# Tavoulareas v. Piro > Court of Appeals for the D.C. Circuit · March 13, 1987 · 817 F.2d 762 URL: https://www.frixlaw.com/law-library/cases/7853124 ## Case - **Full name:** William P. TAVOULAREAS, Peter Tavoulareas v. Philip PIRO William P. TAVOULAREAS, Peter Tavoulareas v. The WASHINGTON POST COMPANY, d/b/a The Washington Post, a Delaware Corporation - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** March 13, 1987 - **Citations:** 817 F.2d 762; 260 U.S. App. D.C. 39 - **Precedential status:** Published - **Opinion:** Concurrence by Wald - **Judges:** Edwards, Ginsberg, Ginsburg, MacKinnon, Mikva, Robinson, Scalia, Starr, Wald, Wright - **Cited by:** 167 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7853124 ## How later opinions describe it (automated extraction) - holding that statement that “& father set up his son in business” accuses father of nepotism and is defamatory because it, “might ‘tend[ ] to injure [him] in his trade, profession or community standing, or lower him in the estimation . of the community1 ” (quoting Afro-Am. Pub… - holding that statement that “a father set up his son in business” accuses father of nepotism and is defamatory because it, “might ‘tend[] to injure [him] in his trade, profession or community standing, or lower him in the estimation of the community’” (quoting Afro-Am. Publ’g … - finding the plaintiff to be “a highly prominent individual, especially in business circles, but his celebrity in society at large does not approach that of a well-known athlete or entertainer—apparently the archetypes of the general-purpose public figure” - finding no actual malice and agreeing with the district court’s assertion that “much of [the unreliable source’s] information was independently verified by other sources whose credibility even the plaintiff does not now challenge” - holding that a defamation plaintiff was a public figure in part because he and his company "played substantial roles in spearheading a public counterattack on the movement for reform of [their] industry” ## Opinion text WALD, Chief Judge, concurring in the judgment: I concur in the judgment of the majority that the jury verdict for the plaintiffs should be overturned. I write separately, however, because I believe that such a result can be justified only if this court reviews the verdict under the special independent review standard set out in Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 , 104 S.Ct. 1949 , 80 L.Ed.2d 502 (1984). Both the majority and dissenting opinions leave the distinct impression that neither opinion adheres to the standard of review it claims to be employing. The majority purports to apply the traditional standard for overturning a jury verdict, i.e., the reviewing court must accept all “permissible” inferences the jury might draw from the objective facts it finds. See maj. op. at 777-78. Nonetheless, throughout its opinion it scrutinizes the inferences to be drawn from evidence of actual malice far more rigorously than that ordinary judgment n.o.v. standard would permit. The dissent, on the other hand, accepts the independent review principle of Bose as applicable, but then proceeds to interpret it as requiring that an appellate court give complete deference not only to the jury’s presumed factual findings but also to any reasonable inferences from those findings that might support the verdict. The court’s independent review is to be restricted to the “ultimate constitutional issue.” See diss. op. at 816-17, 830. Because I believe that this highly publicized and controversial case should be reviewed according to an articulated standard that comports with what the court actually does, I will set out the standard I think should apply here. I find this necessary not only because I do not think an ordinary judgment n.o.v. standard, or even the preRose independent review standard the majority claims to apply 1 , would permit us to overturn the verdict, but also because the majority’s refusal to admit it is applying Bose’s special independent review standard here will confuse the law for all judgments n.o.v., not just libel cases. *82 At a minimum, I believe Bose requires an appellate court independently to apply the legal standard of actual malice to the facts established by the evidence; this independent review is “a constitutional responsibility that cannot be delegated to the trier of fact.” Bose, 446 U.S. at 501, 104 S.Ct. at 1959 . 2 Contrary to the position taken by the dissent, this responsibility requires us to independently review inferences that the jury may be presumed to have drawn, even though those inferences are “permissible” ones under the traditional judgment n.o.v. standard. We need not subject all of the jury’s inferences to this closer scrutiny, however, but only those in which the jury apparently inferred, on the basis of its preliminary factual determinations, that the defendants acted with reckless disregard for the truth. 3 But we must reexamine these inferences to determine for ourselves whether the facts on which the jury relied constitute clear and convincing evidence of actual malice. 