vol. II at A439; see also id. at A443. In his affidavit, Mr. Schecter said “this meeting was ‘off the record’”—“the officials did not give us any comments for publication.” Id. at A443.
c. Writing and editing
In spring 2013, the SI reporters determined they had gathered enough information to begin drafting the article. Aplt. App., Vol. II at A438. Mr. Dohrmann assumed primary writing duties. As he wrote, he reviewed Mr. Evans’s notes and
listened to audio recordings of the interviews. Id. at A439. He also identified “places where [the reporters] needed more information, or the name of a source, or specific details about what a former player had said about his experience.” Id. Mr. Dohrmann sent drafts of the article to editors and to Mr. Evans, who reviewed the work as it was written. Id. at A390. He also spoke frequently with Mr. Evans and Mr. Schecter to ensure “[they] had sufficient substantiation for what SI was reporting.” Id.
Mr. Dohrmann’s drafts underwent SI’s standard editing and review process, which Mr. Schecter described as follows:
Well . . . it starts off with a draft of the story being filed. That story is then edited, fact-checked, vetted by our legal team, copy-edited, read one more time by the writers and editors involved in the . . . story, and then finally, it goes to press.
Id. at A400. As part of this revision process, other SI editors “[made] notes in the drafts to suggest word changes for clarity or flow, or ask[ed] questions about what the sources said about the facts.” Id. at A439. In addition, SI fаct checkers reviewed each draft and “would confirm specific facts, such as the spelling of a name, the dates when players attended OSU, the name of the high school from which a player was recruited, and so on.” Id.
Mr. Schecter also performed an editing role, which involved “making sure . . . the story [was] clear and concise . . . and . . . mak[ing] sure that things track”—that is, “if you say something, it’s supported by something else, and
that the piece is fair and balanced.” Id. at A399. He repeatedly listened to the recording of his conversation with Mr. Talley to “confirm the accuracy of the quotes that [the Defendants] were using . . . and make sure that [they] gave [Mr. Talley] every attempt to deny the allegations that [they] made against him.” Id. at A415-16.
d. Pre-publication legal and editorial review and publication
SI completed edits and revisions just days after the September 4 meeting with
3. Individual Defendants’ Depositions and Affidavits
After Mr. Talley filed his lawsuit, the reporters and editor responsible for “The Dirty Game” all stated they believed the series was truthful and substantiated. In his deposition, Mr. Evans said, “I believe that we published accurate information about the allegations that players had made about Mr. Talley.” Aplt. App., Vol. II at A379.
And in his affidavit, Mr. Evans said he “was completely satisfied that what we were rеporting was truthful based on the information we had gotten from the dozens of on-the-record sources.” Id. at A390. As to the passages on Mr. Talley, he stated:
[T]hose sources—players who had been at OSU at different times and who were interviewed independently—corroborated one another. By talking with them personally I was able to assess their credibility, and I did not sense any bias toward [Mr.] Talley or other reasons that would make me doubt the accuracy of what they were telling me about him or what we reported in the article. I remain completely satisfied in this regard today.
Id. at A390-91.
In his deposition, Mr. Dohrmann said “[i]t’s very difficult to get players to [admit to NCAA violations]” and that “[f]ive players is a significant number [of sources] with a story like this.” Id. at A337. He had “done a lot of stories like this” and had “done stories with far less than five [sources].” Id. Because “a number of sources . . . told [the reporters] a similar or same story about Oklahoma State and John Talley,” he felt “absolutely certain about what we were writing.” Id. at A342. Mr. Dohrmann also stated in his affidavit that he “had heavily researched the article and reviewed all the sources,” “the facts [the interviewees] provided were consistent with and corroborative of one another,” he “did not observe any signs of bias . . . among the sources or other facts that would cause [him] to question their credibility,” and he “did not doubt the accuracy of any statement in the article.” Id. at 439-40.
At his deposition, Mr. Schecter said he believed the article “was very well done” and “was all true.” Id. at A431. And in his affidavit, he stated, “I believed
when the articlе . . . was published it was accurate and truthful. I was satisfied that all the statements in the article about [Mr.] Talley were adequately substantiated by multiple sources and were truthful. . . . My opinion has not changed despite [Mr.] Talley’s lawsuit.” Id. at A444.
