Berkey v. Delia

Eldridge, J.,

dissenting:

The majority decision in this case upholds, in my opinion, a serious intrusion upon First Amendment rights. It warns all persons who might be inclined to complain about government officials that they do so at their peril in this State. Today’s decision, subjecting a critic of police conduct to a full trial and possible heavy damages, even though no evidence of actual malice was adduced, clearly may have a chilling effect upon free speech.

The right of public officials to recover damages in defamation actions brought against critics of their official conduct has been severely limited by the Supreme Court in a series of decisions beginning with New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S. Ct. 710 , 11 L. Ed. 2d 686 (1964). The constitutional standard established by the First Amendment requires the official to prove that the allegedly defamatory statement for which he seeks recovery was made with " 'actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-280 , 84 S. Ct. at 726 .

"Actual malice” cannot be established merely by showing that the publisher acted negligently, Garrison v. Louisiana, 379 U.S. 64, 79 , 85 S. Ct. 209, 218 , 13 L. Ed. 2d 125 (1964), or failed to undertake the investigation which would have been made by a reasonably prudent person, St. Amant v. Thompson, 390 U.S. 727, 731 , 88 S. Ct. 1323, 1325 , 20 L. Ed. 2d 262 (1968). Nor can the public official recover because his attacker is motivated by ill-will or even hatred, Garrison v. Louisiana, supra, 379 U.S. at 73-74 , 85 S. Ct. at 215 , or *334 because the speaker had a desire to injure the official, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82 , 88 S. Ct. 197, 198 , 19 L. Ed. 2d 248 (1967). Rather, as a condition precedent to recovery the official must show not only that the questioned statements were false, but that they were published with a "high degree of awareness of their probable falsity.” Garrison v. Louisiana, supra, 379 U.S. at 74 , 85 S. Ct. at 216 . "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, supra, 390 U.S. at 731 , 88 S. Ct. at 1325 . (Emphasis added.)

The "subjective awareness of probable falsity,” Gertz v. Robert Welch, Inc., 418 U.S. 323 , 334 n. 6, 94 S. Ct. 2997, 3004 , 41 L. Ed. 2d 789 (1974), which is required to demonstrate the existence of "actual malice,” may be established "only on clear and convincing proof.” 418 U.S. at 342 , 94 S. Ct. at 3008 . The "constitutional standard demands” proof which has "convincing clarity.” New York Times Co. v. Sullivan, supra, 376 U.S. at 285-286 , 84 S. Ct. at 729 . The Court set forth these standards

"against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” (Id. at 270, 84 S. Ct. at 721 .)

In the instant case, the plaintiff is a police officer. As such he is a public official, and a defamation action brought by him against a citizen-critic is governed by the standards of New York Times Co. v. Sullivan. This is not disputed in this case. Moreover, as noted by the Illinois Supreme Court, even though a patrol officer is not in a policy-making position, his duties are peculiarly public. "The abuse of a patrolman’s office can have great potentiality for social harm; hence, public discussion and public criticism directed towards the performance of that office cannot constitutionally be *335 inhibited by threat of prosecution under State libel laws.” Coursey v. Greater Niles Township Publishing Corp., 40 Ill. 2d 257 , 239 N.E.2d 837, 841 (1968). See also, e.g., St. Amant v. Thompson, supra, 390 U.S. at 728-730 , 88 S. Ct. at 1324-1325 (deputy sheriff); Henry v. Collins, 380 U.S. 356 , 85 S. Ct. 992 , 13 L. Ed. 2d 892 (1965) (town police chief); Meiners v. Moriarity, 563 F.2d 343 (7th Cir. 1977) (federal drug agents); Jackson v. Filliben, 281 A.2d 604 (Del. 1971) (police sergeant); Rawlins v. Hutchinson Publishing Co., 218 Kan. 295 , 543 P.2d 988 (1975) (former police officer); Hirman v. Rogers, 257 N.W.2d 563 (Minn. 1977) (two police officers and deputy sheriff); N.A.A.C.P. v. Moody, 350 So. 2d 1365 (Miss. 1977) (highway patrolman); Malerba v. Newsday, 64 A.D.2d 623 , 406 N.Y.S. 2d 552 (1978) (police patrolman).