4 Were we to follow the dissenting opinion’s interpretation of Bose, I fear it would prove impossible in virtually all libel cases for a reviewing court to defer to all permissible inferences the jury may be presumed to have drawn, and then to conduct a truly independent review of the jury’s ultimate determination that the defendant acted with actual malice. The human mind is just not that agile, and indeed that is why judgments n.o.v. are so unusual; something must be very wrong before a reviewing court can give the jury the benefit of every reasonable inference and still find evidence lacking for their verdict, even under the preponderance standard. For example, in this case, once the dissent accepts the jury's “reasonable” inferences that the Peterson memorandum “raise[d] in [the defendants’] minds subjective doubts as to the accuracy of the story,” that “the defendants knew that Comnas was not trustworthy,” that the Post’s “extreme pressure for sensationalistic stories [led] to distortion of the truth,” and so on through each of the allegations made by the plaintiffs, see diss. op. at 829-39, there is nothing left for an appellate court to review: the conclusion that the defendants acted with actual malice follows inevitably. Independent review of the jury’s inferences concerning the existence of actual malice is necessary if we are to fulfill our responsibility to decide “independently ... whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of *83 ‘actual malice.’ ” Bose, 466 U.S. at 511 , 104 S.Ct. at 1965 . 5 The majority, on the other hand, while stating that it need not apply any special post-Rose “independent review” standard to arrive at the determination that the defendants did not act with actual malice, in fact does reexamine and reject “permissible” inferences which the jury might have drawn to support their verdict. For example, the majority acknowledges that the jury could find that copy editor Christine Peterson had conveyed to the defendants that she found “the story’s theme impossible to believe,” and it recognizes that “the Peterson memorandum is evidence of ... actual malice.” Maj. op at 794. Nevertheless, the majority concludes that this evidence will not support an inference of actual malice with respect to the allegation that Tavoulareas “personally urged” Comnas to accept Peter as a partner, the one statement in the article which the majority holds to be both false and defamatory. See id. at 794 n. 44. Similarly, the majority concedes that there was evidence casting doubt on the reliability of Comnas as a source for the article, including “evidence of personal animus between Comnas and Tavoulareas,” but rejects the inference that reliance on Comnas could be viewed as indicative of actual malice. See maj. op. at 790-93. I could go on, but suffice it to say my own review of the record convinces me that the majority does in fact subject the evidence of actual malice to independent review of inferences to be drawn from it, as indeed it should under Bose, in order to assure that malice has been proven by “clear and convincing” evidence, and as I believe it must in order to arrive at its ultimate judgment, with which I agree. What I find disturbing, though, is its reluctance to acknowledge what it is doing or to grapple with the articulation of what is a proper application of Rose to the record. For future cases we badly need to clarify the appropriate role of a reviewing court in this volatile area of the law, and in this case, regrettably, we have lost a valuable opportunity to do so. . The majority states that it "conduct[s] the requisite independent review in this case, without relying on Bose — ” Maj. op. at 789 n. 37 (emphasis in original). Under this pre-Bose form of independent review, the majority explains, reviewing courts in defamation cases have traditionally "carefully and independently reviewed findings of fact and rejected jury verdicts when all favorable inferences did not constitute clear and convincing evidence of actual malice." Maj. op. at 778. .Although the issue in Bose was the standard of review to be applied to a trial court's determination that a statement was made with actual malice, the Court indicated that its holding applied to review of a jury verdict as well: "[Tjhe rule of independent review assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge." 466 U.S. at 501 , 104 S.Ct. at 1959 ; see also id. at 508 n. 27, 104 S.Ct. at 1964 n. 27 (Court announced rule of independent review in New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), in which it was reviewing a state court judgment entered on a jury verdict). In his dissenting opinion in Bose, Justice Rehnquist argued that review of a jury verdict "presented the strongest case for independent fact-finding by this Court:" The fact-finding process engaged in by a jury rendering a general verdict is much less evident to the naked eye and thus more suspect than the fact-finding process engaged in by a trial judge who makes written ñndings as here. Justifying independent review of facts found by a jury is easier because of the absence of a distinct “yes” or "no" in a general jury verdict as to a particular factual inquiry— 466 U.S. at 518 n. 2, 104 S.Ct. at 1953 n. 2 (Rehnquist, J., dissenting). . See Bose, 466 U.S. at 514 n. 31, 104 S.Ct. at 1967 n. 31 ("only those portions of the record which relate to the actual malice determination must be independently assessed”). . According to a leading commentator, the Supreme Court held in Bose that [a]n appellate court cannot content itself with accepting the results of “reasonable" application of admittedly correct legal norms to the historical facts. The court’s responsibility is to scrutinize the record and marshal the evidence to see if it yields the characterization put on it by the court below. Monaghan, Constitutional Fact Review, 85 Colum.L.Rev. 229, 242 (1985) (footnote omitted). . This reading of Bose is consistent with the Supreme Court’s discussion of the evidence of actual malice in that case. The Court accepted the district court’s finding that a statement in the review challenged as libelous was an inaccurate description of what the engineer who prepared the report on which the review was based had actually perceived, but it rejected the district court’s inference from this evidence that the engineer "must have realized the statement was inaccurate at the time he wrote it.” 466 U.S. at 512 , 104 S.Ct. at 1966 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7853124. Public record. Not legal advice.