Phillips v. Evening Star Newspaper Co.

FERREN, Associate Judge,

dissenting:

This appeal presents a substantial question about the libel law of the District of Columbia; what standard of liability — actual malice or negligence — should the courts apply when a “private figure” involved in a matter of “public or general concern” brings a damage action for defamation against a media defendant? Unlike my colleagues, I would adopt the actual malice standard set forth in New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). I would therefore hold that a private individual may recover damages for defamation by a publisher, editor, reporter, or broadcaster only if the plaintiff proves by clear and convincing evidence that the media defendant published the defamatory falsehood with knowledge that it was false or with reckless disregard as to whether or not it was false. 1

*91 I.

In New York Times Co., supra, the Supreme Court held that “a public official [may not recover] damages for a defamatory falsehood relating to his official conduct unless he proves [with ‘convincing clarity’] that the statement was made with ‘actual malice’ — that is, with the knowledge that it was false or with reckless disregard of whether it was false or not.” Id. 376 U.S. at 279-80, 285-86 , 84 S.Ct. at 725-26, 728-29 . Rosenbloom v. Metromedia, Inc., 403 U.S. 29 , 91 S.Ct. 1811 , 29 L.Ed.2d 296 (1971) (plurality opinion), extended New York Times to require all “private” defamation plaintiffs, not just “public” figures, to prove that a media defendant had proceeded with “actual malice” in publishing a matter of “public or general concern.” Id. at 44 , 91 S.Ct. at 1820 . Rosenbloom , however, continued to permit a private plaintiff to hold the media strictly liable (as at common law) for defamatory publication of less newsworthy material. See id.

In Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974), the Court rejected this sharp distinction between publications that do, and do not, reach a level of “public or general concern.” That line is typically too hard to draw, the Court said, stressing the “difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of ‘general or public interest’ and which do not .... ” Id. at 346 , 94 S.Ct. at 3010 . In short, after Gertz , the degree of newsworthiness of a reported item was no longer to determine whether the media was substantially protected, or unprotected, against defamation suits by “private” individuals — a conclusion with which I wholeheartedly agree.

Perceiving the issue from a different angle, the Court in Gertz concluded that any difference in the degree of protection of the media should turn on another distinction highlighted by New York Times and Rosen-bloom: whether plaintiffs are “public figures,” who in fairness can be deemed to “have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them,” id. at 345 , 94 S.Ct. at 3009 , or instead are “private individuals,” who cannot be said to have assumed the risk of such exposure and thus deserve greater protection from the courts. See id. Accordingly, the Court in Gertz , while retaining the “actual malice” standard for “public figure” cases, see id. at 342-43 , 94 S.Ct. at 3008 , withdrew from the media the protection of that standard — so recently accorded in Rosenbloom — in cases brought by “private individuals.” See id. at 347, 94 S.Ct. at 3010 . The Court did so irrespective of how newsworthy a story might be — indeed, on the assumption that the story about the private individual is newsworthy by any test. See id. at 346 , 94 S.Ct. at 3010 . At the same time, the Gertz Court rejected “liability without fault” in any case against the media, id. at 347 , 94 S.Ct. at 3010 , thus attempting to remove altogether the questionable distinction in Rosenbloom between defamatory publication of matters that have “public interest” and those that do not. See id. at 346, 94 S.Ct. at 3010 .

In receding from Rosenbloom , the Court in Gertz did not impose a standard. Instead, it invited the states, “so long as they do not impose liability without fault,” to “define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347 , 94 S.Ct. at 3010 (footnote omitted). 2 Most *92 commonly, this process has resulted in a choice between “actual malice” and “negligence.” I turn to that inquiry.

II.

As the Gertz majority recognized, newsworthiness — whether a matter is, or is not, of general or public concern — is not a proper criterion for judges to use in developing and applying a libel standard. See Gertz, supra 418 U.S. at 346 , 94 S.Ct. at 3010 . The press, not the judges, are the ones to decide what is newsworthy. This is what the First Amendment is all about.

