William Janklow v. Newsweek, Inc.

JANKLOW, Appellant, William INC.,

NEWSWEEK, Appellee.

No. 84-1452. Appeals, Court of

United States

Eighth Circuit. Sept. 1985.

Submitted April

Decided later, Governor,

Banks and sought extradition. Janklow’s claim centers on paragraph article, one which re- ferred to Banks’s initiation of tribal Janklow, against of assault in con- allegation (now with an nection acknowl- edged false) to be that raped a teenaged girl years five before. granted

The District Court1 summary judgment magazine. for the defendant The court held that correctly Newsweek reported rape the material facts of the alle- gation, that the suggest article did not magazine believed the allega- truth of the tion, implication that any and revenge that motivated Janklow’s of Banks was and therefore nonactionable under the First Amendment. appeal, panel

On a divided of this Court upheld holdings2 the first two but reversed on ground third “the that can drawn from the Newsweek arti- prose- cle—that Janklow did not commence Butler, Joseph S.D., Rapid City, M. for cuting attempted Banks until after Banks appellant. bring justice alleged rape to him to for the Piersol, Falls, S.D., L. Lawrence Sioux girl of an Indian factual.” Janklow v. —is appellee. for Newsweek, Inc., (8th F.2d Cir. 1985). panel’s holding was based on LAY, Judge, Before Chief HEA- and panel four factors. The found that NEY, ROSS, McMILLIAN, ARNOLD, was, whole, language of the on article GIBSON, FAGG, JOHN R. BOWMAN and account; that of factual the fo- WOLLMAN, Judges, Circuit en banc. weekly newsmagazine rum—a likely —was ARNOLD, Judge. Circuit news; offering to be considered as “hard” implication article’s was not Janklow, William the Governor of South “broad, subjective” unfocused or but rath- Dakota, filed this defamation action assertion,” “specific 652; er a at factual magazine Newsweek based on an id. finally, cautionary language that no weekly’s February article in the signal opin- was used the reader that issue American Indian Den- activist ion, being presented. We article, nis Banks. The “Dennis Banks’s granted petition rehearing defendant’s for Stand,” purports give history Last en whether the Banks, banc article relationship fled between who should be read as the state in the after fact now mid-1970’s his convic- counts, protected felony absolutely tion on hold it to be two Amendment, Attorney prosecuted who while General and therefore Jones, (8th Cir.1985). 1. The B. States Hon. John United District F.2d 647-49 Because of our fact/opinion question, for the of South Dakota. un- necessary for us to consider the issues discussed holdings panel 2. These were not reconsid- id. panel opinion, IV of Part 653-54. ered the Court en banc and therefore remain Newsweek, Inc., effect. See ion, expand them, dismissing the com- reasons judgment affirm con- explain, will to include elements of the plaint prejudice. by Judge emphasize, currence Bork. We I. however, that these factors must be con- protected together, Opinion absolutely solitary un no criterion sidered v. dispositive, ultimately Amendment. Gertz Robert der the First can be and Welch, Inc., 94 S.Ct. 418 U.S. or a statement is fact whether 3007, it 2997, 789 But is 41 L.Ed.2d all circum- must be based on bright line between “fact” hard to draw a Oilman, involved. 750 F.2d at stances See in “opinion.” There is a sense which (“important taken 1060 these factors not be performing in a intention or motive one’s (MacKinnon,J., concurring). mechanically”) categorized properly certain act factor in The first relevant identified Oil accused of mail “fact.” Whether someone precision of specificity man fraud, question say, criminal intent 981, statement, a disputed 750 F.2d at jury by the in a “fact” to be decided of in many fact/opinion found cases. concern someone prosecution. Whether criminal Littell, See, 882 e.g., Buckley v. 539 F.2d actually perform a contract promising to 1062, (2d Cir.1976), denied, cert. a doing of so is “fact” had no intention 786, (1977)(calling 777 97 S.Ct. 50 L.Ed.2d support a that, jurisdictions, in will some someone a “fascist” was indefinite sense, in this for fraud. And civil action opinion, comparing him to a therefore while prosecuted the Governor Janklow whether fact). It specific and so known libeller was revenge, or out of a against Banks case vague imprecise to is difficult call a duty, of genuine sense of context, “fact”; present statement a term need not have “fact.” But the “fact” moreover, doing place First so would legal meaning every context. the same mercy of sub linguistic Amendment at the give depend should we to it dictionary defini and fourth-ranked tleties being applied. of the law purposes tions. Amendment, Here, that law is the First precision is that concept Tied to the uncompromising most terms plausi- If verifiability. a statement cannot ...”) (“Congress make no law seeks shall verified, it “fact.” bly cannot be seen as be speech. protect freedom potentially regarding A Id. establishing In the criteria which phrased provable proposition can so Stand,” judge “Dennis Banks’s Last we establish, may intrinsical- it is hard to variety of have looked at how a courts have quantification. ly sort be unsuited fact/opinion distinction since handled York Jour See Mr. Chow New v. Ste. importance was made clear Gertz3 its 219, (2d Cir.1985). Azur, 759 F.2d 226 Recently, thoroughly the issue was venti literary A factor is the context third Circuit, the District Columbia lated disputed made. which the statement was (D.C.Cir. Evans, v. 750 F.2d 970 Oilman — part taken as —, The statement must be (en banc), denied, 1984) U.S. cert. whole, including and the of cau- (1985), tone use 2662, 86 L.Ed.2d 278 105 S.Ct. Oilman, language. F.2d at tionary 750 adopt four choose factors here 982-83; scholarly opin- Gregory see also v. McDonnell Judge Starr’s suggested in See, (2d e.g., Cir.1980); York v. Ste. Jour Mr. Chow New Strada v. Conn. News 639 F.2d 54 CBS, Azur, (2d Cir.1985); 313, (1984); Redco 759 papers, F.2d 219 477 193 Conn. A.2d 1005 (3d Cir.1985); 394, Brown, Lauderback F.2d 970 758 P.2d 462 Marchiondo v. 98 N.M. 649 Inc., Co., Broadcasting Inc., Winston, 741 F.2d 193 Holt, (1982); American Rinaldi v. Rinehart & — (8th Cir.1984), denied, —, 369, 943, cert. U.S. 105 N.E.2d 42 N.Y.S.2d 366 N.Y.2d 397 961, (1985); denied, 969, 514, 1299, L.Ed.2d 967 v. Ev 83 Oilman 54 U.S. S.Ct cert. 434 98 ans, (D.C.Cir.1984) (en banc), (1977); Doug cert. Gregory 970 v. McDonnell L.Ed.2d 456 — denied, —, 2662, 596, Corp., Cal.Rptr. 86 L.Ed.2d las 17 Cal.3d Aircraft Time, (1985); Inc., (9th 641, (Cal.1976). Lewis v. P.2d 425 Cir.1983); Co., Publishing v. New Cianci Times Corp., 17 Douglas Cal.3d 131 Cal. hurt. The third paragraph then told read- Rptr. 641, (Cal.1976). 552 P.2d ers:

include as well under the rubric of literary Along way, Banks danger- made a type context the of forum in which the ous enemy Janklow. Their —William made, statement was a factor which feud started in when Banks Oilman, Starr called “social context.” brought charges against Janklow in a F.2d at 983. This factor focuses on the tribal court for 15-year-old assault. A category publication, style writing its girl baby-sat who for Janklow’s and intended audience. children raped had claimed that he her in 1969. Federal officials found insuffi- Finally, deciding whether a statement cient prosecute, evidence to but Banks is fact or a court must consider persuaded the Rosebud Sioux chiefs to “public what we will call the context” in reopen the case under tribal law. Jank- which the statement was made. It is true low, running who was for election as public pri- that the distinction between attorney general state time, at the re- figures heavily vate so bears appear fused to for the trial. But the many libel cases has no direct relevance “probable tribal court found cause” to here, see, Oilman, 975; e.g., 750 F.2d at no believe the and barred Janklow actionable, opinion is whether it concerns a practicing from law on the reservation. private person public figure. or a How- Eight months later Janklow —who had ever, determining initially when whether a despite won his election messy public- statement is fact or does dis- ity prosecuting Banks. And his —was service to the First Amendment not to con- on case—based the 1973 Custer riot— political sider the or arena in which was guilty successful. Found of riot and the statement is made and whether the kill, assault without intent Banks implicates statement core values of the jumped sentencing. bail before Oilman, First Amendment. See (Bork, J., concurring). at 1002-05 In According to the article de- recognized, MacKinnon “Judge fames him implying began pros- that he employment concept Bork’s skillful of ‘the ecuting revenge Banks in for the insti- public, political arena’ is crucial to a gation charges, of the tribal when fact proper understanding analysis Judge Janklow, serving special prosecutor, Oilman, Starr elucidates.” 750 F.2d at proceedings against initiated prior to Banks (MacKinnon, J., concurring). rape allegation the resurrection of the merely prosecution continued that as Attor- mind, With these factors we turn to ney General. disputed appeal. statement in this analysis begins Our with the

