# Doubleday & Co., Inc. v. Rogers

> Texas Supreme Court · July 11, 1984 · 27 Tex. Sup. Ct. J. 494

URL: https://www.frixlaw.com/law-library/cases/9775768

## Case

- **Full name:** DOUBLEDAY & COMPANY, INC. Et Al., Petitioners, v. Dr. N. Jay ROGERS, Respondent
- **Court:** Texas Supreme Court
- **Decided:** July 11, 1984
- **Citations:** 27 Tex. Sup. Ct. J. 494; 674 S.W.2d 751; 10 Media L. Rep. (BNA) 2173; 1984 Tex. LEXIS 383
- **Precedential status:** Published
- **Opinion:** Dissent by Ray
- **Judges:** Barrow, Kilgarlin, Ray
- **Cited by:** 99 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/9775768

## How later opinions describe it (automated extraction)

- stating “[t]he Texas cases are unanimous in holding that recovery of actual damages is prerequisite to receipt of exemplary damages.”
- holding that proof a prudent person would not have published or would have first investigated is insufficient
- holding reckless conduct not measured by whether a reasonably prudent person would have investigated before publishing

## Opinion text

RAY, Justice,
dissenting.
I dissent. I believe there is sufficient evidence in the record for this Court to affirm the jury finding of actual malice on the part of Doubleday. 1 Moreover, I would follow the great weight of American authority and hold that in cases of libel per se, where actual damages are conclusively presumed as a matter of law, exemplary damages may be awarded even in the absence of a jury award of actual damages.
ACTUAL MALICE
The New York Times “actual malice” standard is deceptively simple: knowing falsity or reckless disregard of the truth or falsity of the defamatory statement. New York Times v. Sullivan, 376 U.S. 254, 280 , 84 S.Ct. 710, 726 , 11 L.Ed.2d 686 (1964). “Reckless disregard” means that the publisher “in fact entertained serious doubts as to the truth of his publication,” St. Amant v. Thompson, 390 U.S. 727, 731 , 88 S.Ct. 1323, 1325 , 20 L.Ed.2d 262 (1968), or had a “subjective awareness of probable falsity." Gertz v. Robert Welch, Inc., 418 U.S. 323 , 335 n.6, 94 S.Ct. 2997 , 3004 n.6, 41 L.Ed.2d 789 (1974). Although a publisher does not have an absolute duty to investigate, St. Amant v. Thompson, 390 U.S. at 733 , 88 S.Ct. at 1326 , a publisher cannot feign ignorance or profess good faith when there are clear indications present which bring into question the truth or falsity of defamatory statements. A publisher cannot
automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, ... when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. (Emphasis added.)
St. Amant v. Thompson, 390 U.S. 727, 732 , 88 S.Ct. 1323, 1326 , 20 L.Ed.2d 262 (1968). See also, Herbert v. Lando, 441 U.S. 153, 156 , 99 S.Ct. 1635, 1638 , 60 L.Ed.2d 115 *758 (1979) (subjective awareness of probable falsity can be found from “obvious reasons” to doubt accuracy of reports).
The evidence in this case should be, in my view, sufficient evidence from which the jury could infer actual malice on the part of Doubleday. Indeed, it is scarcely conceivable, even in this age, that a responsible publisher or author could believe in good faith that a person would be placed on a regulatory board by a nationally-prominent governor to enforce a statute under which he had been indicted three times. The evidence in the record shows that Doubleday’s attorney, Robert M. Callagy, was aware of the libelous nature of much of Harvey Katz’ manuscript. In an internal memo to a Doubleday business manager, Callagy wrote:
[Tjhis manuscript contains substantial problems in the area of libel .... The statements that Sol Rogers had been indicted three times for practicing without a license and had been appointed to the State Optometry Board should be sub-stantiated_ On this point, the substantiation which is recommended throughout this letter is of prime importance.
The evidence shows that, despite this awareness of possible libel, Doubleday failed to make even a perfunctory investigation of the truth or falsity of the assertions in the footnote. Doubleday did not demand that Katz produce an indictment against Dr. Rogers; it did not demand that Katz produce a copy of the House Journal upon which he relied (which, in any case, conflicted with the assertions in the footnote); nor did it bother to contact Dr. Rogers by telephone.
No purpose whatsoever is achieved by granting a constitutional shield to such conduct. The First Amendment is not so fragile that it requires us to immunize this kind of reckless, destructive attack on a person’s — even a public official’s — reputation. The First Amendment is not a shelter for the character assassinator. As Justice Fortas noted in St. Amant v. Thompson, 390 U.S. 727 , 88 S.Ct. 1323 , 20 L.Ed.2d 262 (1968):
The First Amendment does not require that we license shotgun attacks on public officials in virtually unlimited open season. The occupation of public officeholder does not forfeit one’s membership in the human race. The public official should be subject to severe scrutiny and to free and open criticism. But if he is needlessly, heedlessly, falsely accused of crime, he should have a remedy in law. New York Times does not preclude this minimal standard of civilized living.