Consequently, the pertinent issue is not whether Dr. Berkey may have acted unprofessionally, or may have been motivated by ill-will, or may have been attempting to injure Officer Delia. Instead, the issue is whether Dr. Berkey knew that his statements were false or acted with reckless disregard for their truth. Furthermore Officer Delia must prove that this standard was met by clear and convincing evidence. Finally, as the majority opinion acknowledges, it was incumbent upon Officer Delia, in order to overcome the defendant’s motion for summary judgment, to present sufficient evidence from which a trier of fact could find or infer, applying the "clear and convincing” test, that Dr. Berkey was aware of the falsity of his statements or uttered them with reckless disregard of whether they were false or not.

There is in this case utterly no evidence of knowing falsity or reckless disregard for the truth. If the facts and justified inferences from them in this case constitute a sufficient basis to defeat summary judgment, permit the case to go to the jury and support a jury verdict against Dr. Berkey, then the standard of New York Times Co. v. Sullivan becomes almost meaningless.

The majority purports to find some evidence that Dr. *336 Berkey knew of the falsity of his statements by a most tortured reasoning process. It begins with a false premise and then draws some highly dubious conclusions. After setting forth Berkey’s and Delia’s versions of the incident, the majority states that a direct conflict exists between the two versions. The supposed conflict, apparently, is between Berkey’s allegations that the high powered lights were in his wife’s and son’s eyes and that the light was "blinding,” and Delia’s statement that the police car was behind Berkey’s vehicle. However, this is not necessarily a conflict. Berkey at no time suggested that the police car was any place other than behind his car. And Delia’s statement itself acknowledges that Berkey viewed the light as "blinding” at the time, for he said that "Dr. Berkey told me to put out the lights on my car because they were blinding him.... After he had the book he asked me several questions about the candle power of the lights.” It is clear from both versions that, at the time the incident occurred, Berkey considered the lights to be "blinding.” Because the members of this Court, who are evidently experts concerning light reflection, now view such evaluation of the light as too extreme, because of the position of the police car, does not create a conflict between the two versions of the incident. 1 Actually, upon analysis, the two versions of the highway incident are remarkably consistent. There is no real conflict between the basic facts recounted. Rather, the difference is in the evaluation of those facts. Consequently, in finding evidence of knowing falsity or reckless disregard for the truth, the majority starts with the false premise that "a direct conflict” in the two versions of the incident is shown.

From the premise that there is a conflict between the versions of the incident, the majority goes on to draw some extraordinary conclusions. It is first said: "When two people describe the basic fact of reflection of light in the conflicting manner we have here, it is obvious that a jury might find clearly and convincingly that one of them must have known that he was speaking falsely.” After stating that either *337 Berkey or Delia was not "speaking truthfully,” the majority then concludes that if "Berkey spoke a calculated untruth in giving his version of the incident, .. . then a trier of fact could conclude that Berkey spoke with reckless disregard for the truth when he used the adjectives which he did to characterize Delia’s behavior on this occasion.”

Even if I agreed with the majority that there is a real conflict between the versions of the incident, these two conclusions are absurd. It is amazing to me that judges and former practicing attorneys would say that merely because two individuals give conflicting versions of an incident, it follows that one knew that he was speaking falsely. Nothing is better known to members of the legal profession than the fact that different participants or eyewitnesses to an incident may, with all honesty and sincerity, give conflicting accounts of what happened. It is common knowledge that individuals perceive things differently. Under the majority’s reasoning, whenever conflicting eyewitness testimony is given at a trial, it may be concluded that one of the witnesses must have committed perjury.

The final conclusion drawn by the majority is similarly invalid. The majority states that if Dr. Berkey told an untruth about one matter, i.e., the "blinding light,” it follows that he spoke with reckless disregard for the truth when he used certain adjectives to characterize Delia’s behavior. While evidence that a witness told an untruth may be considered for purpose of impeaching his credibility, it certainly does not furnish a plaintiff with affirmative "clear and convincing” evidence of the witness’s reckless disregard for the truth with respect to a different utterance.

