# Herron v. KING Broadcasting, Co.

> Washington Supreme Court · June 22, 1989 · 112 Wash. 2d 762

URL: https://www.frixlaw.com/law-library/cases/9545798

## Case

- **Full name:** Don Herron, Et Al, Appellants, v. KING Broadcasting Company, Et Al, Respondents
- **Court:** Washington Supreme Court
- **Decided:** June 22, 1989
- **Citations:** 112 Wash. 2d 762; 776 P.2d 98
- **Precedential status:** Published
- **Opinion:** Dissent by Andersen
- **Judges:** Callow, Brachtenbach, Dolliver, Smith, Utter, Pearson, Durham, Andersen
- **Cited by:** 86 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/9545798

## How later opinions describe it (automated extraction)

- holding a defamation action consists of four elements: (1) 16 a false statement, (2) publication, (3) fault, and (4) damages

## Opinion text

Andersen, J.
(dissenting) — Because Don McGaffin, formerly of KING-TV, is a tough and sometimes caustic news commentator, who made a mistake of fact in the newscast involved in this case, it is perhaps easy to lose sight of what this case is really all about. What the majority opinion does is simple. It makes it much easier for public officials to now sue their critics, be they news media, political opponents or simply citizens unhappy with the way that a public office is being conducted. This result is achieved, however, at the expense of First Amendment rights and values, namely the promotion of open and vigorous debate on public issues. Moreover, the opinion is not an unmitigated blessing for public officials, since it will now be easier for their political opponents to sue them.
The majority's first opinion in this case was wrong as I pointed out at some length in my dissent. 6 The majority belatedly recognized this by granting a rehearing. Now, in filing a new majority opinion which attempts to change the focus of that opinion, it is still wrong. The trial court's dismissal of the defamation action should be affirmed.
I first address the majority's new analysis of the "sting" of the broadcast in question. Contrary to the majority's present assertion, falsity is an essential element of defamation. 7 Truth is a defense to a charge of falsity in a defa *781 mation action. 8 In asserting this defense, a defamation case defendant need not prove the literal truth of every claimed defamatory statement. 9 A defendant in a defamation action may obtain summary judgment by showing that the statement is substantially true or that the gist of a story, the portion that carries the "sting", is true. 10 The sting of a story is altered only when significantly greater opprobrium attaches to the report containing the false statement than it would to the report without that statement. 11
The majority is correct in stating that the "sting" of a report is defined as the gist of a report when considered as a whole. Thus, defendant Don McGaffin's 12 entire newscast must be evaluated in analyzing its sting; single sentences should not be considered separately and out of context. 13 In a case such as this one, where there is an undisputed inaccuracy, the court is well qualified to examine the gist of the entire newscast. As one federal court observed,
where there is no dispute as to the underlying facts, the question of whether a statement is substantially accurate *782 is one of law for the Court. The Court should not scrutinize simply the literal references of the language in question, but should weigh the words together with their context.
(Citations omitted.) Williams v. WCAU-TV, 555 F. Supp. 198, 203 (E.D. Pa. 1983).
In "clarifying" its first opinion, the majority carefully omits any reference to the context of the incorrect "approximately half" statement. While conceding that the broadcast should be analyzed as a whole, the new majority opinion then proceeds to do just exactly the opposite; it discusses the single incorrect sentence in a vacuum. According to the polemic essay on campaign contributions contained in the new majority opinion, "[tjhere is no sting to a group of businessmen such as bail bondsmen contributing $825 to Herron's campaign. . . . The inflated figure, and that alone, suggested that Herron had sold his integrity as a public official." (Italics mine.) 14 Such an analysis conveniently ignores the rest of the truthful statements made in the broadcast, and the light that they cast on Pierce County bail bondsmen and plaintiff Don Herron, 15 who was then Pierce County Prosecuting Attorney. Rightly or wrongly, these truthful statements portrayed the bondsmen as less than civic-minded business people and the plaintiff as less than an unimpeachable public servant.