C. Procedural Background
In July 2014, Mr. Talley filed his lawsuit in state court. Aplt. App., Vol. I at A11. He named Time, Inc., Mr. Dohrmann, and Mr. Evans as defendants, but he did not sue Mr. Schecter. Invoking diversity jurisdiction under
The district court granted summary judgment for the Defendants, finding Mr. Talley could not demonstrate a genuine dispute of material fact regarding the first (falsity) or third (actual malice) elements of his false light claim. Talley v. Time, Inc. d/b/a Sports Illustrated Magazine, No. CIV-14-853-D, 2018 WL 4558993, at *5-6 (W.D. Okla. Sept. 21, 2018).
With respect to the third element—whether SI acted with actual malice—the court found “[Mr. Talley] present[ed] no facts or evidence to show that Defendants knew the allegations they reported about [him] were false.” Aplt. App., Vol. V at A1197. Although Mr. Talley argued Defendants “were pursuing an agеnda” and crafted “a sensational, unfavorable” narrative to get “the story they wanted,” the court found his allegations were “unsupported by any facts” and could not “reasonably be found to show either actual knowledge or a high degree of awareness by Defendants that the allegations about [Mr. Talley] . . . were probably false.” Id. at A1203. The court thus concluded Mr. Talley “present[ed] no facts or evidence that might reasonably satisfy the rigorous standard required to establish ‘actual malice’ or even to demonstrate a genuine dispute of material fact in this regard.” Id.
II. DISCUSSION
The following discussion concludes that Mr. Talley has not shown that a reasonable jury could find that the Defendants acted with actual malice. Summary judgment was therefore appropriate.
A. Legal Background
This section describes (1) the standard of review for summary judgment, (2) the elements of Oklahoma’s false light tort, and (3) the actual malice standard.
1. Standard of Review
As this court has recognized in defamation cases, “[we] review summary judgment decisions de novo, applying the same legal standard as the district court.”
Cory v. Allstate Ins., 583 F.3d 1240, 1243 (10th Cir. 2009) (quotations omitted). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
“[A] party seeking summary judgment always bears the initial responsibility of . . . demonstrat[ing] the absеnce of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). “A movant that does not bear the burden of persuasion at trial may satisfy this burden by pointing out to the court a lack of evidence on an essential element of the nonmovant’s claim.” Teets v. Great-West Life & Annuity Ins. Co., 919 F.3d 1232, 1243 (10th Cir. 2019) (quotations omitted).
“If the movant meets this initial burden, the burden then shifts to the nonmovant
Both the Supreme Court and Oklahoma state courts have held that at trial, the plaintiff must prove actual malice with “convincing clarity.” New York Times, 376 U.S. at 286-87; Colbert, 747 P.2d at 291. The Supreme Court has said courts “must bear in mind” this heightened burden of proof when ruling on a defendant’s motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986) (holding that courts must consider “the actual quantum and quality of proof necessary to support liability under New York Times” when considering summary judgment on the actual malice issue). “[I]f the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence,” then “there is no genuine issue” and summary judgment is appropriate. Spacecon Specialty Contractors, LLC v. Bensinger, 713 F.3d 1028, 1048 n.13 (10th Cir. 2013) (quotations omitted).14
2. Oklahoma’s False Light Tort
As discussed above, Oklahoma recognizes the common law tort of false light invasion of privacy. The plaintiff must show:
(1) “the defendant gave publicity to a matter concerning the plaintiff that placed the plaintiff before the public in a false light,”
(2) “the false light in which the plaintiff was placed would be highly offensive to a reasonable person,”
(3) “the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”
Mitchell, 60 P.3d at 1061 (citing McCormack, 613 P.2d at 740); see also Restatement (Second) of Torts § 652E (Am. Law Inst. 1977).
“[E]ssential to . . . a false light privacy claim . . . is a determination that that the matter published concerning the plaintiff is not true.” Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th Cir. 1983) (quotations omitted).15 Thus, to establish the first element of a false light claim, a plaintiff must show the defendant made a statement that “portrayed [plaintiff] in [a] false manner or that statements were untrue or misleading.” McCormack, 613 P.2d at 741 (holding that plaintiff failed to state a cause of action for false light invasion of privacy because plaintiff did not allege that the published statements were false or misleading). True statements are not actionable under Oklahoma’s false light tort.
To satisfy the second element, the plaintiff must show “a reasonable [person]
plaintiff’s] character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position, that there is a cause of action for invasion of privacy.” Id.