In the instant case, there simply was no evidence that Dr. Berkey knew of the falsity of his statements concerning Officer Delia, regardless of how one analyzes or views those statements, and there certainly is no evidence that Berkey spoke a deliberate or calculated untruth. The majority has constructed extremely tenuous inferences upon Berkey’s alleged false statements. However, actual malice may not be inferred solely from the fact that a false factual statement *338 was made, New York Times Co. v. Sullivan, supra, 376 U.S. at 284-286 ; Colombo v. Times-Argus Ass’n, Inc., 135 Vt. 454 , 380 A.2d 80 (1977). It is apparent that the inferences drawn by the majority from the alleged falsehoods are too weak to satisfy the "clear and convincing proof’ requirement of New York Times. After giving full consideration to Delia’s allegations and the statements of Dr. Crowley included in the majority opinion, Delia at best has shown only that Berkey was motivated by ill-will and spite or had acted negligently and unprofessionally in attempting to evaluate Delia’s personality upon an inadequate factual basis and without further investigation. This is insufficient to meet the test of New York Times Co. v. Sullivan.

Furthermore, a case like the present one is particularly inappropriate for a relaxation of the stringent standards set forth in New York Times Co. v. Sullivan. This is not a case where an outside observer of government action disseminates to the public allegedly false statements of fact concerning a public official. Instead, in the present case, an outraged target of official government action, using strong language of his own profession, in effect set forth his opinion concerning that action in a complaint to the government and a request for an investigation. 2 Dr. Berkey was arrested by Officer Delia; he obviously entertained the opinion that the officer mistreated him during that arrest; and he made the *339 allegedly defamatory statements in connection with a request for an investigation by the officer’s superiors. Certainly, a citizen has a First Amendment right to complain about a public official to that official’s superior in government, to raise questions about the official, to request an investigation by the governmental agency involved, and to speak frankly when questioned by a government investigator conducting the investigation. A case like the present one may well implicate the "redress of grievances” clause of the First Amendment along with the "freedom of speech” clause.

In somewhat similar circumstances, the Supreme Judicial Court of Maine held in Michaud v. Inhab. of Town of Livermore Falls, 381 A.2d 1110 (Me. 1978), that a judgment notwithstanding the verdict should have been granted by the trial court. The plaintiff, a state employee, had alleged that he was defamed by a letter written to the governor complaining of plaintiffs conduct at a public town meeting relating to efforts to consolidate transportation programs. The defendant’s letter to the governor generally stated that he had been insulted, looked down upon and treated with contempt at the meeting by the plaintiff, and that the plaintiff was arrogant and a pseudo-intellectual bureaucrat. At trial, the plaintiff and several witnesses on his behalf testified that the plaintiffs statements and conduct at the meeting had not been as alleged in the letter. The defendant, however, contradicted the plaintiffs version of the incident. After stating that the testimony presented by the plaintiff was sufficient, if believed by the jury, to establish that the accusations in the letter were false, the court held that the evidence was insufficient to support the jury verdict for the plaintiff because it did not prove with convincing clarity that the defendant had written the letter with reckless disregard of the falsity of his statements. The court reasoned ( 381 A.2d at 1115-1116 ):

"None of the plaintiffs witnesses, including the plaintiff himself, testified either directly to Boutilier’s state of mind or to facts sufficient to enable the jury to infer 'knowledge or reckless *340 disregard.’ In fact, the testimony of the plaintiffs own witnesses establishes the probability that the meeting led to high emotions and resulted in widely varying perceptions and interpretations of the participants’ conduct, depending upon each viewer’s degree and position of involvement. On this record there is no evidence, and certainly none of convincing clarity, that the Boutilier letter, although possibly biased and exaggerated, was not an honest communication relating the author’s own interpretation of the plaintiffs conduct.

"Although to some extent Boutilier’s mental state might be inferred from the fact of falsehood (assuming the plaintiffs evidence was believed by the jury) and from any 'ill-will’ of the defendant toward Michaud, those inferences, standing alone, do not satisfy proof of convincing clarity. It patently is difficult to infer 'reckless disregard’ from a jury’s finding of falsity here, in view of the close balance between the conflicting testimony on that issue; . . . and the nature of Boutilier’s complaint against Michaud related to Boutilier’s adverse view of the latter’s capability for his State job, a matter of gubernatorial concern, and not to the specifics of transportation in the three-county area. On such shaky inferences a jury would not be justified in finding that Boutilier made the statements 'with the high degree of awareness of their probable falsity’ constitutionally required under the Supreme Court’s decisions.” (Emphasis supplied.)