II. (that precision. The statement eight-paragraph prosecuting eight Newsweek article4 “was Banks” months af- began with an account of Dennis Banks’s ter the tribal court’s finding) unfavorable is flight shortly from precise. say California before he not It does not in many so Dakota, could be extradited to South de- words that Janklow’s revenge. motive was escape say scribed as an from “the clutches of in many It does not so words that the nemesis,” prosecution his Governor Janklow. The was commenced after the trib- piece by recounting continued Banks’s ac- al court’s It certainly decision. does not Movement, suggest tivities in the American Indian nothing that Banks had done including prosecution in the involvement 1973 riot warrant for riot and assault. Dakota, County, says only at the Custer South court- going It police eight house in which several officers were months after the tribal court’s 4. The full text is of the article set out as an appendix panel opinion, 759 F.2d at 654- enterprise, particularly when the slippery is

decision, deny can no one officials are involved. improper motive activities imputation of true. The Davis, e.g., Washington See, this sentence must be drawn 2040, 48 L.Ed.2d 597 The sentence is not implication. article as a direct accusation nearly precise so literary of the state- As for the context improper motive. ment, panel opinion was influenced fact that “Dennis Banks’s Last Stand” why particular concern Of page of a appear Op-Ed did not bottom, At imprecise. Newsweek, Inc., Janklow newspaper, had Newsweek usage; question of face a Oil- column in 759 F.2d at as did the plain and said the changed single However, mistake man. it would be a Banks, tiff “continued prosecuting” publications rigidly to denominate some revenge more diffi would be implication of dealing only with fact and pages as those draw, there would not even be cult dealing only opinion. While others as underlying arguable misstatement the whole of the Newsweek article could argues precisely fact. criticism, see classified as Newsweek could have written a because Azur, New York v. Ste. Jour Mr. Chow the statement is ac sentence that clearer (2d Cir.1985), national news- disagree. We believe tionable. magazines are not the same nevertheless courts Amendment cautions daily newspapers. magazines as local closely questions intruding too into colorful, even have a tradition of more judgment, such as the choice of editorial dailies; they are feisty language, than do Herald Pub specific words. See Miami para- required to condense to a few also Tomillo, 418 241, lishing v. 94 Co. U.S. papers graphs issues to which local those 2831, Editors’ 41 L.Ed.2d 730 S.Ct. days coverage and thousands of devote of reporters on word choice is a grilling of Gans, Deciding space. of See inches aggravation. But courts necessary when (1979). Here, maga- the What’s News 4-5 it, exer chilling effect on the do there style personal ex- generally freer of zine’s rights. of First Amendment cise transparently pro- pression and the article’s verifiability. factor is Jank- The second signal the reader to posture Banks would “absolutely that says it is verifiable” low expect a fair amount of Banks was not born out prosecution Finally, public look at the con Brief we revenge, Appellant’s Supplemental was made. 23, prosecution began text in which this statement the riot because government and its charge. Certainly, speech about rape the before Banks renewed officers, badly they how well or chronology it undeniable that about makes While duties, very heart carry their lies at the happened in 1974 out for what retribution Rinaldi v. 1973, plain- in of the First Amendment.5 See motivate events could not Winston, Inc., Holt, 42 N.Y.2d Rinehart & reading paragraph is not the the tiff’s 1299, 369, 943, 366 N.E.2d seen as 397 N.Y.S.3d only plausible one. It could also be denied, 969, General, 1306, 98 cert. 434 U.S. S.Ct. Attorney Jank- implying that as (1977) 514, (citing impor the began L.Ed.2d 456 pressed prosecution he 54 low “the fact/opinion context of to obtain re- tance special prosecutor order people con handling free flow of information to personally the case when venge, public of cerning performance of their recused himself. prudently might have he Capital See also Pierce v. Cities ficials”). implication would be difficult to And this Communications, Inc., 495, 504 rape allegation at for unlike the prove, denied, 861, Cir.), cert. (3d 99 Publishing Times in Cianci v. New issue Sweeney (1978); 181, (2d Cir.1980), singling 58 L.Ed.2d 170 Co, F.2d 54 639 Patterson, 457, (D.C.Cir.), F.2d 458 128 impermissible motive is a subtle out degree derogation cept not,” Oilman, that others need a agree Bork that those who with F.2d at 1002. willingly public ac- 750 debate "must participate denied, 678, cert. 