The third element—knowledge of or reckless disregard as to falsity—is identical to the actual malice standard from New York Times Co. v. Sullivan. See Colbert, 747 P.2d at 290-92 (noting that Oklahoma has “adopted” the actual malice test from Time, Inc. v. Hill, 385 U.S. 374 (1967), which applied the New York Times actual malice standard in a false light invasion of privacy case); Grogan v. Kokh, LLC, 256 P.3d 1021, 1030 (Okla. Civ. App. 2011) (noting that “the Oklahoma Supreme Court has adopted the [New York Times] actual malice test for false light invasion of privacy claims”).16 Thus, to establish the third element of a false light claim, a plaintiff must show the defendant made or published its statements “with ‘actual malice’—that is, with knowledge that [they were] false or with reckless disregard to whether [they were] false or not.” New York Times, 376 U.S. at 280. We next discuss the Supreme Court cases that have articulated and developed this standard.
3. Actual Malice
a. New York Times and its progeny
In New York Times v. Sullivan, the Supreme Court said that a publication “was made with ‘actual malice’” when the defendant published “with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-80; see Gertz v. Robert Welch, Inc., 418 U.S. 323, 343 (1974). The plaintiff’s burden of proving actual malice cannot be met by a preponderance of the evidence. Actual malice must be shown with “convincing clarity,” New York Times, 376 U.S. at 285-86—that is, by “clear and convincing proof,” Gertz, 418 U.S. at 342.
Actual malice is not a negligence or gross negligence standard. See Garrison v. Louisiana, 379 U.S. 64, 79 (1964); Hardin v. Santa Fe Reporter, Inc., 745 F.2d 1323, 1326 (10th Cir. 1984) (holding that reporter’s negligence in failing to investigate a source’s background and in writing the article could not establish actual malice). It requires more than showing a publication was false and defamatory, New York Times, 376 U.S. at 288, and mоre than “a departure from reasonably prudent conduct,” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).
Actual malice is a subjective standard that requires proof of a “mental element.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 276 (1971); see Harte-Hanks, 491 U.S. at 688 (stating actual malice is a subjective standard). The actual malice inquiry
report, or when he checked the article against that report.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 494 (1984).
In St. Amant v. Thompson, 390 U.S. 727 (1968), the Supreme Court explained:
[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
A plaintiff does not create a jury question of actual malice by showing that a publisher failed to investigate before publishing. Gertz, 418 U.S. at 332; St. Amant, 390 U.S. at 731; Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84-85 (1967) (per curiam)17; New York Times, 376 U.S. at 28718; Revell v. Hoffman, 309 F.3d 1228, 1233 (10th Cir. 2002). Nor does a plaintiff do so by showing that a publisher misinterpreted the source material or omitted details favorable to the plaintiff. Time, Inc. v. Pape, 401 U.S. at 282, 290-92 (1971). A publisher’s decision to omit details
favorable to the plaintiff does not, itself, show actual malice. See id. (finding no actual malice where a publisher did not specify that “it was reporting no more than allegations”). Even “a deliberate alteration of the words uttered by a plaintiff does not equate with [actual malice] . . . unless the alteration results in a material change in the meaning conveyed by the statement.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991).
Actual malice may be found when a publisher had a “subjeсtive awareness of probable falsity.” Gertz, 418 U.S. at 334 n.6. For example, evidence that a publisher knew its sources were unreliable but made no attempt to verify their information, Curtis Publ’g Co. v. Butts, 388 U.S. 130, 157-59 (1967), or that a publisher knew it was publishing contested allegations but deliberately ignored sources or information that might reveal what actually happened, Harte-Hanks, 491 U.S. at 690, may establish actual malice. Other examples include “a story [that] is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call”; circumstances where the published statements “are so inherently improbable that only a reckless man would have put them in circulation”; or situations “where there are obvious reasons to doubt the veracity of the informant or the accuracy
Most of the Supreme Court’s actual malice case law, including New York Times, comes from defamation suits. But the Supreme Court has, like Oklahoma, applied the actual malice standard to a false light claim. In Time, Inc. v. Hill, 385
U.S. 374 (1967), the Court held that “the constitutional protections for speech and press preclude[d] the application of [a] New York [false light invasion of privacy] statute . . . in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.” Id. at 387-88.
b. Oklahoma actual malice cases
Because Oklahoma courts have expressly adopted the New York Times actual malice standard, Oklahoma’s defamation and false light case law is consistent with the actual malice principles described above.19 Like the Supreme Court, Oklahoma
Moreover, thе form, content, and context of the SI publication establish that the statements at issue here involve a matter of public concern. See id. at 761 (explaining that when determining whether allegedly libelous statements involve a matter of public concern, courts should consider the form, content, and context of the speech). The statements were printed in a widely-circulated publication. Compare Spacecon, 713 F.3d at 1039 (holding that “a documentary meant to be shown to the public” qualified as speech on a matter of public concern), with Dun & Bradstreet, 472 U.S. at 762 (holding that a credit report “made available only to five subscribers” was not speech on a matter of public concern).