See also Cline v. Brown, 24 N.C. App. 209 , 210 S.E.2d 446 , cert. denied, 286 N.C. 412 , 211 S.E.2d 793 (1975) (holding that summary judgment for the defendant should have been granted in libel action; the caution inherent in the use of the word "may” in statements that police officer "may have a personal grudge” and "may have conspired” to kill a person demonstrate absence of reckless disregard for whether statements were false).

*341 In the present case, for the plaintiff to present sufficient evidence of actual malice to create a jury issue, it is not enough for him to show that Dr. Berkey’s opinions and questions were unwarranted, or that they were uttered in the language of Dr. Berkey’s profession, or that a careful psychiatrist would not have made such statements without having made a professional evaluation, or that Dr. Berkey’s evaluation of the conditions during the traffic arrest may have been exaggerated. Actual malice, as defined in the New York Times Co. case, cannot properly be inferred from any of these circumstances. Instead, the plaintiff was required to adduce clear and convincing evidence that Dr. Berkey, the outraged recipient of a traffic summons, in the course of complaining to the traffic officer’s superiors and requesting an investigation, knew that his statements were false or spoke with reckless disregard of their truth or falsity. The plaintiff presented no evidence, much less "clear and convincing evidence,” of such knowledge.

It is common knowledge that many members of the public, when charged with an offense by a traffic officer, often feel that they have been singled out for unjust treatment. It is not unusual for them to use strong language. Many of these persons in all sincerity do ascribe improper motives to the officer, and believe that the officer should be reported to or investigated by his superiors. While most such beliefs may be unwarranted, a few may have some basis in fact. It is neither sound constitutional law nor sound public policy for courts to discourage these complaints by ordering full trials and allowing recoveries in defamation actions like the present one. The complaints that are justified may well be discouraged along with those that are not.

I am not unsympathetic with a public official, like Officer Delia, who may have been the object of verbal abuse simply for carrying out his duties. I, along with many others, have served as a public employee in various capacities and have also been the recipient of verbal attacks and less than flattering descriptions. No one likes to hear, or have his family and friends hear, such allegations. However, they "come with the job.” If one wants to be a public servant in a *342 free society, he must develop a thick skin. If the First Amendment means anything, it means that a citizen has a right to criticize, even unjustifiably, the conduct of those operating the government. If the government itself can decide which criticisms it will tolerate and which it will not, by its courts freely allowing government officials to bring defamation actions against citizens expressing grievances, then an essential aspect of our freedom is impaired.

Judge Cole has authorized me to state that he concurs with the views expressed herein.

. In fact, Delia stated in a deposition that he had "occasionally” had complaints about the lights from other persons that he had stopped.

. Statements of opinion, rather than of fact, are treated differently for First Amendment purposes. Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 , 94 S. Ct. 2997, 3007 , 41 L. Ed. 2d 789 (1974) ("Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”).

See Letter Carriers v. Austin, 418 U.S. 264, 284 , 94 S. Ct. 2770, 2781 , 41 L. Ed. 2d 745 (1974) ("... use of words like 'traitor’ cannot be construed as representations of fact. As the Court said long before ..., 'to use loose language or undefined slogans that are part of the conventional give-and-take in our economic and political controversies — like "unfair” or "fascist” — is not to falsify facts.’ Cafeteria Employees Local 302 v. Angelos, 320 U.S. 293, 295 , 64 S. Ct. 126, 127 , 88 L. Ed. 58 (1943).”).

See also Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 14 , 90 S. Ct. 1537, 1542 , 26 L. Ed. 2d 6 (1970), reversing this Court, 253 Md. 324 , 252 A.2d 755 , and holding that use of the word "blackmail” under the circumstances was "no more than rhetorical hyperbole, a vigorous epithet used by those who consider ... [the plaintiffs] position extremely unreasonable.”