Once a reported item is thus deemed newsworthy, I cannot accept the compromise, inherent in Gertz , that some reporting is to be more vulnerable to legal attack simply because private individuals, rather than public figures, are involved. For three reasons, I believe that, even in “private figure” cases, “the negligence standard gives insufficient breathing space to First Amendment values.” Rosenbloom, supra, 403 U.S. at 52 , 91 S.Ct. at 1824 .

In the first place, the public-private figure distinction is as inherently difficult to manage as the Gertz Court found the Ro-senbloom distinction between matters that are — and are not — of public or general concern. 3 As Justice Brennan has noted:

Voluntarily or not, we are all “public” men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. [Citations and footnote omitted.] Thus, the idea that certain “public” figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of “public figures” that are not in the area of public or general concern. Id. at 48, 91 S.Ct. at 1824 . 4

*93 See Anderson, Libel and Press Self-Censorship 53 Tex.L.Rev. 422, 480 (1975).

Second, I fear that even if the press can make the public-private figure distinction in most cases, our adoption of the negligence standard for the latter category of admittedly newsworthy news will force the media toward a degree of self-censorship that our society can ill afford. See Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 99-100 , 538 P.2d 450, 458 (en banc), cert. denied, 423 U.S. 1025 , 96 S.Ct. 469 , 46 L.Ed.2d 399 (1975); AAFCO Heating & Air Conditioning Co. v. Northwest Publications, Inc., 162 Ind.App. 671, 683-685 , 321 N.E.2d 580,588-90 (1974), cert. denied, 424 U.S. 913 , 96 S.Ct. 1112 , 47 L.Ed.2d 318 (1976); Anderson, supra at 425-52. The uncertainties inherent in a standard premised on “reasonable care” (in contrast with “reckless disregard”) will “charge the press with ‘the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.’ ” AAFCO, supra, 162 Ind.App. at 683 , 321 N.E.2d at 588 (quoting Time, Inc. v. Hill, 385 U.S. 374, 389 , 87 S.Ct. 534, 542 , 17 L.Ed.2d 456 (1967). 5 Such guessing will be complicated, moreover, because the negligence standard will likely carry with it a relatively light burden of proof, i.e., a preponderance of the evidence, in contrast with the actual malice standard of clear and convincing evidence. See Gertz, supra, 418 U.S. at 366 , 94 S.Ct. at 3020 (Brennan, J., dissenting); 3 Restatement (Second) of Torts § 580B, Comment j (1977). But see Anderson, supra at 458, 467. It is unlikely that the court itself will be able to afford much protection against erroneous, even vindictive verdicts; 6 the negligence standard, in this context, will deter the award of summary judgment. See Anderson, supra at 456-58, 469. 7 Accordingly, I am convinced that the negligence standard will disserve the public interest more, by fostering excessive self-censorship, than the actual malice standard would disserve it by creating a higher hurdle for defamed private individuals. See Walker, supra 188 Colo, at 99-100, 538 P.2d at 458 . 8

*94 Finally, I am influenced by the unique position of this jurisdiction, our nation’s capítol and a media center of the world. 9 These characteristics distinguish the District of Columbia from the states which, after Gertz , have adopted a negligence standard for the media in private-figure libel cases. 10

It is true that Phillips is merely a local citizen, involved in an event of local interest reported by two large metropolitan newspapers. The standard we adopt today, however, will apply with equal force to private plaintiffs injected into national or world affairs. It will also apply to newspaper and broadcasting companies headquartered elsewhere in the country but with offices in the District of Columbia. I therefore worry that adoption of a negligence standard not only will deter complete reporting about matters of national and international importance generated in Washington, D.C., but also may force smaller or financially vulnerable companies to reconsider the advisability of maintaining offices here, given the costs of defending a libel suit. 11

I respectfully dissent.

. Accordingly, I would reverse the judgment and award of nominal damages ($1.00) in favor of John Phillips; his evidence fails to meet the New York Times actual malice standard. 1 thus concur in the majority’s affirmance of the trial court’s order granting the Star’s motion for summary judgment as to the claim for presumed (or punitive) damages. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 , 94 S.Ct. 2997, 3011 , 41 L.Ed.2d 789 (1974). I do not reach the narrower, common law privilege questions.