More telling, they involved allegations against the football program at one of Oklahoma’s major publicly-funded universities. See City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (“[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public . . . .”); Spacecon, 713 F.3d at 1039 (holding that a documentary film exposing mistreatment of Mexican construction workers involved speech on a matter of public concern); Dun &
courts have recognized that actual malice exists when “the defendant had a high degree of awareness of probable falsity or in fact entertained serious doubts as to the truth of the publication.” Colbert, 747 P.2d at 291. They also have noted that “negligence is not enough to rise to the level of ‘actual malice’” and that “malice may not be inferrеd simply from showing that the publication was untrue.” Herbert, 992 P.2d at 328. As in New York Times, St. Amant, and other Supreme Court cases, Oklahoma courts have stated that “failure to investigate does not establish the actual malice standard.” Jurkowski v. Crawley, 637 P.2d 56, 61 (Okla. 1981). They also have followed the Supreme Court in treating the actual malice standard as a subjective inquiry and have stated that actual
B. Analysis
Although the parties have briefed both the first and third false light elements, Mr. Talley’s failure to establish either element will defeat his claim. We can resolve this appeal by addressing only the third element—actual malice.
1. Evidence on Preparation of the Article Lacks Proof of Actual Malice
The record shows the Defendants conducted a long and thorough investigation before publishing their article. For ten months, the reporters sought out and spoke to dozens of OSU players, coaches, and administrators. They recorded their interviews electronically and in writing. They consulted their notes and each other while drafting the article, and they occasionally re-interviewed individuals to ensure that
public officials and public figures—similarly limits the standard’s application in false light cases. As one leading commentator has noted, “[a] significant number of cases have held that Hill should be regarded as modified by Gertz, and that actual malice is not required . . . in false light cases with private figure plaintiffs.” 2 Rodney A. Smolla, Law of Defamation § 10:16 (2d ed. Nov. 2018 update). But “there is also . . . substantial authority, including the Restatement Second, Torts, for the proposition that all false light claims must meet the actual malice standard.” Id. Gertz thus leaves open the question of whether actual malice is required in all false light cases, or only in cases involving statements about public officials or public figures. See Restatement (Second) of Torts § 652E, cmt. d.
We need not address this question for two reasons. First, Mr. Talley has not argued that he is a private figure. Second, Oklahoma courts have applied the actual malice standard in false light cases involving both public- and private-figure plaintiffs. See Colbert, 747 P.2d at 288, 291 (Okla. 1987) (applying the actual malice standard in a false light case involving a plaintiff who was “unquestionably a private figure”); Grogan, 256 P.3d at 1029 (holding that the actual malice standard is “required for false light invasion of privacy cases involving public figures”).
their information was correct. They also fact-checked and edited their article several times and had their legal team review the piece before publication.
Unlike the publishers in Harte-Hanks, the Defendants did not deliberately ignore sources that might have disputed their account. See 491 U.S. at 690. Rather, they interviewed multiple sources around the country who substantially corroborated each other. They also verified the information they published by re-interviewing their sources and fact-checking the final piece. Mr. Talley has provided nо evidence that the Defendants “fabricated” their story, based their claims about him on “an unverified anonymous telephone call,” or published allegations that were “so inherently improbable that only a reckless man would have put them into circulation.” St. Amant, 390 U.S. at 732. He thus “proffers no evidence indicating that [the Defendants] entertained doubts regarding the truth of the statements
In addition, the record shows that the reporters had ample evidence to support the statements in the article about Mr. Talley. Mr. Pogi and Mr. Talley told the reporters that Mr. Pogi lived on Mr. Talley’s ranch without paying rent; four players (Mr. Shaw, Mr. Mack, Mr. Brown, and Mr. Johnson) said Mr. Talley paid them or others they knew for speaking engagements; and three (Mr. Girtman, Mr. Carter, and Mr. Johnson) said Mr. Talley overpaid them for work. At least two of these sources (Mr. Mack and Mr. Carter) brought up Mr. Talley’s name without prompting. And, as we show below, Mr. Pogi made statements in his interview that the Defendants
could reasonably have interpreted to mean he did not work at Mr. Talley’s ranch. Further, the players were interviewed independently of one another in different parts of the country and provided consistent accounts.