160, 63 S.Ct. magazine U.S. that deliberately distorted Lynch, (1942); chronological sequence L.Ed. 544 events to Schaefer suggest (La.1981). retribution as the motivation So.2d 185 It is vital to our form of Banks. support, As government press and citizens alike Janklow cites this Court’s decision in Laud and, fit, they be free to discuss if see Co., erback v. American Broadcasting public impugn the motives of officials. (8th Cir.1984), denied, F.2d cert. Here we have criticism of the conduct of a — —, 83 L.Ed.2d 967 general attorney state who now serves as (1985), in which we held that “statements governor, questions as well as clothed imply they governors actions of three other of two undisclosed, are based on defamatory facts states, involving other all an issue of na protected” are not by the First Amendm importance, tional the treatment Therefore, plaintiff ent.8 says, publish people. public other Few discussions of may er also not ‘facts’ which he “disclos[e] greater concern could make a claim for knows to support be false to his defam protection. First Amendment atory opinion,” Appellant’s Supplementary disputed Because statement Brief at or omit facts “which would unverifiable, imprecise, present this case is substantially average alter reader’s spirited writing ed in a forum where opinion,” Lauderback, 741 F.2d at 198. expected, and involves criticism of the mo The situation in this case differs official, tives and intentions of a Lauderback, where the tele holding affirm the of the District Court vision charged having network was opinion, protected by implied either had been or Amendment.6 was about to be indicted for insurance similar, except superficial fraud. Nor is it III. ly, to the facts of Cianci v. New Times Co., plaintiff argues if that even Publishing (2d Cir.1980); Newsweek is to be read as there, only chronology was the blurred actionable, opinion,7 grounds charged is still in the account official 6. We do not hold that only generally questions problematic accusations of actual tend to be and issues, against public important they criminal conduct officials are ac- involve First Amendment court, province tionable as fact under the First Amendment. remain within the of the trial (particularly While these four factors which in event be asked those of would to review precision any jury verifiability) might by plaintiff and best be met decision for at the end of trial. allegations, concept criminal the of actionable crime, allegations fact is not limited Lauderback reflects the scheme set out in Re- to either 566, (Second) private provides for statement Torts which § citizens or officials. that: banc, argument defamatory may 7. At oral before the Court en A communication consist of plaintiff for the first time asked that we hold a statement in the form of an but a fact/opinion questions go only that close should to statement implies this nature is actionable if it jury allegation the trier fact rather than be decided the of undisclosed defam- by questions reject atory the court as of law. We this basis for the facts the suggestion. “overwhelming weight post- agree the with Columbia Circuit authority significant that the distinction between [is] the considerations raised Gertz law,” Oilman, opinion general and fact is a matter of § 566 are "not distinct from the evalua- 978; Lauderback, 750 at 6, see also F.2d 741 F.2d tion of whether a statement constitutes fact or Oilman, 29, good opinion," n. 196 and for reason. Plaintiff cites F.2d at n. 750 985 argue, contrary majority already two cases which to the that "the tests articulated are a suffi- * * decisions, "ambiguous determining that an comment .cient aid in whether a statement facts,” jury,” Indep. implies should be left to the Nevada Broad- the existence of undisclosed id. at Allen, 404, casting Corp. explains, inquiry Nev. 664 99 P.2d 337 985. As Starr into (1983); Group precision verifiability possibility see also Good Gov’t Seal covers the Beach, Court, 672, Superior conveys implications 22 Inc. v. Cal.3d 150 that a statement factual 258, denied, (1978), Cal.Rptr. literary P.2d 586 572 cert. while the discussion of context includes 961, 2406, might approach U.S. 99 S.Ct. 60 L.Ed.2d 1066 an examination of a reader 441 how (1979). We believe instead such that because statement. 1306 standards, against those are description of events rape,

with but dealing rights, of fact—that with First Amendment inexorably to a conclusion led precious by Amer- alleged among enjoyed the most paid his victim when, judgment charges Accordingly, icans. of the $3,000 drop her District Court is made after the criminal payment dropped in order to settle had been Affirmed. (“ at 58. ‘For the nominal a civil suit. Id. $3,000, managed buy sum of Cianci BOWMAN, Judge, joined Circuit ”) possible felony charge.’