The defendant correctly stated in his broadcast that two bondsmen had been arrested on racketeering charges by the Justice Department, that one of them contributed heavily to plaintiff's campaign, that the Federal Bureau of Investigation wanted to know how plaintiff collected forfeited bail bonds, that his office had forfeited bonds and collected bail in only a limited number of cases, and that bail bondsmen had been unhappy with plaintiff's predecessor, whom *783 plaintiff defeated at the last election, for pushing to collect forfeited bail bond moneys.
The trial judge in this case correctly recognized that the gist of these truthful statements was less than laudatory:
The gist or the "sting" of the broadcast was that a prosecuting attorney was being investigated in respect to practices concerning bail bonds, that he had a close friend who was arrested with two local bondsmen, and that he had accepted substantial sums from a bondsman to finance election campaigns, all of which is conceded to be true.
Memorandum decision, at 5 (part).
Given the defendant's truthful statement that an arrested bail bondsman contributed substantially to plaintiff's election campaign, I fail to see how the false statement that bondsmen contributed "approximately half" of plaintiff's campaign money attached significantly greater opprobrium to the newscast. The applicable legal standards are these: in asserting the defense of truth, a defendant need not prove literal truth but substantial truth; simply that the gist of the story is true. In my view the trial court was absolutely correct when it decided that the gist of the defendant's news report was true.
The majority would now have us believe that the last sentence in the news report, the "approximately half" statement, resulted in distinct damage to the plaintiff. The majority claims that this statement alone implied that plaintiff had "bargained away his ethics and integrity in exchange for campaign contributions. 1 ' 16 This damage was present regardless of the amount of bail bond contributions reported. In the context of the entire newscast, and under the extraordinary circumstances existing in Pierce County law enforcement at the time in question, any bail bondsman's contribution to the prosecuting attorney's campaign would necessarily be suspect to some degree. As plaintiff himself noted in his answer to the defendant's *784 motion for reconsideration, the gist of the defendant's story was the attempt to connect plaintiff to some kind of criminal conspiracy with those who were being arrested and charged at the time. 17 Fairly or unfairly, a reading of the text of the newscast shows that this attempt was successful even without the "approximately half" statement.
This is particularly true in light of the broader context of the newscast, which the majority excises entirely from its new opinion. In determining whether the gist and sting of a story is true, the court is required to view the story through the eyes of the average member of the audience. 18 The KING-TV audience did not live in a vacuum. Some of its audience undoubtedly was aware of the extraordinary events occurring in Pierce County at the time. As even the majority admitted in its initial opinion in this case, " [t]he background of this case was a racketeering scandal of proportions unprecedented in this state which attracted intensive media attention." (Italics mine.) 19 The former majority opinion then went on to describe some of the details of that racketeering scandal:
On November 28, 1978 the Pierce County Sheriff and seven others were arrested on racketeering charges. In connection with those charges, there was a federal probe into a series of Pierce County arson fires. In addition to those stories, the media reported that a local bail bondsman and one of the persons arrested, Lamont Zemek, had been vacationing earlier that month with a local district court judge and the Prosecuting Attorney of Pierce County, Don Herron.
(Italics mine.) Herron v. KING Broadcasting Co., 109 Wn.2d 514, 515 , 746 P.2d 295 (1987).
*785 Along with arson, federal officials investigated alleged acts of attempted murder, bribery, extortion, illegal gambling and prostitution. 20 The investigation of Pierce County's chief legal officer by the FBI and Department of Justice for possible wrongdoing came just 3 days after the arrest on federal racketeering and extortion charges of Pierce County Sheriff George Janovich and two Pierce County bail bondsmen, John J. Carbone and Ron Williams. 21 The Carbone Bail Bond Company was a substantial contributor to plaintiff's election campaign. 22 Moreover, Prosecutor Herron knew that his recent vacation partner, Lamont Zemek, had a criminal record, and that he (the prosecuting attorney) employed Zemek's ex-wife as an administrative aide! 23
Thus, the defendant's newscast was not a simple story about campaign contributions, as the majority would now have us believe. Even if viewers knew nothing of the broader series of events occurring in Pierce County, which hardly seems possible, the truthful statements in the broadcast were enough to give them pause. The majority assumes that a supporter of plaintiff who saw that he had received $825 from bail bondsmen would say "so what" and continue to support him. I beg to differ. That supporter, rightly or wrongly, might not wish to contribute to the political campaign of an official, specifically the county's chief legal officer, who accepted substantial contributions from a bail bondsman arrested by the Justice Department for racketeering, who had vacationed with a close friend also arrested for racketeering, and whose office was undergoing an FBI investigation regarding its bail bond procedures.