In sum, the evidence shows the Defendants’ article was based on an extended research process and was not the product of deliberate “falsification,” Pape, 401 U.S. at 289, or the “use of calculated falsehood,” Garrison, 379 U.S. at 75. There is no indication they published with “a high degree of awareness of probable falsity or . . . entertained [any] serious doubts as tо the truth of the publication.” Colbert, 747 P.2d at 291. Ample evidence supported their reporting about Mr. Talley, who cannot show with “convincing clarity” that the Defendants acted with actual malice. Id.
Mr. Talley’s Arguments
Mr. Talley argues the Defendants exhibited actual malice by (a) deliberately misstating facts about Mr. Pogi’s rent arrangement, (b) falsely reporting that Mr. Talley paid players for speaking engagements, (c) relying on biased and non-credible sources, (d) writing with a slanted agenda, and (e) publishing erroneous and incorrect statements. These arguments do not withstand scrutiny.
a. Mr. Pogi’s rent
Mr. Talley argues the Defendants published with actual malice by “inaccurately reporting” that Mr. Pogi lived on Mr. Talley’s property rent-free. Aplt. Br. at 15. The Defendants reported in the article that “[Mr.] Pogi denies that he did any work.” Aplt. App., Vol. II at A452. According to Mr. Talley, however, “the
interview recording [between Mr. Evans and Mr. Pogi] clearly states Aso Pogi worked extremely hard in exchange for rent.” Aplt. Reply Br. at 5; see also Aplt. Br. at 6, 16. As a result, Mr. Talley characterizes this allegation in the article as “blatantly false” and “misconstrued,” Aplt. Br. at 16-17, and he suggests the Defendants’ failure to “accurately report what the interviewees stated” is evidence of actual malice, id. at 20.
This argument is unavailing. The article states:
Quarterback Aso Pogi (1999 to 2002) says he and another player lived at Talley’s ranch one summer rent-free. In retrospect Pogi says, “It’s a big deal. I was the starting quarterback.” (Talley says that Pogi lived at his ranch and had to work to cover his rent; Pogi denies that he did any work.).
Aplt. App., Vol. II at A452. The interview recording does not show this passage “obviously misquote[s] [or] inaccurately report[s] what [Mr.] Pogi stated.” Aplt. Reply Br. at 5. Further, it does not suggest the Defendants published with “a high degree of awareness of . . . probable falsity.” Garrison, 379 U.S. at 74.
In the interview recording, Mr. Pogi said he lived on Mr. Talley’s property rent-free.
After reviewing the entire recording of Mr. Evans’s interview with Mr. Pogi, we found only one statement—“I did a lot,” Pogi Interview at 12:02-12:04—that could possibly indicate that Mr. Pogi worked on the ranch at all. But that statement is ambiguous. Mr. Pogi did not specifically state what it was he “did a lot.” Further, he made the statement after telling Mr. Evans that he was “on the road a lot to speak” and had participated in “a lot” of speaking engagements. Id. at 10:00-11:51. It is therefore possible the statement referenced his speaking engagements rather than ranch work. Further, when Mr. Evans prompted, “You lived [on the ranch], but you never, you never worked—,” Mr. Pogi responded, “I ne—I didn’t, I didn’t do anything like—.” Id. at 12:08-12:11. And a few questions later, Mr. Pogi insisted he “had no arrangement” with Mr. Talley. Id. at 17:29-17:30.
The interview recording thus includes no definitive statement that Mr. Pogi worked on the ranch. Although his statement that he “did a lot” might be understood to mean he worked, it could reasonably be interpreted as a reference to speaking engagements. At most, the Defendants misinterpreted the statement, but a defendant’s misinterpretation of source material that “bristle[s] with ambiguities” does not constitute actual malice. Pape, 401 U.S. at 290 (holding that when faced with ambiguous source material, a defendant’s “deliberate choice of [one]
interpretation, though arguably reflecting a misconception, [is] not enough to create a jury issue of ‘malice’ under New York Times”).21
Accordingly, even if the Defendants misinterpreted Mr. Pogi’s statement that he “did a lot,” their misunderstanding would not establish actual malice. The evidence does not support Mr. Talley’s contention that the Defendants “blatantly misquoted what Aso Pogi said,” Aplt. Reply Br. at 5, or show they published statements about Mr. Pogi with reckless disregard for the truth.22
Mr. Talley also argues the Defendants acted with actual malice when they reported he paid players to speak at events “in violation of NCAA rules and OSU policy.” Aplt. Br. at 16. According to Mr. Talley, “Defendants were made aware . . . that ‘speaking’ meant reimbursement for gas and food” but nonetheless “deliberately chose to disregard its true meaning in order to portray [Mr. Talley] as paying in violation of rules.” Id. at 18. Mr. Talley also argues that “Defendants never had reason to believe [Mr. Talley] was breaking the rules or illegally paying athletes.”23 Id.