way out of a FAGG, Judges, Circuit dissent- ROSS suggestion of fact was No such direct ing. implication Janklow com- made here. agree I do not Because Court’s plains of here comes from semantic ambi- strikes a fair balance between guity, not from false statements made represented by media interests Newsweek above, this Court Newsweek. As we said represented by and the individual interests judgments make editorial will not respectfully I dissent. portray specific choice in order to 1964, press enjoyed has Since possible light, particu- plaintiff in the best Supreme benefit of the Court’s decision “sting” implication— larly when the Sullivan, 254, New York Times U.S. vengefully acted towards that Janklow 710, (1964), 84 S.Ct. 11 L.Ed.2d 686 present when the full chro- Banks—is still injured by official bars a a defam- nology is laid out. atory publication any judicial remedy (like Every story every judicial news prove only unless the official can not reflects choices of what to leave opinion) false, the material was but also that it was out, can as well as what to include. We with actual malice. published See Garri- story agree that this would have been fair Louisiana, son v. and more to the er to Janklow informative (1964). plain- 13 L.Ed.2d 125 chronology rape charge if reader showing strong tiff must make a of actual against Janklow and the riot if the case is survive a malice motion fully Banks had been more ex get jury. summary judgment and Certainly can plained. there be omissions Co., Inc., Herald See Brown v. enough ostensibly to take what is serious (8th Cir.1983) curiam); (per Bose cf. 466 U.S. fact for and convert into a Union, Inc., Corp. v. Consumers attempted legal purposes. We have to ex 485, L.Ed.2d why particular does not plain omission Actual malice in the libel context is difficult that level. must be slow to rise to Courts very plaintiffs prove, few libel have judgment, intrude into the area of editorial making requisite showing. succeeded words, only respect to choices Sullivan', publishers enjoyed have Since respect to inclusions in or but also with high in theory practice very in a both from news stories. Accounts of omissions protection liability degree of from for mate- selective, always under past events are defamatory public officials and other rial Amendment the decision of what See, public figures. persons found to be always to select must almost be left to Publications, e.g., v. Fairchild Waldbaum It is not the writers and editors. business (D.C.Cir.1980). Inc., This government. judicially created limitation on libel actions has, interestingly enough, apparent no rela- in to our initial We return conclusion any change in establishing tionship in that has occurred point: that both the stan- society distinguished either the or since opinion is Constitution dards Rights Bill ratified in 1791.1 Libel measuring particular a was from libel laws and adoption Amendment was riod the exercise seditious of the First 1. say, present English government’s prior largely response restraints. Needless to the operates prerevolutionary pe- nor action neither is criminal in nature suppression of ideas in the changed judicial All that has is the is still libel. semantics based on the Oilman perception factors. prevailing judicial of where the should be struck between libel