*786 When the defendant's broadcast is examined in its entirety, it seems eminently clear that it is the fact of contributions from people in the Pierce County bail bond business — whether minimal, substantial, or approximately half — that stings. The broadcast was a story about possible corruption, and that possibility was present even without the incorrect "approximately half" statement which appeared only in the last sentence of a relatively long newscast. The majority's new and laborious analysis of the sting of the broadcast is both incorrect and unpersuasive. I would affirm the experienced trial court's well-considered decision that the inaccurate statement did not alter the sting of the broadcast as a whole.
I turn next to the majority's conclusion that plaintiff presented clear and convincing evidence of actual malice sufficient to overcome the defendant’s motion for summary judgment. In reaching that conclusion, the majority sidesteps the fact that somewhat different summary judgment principles apply in defamation cases brought by public officials against news media defendants. This is because such cases involve the protection of basic First Amendment rights and values.
With the exception of the majority opinion in this case, a heavier burden traditionally has been imposed on plaintiffs in public figure defamation cases. As we observed when we unanimously affirmed the dismissal of this same plaintiff's defamation action against the Tribune Publishing Company, which arose out of these same public events,
When a defamation claim is brought by a public official regarding statements made about the official's performance of his public duties, the plaintiff must prove that the statements were made with actual malice. The burden of proof for the element of actual malice is "clear and convincing evidence", not the less stringent "preponderance of the evidence" burden ordinarily required in civil suits. This heavier burden is imposed at the summary judgment stage as well as at trial; to survive a defendant's summary judgment motion for dismissal, the *787 plaintiff must offer evidence sufficient to permit a reasonable trier of fact to find clear and convincing proof of actual malice. As with other summary judgment motions, the nonmoving party is entitled to have the evidence viewed in a light most favorable to him and against the moving party. However, if the plaintiff, as nonmoving party, can only offer a "scintilla" of evidence, evidence that is "merely colorable", or evidence that "is not significantly probative", the plaintiff will not defeat the motion. Moreover, conclusory statements in a plaintiff's affidavit are insufficient; the plaintiff must demonstrate the basis for his assertions. The inquiry before this court, then, is whether, in viewing all the evidence in a light most favorable to the Herrons, a reasonable trier of fact could find clear and convincing proof that the defendants published their articles with actual malice.
(Footnote and citations omitted.) 24
The actual malice standard is subjective in that it focuses on the media defendant's knowledge that his or her statement is false or made with reckless disregard of its falsity. 25 Thus, a public official plaintiff must show that a media defendant "in fact entertained serious doubts as to the truth of his publication." 26
A plaintiff may in the proper case prove the defendant's state of mind through the cumulation of circumstantial as well as direct evidence. 27 We must keep in mind, however, our responsibility in reviewing such evidence.
[A]ctual malice does not automatically become a question for the jury whenever the plaintiff introduces pieces of *788 circumstantial evidence tending to show that the defendant published in bad faith. Such an approach would be inadequate to ensure correct application of both the actual malice standard and the requirement of clear and convincing evidence. Thus, . . . the Supreme Court has directed us to . . . "make an independent examination of the whole record."
(Citation omitted.) Tavoulareas v. Piro, 817 F.2d 762, 789 (D.C. Cir.), cert. denied, 108 S. Ct. 200 (1987), quoting Edwards v. South Carolina, 372 U.S. 229, 235 , 9 L. Ed. 2d 697 , 83 S. Ct. 680 (1963).