These arguments, too, are unpersuasive. Although some players insisted they were reimbursed only for expenses, many (including Mr. Johnson, Mr. Brown, Mr. Wright, and Mr. Shaw) admitted that they or others they knew had received speaking
fees. Mr. Johnson, for example, said Mr. Talley once paid him 100 dollars to speak for 20 minutes. Johnson Interview at 2:42-3:02. Even if Mr. Talley paid speaking fees to certain players and not others, the Defendants still had grounds to believe and report that at least some players received money beyond simple reimbursement. That some players denied receiving speaking fees or claimed they were only reimbursed for expenses does not prove the Defendants “in fact entertained serious doubts” about the players who reported otherwise. St. Amant, 390 U.S. at 731; Colbert, 747 P.2d at 291.
In addition, Mr. Schecter’s notes from his interview with Mr. Talley reflect that Mr. Talley admitted to paying speaking fees.24 Shortly after meeting with Mr. Talley,
During his deposition, Mr. Talley claimed Mr. Schecter “was in a hurry” and “didn’t really give [him] an opportunity to” explain himself fully during the interview. Aplt. App., Vol I at A204. But Mr. Talley did not challenge any of the information or quotations contained in the e-mail. In fact, Mr. Talley reviewed the entire e-mail and confirmed he made all the statements that Mr. Schecter attributed to him. Id. at A202-05.
to allegations we have against him.” Aplt. App., Vol. II at A520. On the topic of “[p]aying players for speaking engagements,” Mr. Schecter wrote the following:
[Mr. Talley said:] “It depends on . . . there’s a NCAA rule that if they’re paying us . . . and most of the time it’s for team building activities. It’s not just speaking. But we have done some schoоl assemblies. Last year we did four all sports banquets. And if the school is used to paying someone than [sic] it’s legal to get paid. But there’s a fine line.”
Talley says he ran everything (the jobs and the speaking gigs) through the associate compliance director who is assigned to the football team.
“If [players] were allowed to be paid (for speaking engagements) they were paid. We’ve spoken in churches.[”] (They got paid for speaking in churches “only if the churches paid someone before.”) Talley says a typical speaking fee would be $25-$50. “I can always pay for if they’re driving their car we can pay for gas and stuff like that.”
Players said it was $100 or more per speaking engagement. “It depends on where we were going,” Talley said. “I’m not saying they couldn’t because it was a long time ago, but usually it was not that much.”
Id. at A521. Although it is possible Mr. Schecter and Mr. Dohrmann misunderstood or misinterpreted Mr. Talley’s comments, these interview notes suggest the Defendants had a reasonable basis to believe Mr. Talley paid speaking fees to some players.25 Further, as discussed above, a defendant’s misinterpretation of source
material does not necessarily establish actual malice. Pape, 401 U.S. at 290. Thus, even if the Defendants misunderstood Mr. Talley’s claim that “[players] were paid” to mean speaking fees rather than reimbursements, that misunderstanding would not prove they published with actual malice.
In sum, although some players claimed they did not receive money to speak, multiple players reported that Mr. Talley аrranged paid speaking engagements. Further, notes from Mr. Schecter’s interview with Mr. Talley suggest that Mr. Talley admitted to paying speaking fees. In publishing these allegations, the Defendants did not show reckless disregard for the truth. Rather, they reported information that multiple sources confirmed and corroborated. The record does not suggest the Defendants “in fact entertained serious doubts as to the truth of [their] publication,” St. Amant, 390 U.S. at 731; Colbert, 747 P.2d at 291, and Mr. Talley identifies no evidence to demonstrate with “convincing clarity” that the Defendants reported about his paying players for speaking engagements with actual malice, New York Times, 376 U.S. at 286-87.
c. Credibility of article sources
Mr. Talley contends the Defendants demonstrated actual malice by “[seeking] out non-credible, untrustworthy, and troubled
interviewing and quoting OSU players of “suspect veracity,” Aplt. Reply Br. at 8. He notes that some of the players featured in the article had “troubled histor[ies] . . . including drug usage, scholastic problems with OSU, and criminal issues.” Aplt. Br. at 14. He claims the Defendants’ “conscious decision to feature those interviewees in the article . . . is evidence of Defendants’ malicious intent.” Aplt. Reply Br. at 8. We disagree.