balance panel For the reasons set forth defendants, plaintiffs and libel who our opinion case, in this I believe that frequently large organiza- time are media jury that a could draw from the tions such as Newsweek. Newsweek article here at issue—that Jank- prosecuted low Banks because Banks Today’s tips the balance still far- 15-year-old girl’s resurrected a claim ther in the media’s favor. To the fortress raped that Janklow had malice, her—amounts to virtually of actual the Court adds a an assertion of expres- fact rather than an impenetrable upon outer barrier built an Newsweek, sion of See Janklow extremely and elastic definition of broad Inc., (8th Cir.1985). 759 F.2d 649-652 actionable, opinion opinion. Because is not panel opinion my analysis includes Welch, Inc., 418 see Gertz v. Robert applied factors Oilman to the 339, 94 S.Ct. 41 L.Ed.2d case, present and I will not burden this (1974), many the result is libel by repeating dissent analysis here (and probably cases almost all libel cases in by nitpicking present the Court’s discussion official) which the will Beauty of those factors. eye is dismissed before the issue of actual beholder, appear and it would I malice is ever reached. find it hard to through application result to be obtained that this is what believe Justice Powell had eye factors Oilman of the penned in mind when he his famous dictum judge. Clearly yield those factors do not “[ujnder in Gertz that the First Amend- predictability, prediction unless the is that thing ment there is no such aas false application always their almost will result thing, tawdry idea.” Id. Ideas are one but in keeping brought by defamation actions reputation attacks character are public figures officials and from I do not see another.2 reason to ex- reaching jury. protection tend absolute under the First qualify Amendment to statements carry judicial I would not absolutism this all, only by rather than fact After means far. Constitution includes Rather, Blackstone, prior merely aas restraint. IV W. Commentaries on the Laws of Press, (The remedy injury reputation 1967) (re- England Layston seeks a for the to his 151-52 edition, resulting publication 1772). production of a de- Newsweek’s of 1st American libel, famatory Similarly, article. Blackstone’s view of Thomas Jefferson believed in the im- contemporaneous Founding with that of the portance press, according Fa- of a free but to his thers, provides interesting an leading biographer contrast position adopted commenting in Sullivan. In advocacy press His of freedom for the upon press what constitutes freedom of the subject qualifications. to certain He believed actions, surely equally applicable criminal libel falsehood and defamation could and individual, brought by to civil actions Black- punished should be under state laws. stone noted: Malone, D. The President —Second Jefferson (Little, Company Term 1805-1809 9 Brown and liberty press is indeed essential to 1974). (Harv. Epstein, Takings R. See also the nature of a free state: but this consists in 1985) (defamation weighted Univ.Press actions laying upon publica- previous no restraints tions____ Sullivan); plaintiffs prior in favor of Every Oilman freeman has an undoubted Evans, (D.C. & nn. 1-2 right lay pleases 1038-39 what sentiments he before J., 1985) (Scalia, this, dissenting). public: destroy Cir. to forbid is to press: publishes freedom the but if he what Justice Powell illustrated the sort of idea that mischievous, illegal, improper, he must by never can be false reference to Thomas Jef- consequence temerity____ take the of his own Address, Inaugural ferson's in which Jefferson free; Thus the will of individuals is still left among any stated: “If there be us who would only object the abuse of that free will is the change repub- wish to dissolve this Union or its legal punishment. Neither is restraint form, lican let them stand undisturbed as monu- hereby upon thought laid freedom of or en- safety opinion left; ments of the with which error of quiry: liberty private sentiment still may be where is left tolerated reason free to disseminating, making public, the of bad sentiments, combat it.” U.S. at 340 n. 94 S.Ct. at 3007 society, destructive of ends of the society n. 8. is the crime which corrects. the Seventh Amendment as well as the brief that the manner which the article Moreover, clear First. it seems to me that during evolved process pro- the editorial Rights protect the Bill exists to individu- vides evidence of actual malice. He con- tyranny als from the forms of various tends, apparently pre- would have been Framers, were well known not to show, pared to progress- that as the article upon cheap dignity sanction attacks form, ed from initial draft to final sanctity of the individual for the sake portrait big- Janklow a vindictive and gauzy philosophical abstractions such as grew oted racist more and more vivid. He notes, judgment.” “editorial As the Court points out that one of the Newsweek re- rights First ante at Amendment are porters story who worked on the Banks among precious enjoyed by the most Amer- deposition stated in a that the article was icans, ques- but does not answer the “outrageous” and that Newsweek had rights go tion of how far those should at job fact done “a on him and we also riddled expense rights. precious of other Also (Foote deposition 83). it with errors.” at right legal is the to obtain redress for facts, if These shown clear and convinc- person injury property, to one’s includ- evidence, ing easily could be taken ing injury reputation, caused me, jury, it seems to as demonstrating “a wrongdoing right of another. The latter high degree of awareness of probable ... especially compelling, legally both and ethi- falsity” assertion that Janklow initi- cally, injury-causing when the act can be ated Banks’s revenge. for St. shown have been done with actual mal- Thompson, 727, 731, Amant v. 390 U.S. ice, jurisprudence as First Amendment cur- (1968) 20 L.Ed.2d 262 rently requires regard officials (quoting Louisiana, Garrison v. figures. for, What is called 216). at 85 S.Ct. at me, raising fact/opin- seems to cases issue, thoughtful balancing ion suggests The change Court interests, competing nearly not the total single yield- the article would have reputation- subordination individual’s piece arguable ed a without even an mis- al interest to the media’s desire for immuni- underlying fact. at See ante ty accountability to individuals 1304. But really begs question this at by defamatory harmed published material hand, way for all libel actions turn in one with actual malice. simply or another on that —word choice. decision means Court’s that we nev- here is not whether courts er shall know whether Janklow would have making judgments will be editorial to make a been able submissible case on specific these word choices but rather indications, the issue of actual malice. The whether Newsweek will be held accounta- however, are that he would have made a judgments, i.e., ble for its editorial for the strong showing on that issue. For exam- Moreover, words that it does choose. con- that, ple, there in the is evidence record sidering carefully crafted nature of the prior publication, Newsweek was aware bias, article and its blatant anti-Janklow prosecuting Janklow number of aspect opinion of the Court’s strikes brought riot cases Custer before Banks being disingenuous. me as up rape allegation. There is also evi- Judge Arnold has remarked that “the dence in the record that Newsweek was article as a whole is tendentious and slant- Banks, wishing aware that to avoid suc- transparently pro-Banks.” ed. It is prosecution by cessful had a mo- (Arnold, J., dissenting). F.2d at 657 derailing candidacy tive for Janklow’s for Court, in its memorandum Moreover, attorney-general. Janklow ar- granting Newsweek’s motion summary gues specifi- his brief Banks himself judgment, expressed outrage its “sense of cally told Newsweek that Janklow was brought he at the unfairness of the article.” prosecuting up him before Newsweek, Inc., 83-4023, rape allegation. argues slip op. Janklow also in his v. No. (D.S.D. 29, 1984). Mar. misconduct, serious and as such ideally Court say also had this to about the article: judicial suited for resolution. I believe that