Id. at 734 , 88 S.Ct. at 1327 .
While it is generally true that a publisher is not under an absolute duty to investigate, I believe that the law should not countenance an inherently improbable statement that a public official had been indicted when there was not even a perfunctory effort at verification. “Freedom of the press under the First Amendment does not include absolute license to destroy lives or careers.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 170 , 87 S.Ct. 1975, 1999 , 18 L.Ed.2d 1094 (1967) (Warren, C.J., concurring).
EXEMPLARY DAMAGES
Justice Powell stated in Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974) that the tort of defamation, of which libel is a subeategory, is unlike other torts:
The common law of defamation is an oddity in tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel the existence of injury is presumed from the fact of publication.
Id. at 349 , 94 S.Ct. at 3011 . The salient point here is that in libel per se cases, actual damages are presumed by law. 2 *759 This has long been the rule in Texas and apparently throughout the United States. See First State Bank of Corpus Christi v. Ake, 606 S.W.2d 696 (Tex.Civ.App.—Corpus Christi 1980, writ ref'd n.r.e.); Bayoud v. Sigler, 555 S.W.2d 913 (Tex.Civ.App.—Beaumont 1977, writ dism’d w.o.j.). This presumption of actual damages in a libel per se case is conclusive as a matter of law. Galveston Tribune v. Johnson, 141 S.W. 302 (Tex.Civ.App.—Galveston 1911, writ ref’d). Accord Mid-America Food Service v. ARA Service, Inc., 578 F.2d 691 (8th Cir.1978) (applying Kansas law); Greenmoss Builders, Inc. v. Dun & Bradstreet, 143 Vt. 66 , 461 A.2d 414 (1983); see generally, Harper & James, Torts § 5.9 at 373 (1956).
My research reveals that, of the jurisdictions that have ruled on the question, the great majority have reached the conclusion that when the libel complained of is actionable per se, exemplary damages may be awarded even though actual damages are neither found nor shown, for in such a case the requirement of showing actual damages as a basis for awarding exemplary damages is satisfied by the presumption of injury which arises in a libel per se case. 3 The court in Mid-America Food Service v. ARA Services, Inc., 578 F.2d 691 (8th Cir.1978), explained that the very nature of defamation per se cases compelled it to reach this conclusion because
otherwise it would be difficult to fit the presumed damage aspect of defamation per se into the general framework of punitive damages in tort law. In most tort actions the jury determines both whether there have been actual damages, and if so, how much money is sufficient to compensate for the injury. These findings are reflected in the jury's award of actual damages. However, ... where defamation per se is implicated, the jury’s function is, in effect, bifurcated and a part thereof assigned to the court. Assuming the jury finds that slanderous statements were made, the question of whether plaintiff has been damaged is resolved as a matter of law by the court if the statements are defamatory per se. The injury results from the fact that the statements were made. It is for the jury to determine only the compensatory amount. It follows that where, by awarding punitive damages, the jury has found a defendant to have made statements deemed defamatory per se, the jury’s failure at the same time to award actual damages should not annul the award of punitive damages. Otherwise the conclusive presumption of damages arising from the jury’s finding that the defendant made the statement is stillborn.
Id. at 699 .
I agree with the reasoning of that court on this matter. To disallow punitive damages in defamation per se cases just because actual damages are not awarded would render meaningless the long-established Texas rule that in such cases actual *760 damages are conclusively presumed as a matter of law.
There is a further reason why punitive damages should be allowed in these cases. The main reason for punitive damages in actions for libel is to deter false, malicious, and provocative attacks upon a person’s reputation. Punitive damages are intended to act as a deterrent upon the libelor so that he will not repeat the offense, and to serve as a warning to others. They are a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine. Punitive damages are thus allowed on the ground of public policy and not because the plaintiff has suffered any monetary damages for which he is entitled to reimbursement; the award goes to him simply because it is assessed in his particular suit.