After its examination of the entire record, the majority now concedes that the plaintiff has presented only two "facts" to show the defendant's actual malice. One such "fact" is the Hendry and McBroom denials that they told the defendant that people in the bail bond business contributed approximately half of plaintiff's campaign funds in 1974. It should be noted that these alleged denials were contained in depositions taken 3 years after Hendry and McBroom talked to the defendant. The majority states that "Hendry could not recall whether he and McGaffin discussed bail bonds", yet adds that Hendry was "certain" he did not tell the defendant about amounts of bail bondsmen's contributions. 28 The record reveals that Mr. Hendry was less than certain about the content of his conversation with the defendant. As Ronald Hendry stated, "I honestly don't remember much about the conversation at all other than that he, as well as a number of people, were calling during that period of time. 29 The majority then writes that Douglas McBroom "also could not remember the substance of his conversation with McGaffin", yet he testified that he "did not tell" the defendant that one-half of plaintiff's contributions came from bail bondsmen. 30 Mr. *789 McBroom's testimony was more equivocal than the majority suggests: "I don't specifically recall telling anyone that and I don't specifically recall not telling anyone that. 1 ' 31 I fail to perceive how such vague recollections about what might or might not have been said to a reporter 3 years earlier can be categorized as probative evidence of actual malice or deliberate falsification. In no way do these "denials" indicate that the defendant in fact exercised serious doubts about the truth of his broadcast, as the majority now implicitly suggests.
The second "fact" the majority uses to establish the presence of actual malice is the defendant's admission that he looked at the records of the Public Disclosure Commission "and that he identified those contributors who were bail bondsmen." 32 This statement is misleading. What the defendant said was "when I checked the PDC forms I quickly found the names of Carbone and Williams and people like that." 33 Thus, while the defendant identified some contributors as bail bondsmen, there is no proof that he knew the occupations of all of the plaintiff's 500 listed contributors or who among them were in the bail bond business. To suggest, as does the majority, that Don McGaffin recognized every bail bondsman whose name appeared in the list is to suggest that he had subjective knowledge that his "approximately half" statement was false. Indeed, that is precisely what the majority's analysis concludes, despite its earlier admission that " [t]here was no evidence offered to show that McGaffin had actual, subjective knowledge that the one-half figure was false." 34 To *790 suggest that the defendant's investigation "actually uncovered facts which directly rebutted his false statement", 35 as the new majority opinion does, is to suggest that the defendant knowingly lied. There is simply no evidence in the record to support such an assertion, and the absence of such evidence of conscious fabrication is precisely what distinguishes this case from two cases that the majority cites and refers to as being directly "on point".
The first of those cases is Kuhn v. Tribune-Republican Pub'g Co., 637 P.2d 315 (Colo. 1981). The court's description of the reporter's work in Kuhn clearly reveals evidence of conscious fabrication, or reckless disregard for the truth.
When one fails to contact and question obvious available sources of corroboration, fabricates specific facts appearing in a story, and writes the story in a manner calculated to invite a factual inference that the newspaper has uncovered governmental corruption and bribery, one knowingly risks the likelihood that the statements and inferences are false and thereby forfeits First Amendment protections.
Kuhn , at 319. Moreover, the reporter in Kuhn spent 2 hours investigating and 30 minutes writing his story even though no particular urgency existed as to the time of publication. 36 Since there is no evidence in the present case that the defendant ignored obvious sources of corroboration, fabricated specific facts, or wrote in a manner calculated to invite an improper inference, it is impossible to justify the majority's claim that Kuhn is "directly on point". Moreover, contra to the news story in Kuhn , the newscast in this case was a classic hot news story, where a sense of urgency as to time of publication clearly existed. Even though the defendant verified his story more carefully than did the reporter in Kuhn , extensive verification was not required. As one federal court explained:
*791 The standard of recklessness may vary with respect to the nature of the publication involved. Where an article is planned months in advance and time is not crucial, more extensive verification procedures may be required. However, in reporting "hot" news items of public interest for rapid dissemination, the courts have recognized that extensive verification procedures are impracticable and, therefore, not required.
(Citation omitted.) McFarland v. Hearst Corp., 332 F. Supp. 746, 749 (D. Md. 1971). Furthermore, it is widely recognized that a mistake is not evidence of serious doubts and that inadequate investigation does not equal actual malice. 37 These statements would seem to be of greater significance in the context of a hot news story such as that involved here.