Rape society’s reprehen- Judge Friendly is one of most what said of at rape sive crimes. The claim of referred issue in Cianci v. New Times Publishing by Newsweek was made Co., over fifteen (2d Cir.1980), is equally earlier, years investigated and was applicable here. by time federal law enforcement To call charges merely such expres- an officials who found insufficient evidence ‘opinion’ sion of indulge would be to prosecute. investigated again It was Humpty-Dumpty’s language. use of F.B.I., House, in 1975 the White slightest see not the indication that the Judiciary the Senate Committee Supreme Court or this court ever intend- Republican when then the At- ed anything of this sort and much to Dakota, torney General of South demonstrate the contrary. position nominated for a board 639 F.2d at 64. Legal Corporation. Services I would reverse this case and remand it Judiciary Senate Committee was com- to the District proceed- Court for further posed of, among others, Senators Ted ings panel consistent with the opinion. Kennedy, Walter Móndale and Allen Cranston, none of whom have [sic]

reputation whitewashing misdeeds of

Republican F.B.I., officeholders. The

the White House and the Senate Judi-

ciary Committee determined that

rape claim was unfounded and without

any factual basis. When Newsweek ran

as a news item thoroughly this discred- ited, fifteen-year-old claim the de- America, Appellee, UNITED STATES of fendant, Dakota, now Governor of South engaged journalistic conduct more MUZA, Appellant. Edward commonly associated with tabloids like Enquirer the National and the Globe. No. 85-1104. Id. at 7-8. United Appeals, States Court of issue, course, is not whether the Eighth Circuit. is, article is unfair. It conspicuously so. The issue is not implica- whether the Sept. Submitted 1985. tion that the article invites—that Janklow’s April Decided 1986. prosecution of Banks was motivated Rehearing Rehearing En Banc personal desire for revenge defam- —is 6,May Denied atory. Clearly it is. The issue is whether quite this precise implication, readily de- precisely

rived from a stated factual sce-

nario, should be deemed a statement of

fact or a statement of I see no

good reason to distort commonly under-

stood perfectly good and use-

ful cloaking in the Constitutionally

protected “opinion” mantle of precise factually implication. based To the

contrary, implication pros- that Janklow personal

ecuted Banks for revenge is hard-

ly the sort of idea best through illuminated

public debate. It charge is rather a

Case Details

Case Name: William Janklow v. Newsweek, Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Apr 10, 1986

Citation: 788 F.2d 1300

Docket Number: 84-1452

Court Abbreviation: 8th Cir.