Although the record shows the Defendants interviewed and quoted some OSU players who used drugs or had criminal records,26 “[s]ources need not be paragons of virtue for journalists safely to rely on them.” 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems §5:5.2(C) at 5-109 (5th ed. 2017). Courts have consistently held that reliance on tainted or troubled sources does not alone establish actual malicе. See, e.g., Pemberton v. Birmingham News Co., 482 So. 2d 257, 266
(Ala. 1985) (finding that defendant’s reliance on statements from an ex-convict was insufficient to show actual malice); Secord v. Cockburn, 747 F. Supp. 779, 794 (D.D.C. 1990) (holding that “[t]he use of convicted felons cannot alone constitute a fact of actual malice”). The fact that some of the Defendants’ sources were not “paragons of virtue” is thus insufficient to show actual malice. Sack, §5:5.2(C) at 5-109.
Courts also have noted that “newspaper investigation of reports of corruption must often obtain first-hand corroboration from those present in the barrooms or gambling houses, rather than from citizens who spend their time only at home, in church, or at work in less colorful occupations.” Kidder v. Anderson, 354 So. 2d 1306 (La. 1978). Here, the five-article series reported on drug use, financial misconduct, and academic dishonesty in the OSU football program. To prepare this report, the Defendants necessarily had to rely on sources who may have participated in these activities. Rather than demonstrating that the Defendants published with actual malice, this shows they sought information from the sources who were in the best position to describe these possible features of the OSU program. See Pemberton, 482 So. 2d at 266 (noting that “the fact that [a source] was an ex[-]convict did not diminish his credibility . . . but rather made it more probable that he would have inside information” that could aid the defendants’ investigation).
Although some of the interviewees who provided information about Mr. Talley used drugs or had criminal records, the reporters stated they “did not observe any . . .
facts that would cause [them] to question [the players’] credibility.” Aplt. App.,
In sum, Mr. Talley has failed to show the Defendants’ use of “troubled” or tainted sources demonstrated actual malice. Aplt. Br. at 14. The record shows the passages relating to Mr. Talley were based on “sources which were not believed to be false.” Rosanova v. Playboy Enters., Inc., 580 F.2d 859, 862 (5th Cir. 1978). Unlike the defendants in Butts, the Defendants did not rely on a single, questionable source without fact-checking, interviewing additional witnesses, or seeking independent support. 388 U.S. at 157-58. And this case has no resemblance to Harte-Hanks, where the defendants knew the facts in their publication “had been denied . . . by five other witnesses before the story was published.” 491 U.S. at 691. Although the article here quoted some of the players who had “troubled histor[ies],” Aplt. Br. at
14, Mr. Talley has not shown the Defendants had “obvious reasons to doubt the veracity of the [players] or the accuracy of [their] reports,” Harte-Hanks, 491 U.S. at 688 (quotations omitted). Nor has he shown that the players’ drug use or other misconduct gave the Defendants a “high degree of awareness of probable falsity or . . . serious doubts as to the truth of [their] publication.” Colbert, 747 P.2d at 291.
d. Slant, bias, motive, and omissions
Mr. Talley argues the Defendants exhibited actual malice by presenting a slanted, biased, and “sensationalized” narrative. Aplt. Br. at 4. He contends the Defendants crafted their story to fit their “own investments and motives,” id. at 13, and demonstrated actual malice by “specifically target[ing],” Aplt. Reply Br. at 8, his reputation “as a respected pastor and mentor,” id. at 2. He also claims the Defendants “omit[ted] material statements.” Aplt. Br. at 21. These arguments also fail.
i. Slant and bias
Mr. Talley suggests the “Defendants sought a certain narrative from interviewees,” id. at 14, and “achieved the story they desired to portray,” id., by “seek[ing] out biased individuals who would provide a sensational story,” id. at 4. But he provides no concrete supporting evidence to show this was the case. Even if he could, it would not show the Defendants published with actual malice.