The majority also sees as "on point" a second case, Green v. Northern Pub'g Co., 655 P.2d 736 , 38 A.L.R.4th 817 (Alaska 1982), cert. denied, 463 U.S. 1208 (1983), in which it was undisputed that a reporter was aware of evidence that directly contradicted one of her story's major assertions. 38 In Green , therefore, there was uncontroverted evidence that a reporter had subjective knowledge of the falsity of her story. In the present case, the majority admits that there is no evidence of subjective knowledge of falsity. Trying to create such evidence through faulty comparisons with two readily distinguishable cases does not mean it is there.
Besides the two "facts" of actual malice the majority presents, its opinion also directs attention to the defendant's alleged threat to one of the plaintiff's deputies, not as evidence of actual malice, but as evidence that "bolsters the inference that McGaffin might have been reckless regarding *792 the truth of his statements". 39 By this point in its opinion, the majority seems to have forgotten the requirement that a public official plaintiff must have clear and convincing proof of actual malice to survive a defendant's summary judgment motion for dismissal in a defamation case. 40 Evidence that "bolsters" an "inference" that a defendant "might" have acted with reckless disregard simply does not rise to the level of proof this court has heretofore demanded. Such evidence does no more than pyramid inference upon inference. Moreover, the defendant's alleged threat to the deputy prosecutor — not to plaintiff, and unheard by the three other people in the room — is insufficient to even bolster an inference that the defendant acted with malice in making his broadcast. We recently explained this in Margoles v. Hubbart, 111 Wn.2d 195, 760 P.2d 324 (1988). As we observed there, a reporter can "get" somebody by telling the truth as well as by resorting to defamation. 41 In Margoles , we cited the discussion of such threats by the District of Columbia Court of Appeals sitting en banc in Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir.), cert. denied, 108 S. Ct. 200 (1987):
These statements, not unknown to the vernacular of litigators, seem to us well within the everyday parlance of an investigative reporter. They may reasonably be interpreted as revealing that [the reporter] had adopted an adversarial stance toward [the plaintiff]. But, as in other professions, an adversarial stance is fully consistent with professional, investigative reporting. It would be sadly ironic for judges in our adversarial system to conclude, *793 . . . that the mere taking of an adversarial stance is antithetical to the truthful presentation of facts. We decline to take such a remarkable step in First Amendment jurisprudence.
In short, as I understand defamation of public officials law, ill will toward the plaintiff or bad motives have never until now been elements of actual malice. 42 Evidence of ill will or bad motives should support a finding of actual malice only when combined with other, more substantial evidence of a defendant's bad faith. 43
The two "facts" the majority relies on — Hendry and McBroom denying that they told McGaffin the "approximately half" statement and McGaffin checking the PDC forms before his broadcast — simply do not under settled law constitute the substantial additional showing required to support a finding of actual malice. As the United States Supreme Court instructs, actual malice consists of, for example, evidence establishing that a story was fabricated, so improbable that only a reckless person would have put it in circulation, or based wholly on an unverified anonymous phone call or some other source that the defendant had obvious reasons to doubt. 44 The plaintiff has shown nothing that even remotely resembles such proof. Plaintiff's two "facts" are simply not of significant probative value.
I would hold upon reconsideration that the plaintiff's showing is insufficient as a matter of law to overcome the defendant's motion for summary judgment and that the *794 trial court was entirely correct when it entered a summary judgment dismissing plaintiff's case.
Utter, Pearson, and Durham, JJ., concur with Andersen, J.
Herron v. KING Broadcasting Co., 109 Wn.2d 514, 529 , 746 P.2d 295 (1987) (Andersen, J., dissenting).
Margoles v. Hubbart, 111 Wn.2d 195, 198 , 760 P.2d 324 (1988); Mark v. Seattle Times, 96 Wn.2d 473, 486 , 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982).
Restatement (Second) of Torts § 581A (1977); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts 841-42 (5th ed. 1984); see also Margoles, at 202.
Mark , at 494; Orr v. Argus-Press Co., 586 F.2d 1108, 1112-13 (6th Cir. 1978), cert. denied, 440 U.S. 960 (1979).