. Since the 1964 Supreme Court decision in New York Times Co., supra, it has been clear that Chaloner v. Washington Post Co., 36 App. D.C. 231 (1911), no longer could reflect the law of the District of Columbia insofar as Chaloner imposed strict liability on the press for libel. Compare id. at 233 with New York Times Co., supra 376 U.S. at 279-80 , 84 S.Ct. at 725-26 . I do not share Judge Revercomb’s conclusion that, by virtue of Chaloner , the District retains a policy of “utmost protection” of defamed private-figure plaintiffs. Ante at 87. I believe that the Gertz invitation to the states (presumably including the District of Columbia), building upon substantial Supreme Court development of the law of defamation over the last decade and a half, has wiped our slate clean. It is interesting to note, therefore, that *92 in adopting Judge Revercomb’s opinion here, my colleagues in the majority basically endorse his reliance on stare decisis; they do not advance reasons why they prefer the negligence standard, as the Supreme Court in Gertz invited them to do. Ante at 80, 87.

I disagree, moreover, with my colleagues’ assertion that the Supreme Court and the United States Court of Appeals for the District of Columbia Circuit “at least implicitly — and arguably explicitly — endorse Judge Revercomb’s opinion in this case,” ante at 80, in Wolston v. Reader’s Digest Ass'n, Inc., 188 U.S.App. D.C. 185, 193 n.3, 578 F.2d 427 , 435 n.3 (1978), rev’d, 443 U.S. 157 , 160 n.2, 99 S.Ct. 2701 , 2704 n.2, 61 L.Ed.2d 450 (1979). Those courts merely conclude that Judge Revercomb’s opinion, given its thoroughness, was the most likely reflection of District of Columbia law (absent a definitive ruling at the time by this court). See id.

Finally, I do not understand my colleagues’ puzzlement .at my advancement of Justice Brennan’s arguments from Rosenbloom in favor of an actual malice standard. Ante at 80. Their very quotation from Gertz, ante at 81, makes clear that the Supreme Court, in withdrawing the Rosenbloom mandate of an actual malice standard, has left it to each state (and presumably to this court) to adopt whatever standard it sees fit short of strict liability.

. Waidbaum v. Fairchild Pubs., Inc., 201 U.S. App.D.C. 301, 627 F.2d 1287 (1980) demonstrates the complexity inherent in making this distinction. That case reveals that the Gertz majority, in overruling Rosenbloom , created two subclassifications of public figures: (1) the individual who is a public figure for all purposes and (2) the more common, limited-purpose public figure, i.e., “ ‘an individual [who] voluntarily injects himself or is drawn into a particular public controversy and therefore [sic: thereby] becomes a public figure for a limited range of issues.’ ” 201 U.S.App.D.C. at 306 , 627 F.2d at 1292 (quoting Gertz, supra, 418 U.S. at 351 , 94 S.Ct. at 3012 ).

. As indicated at the outset of Part II, I do not find “newsworthiness” to be a proper criterion for developing a libel standard applicable to the media. Thus, while I agree with Justice Brennan’s criticism of the public-private figure distinction, I would not limit the actual malice standard to matters of “public or general concern.” Because, however, the allegedly defamatory news item in this case undoubtedly concerned a matter of public interest, a decision here adopting the actual malice standard need not provide for its application beyond matters of “public or general concern,” as in Rosen-bloom.

. The Gertz limitation of a private individual’s recovery to actual damages will do little to alleviate the uncertainties inherent in a negligence standard. “The Gertz Court’s broad definition of ‘actual’ injury,” including “ ‘impairment of reputation and standing in the community,’ as well as ‘personal humiliation, and mental anguish and suffering,’ ” will not “materially reduce the risk of capricious jury verdicts [ ] or ... deter a jury from punishing the publisher of unpopular ideas.” AAFCO, supra at 684, 321 N.E.2d at 589 (quoting Gertz, supra, 418 U.S. at 350 , 94 S.Ct. at 3012 ).