Although the Defendants may have developed a theme for their article—their e-mail correspondence, for example, includes a discussion of whether a particular
player’s “experience fits our narrative,” Aplt. App., Vol. II at A498—that alone does not show they doubted the truth of their publication. Indeed, the Defendants, not Mr. Talley, are entitled to choose their theme. It is the “function of editors” to decide “[t]he choice of material to go into a newspaper.” Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 255 (1974). Further, “[t]he fact
ii. Motive
Mr. Talley contends the Defendants had “independent knowledge of [Mr. Talley’s] standing in the community,” Aplt. Br. at 20, and “specifically targeted” his “reputation for honesty,” Aplt. Reply Br. at 8. He further claims the Defendants had “obvious reasons to doubt the veracity of the . . . information discovered in their investigations . . . due to . . . [their] own investments and motives.” Aplt. Br. at 13.
Despite his contention that the Defendants published with improper motives, Mr. Talley does not specify what those “investments and motives” might have been. Id. He also does not identify any evidence that the Defendants “specifically targeted” him. Aplt. Reply Br. at 8. The Defendants spent only a fraction (442 words) of their 20,000-word, five-part series discussing Mr. Talley, which suggests their purpose
was not to tarnish his reputation. But even if the Defendants “targeted” Mr. Talley, that would not prove they had doubts about the article’s veracity or published with actual malice. See, e.g., Spacecon, 713 F.3d 1028 (noting that “a publisher’s adversarial stance . . . is not necessarily indicative of actual malice”) (quotations omitted).
Although “[t]he motivation behind a publication is a factor to consider,” id. at 1042, “courts must be careful nоt to place too much reliance on [motive],” Harte-Hanks, 491 U.S. at 668; see also Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 281-82 (1974) (stating that “ill will toward the plaintiff, or bad motives are not elements of the New York Times standard”). As this court said in Spacecon, “[E]vidence of [defendant’s] . . . bias is not enough to show he acted with actual malice.” 713 F.3d at 1043; see also Harte-Hanks, 491 U.S. at 665; Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir. 1987) (stating a publisher’s “adversarial stance” may be “fully consistent with professional, investigative reporting” and is not necessarily “indicative of actual malice”) (quotations omitted). Mr. Talley has not identified evidence of the Defendants’ bias against him, much less shown that bias established actual malice.
iii. Omissions
Mr. Talley briefly argues the Defendants showed actual malice by “omitting material statements.” Aplt. Br. at 14. Mr. Talley does not identify in his briefing what, specifically, the Defendants omitted from their article. Even if he had done so,
he has not shown how omissions would prove the Defendants published with actual malice.27 Courts have noted that “the author of an article will have to choose
e. Error(s)
Mr. Talley contends the Defendants demonstrated actual malice by publishing inaccurate information. See Aplt. Br. at 4, 20. But other than his misplaced claim about misquoting Mr. Pogi, which we addressed above, Mr. Talley does not identify any specific errors or inaccuracies in his appellate briefs.28 This argument is therefore inadequately briefed. Moreover, the record shows the Defendants fact-checked and verified the information they used in their article. Without evidence of any knowing or reckless falsehood, Mr. Talley cannot show the Defendants’ alleged, unspecified mistakes were anything more than negligent, which is “insufficient to show the recklessness that is required for a finding of actual malice.” New York Times, 376 U.S. at 288.
Relatedly, the Supreme Court has held that “failure to investigate . . . is not sufficient to establish reckless disregard.” Harte-Hanks, 491 U.S. at 688. A plaintiff cannot demonstrate malice “merely by showing that the publication was erroneous.” Herbert, 992 P.2d at 329 (citing Gertz, 418 U.S. at 340-41; St. Amant, 390 U.S. at
732; New York Times, 376 U.S. at 281). Thus, Mr. Talley’s general allegation about inaccuracy does not show the Defendants “had a high degree of awareness of probable falsity or in fact entertained serious doubts as to the truth of the publication.” Colbert, 747 P.2d at 291.
* * * *
The Oklahoma Supreme Court described “[t]he ‘actual malice’ standard [as] a formidable one.” Herbert, 992 P.2d at 328. Mr. Talley has failed to show he could satisfy it here. The Defendants were thorough in their investigation, editing, and review. Mr. Talley has not shown they published with “knowledge that [their statements were] false or with reckless disregard of whether [they were] false or not.” New York Times, 376 U.S. at 280. He cannot show “with convincing clarity” that the Defendants acted with actual malice. Colbert, 747 P.2d at 291.
We affirm the district court’s entry of summary judgment in favor of the Defendants.