The need for such a deterrent is at least as great where the person libeled cannot show actual financial loss because of the false statement as where some measurable damage is provable by the plaintiff. To disallow punitive damages just because plaintiff cannot show financial loss “would mean that a defamer gains a measure of immunity no matter how venomous or malicious his attack simply because of the excellent reputation of the defamed; it would mean that the defamer, motivated by actual malice, becomes the beneficiary of that unassailable reputation and so escapes punishment.” Reynolds v. Pegler, 123 F.Supp. 36, 38 (S.D.N.Y. 1954), aff'd, 223 F.2d 429 (2d Cir. 1955), cert. denied, 350 U.S. 846 , 76 S.Ct. 80 , 100 L.Ed. 754 (1955). Accord, Loftsgaarden v. Reiling, 267 Minn. 181 , 126 N.W.2d 154 (1964), cert. denied, 379 U.S. 845 , 85 S.Ct. 31 , 13 L.Ed.2d 50 (1964); Toomey v. Farley, 2 N.Y.2d 71 , 156 N.Y.S.2d 840 , 138 N.E.2d 221 (1956); Kent v. City of Buffalo, 61 Misc.2d 142 , 304 N.Y.S.2d 949 (Sup.Ct.Erie County 1969), rev’d on other grounds, 29 N.Y.2d 818 , 327 N.Y.S.2d 653 , 277 N.E.2d 669 (1971).
Doubleday argues that punitive damages may not be allowed here because of the established Texas rule that punitive damages must bear a reasonable relationship to the amount of actual damages awarded. It argues in effect that “zero” multiplied by any number is still “zero.” While it is true there is such a “reasonable relation rule” in this state, it is also true that this Court has never held that it acts to bar punitive damages in a defamation per se case such as we have before us. Given the unique nature of defamation per se cases, where actual damages are presumed by law, I believe there is simply no occasion to seek any particular relation between the actual damages and the punitive damages. However, the reasoning actually underlying the reasonable relation rule — i.e., the notion that punitive damages must not be exces sive — does apply to defamation per se cases, as it does to all cases. 4
I believe there is sufficient evidence in the record from which the jury could infer actual malice on the part of Doubleday and would therefore hold Doubleday accountable for its tortious conduct. Harvey Katz has not appealed the jury finding of actual malice against him, and thus that jury finding is binding as to him.
I would hold Doubleday and Katz accountable in exemplary damages to Dr.' Rogers, because I am convinced that in libel per se cases exemplary damages may be awarded even in the .absence of an award of actual damages. It is my belief that we should adopt the majority rule recognized by the other states which allows the recovery of exemplary damages in a libel per se case even though actual damages are neither found nor shown.
In these times of accountability, we hold others responsible for their mistakes, carelessness and malpractice. Publishers have an awesome duty to search for and find the truth. It is their highest calling. To do less is to be mediocre. None should be guilty of doing less than his best when the cause of free speech is so great to the freedom of this nation. To sacrifice truth for expediency is to abandon the responsi *761 bility which is impliedly required by the First Amendment to the United States Constitution.
I respectfully dissent.
. The author, Harvey Katz, has not appealed the jury finding of actual malice against him.
. Elements of actual damages which the law presumes from the publication of libelous per se statements include injury to reputation, humiliation, and mental anguish. West Texas Utilities Co. v. Wills, 164 S.W.2d 405, 412 (Tex.Civ.App.— *759 Austin 1942, no writ); Dorsaneo, Texas Litigation Guide §§ 333.04, 333.51 (1982).
However, under the Supreme Court’s ruling in Gertz , presumed damages and/or punitive damages may be recovered against a media defendant only if "actual malice", is proved; i.e., defendant must be shown to have had knowledge of the falsity of the libelous statement or to have had reckless disregard for its veracity. This rule applies to all plaintiffs. See Carson v. Allied News Co., 529 F.2d 206 (7th Cir.1976).
. See, e.g., Mid-America Food Service v. ARA Services, Inc., 578 F.2d 691 (8th Cir.1978) (applying Kansas law); Porterfield v. Burger King Corp., 540 F.2d 398 (8th Cir.1976) (applying Missouri law); Johnson Publishing Co. v. Davis, 271 Ala. 474 , 124 So.2d 441 (1960). Contento v. Mitchell, 28 Cal.App.3d 356 , 104 Cal.Rptr. 591 (1972); Lundquist v. Alewine, 397 So.2d 1148 (Fla.App.1981); Tunnell v. Edwardsville Intelligencer, Inc., 99 Ill.App.2d 1 , 241 N.E.2d 28 (1968); Internat’l Brotherhood of Elec. Workers Local 1805, Etc. v. Mayo, 281 Md. 475 , 379 A.2d 1223 (1977); National Recruiters, Inc. v. Cashman, 323 N.W.2d 736 (Minn.1982); Kent v. City of Buffalo, 61 Misc.2d 142 , 304 N.Y.S.2d 949 (Sup.Ct. Erie County 1969), rev’d on other grounds, 29 N.Y.2d 818 , 327 N.Y.S.2d 653 , 277 N.E.2d 669 (1971); Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132 (1976); See generally, 50 Am.Jur.2d, Libel and Slander § 352 at 873 (1970 ed. and 1983 supp.); Annot., 17 A.L.R.2d 545 .
. See Comment, Required Ratio of Actual to Exemplary Damages, 25 Baylor L.Rev. 127, 134 (1973); Dobbs, Remedies 211 (1973); Prosser, Torts 14 (4th ed. 1971).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775768. Public record. Not legal advice.