. As the Rosenbloom plurality observed:

In the normal civil suit where this standard is employed, “we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor.” In re Winship, 397 U.S. 358, 371 [ 90 S.Ct. 1068, 1076 , 25 L.Ed.2d 368 ] (1970) (HARLAN, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement — the three-quarter-million-dollar jury verdict in this case could rest on such an error — but the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate. [Rosenbloom, supra, 403 U.S. at 50 , 91 S.Ct. at 1823 .]

. According to Professor Anderson:

Some courts will deny summary judgment on the ground that a negligence standard requires the kind of factual determination that has always been regarded as peculiarly within the competence of juries. But uncertainty concerning the definition of negligence represents the most important obstacle to summary procedure under Gertz . Whether it will be defined with the particularity that characterizes recklessness under Times remains to be seen, but unless the courts describe the negligence standard with some precision, the purposes of the Gertz privilege will be defeated just as surely as those of the Times privilege would have been if the Court had left the determination of reckless disregard to the unquestioned judgment of juries. [Id. at 457 (footnote omitted).]

See also Nader v. de Toledano, D.C.App., 408 A.2d 31, 41-44 (1979), cert. denied, 444 U.S. 1078 , 100 S.Ct. 1028 , 62 L.Ed.2d 761 (1980).

. Although the New York Times standard presents a substantial evidentiary hurdle for private plaintiffs in defamation suits, it can be met. See, e.g., Walker, supra 188 Colo, at 100-01, 538 P.2d at 458-59 ; Anderson, supra at 430, 435-38 (collecting cases). See also Her *94 bert v. Lando, 441 U.S. 153 , 99 S.Ct. 1635 , 60 L.Ed.2d 115 (1979).

. At least one commentator who favors the negligence standard in defamation suits involving private individuals concedes that “a different result may be mandated in some states by circumstances that attack special significance to either of the competing interests that are being balanced.” 29 Vand.L.Rev. 1431, 1445 (1976).

. See Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 315 , 560 P.2d 1216, 1222 (1977) (en banc); Corbett v. Register Publishing Co., 33 Conn.Supp. 4, 12-13 , 356 A.2d 472, 477 (Super.Ct.1975); Cahill v. Hawaiian Paradise Park Corp., 56 Haw. 522, 536 , 543 P.2d 1356, 1366 (1975); Troman v. Wood, 62 Ill.2d 184, 198 , 340 N.E.2d 292, 299 (1976); Gobin v. Globe Publishing Co., 216 Kan. 223, 232 , 531 P.2d 76, 84 (1975); Stone v. Essex County Newspapers, Inc., 367 Mass. 849,857-859 , 330 N.E.2d 161, 168 (1975); Thomas H. Maloney & Sons, Inc. v. E. W. Scripps Co., 43 Ohio App.2d 105, 109-110 , 334 N.E.2d 494, 498 (1974), cert. denied, 423 U.S. 883 , 96 S.Ct. 151 , 46 L.Ed.2d 111 (1975); Martin v. Griffin Television, Inc., 549 P.2d 85, 92 (Okla.1976); Memphis Publishing Co. v. Nichols, 569 S.W.2d 412, 417-18 (Tenn.1978); Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex. 1976), cert. denied, 429 U.S. 1123 , 97 S.Ct. 1160 , 51 L.Ed.2d 573 (1977); Taskett v. KING Broadcasting Co., 86 Wash.2d 439, 447 , 546 P.2d 81, 85 (1976) (en banc); Restatement, supra § 580B(c); cf. Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199 , 341 N.E.2d 569, 571 , 379 N.Y.S.2d 61, 64 (1975) (gross irresponsibility). But see Walker, supra 188 Colo, at 98-99, 538 P.2d at 547 (actual malice); AAFCO, supra at —, 321 N.E.2d at 586 (same). See also Marchesi v. Franchino, 283 Md. 131 , 387 A.2d 1129 (1978); Jacron Sales Co. v. Sindrof, 276 Md. 580 , 350 A.2d 688 (1976).

. Cf. Rose v. Silver, D.C.App., 394 A.2d 1368, 1373-74 (1978) (acknowledging First Amendment issue concerning reach of District of Columbia long-arm statute), rehearing en banc denied, 398 A.2d 787 (1979).