Mark , at 494; Orr , at 1112-13; Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1296 (D.C. Cir.), cert. denied, 109 S. Ct. 75 (1988).
See Mark, at 496; W. Keeton, at 842.
The other defendant in this case is KING Broadcasting Company, d/b/a KING-TV Channel 5. For convenience, I will refer to Mr. McGaffin as the sole defendant.
See W. Keeton, at 782; Lavin v. New York News, Inc., 757 F.2d 1416 (3d Cir. 1985); Reeves v. American Broadcasting Cos., 580 F. Supp. 84 (S.D.N.Y), aff'd, 719 F.2d 602 (2d Cir. 1983).
Majority opinion, at 774.
The plaintiffs herein are Don and Patricia Herron, husband and wife. For convenience, I refer to Mr. Herron as the sole plaintiff.
Majority opinion, at 772.
Answer to Motion for Reconsideration, at 3.
Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1073 (5th Cir. 1987).
Herron , at 515.
Herron, 109 Wn.2d at 533 (Andersen, J., dissenting.)
Herron, 109 Wn.2d at 533 (Andersen, J., dissenting).
Herron, 109 Wn.2d at 533 (Andersen, J., dissenting).
Herron, 109 Wn.2d at 533 (Andersen, J., dissenting).
Herron v. Tribune Pub'g Co., 108 Wn.2d 162, 169-70 , 736 P.2d 249 (1987); see also Margoles v. Hubbart, 111 Wn.2d 195, 199 , 760 P.2d 324 (1988). Accord, Rye v. Seattle Times Co., 37 Wn. App. 45 , 678 P.2d 1282 , review denied, 102 Wn.2d 1004 , cert. denied, 469 U.S. 1087 (1984).
Margoles , at 200; Herron v. Tribune Pub'g Co., supra at 170.
Margoles , at 200, quoting St. Amant v. Thompson, 390 U.S. 727, 731 , 20 L. Ed. 2d 262 , 88 S. Ct. 1323 (1968).
Tavoulareas v. Piro, 817 F.2d 762, 789 (D.C. Cir.), cert. denied, 108 S. Ct. 200 (1987); see also Margoles, at 200; Liberty Lobby, at 1293.
Majority opinion, at 776.
Deposition of Ronald Hendry, at 9.
Majority opinion, at 776.
Deposition of Douglas McBroom, at 21.
Majority opinion, at 776.
Deposition of Don McGaffin, at 41.
Majority opinion, at 775.
Majority opinion, at 777.
Kuhn v. Tribune-Republican Pub'g Co., 637 P.2d 315, 317 (Colo. 1981).
See Time, Inc. v. Pape, 401 U.S. 279, 292 , 28 L. Ed. 2d 45 , 91 S. Ct. 633 , reh'g denied, 401 U.S. 1015 (1971); Herron v. Tribune Pub'g Co., 108 Wn.2d 162, 171 , 736 P.2d 249 (1987); Robertson v. McCloskey, 666 F. Supp. 241, 250 (D.D.C. 1987); LaBruzzo v. Associated Press, 353 F. Supp. 979, 985 (W.D. Mo. 1973).
Green v. Northern Pub'g Co., 655 P.2d 736, 742 , 38 A.L.R.4th 817 (Alaska 1982), cert. denied, 463 U.S. 1208 (1983).
Majority opinion, at 779.
Herron, 108 Wn.2d at 170 .
Margoles v. Hubbart, 111 Wn.2d 195, 206 , 760 P.2d 324 (1988).
See Margoles, at 207, citing Tavoulareas, at 795. See also Herron v. Tribune Pub'g Co., at 170; Robertson v. McCloskey, 666 F. Supp. 241, 251 (D.D.C. 1987).
Margoles , at 207; Tavoulareas , at 795; Robertson , at 251.
St. Amant v. Thompson, 390 U.S. 727, 732 , 20 L. Ed. 2d 262 , 88 S. Ct. 1323 (1968); see also Tavoulareas v. Piro, 817 F.2d 762, 790 (D.C. Cir.), cert. denied, 108 S. Ct. 200 (1987); Robertson , at 252.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9545798. Public record. Not legal advice.